In a unanimous three-judge decision, the 9th U.S. Circuit Court of Appeals sided with the Morgan Hill Unified School District, which had argued that a history of problems on the holiday justified the Live Oak High School administrators' decision to take action against the flag-wearing students.
Live Oak officials ordered the students to either cover up the U.S. flag shirts or go home, citing a history of threats and campus strife between Latino and Anglo students that raised fears of violence on the day the school was highlighting the Mexican holiday. The school's actions were reasonable given the safety concerns, which outweighed the students' First Amendment claims, the court concluded.
"Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence," 9th Circuit Judge M. Margaret McKeown wrote for the panel. "(The past events) made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real."
Hooray for the Heckler’s Veto. Now all students need to do to suppress the free speech of others is to threaten to get violent. Eugene Volokh over at the Washington Post notes how a Supreme Court decision from 1969, Tinker v. Des Moines Indep. Comm. School Dist., gives schools clearance to censor on the basis of believing that an expression of free speech could cause violence or disruption at the school. Such was the case here, Volokh notes:
Yet even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.
And this is especially so because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?