# Ninth Circuit sides with school in banning American flag on Cinco de Mayo. **URL:** \ **Category:** Great Debates\ **Created:** [February 28, 2014, 1:37pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512 "2014-02-28T13:37:58Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 1:37pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/1 "2014-02-28T13:37:58Z")
[Link.](http://www.mercurynews.com/crime-courts/ci_25240543/american-flag-removal-order-justified-u-s-court) I understand that the school has leeway in protecting the students, but in upholding this they are legitimizing the potential violence that might arise from kids wearing t-shirts with the American flag on them. The school is allowing themselves to be blackmailed by a group of students who threaten violence. What if a gang in a school threatened violence if a students wore a certain color on a particular day, would the school then be justified in sending home all kids that wore that color shirt to school? This is both asinine and cowardly. If violence is a problem at a school, send home the kids who threaten the violence, not the kids who are expressing their first amendment rights. And this over something as benign as wearing a representation of the country’s flag to school. This episode reads like an article from _The Onion_. The school officials have their heads up their asses. And the 3-judge panel of the Ninth Circuit just joined them. A question for the lawyers here, what do you think the odds are that the full panel of judges will agree with this? And how about the Supreme Court? I can’t see ho the threat of violence can trump the first amendment. Thoughts? ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [February 28, 2014, 1:59pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/2 "2014-02-28T13:59:58Z")
> [@magellan01](#): > > I can’t see ho[w] the threat of violence can trump the first amendment. In the case of student apparel, schools seem to have very broad authority to restrict students to avoid disruption, let alone violence. I tend to be very eye-rolley about that authority, but the ruling doesn’t surprise me. I am going to have to forward this one to the folks I know who are actually from Mexico, as they are flabbergasted by CdM celebrations here. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [February 28, 2014, 2:01pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/3 "2014-02-28T14:01:55Z")
Here is a potentially relevant case: > **[Guiles v. Marineau](https://en.wikipedia.org/wiki/Guiles_v._Marineau)** > > In Guiles v. Marineau, 461 F.3d 320 (2d. Cir. 2006), cert. denied by 127 S.Ct. 3054 (2007), the U.S. Court of Appeals for the Second Circuit held that the First and Fourteenth Amendments to the Constitution of the United States protect the right of a student in the public schools to wear a shirt insulting the President of the United States and depicting images relating to drugs and alcohol. > The First Amendment to the Constitution of the United States prohibits Congress, among other things, from ... “In Guiles v. Marineau, 461 F.3d 320 (2d. Cir. 2006), cert. denied by 127 S.Ct. 3054 (2007), the U.S. Court of Appeals for the Second Circuit held that the First and Fourteenth Amendments to the Constitution of the United States protect the right of a student in the public schools to wear a shirt insulting the President of the United States and depicting images relating to drugs and alcohol.” ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [February 28, 2014, 2:03pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/4 "2014-02-28T14:03:29Z")
Sounds pretty stupid, but I don’t know if the court is condoning the school’s actions – they’re just saying that it’s not in violation of the law, and that schools apparently have pretty broad powers to restrict certain forms of speech on campus. The school should probably outlaw wearing flags in general (or institute a uniform, which is probably an even better idea) if they want to outlaw one flag to prevent violence, but the court may be right about the legal aspect. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 28, 2014, 2:06pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/5 "2014-02-28T14:06:15Z")
Thank you for the inaccurate and inflammatory title. As far as I know they did not order that the U.S. flag be lowered on that day, did they? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 28, 2014, 2:13pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/6 "2014-02-28T14:13:08Z")
Stupid, stupid, stupid. What do you think these teenagers are going to do? Of course they will find some other way to wear something similar to, but not identical to, the US Flag. I can’t see this holding up to a 1st amendment challenge at the SCOTUS. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 28, 2014, 2:24pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/7 "2014-02-28T14:24:32Z")
> [@](#): > > If violence is a problem at a school, send home the kids who threaten the violence, not the kids who are expressing their first amendment rights. Stop making sense. Interesting principle to establish - if I don’t like what you say, all I need to do is target you, and the authorities will shut you down. “Oh, you want to wear a T-shirt with a rainbow flag on it? Someone might beat you up if you do that. So we will outlaw your T-shirt.” Is someone sexually harassing you? Your T-shirt is too tight, so go change it. Etc. Regards, Shodan ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 28, 2014, 3:01pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/8 "2014-02-28T15:01:04Z")
> [@iiandyiiii](#): > > Sounds pretty stupid, but I don’t know if the court is condoning the school’s actions – they’re just saying that it’s not in violation of the law, and that schools apparently have pretty broad powers to restrict certain forms of speech on campus. Yep. Courts really love to give schools vast power over people required to attend. It’s always troubled me, but I guess this isn’t quite as bad as trying to punish kids for things they do while away form School. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 3:06pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/9 "2014-02-28T15:06:24Z")
> [@Czarcasm](#): > > Thank you for the inaccurate and inflammatory title. As far as I know they did not order that the U.S. flag be lowered on that day, did they? Hmmm. If only the title was followed up by an explanation. And maybe even a link so people could get the full story. In other words, :rolleyes: \* \*The old roll-eyes was much better. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 28, 2014, 3:13pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/10 "2014-02-28T15:13:29Z")
> [@magellan01](#): > > A question for the lawyers here, what do you think the odds are that the full panel of judges will agree with this? And how about the Supreme Court? I can’t see ho the threat of violence can trump the first amendment. Thoughts? I think the Supreme Court already agreed, when they decided _Tinker v. Des Moines Independent Community School District_. This decision follows the rule enunciated in that decision: that schools can forbid conduct that would “…materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” It’s unfortunate, because this is a classic example of a [heckler’s veto.](http://en.wikipedia.org/wiki/Heckler's_veto) But in the context of school operations, the Supreme Court has already placed the First Amendment below the need of the school to ensure safety and education free of disruption. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 28, 2014, 3:28pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/11 "2014-02-28T15:28:38Z")
> [@magellan01](#): > > Hmmm. If only the title was followed up by an explanation. And maybe even a link so people could get the full story. > > In other words, :rolleyes: \* In other words, inserting the word “shirts” wouldn’t have been half as inflammatory, but it might have come closer to what the thread was really about. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 3:41pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/12 "2014-02-28T15:41:22Z")
> [@Bricker](#): > > I think the Supreme Court already agreed, when they decided _Tinker v. Des Moines Independent Community School District_. This decision follows the rule enunciated in that decision: that schools can forbid conduct that would “…materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” > > It’s unfortunate, because this is a classic example of a [heckler’s veto.](http://en.wikipedia.org/wiki/Heckler's_veto) But in the context of school operations, the Supreme Court has already placed the First Amendment below the need of the school to ensure safety and education free of disruption. Thanks for the term “Heckler’s Veto”. I was unaware of it. As far as Tinker, I’m confused. Didn’t SCOTUS side with Tinker and the other students and find that the students’ First Amendment rights were, indeed, violated? This link is in line with the others I checked: > [@](#): > > \*\*Question \*\* > Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students’ freedom of speech protections guaranteed by the First Amendment? > > Conclusion > Decision: 7 votes for Tinker, 2 vote(s) against > > Legal provision: Amendment 1: Speech, Press, and Assembly > > Yes. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school. In this case, the school district’s actions evidently stemmed from a fear of possible disruption rather than any actual interference. > > In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority’s opinion relies on a distinction between communication through words and communication through action. > > Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted from the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students. In his separate dissent, Justice John M. Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can be proven to stem from a motivation other than a legitimate school interest. What am I missing? ---
**Author:** ![ThisUsernameIsForbidden](https://avatars.discourse-cdn.com/v4/letter/t/b4bc9f/32.png) [@ThisUsernameIsForbidden](https://boards.straightdope.com/u/ThisUsernameIsForbidden)\ **Post date:** [February 28, 2014, 3:45pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/13 "2014-02-28T15:45:38Z")
Well, if the parents and kids have any cajones (sp?) they will wear them anyway. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 28, 2014, 3:46pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/14 "2014-02-28T15:46:23Z")
> [@Czarcasm](#): > > In other words, inserting the word “shirts” wouldn’t have been half as inflammatory, but it might have come closer to what the thread was really about. And bandanas and jackets and sneakers and socks and hats and belts and shoelaces? Please. Now, if—IF—you were generally oh-so-confused by the thread title, your confusion was straightened out two seconds after you clicked on it. But if you think I believe for one nanosecond that you were genuinely oh-so-confused by it, you’d be very wrong about that. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 28, 2014, 3:51pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/15 "2014-02-28T15:51:22Z")
Students trolling, school administration being stupid. Sounds like they all need a good punch in the tits. To me, this is the ultimate in absurd results, but I’d make the kids wear uniforms anyway. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 28, 2014, 3:52pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/16 "2014-02-28T15:52:19Z")
> [@magellan01](#): > > And bandanas and jackets and sneakers and socks and hats and belts and shoelaces? Please. > > Now, if—IF—you were generally oh-so-confused by the thread title, your confusion was straightened out two seconds after you clicked on it. But if you think I believe for one nanosecond that you were genuinely oh-so-confused by it, you’d be very wrong about that. I never said I was confused about the thread title-in fact, I knew immediately that it was inaccurate and inflammatory because I had already read the story. It’s not my “confusion” that needed straightening out, but nice try on trying to shift the focus on me. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [February 28, 2014, 3:56pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/17 "2014-02-28T15:56:04Z")
People should keep in mind that the school did have a history of problems with white students deliberately trying to get the goats of Mexican-American students through the use of American flag imagery. [http://m.sfgate.com/bayarea/article/Court-Bay-Area-school-rightfully-banned-flag-5274857.php](http://m.sfgate.com/bayarea/article/Court-Bay-Area-school-rightfully-banned-flag-5274857.php) Just a year before this case they nearly had some fights when on Cinqo De Mayo a group of Anglos had made a point of holding up an American flag and chanting “USA” “USA” at several Mexican-American students. Now, the claim in light of the school’s history that the students(one of whom is theoretically part Hispanic) who came to the school on Cinqo De Mayo of all days wearing those T-shirts were doing this merely to “show their patriotism” rather than trying to yank the chains of Mexican-American students is simply not credible. Obviously, this was a questionable call on the part of the school, but they do have an interest in preventing xenophobic punks from trying provoke other students and preventing fights. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [February 28, 2014, 3:59pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/18 "2014-02-28T15:59:08Z")
I suggest the OP not bother with the diversion about the thread title, since no one else in the thread cares and we are having an interesting discussion. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 28, 2014, 4:06pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/19 "2014-02-28T16:06:54Z")
> [@Ibn\_Warraq](#): > > People should keep in mind that the school did have a history of problems with white students deliberately trying to get the goats of Mexican-American students through the use of American flag imagery. > > [http://m.sfgate.com/bayarea/article/Court-Bay-Area-school-rightfully-banned-flag-5274857.php](http://m.sfgate.com/bayarea/article/Court-Bay-Area-school-rightfully-banned-flag-5274857.php) > > Just a year before this case they nearly had some fights when on Cinqo De Mayo a group of Anglos had made a point of holding up an American flag and chanting “USA” “USA” at several Mexican-American students. > > Now, the claim in light of the school’s history that the students(one of whom is theoretically part Hispanic) who came to the school on Cinqo De Mayo of all days wearing those T-shirts were doing this merely to “show their patriotism” rather than trying to yank the chains of Mexican-American students is simply not credible. > > Obviously, this was a questionable call on the part of the school, but they do have an interest in preventing xenophobic punks from trying provoke other students and preventing fights. This is the part that influenced that court, in my opinion. I noticed this quote from the OP’s link > [@](#): > > “This is the United States of America,” said Kendall Jones, whose son, Daniel Galli, was one of the Live Oak students sent home. “The idea that it’s offensive to wear patriotic clothing … regardless of what day it is, is unconscionable to me.” and I wonder how he would respond to being asked, “What about if the t-shirts were being worn _because_ of what day it is?” ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [February 28, 2014, 4:12pm UTC](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512/20 "2014-02-28T16:12:26Z")
> [@Ibn\_Warraq](#): > > People should keep in mind that the school did have a history of problems with white students deliberately trying to get the goats of Mexican-American students through the use of American flag imagery. > > [http://m.sfgate.com/bayarea/article/Court-Bay-Area-school-rightfully-banned-flag-5274857.php](http://m.sfgate.com/bayarea/article/Court-Bay-Area-school-rightfully-banned-flag-5274857.php) > > Just a year before this case they nearly had some fights when on Cinqo De Mayo a group of Anglos had made a point of holding up an American flag and chanting “USA” “USA” at several Mexican-American students. > > Now, the claim in light of the school’s history that the students(one of whom is theoretically part Hispanic) who came to the school on Cinqo De Mayo of all days wearing those T-shirts were doing this merely to “show their patriotism” rather than trying to yank the chains of Mexican-American students is simply not credible. > > Obviously, this was a questionable call on the part of the school, but they do have an interest in preventing xenophobic punks from trying provoke other students and preventing fights. But only the Anglo students were punished. From your link: > [@](#): > > exchanging threats and profanities with the Latino youths. So both sides were being assholes (or more accurately - high school aged boys). > [@](#): > > several Anglo students wore shirts that showed the U.S. flag, and three of them were confronted by other students in the morning. And here again the Anglo students were confronted, but they are the ones the have to change. That is why this is controversial. The school didn’t cancel the ceremony, didn’t make the Hispanic students calm down - they just ordered the students with the American flag to change. That is going to trigger a problem. I have followed this a little bit - it sounds to me like a bunch of kids on both sides deserved to be punished in some fashion for being idiots (or, once again, high school aged boys). It is the appearance of selective punishment of only one side that makes this a story, plus the addition of Old Glory. [Next page](https://boards.straightdope.com/t/ninth-circuit-sides-with-school-in-banning-american-flag-on-cinco-de-mayo/682512.md?page=2)