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. During 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/she so pleased.
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 an 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.
