I’m not even going to pretend that I understand this one. The case of Dariano v. Morgan Hill Unified School District made it all the way to the Supreme Court and was turned away. Left standing was a lower court ruling which said that the California school was justified in sending several students home in 2010 when they refused to remove shirts displaying the American flag during a celebration of Cinco de Mayo. So I guess that’s that.
The court declined to hear an appeal filed by three students at Live Oak High School in the town of Morgan Hill, south of San Francisco. School staff at the May 5, 2010, event told several students their clothing could cause an incident. Two chose to leave for home after refusing to turn their shirts inside out.
The school had been experiencing gang-related tensions and racially charged altercations between white and Hispanic students at the time. School officials said they feared the imposition of American patriotic imagery by some students at an event where other students were celebrating their pride in their Mexican heritage would incite fights between the two groups.
The students’ case was being argued on the basis of free speech, but that seems like it should have been a secondary concern to begin with. By definition these cases have greater possible limits because you’re dealing with students (minors) and adults have to exercise some judgement in establishing boundaries. The free speech aspect can obviously be tempered when it comes to things like obscenity and deliberate provocation. That’s already some dangerous territory because it’s been used to ban things like shirts with confederate flags. In general, though, the courts have given schools some significant leeway in establishing dress codes and allowing them to ban clothing which is deemed to be vulgar, obscene or disruptive to the educational environment.
But even then, the courts seem to have been careful to protect legitimate freedom of speech claims. The problem I have with the Dariano decision is that showing support for the United States on the school grounds of an institution in the United States shouldn’t even be a free speech issue, as the students argued. How is that controversial in any way, shape or form? This is uncomfortably close to cases where the recitation of the pledge of allegiance in schools (optional for those who object and choose to observe a moment of silence) has been challenged and courts have even considered allowing a ban of the practice.
In the end, the ruling in this case seemed to rely not on the free speech question being raised by the families of the students, but on the school safety issue being raised by the administration. The fact that there had been racial unrest on campus between white and Hispanic students was deemed to be sufficient cause to ban the shirts so as to not offend the minority classmates who were celebrating Cinco de Mayo. If the school is under that much of a threat of violence then perhaps the issue shouldn’t have been what people were wearing, but why the school was unable to keep their kids under control and provide a safe environment for everyone on campus. Unfortunately the courts chose not to see it that way.