About a week ago, I walked into class reading an article about
the 9th Circuit Court of Appeals' unanimous decision to uphold a
high school's policy barring students from wearing American flag
clothing on Cinco de Mayo. The largest court of appeals in the
United States ruled that such a ban did not violate its students'
constitutional right to the freedom of expression, due process, or
equal protection under the law because it was intended to quell
possible racial tensions.
But, this decision should not have been particularly surprising.
The 9th Circuit Court of Appeals is not only the
most liberal circuit court in the country, but it also has a rich
history of being the most reversed by the Supreme Court. One term
in the mid-1990s, the circuit court saw 27 of its 28 decisions
reversed or vacated by the high court.
As my class was about to begin, a classmate walked in wearing a
red Soviet Union CCCP t-shirt complete with the hammer and sickle.
The dichotomy could not have been clearer.
The United States government had literally just upheld a ban on
clothing containing our country's own flag; yet a student was
perfectly free to sport the flag of the Soviet Union-a dictatorial
regime that was synonymous with brutal oppression, devoid of
individual liberty, and responsible for the death of over 23
MILLION people-whenever and wherever he so pleased (regardless of
the escalating tensions between Russia and the former Soviet
Republic of Ukraine).
I asked him if he planned to sport a Swastika armband, an Iraqi
National Progressive Front hat, or a Rwandan Interahamwe hoodie to
our next class. He was speechless.
This ban is characteristic of a larger trend of censorship in
schools dating back to the 1969 Supreme Court decision in
Tinker v. Des Moines Independent Community School
District. This landmark decision allowed "schools to forbid
conduct that would 'materially and substantially interfere with the
requirements of appropriate discipline in the operation of the
school."' While there is a undeniable need for ensuring safe and
productive learning environments, school administrations have
invoked this ambiguous language to claim more and more
circumstances as interferences.
Fort Collins High School in Colorado blocked its student council
selected theme, 'Merica Monday, for a day during spirit week
because, according to a member of the council, "they didn't want to
offend anyone." The member continued, "I'm personally outraged at
the school that we can celebrate every other culture but our own.
We have activities that go on during Cinco de Mayo, but we can't
celebrate and honor our own country [where] we live."
Canyon High School in Anaheim Hills, California, refused to
allow a girl to enter because her National Rifle Association
t-shirt was said to encourage violence, while 14-year-old Jared
Marcum is facing a fine and up to a year in prison for refusing to
remove his National Rifle Association t-shirt at school.
Schools have even gone as far as to ban certain colors due to
their associations. One school in Yuba County, California banned
the colors 'red' and 'blue' because of their use by gangs, while an
elementary school in Frisco, Texas banned its students from wearing
the colors of red and green during the winter holiday season.
Tinker also says, "It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate." In fact,
Justice Fortas, who delivered the majority opinion, deemed it
significant to make that clarification first. He continued,
"undifferentiated fear or apprehension of disturbance is not enough
to overcome the right to freedom of expression…School officials do
not possess absolute authority over their students. Students in
school, as well as out of school, are "persons" under our
Constitution." Perhaps the judicial and school systems should be
reminded of these equally important lines the next time they motion
to ban the American flag.
Robert Lucido is the President of the Conservative Club at