Supreme Court declines to hear First Amendment challenge over school’s American flag clothing ban



The U.S. Supreme Court will not hear a First Amendment suit arguing administrators at a California high school violated students’ free speech rights when they banned clothes that featured the American flag on Cinco de Mayo.

A petition to the nation’s highest court followed a February 2014 ruling from three judges on the Ninth Circuit U.S. Court of Appeals in California, who found Live Oak High School officials did not violate the First Amendment when they ordered students to remove American flag T-shirts during a Cinco de Mayo celebration in 2010.

School officials cited safety concerns when they asked five students to remove the shirts or turn them inside out, pointing to a verbal spat after students waved an American flag and chanted “U-S-A” during the school’s Cinco de Mayo festivities in 2009.

“This is a tremendous blow to the free speech of students everywhere,” Erin Mersino, a Thomas More Law Center attorney, said in a news release on Monday. “The Court, by not taking the case, has enabled the voice of bullies to trump the voice of students who simply wish to express passive, peaceful speech.”

The Thomas More Law Center represented three Live Oak High School students who argued the ban violated their First Amendment rights.

In its ruling, the Ninth Circuit cited the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, which permits schools to restrict students’ speech if it could cause a “material and substantial” disruption at school. Previous incidents of racial tension at the school, the judges ruled, “made it reasonable for schools to proceed as though the threat of a potentially violent disturbance was real.”

In a friend-of-the-court brief to the Supreme Court, however, John and Mary Beth Tinker, plaintiffs in the landmark student speech case, said the Ninth Circuit judges got it wrong, arguing that schools shouldn’t be allowed to ban provocative speech because people who disagree might try to silence the speaker with violence.

“There is nothing unusual about speech leading to a risk of hostility or even violence,” according to the brief. “Speech on the most important matters facing America routinely involves some risk of such a reaction.”

The Supreme Court’s refusal to hear the case does not necessarily mean it agrees with the outcome, but it leaves the Ninth Circuit ruling, Dariano v. Morgan Hill Unified School District, as binding precedent for the nine states covered by the California-based circuit.

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