CRF Blog

The First Amendment in Schools: Turning T-shirts Inside Out

by Damon Huss

The Ninth Circuit Court of Appeals recently ruled that a California high school did not violate students’ First Amendment right to free expression by requiring them to turn their American flag T-shirts inside out during a Cinco de Mayo celebration on campus. In Dariano v. Morgan Hill Unified School District, the court held that school officials “did not act unconstitutionally.”

The facts of the case describe an incident on Cinco de Mayo 2010 at Live Oak High School in San Jose. When a small group of white students wore American flag T-shirts, an assistant principal was told by other students that this could stir “problems,” and he gave the white students a choice: Turn the T-shirts inside out or go home with an excused absence. Two students elected to go home. A few others were sent back to class when the principal, Nick Boden, determined that their shirts were more innocuous. None of the students received any discipline.

One year prior, on Cinco de Mayo 2009, these same school officials witnessed a heated exchange of threats and profanities between groups of white and Latino students, each displaying American and Mexican flags, respectively. The officials did not want a repeat of that incident in 2010, but the American-flag-wearing students and their parents sued the school district and officials for a First Amendment violation as well as due process and equal protection violations under the 14th Amendment.

The court analyzed the school’s actions under the standard of Tinker v. Des Moines (1969). In that case, students who wore black armbands to protest the Vietnam War had the right to do so because they did not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school….” In this case, however, the court found that the students’ expression was different:

Although Tinker guides our analysis, the facts of this case distinguish it sharply from Tinker, in which students’ “pure speech” was held to be constitutionally protected…. In contrast to Tinker, in which there was “no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone,” there was evidence of nascent and escalating violence at Live Oak.

For more information about the First Amendment in California’s public schools, visit the web site of the California Three Rs Project.

The California Three Rs Project is partly based on ideas in Finding Common Ground by Charles C. Haynes and Oliver Thomas, a First Amendment guide to religion and public education published by the First Amendment Center. This document outlines the Rights guaranteed by the First Amendment, and the Responsibility that citizens have to protect and defend the rights of all Americans (even those with whom they disagree), and the Respect that is necessary to maintain civil discourse about issues when people disagree because of deeply held beliefs.