American Flag T-Shirt Case Appealed to U.S. Supreme Court

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Public school students prevented from wearing t-shirts depicting the American flag have appealed to the so-called “Court of Last Resort” – the United States Supreme Court.

In asking the court to hear their case in Dariano v. Morgan Hill Unified School District, the students argue that “there is never a legitimate basis for banning the display of an American flag on an American public school campus.”

In a highly publicized controversy, school officials at Live Oak High School in Morgan Hill, California, prohibited the students from wearing the t-shirts on May 5, 2010, on a day when the school recognized Cinco de Mayo, a Mexican holiday.  School officials said they feared the t-shirts would offend other students and lead to violence at school.

Both a federal district court in California and the 9th U.S. Circuit Court of Appeals sided with school officials, saying that school officials could have reasonably forecast that the wearing of these t-shirts would cause a substantial disruption of school activities within the meaning of the Supreme Court’s famous student-speech standard from Tinker v. Des Moines Independent School District.

However, 9th Circuit Judge Diurmund O’Scannlain, in a fiery dissent, accused his judicial colleagues in the majority of “open[ing] the door to the suppression of any viewpoint opposed by a vocal and violent group of students.”

In their petition, the American flag-wearing students and their parents contend that the wearing of the t-shirts was passive, peaceful political speech – the type of speech most deserving of free-speech protection.  They urge the Supreme Court to take the case to preserve freedom of speech in the public schools.

David L. Hudson, Jr., is First Amendment Ombudsman for the Newseum Institute’s First Amendment Center.

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