Old Glory must be evicted from schools populated by the easily offended. So says the U.S. Court of Appeals for the 9th Circuit, which denied the appeal of students who were ordered to take off their American-flag emblem T-shirts, turn them inside out or go home, because a handful of students waving the flag of Mexico in celebration of Cinco de Mayo said the sight of an American flag makes them uncomfortable.
The appeals court, based in San Francisco, has a long-running fondness for the weird and the outlandish. Dissenting Judge Diarmuid F. O’Scannlain, a Reagan appointee to the court, filed an eloquent defense of the importance of free speech, as applied to the five students at Live Oak High School in Morgan, Calif., who wanted to show pride in their country when school administrators told them to celebrate Mexico instead.
An assistant principal told them to put away the display of pride in the flag. Two students were allowed to return to class because the flags they displayed were small and less prominent. The other students, standing on principle, refused to furl the flag. They were sent home.
The American Freedom Law Center helped the students defend their First Amendment right to express themselves. But the court majority said it had looked hard and couldn’t find a constitutional violation. What was important is that the school authorities show political correctness and cultural sensitivity. The offense was that several students wore the flag. Burning the flag, the courts have infamously ruled, is a protected right.
Judge O’Scannlain boiled the issue down to simple terms. Deciding what speech is acceptable based on whether someone is offended “permits the will of the mob to rule our schools,” he said, observing that this “heckler’s veto” can be a convenient way for school administrators to suppress unpopular views in the name of “preventing violence.”
The students wearing the Stars and Stripes were peaceful, and they were harassed by rowdy students who flew the Mexican flag. The school punished the kids doing nothing wrong, thus deputizing rowdy students acting as the fashion police.
Such reasoning sanctions rule by tantrum. Throw one and the school must ban whatever displeases the tantrum-throwers. “It might be a student wearing a President Obama ‘Hope’ shirt,” Judge O’Scannlain wrote in his dissent, “or a shirt exclaiming ‘Stand with Rand!’ … The demands of bullies will become school policy. That is not the law.”
A majority of the appeals court might have kept Rosa Parks in her place at the back of the bus, as a black woman would have offended white passengers on a bus in Montgomery, Ala., in 1955. Judges of the U.S. 7th Circuit in Chicago understood the principle that constitutional rights are not to be enjoyed only by the sufferance of others. That court decided that a school couldn’t punish a student for wearing a T-shirt with the message “Be Happy, Not Gay.”
The split between the appellate circuits invites the Supreme Court to resolve an important conflict. The First Amendment shouldn’t be held hostage by immature children, ideologically driven judges, politically correct school administrators or those out to find something to be offended by.