Dissing old glory.

• Author: Emord, Jonathan W.
• Position: WORDS & IMAGES

THE U.S. COURT OF APPEALS for the Ninth Circuit upheld a district court ruling earlier this year that denied a civil rights suit by high school students against the Morgan Hill Unified School District. Parents and students from the school objected when school administrators demanded that students remove clothing bearing images of the American flag during a school-sanctioned Cinco de Mayo celebration. The school allowed students to wear apparel containing images of the Mexican flag but not of the American flag. In a decision that defies logic and the First Amendment, the Ninth Circuit upheld the censorship and the school's discriminatory actions against the American flag-bearing students.

Live Oak High School, a part of the Morgan Hill Unified School District in Northern California, is a very rough place, suffering from a long history of racial violence. In the Dariano v. Morgan Hill case record, principal Nick Boden revealed that, on no fewer than 30 occasions, Caucasian and Hispanic students had violent run-ins at the school. The record reveals that certain Hispanic students objected to apparel containing images of the American flag and confronted the students who wore that apparel, stating, in one instance, "Why are you wearing that? Do you not like Mexicans?" School officials asked the students wearing American flag attire to turn their shirts inside out or go home with excused absences. While students wearing the American flag were given those instructions, those wearing the Mexican flag were not asked to remove those flag images or go home.

The Ninth Circuit held that Live Oak High School's need to maintain decorum trumped the rights of those who wished to express their love of America by wearing images of the flag. School officials testified before the district court that they would have asked students wearing the Mexican flag to remove it if they thought it elicited a negative reaction from other students, but the record does not include reference to a single instance in which a school official asked a student to remove an image of the Mexican flag.

Although First Amendment precedent on point does favor allowing school officials to prohibit speech disruptive of the school's educational mission, that same precedent requires, public schools--entities of the state--to tolerate all manner of expression that does not interfere with the educational mission.

The American flag has flown on school flagpoles as far back as the first state...