The Unconstitutional American Flag?

The Unconstitutional American Flag?


On February 27, in Dariano v. Morgan Hill United School District, the Ninth Circuit Court of Appeals upheld a California school’s prohibition on wearing American flag-themed shirts on Cinco De Mayo. According to the Court’s opinion, the incident in question occurred on May 5, 2010 at Live Oak High School in Northern California. Live Oak apparently suffered recurrent clashes between Mexican and caucasian students, some of whom were gang affiliated. During 2009’s Cinco De Mayo celebration, a confrontation broke out between caucasian and Mexican students in which they exchanged threats as the caucasians brandished a makeshift American flag.

Thus, on Cinco De Mayo 2010, Live Oak’s assistant principal Miguel Rodriguez ordered students wearing American flag shirts to either turn them inside-out or to leave school premises as he “anticipated” a potential confrontation. Importantly, Rodriguez had no proof that the shirts were causing a disruption on that particular day. In fact, the “students had been on campus for over three hours and at least two classroom periods as well as homeroom” before being ordered to leave.

Because the school administration anticipated a confrontation arising from the flag shirts, the Ninth Circuit sided with the school’s decision, against petitioners, to require them the turn the shirts inside-out. The Ninth Circuit adopted the theory that the shirts materially disturbed classwork (the standard for regulating student speech under the landmark Tinker case) because Mexican gangs might “target” caucasian students for “possible recrimination.”

This standard for determining if speech is materially disruptive seems extremely suspect. The Ninth Circuit’s claim is effectively that because a group of hooligans might instigate a fight over a piece of clothing that might otherwise count as speech, then that clothing can constitutionally be banned.

Following this same reasoning, the Ninth Circuit denied the students’ equal protection claim. The students asserted that they had been treated unequally by being forced to invert their shirts while the Mexican students were allowed to wear Mexican flag shirts. The Ninth Circuit asserts that “the students offered no evidence ‘demonstrating that students wearing the Mexican flag were targeted for violence.’ The students offered no evidence that students [wearing Mexican flags] at a similar risk of danger were treated differently, and therefore no evidence of impermissible viewpoint discrimination.”

What the court is claiming is that because the caucasians did not threaten the Mexican students, the Mexicans were thus at a different risk level. Because they were at a different risk level, the situations were unequal and they were rightly allowed to wear their shirts. This line of reasoning seems a performance of legal gymnastics that, in effect, punishes the American flag-wearing students for not inciting violence against those wearing Mexican flags.

It seems that the Ninth Circuit has applied quite a faulty reading of the Tinker decision in order to reject petitioner’s case. What Tinker contends is that student speech can be regulated if it is shown that “disorder or disturbance [occurs] on the part of petitioners.” What it does not say is that if hooligans threaten to cause disorder, then petitioners’ speech becomes disorderly and unprotected. The appellate court has read Tinker backwards.

Extend the Ninth Circuit’s reasoning in this case to the original Tinker situation. What if Mary Beth Tinker’s black armband, protesting the Vietnam War, had elicited confrontational threats from pro-war fanatics? Would that mean that Tinker was not engaging in speech? Would the Supreme Court have to reverse its landmark ruling on student speech? Interestingly, Tinker’s petition was also ruled against in lower courts because of the (erroneous) “disturbance” argument against her speech. Dariano might follow a similar course.

Perhaps one can find an explanation for the Ninth Circuit’s controversial decision in its dubious history of reversals. Diarmuid O’Scannlain, a judge who himself sits on the Ninth Circuit Court, has stated that the Court has a “strikingly poor reversal rate” with the Supreme Court. During one term in the 1990s, the Court suffered a 96% reversal rate in the Supreme Court. From 2000 to 2009, it had an 81% reversal rate in the Supreme Court, which was 10% higher than the twelve other circuits’ combined reversal rates. Only fourteen of the Ninth Circuit’s cases reversed in the Supreme Court were by a narrow 5-4 vote, while an incredible 72 of the 148 cases were overruled unanimously. O’Scannlain concludes, “it is safe to say that reversing the Ninth Circuit is much more than just a matter of ideology.” Rather, he points to several cases where the majority on the Ninth Circuit simply misapplied or flatly misunderstood standards of review.

There are three possibilities for Dariano at this point. If they take the challenge to the Supreme Court, the justices may deny certiorari up front. If they grant certiorari, they may uphold the Ninth’s decision (though the statistics are not in the Ninth’s favor.) They may also reverse the decision and conclude that it was unconstitutional to force the students to turn their shirts inside out.

The justices, much wiser than this author, may find that the Ninth Circuit did correctly apply the relevant legal standards and that it was constitutional to have the students invert their shirts. But it would be a strange day when the public display of the American flag can be ruled unconstitutional.

About author

Christian Talley

Christian Talley, from Chattanooga, TN, is a Senior in the College of Arts and Sciences. He is majoring in History and is writing a thesis for the History Honors Program. His research concerns United States-China trade relations in the 1970s. Additionally, he is an editor for the Vanderbilt Historical Review, the president of Phi Alpha Theta, a 2015 Presidential Fellow at the Center for the Study of the Presidency and Congress, and a brother of Phi Gamma Delta.

  • kyrie 4#1

    January 11, 2019

    I wish to point out my admiration for your kindness supporting persons who have the need for assistance with this one situation. Your very own dedication to getting the message across had become especially informative and have constantly encouraged girls just like me to get to their pursuits. Your amazing warm and friendly tips and hints denotes a great deal to me and even more to my mates. Thanks a ton; from each one of us.

  • michael kors outlet online#2

    January 10, 2019

    My spouse and i felt quite satisfied that Albert managed to conclude his web research via the ideas he discovered out of your web pages. It’s not at all simplistic just to continually be giving freely hints which usually many people have been selling. And we also fully grasp we need the website owner to be grateful to for that. Most of the explanations you made, the easy site menu, the relationships your site make it possible to foster – it’s everything remarkable, and it is facilitating our son and the family understand this subject is entertaining, which is incredibly indispensable. Many thanks for everything!

  • adidas iniki runner#3

    January 9, 2019

    Thank you a lot for giving everyone an exceptionally superb possiblity to read articles and blog posts from this website. It really is so brilliant and as well , packed with fun for me personally and my office peers to search your website nearly thrice weekly to read through the latest guidance you have got. And definitely, we are actually motivated with all the attractive concepts you give. Certain 3 ideas in this posting are without a doubt the very best I have ever had.

  • michael kors outlet#4

    January 8, 2019

    I am also commenting to let you know what a nice discovery my friend’s daughter obtained using yuor web blog. She noticed numerous details, including what it is like to have a great giving style to let folks quite simply know specific extremely tough issues. You truly exceeded her desires. Thank you for displaying these productive, healthy, revealing and also unique thoughts on this topic to Ethel.

  • adidas tubular#5

    January 7, 2019

    I truly wanted to jot down a small message in order to say thanks to you for these magnificent recommendations you are giving out at this website. My incredibly long internet look up has finally been rewarded with pleasant details to talk about with my company. I ‘d repeat that we visitors actually are definitely fortunate to be in a great community with very many perfect individuals with useful pointers. I feel quite lucky to have seen your web pages and look forward to so many more awesome moments reading here. Thank you again for a lot of things.

  • goyard bags#6

    January 6, 2019

    I’m writing to let you know of the excellent discovery my girl encountered visiting yuor web blog. She figured out lots of details, most notably how it is like to possess a wonderful giving heart to let many more really easily fully grasp various specialized subject areas. You truly did more than her expected results. Thank you for presenting such practical, safe, edifying and even fun guidance on this topic to Lizeth.

  • adidas nmd#7

    January 5, 2019

    I want to express my affection for your generosity in support of people who actually need help with the concern. Your personal commitment to passing the solution up and down appears to be amazingly valuable and has enabled employees like me to arrive at their ambitions. Your important publication indicates a great deal a person like me and extremely more to my office workers. With thanks; from all of us.

  • yeezy boost 350#8

    January 4, 2019

    I precisely wanted to thank you so much yet again. I am not sure the things that I could possibly have tried in the absence of the entire points documented by you concerning my topic. It seemed to be a real distressing circumstance in my view, but observing the very specialized strategy you processed that took me to leap with happiness. I am grateful for the service and even pray you realize what an amazing job you have been getting into teaching men and women thru your webblog. I’m certain you have never got to know any of us.

  • adidas outlet online#9

    January 4, 2019

    I enjoy you because of all your valuable hard work on this website. My daughter really likes working on investigations and it’s really obvious why. My spouse and i notice all concerning the compelling manner you create sensible ideas through the web site and even inspire participation from website visitors about this area of interest plus our daughter is actually starting to learn a whole lot. Take pleasure in the rest of the new year. You are performing a good job.

  • nike hyperdunk#10

    January 3, 2019

    I truly wanted to compose a quick message to be able to thank you for those fantastic items you are showing on this site. My time-consuming internet search has at the end been paid with reputable points to go over with my friends and family. I ‘d tell you that many of us site visitors actually are undeniably fortunate to live in a fabulous community with so many wonderful professionals with insightful tactics. I feel very blessed to have encountered your entire weblog and look forward to really more thrilling moments reading here. Thank you again for all the details.

  • michael kors outlet#11

    January 2, 2019

    My husband and i ended up being absolutely cheerful when John could do his analysis through the ideas he got from your web page. It is now and again perplexing just to possibly be giving for free steps which other folks could have been selling. So we understand we now have the blog owner to give thanks to for this. The main explanations you’ve made, the simple web site menu, the relationships your site make it possible to engender – it’s got many excellent, and it’s assisting our son in addition to us know that this situation is brilliant, which is particularly fundamental. Thanks for the whole thing!

  • nike flyknit#12

    January 1, 2019

    I needed to create you a bit of remark to help say thank you the moment again for those superb concepts you have shared on this site. This has been really shockingly generous with people like you to make extensively what exactly many of us could possibly have made available for an e-book in making some money for themselves, notably now that you could possibly have done it if you ever decided. These tricks in addition acted as the great way to fully grasp other people online have the identical zeal much like my very own to find out a lot more with reference to this problem. I’m sure there are thousands of more fun sessions in the future for folks who see your website.

  • jordan shoes#13

    January 1, 2019

    I’m just writing to make you be aware of what a fine encounter my friend’s daughter developed reading your site. She discovered plenty of details, including how it is like to have a very effective teaching heart to have folks really easily master some extremely tough matters. You truly did more than readers’ expected results. I appreciate you for presenting the warm and friendly, dependable, informative and in addition cool tips about the topic to Sandra.


Your email address will not be published. Required fields are marked *