On February 27th, the 9th Circuit handed down a surprising position, albeit from a 3 judge panel. Turn your American Flag shirts inside out or go home is justifiable in the name of student safety says the 9th Circuit.
It was Cinco de Mayo and several students wore shirts with American Flags printed on them to school. School administrators saw the American Flag t-shirts as a statement of potential violence and gave the students an ultimatum – turn ’em or take ’em home. The students refused and the school sent them home. Mercury News covered this story and it is far from over. The students attorney vows to take this case to the Supreme Court, which is where this case needs to go.
This case is an example of the tough decisions that school administrators need to make on a regular basis, but when it comes to Freedom of Speech, administrators should consider the following:
- Is student safety a concern based on the speech or expression?
- Is there a school rule that prohibits the speech or expression in question?
- Is there a political message ?
There are several cases that address student freedom of speech and expression on school campuses, probably the most famous Tinker v. Des Moines, 393 U.S. 503 (1969). which opined that “Students do not shed their constitutional rights at the schoolhouse gate.” However, this case was later modified by Bethel School District No. 403 v. Fraser which allowed schools to regulate non-political speech. And this is the case that I believe asks the most relevant question – is there a political message being sent. There is no doubt that speech which is used simply to harm others, “[S]hout[ing] ‘fire’ in a crowded theater.”, bears no protection under the Constitution, and non-political offensive speech in schools that violate school rules should not be tolerated either. But in this case, it appears that there was no rule banning American Flag shirts and students were trying to make a political statement.
Before making quick decisions regarding the freedom of speech, administrators should ask themselves the three questions above, then contact their general counsel. Sometimes taking no action is just as much of a statement as taking every action.
“I can’t fault the (9th Circuit) for this,” said Eugene Volokh, a UCLA law professor. “But, boy, this is a pretty sad commentary. Here we have a school saying it’s too dangerous for students to wear an American flag to an American school.”