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Thursday, May 6, 2010

School That Deemed American Flag Clothing 'Incendiary' on Shaky Legal Ground

Posted By on Thu, May 6, 2010 at 4:20 PM

Higher-ups at Live Oak High School may be caught with their pants down, legally
  • Higher-ups at Live Oak High School may be caught with their pants down, legally
Administrators at Morgan Hill's Live Oak High School who opted to send home students bedecked in American flag regalia on Cinco de Mayo likely ran afoul of the law, one of the nation's foremost constitutional scholars told SF Weekly.

School officials contended that the five students' premeditated decision to dress head to toe in flag apparel was a provocation on a day of Mexican pride and could have sparked a brawl. That assertion is weak, claims Erwin Chemerinsky, the dean of U.C. Irvine's School of Law and a frequent counsel on behalf of the American Civil Liberties Union.

"Generally, there can't be content-based restrictions," said the left-leaning professor. "You can't say students can wear clothing that indicates support for Mexico but not the U.S. That's like saying it's fine to wear a button supporting Barack Obama but not one supporting John McCain."

Even if the students' choice of clothing was meant to be an incendiary statement, Chemerinsky still thinks the school violated their First Amendment rights. "Speech that seeks to be provacative is protected by the First Amendment. You wouldn't want the First Amendment to only protect bland speech." 

click to enlarge Erwin Chemerinsky
  • Erwin Chemerinsky
If Live Oak administrators could show the five boys' shirts posed "a substantial risk" of sparking an actual disruption, then its actions would be justified. "But mere conjecture that it might be disruptive is not enough. ... The burden is on the school."

Chemerinsky likened the Morgan Hill flag incident to the most famous school apparel free speech case: Tinker V. Des Moines Independent Community School District, the only such case decided by the Supreme Court. In that 1969 precedent-setter, students wearing black armbands -- that, like the American flag shirts were deemed "incendiary" -- won a 7-2 decision to express their freedom of speech via a symbol. "The school let students wear other symbols -- crosses, Stars of David, jewelry. You can't say 'This symbol is allowed and other symbols aren't," explained the professor.

A more recent Supreme Court case limiting students' free speech rights on campus -- the memorably named "Bong Hits 4 Jesus Case" -- doesn't apply in this instance, argued Chemerinsky.

In that 2007 case, a 6-3 majority felt that an Alaska school was within its rights to punish Joseph Frederick for unfurling the aforementioned banner because "it was reasonable for [the principal] to conclude that the banner

promoted illegal drug use -- and that failing to act would send a

powerful message to the students in her charge," as Chief Justice John Roberts wrote in the court's decision.

No such underlying motivation applies here, notes Chemerinsky. In the end, it's all very simple: "You've got to treat everyone the same."

Photo of Erwin Chemerinsky   |   RPogge

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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