WASHINGTON, D.C —The U.S. Supreme Court has refused to hear a case in which California public school students were prohibited from wearing American flag t-shirts to school, allegedly out of a fear that it might be disruptive. In refusing to hear the appeal without giving any reason for the decision, the Supreme Court lets stand a lower court ruling that upheld the ban out a concern for school safety. The Rutherford Institute had asked the Supreme Court to hear the case of Dariano v. Morgan Hill, in which several students were ordered by school officials to cover up their American flag t-shirts on May 5, 2010, allegedly because officials feared that it might offend other students who were celebrating the Mexican holiday Cinco de Mayo.
“When public school students can’t wear an American flag on a t-shirt because it might be disruptive, then free speech as we’ve known it is dead,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “If the Supreme Court continues down the road to political correctness, then eventually anything we say will be treated as threatening as a loaded gun and deemed just as dangerous.”
On May 5, 2010, three Live Oak High School students wore patriotic t-shirts, shorts and shoes to school bearing various images of the U.S. flag. During a mid-morning “brunch break,” the students were approached by Assistant Principal Miguel Rodriguez, who told the students they could not wear their pro-U.S.A. shirts and gave them the option of either removing their shirts or turning them inside out. The students refused, believing the options to be disrespectful to the flag. Rodriguez allegedly lectured the group about Cinco de Mayo, indicating that he had received complaints from some Hispanic students about the stars and stripes apparel, and again ordered that the clothing be covered up to prevent offending the Hispanic students on “their” day. Principal Nick Boden also met with the parents and students and affirmed Rodriguez’s order, allegedly because he did not want to offend students who were celebrating Cinco de Mayo.
Arguing that the decision by school officials constituted viewpoint discrimination against pro-U.S.A. expression, Rutherford Institute attorneys filed a First Amendment lawsuit on behalf of the students and their parents in district court. In November 2011, the district court ruled in favor of school officials, citing a concern for school safety. That ruling was affirmed by the Ninth Circuit Court of Appeals. Although the appeals court acknowledged that other students were permitted to wear Mexican flag colors and symbols, it ruled that school officials could forbid the American flag apparel out of concerns that it would cause disruption, even though no disruption had occurred. Three of the nine judges on the Ninth Circuit agreed with The Rutherford Institute that school officials violated long-standing Supreme Court precedent forbidding suppression of protected expression on the basis of a “heckler’s veto,” which occurs when the government restricts an individual’s right to free speech in order to maintain order. Affiliate attorney William J. Becker assisted The Rutherford Institute in its defense of the students.