by Arnold Ahlert
Last Thursday, a federal court unanimously determined that officials at Live Oak High School in California acted appropriately when they ordered students wearing American flag t-shirts to turn them inside out, or be sent home during a 2010 Cinco De Mayo celebration. ”Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence,” Judge M. Margaret McKeown wrote for the three member panel of judges from the 9th U.S. Circuit Court of Appeals. The past events “made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real,” she wrote.
The past events to which the court referred included problems between white and Hispanic students on that particular day, as a well as a history of violence between gang members and racial groups. UCLA law professor Eugene Volkh notes that the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), determined that students’ rights are limited, and that their speech can be restricted student if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from that speech.
The judges here believed that forecasting such violence was appropriate considering what had occurred the previous year:
“On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted ‘f*** them white boys, f*** them white boys.’ When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, ‘But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.’ Rodriguez removed the student from the area….”
“At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court, ‘shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.’s] clothing.’”
A similar chain of events unfolded in 2010. Following the principal’s order that students change their shirts or go home with an excused absence, those students were threatened with violence via a text message, telephone calls, and the possibility of gang violence. Citing Tinker, the court concluded that “both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.” The court further ruled that “school officials, namely Rodriguez, did not act unconstitutionally, under either the First Amendment or Article I, § 2(a) of the California Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.”
While the Court may have acted appropriately, Volkh correctly notes that their decision essentially endorses a “heckler’s veto,” where freedom of speech can be suppressed in order to avoid violence. This is a tactic long employed by the American left, especially on college campuses. Incidents such as the attempt to prevent former Israeli Ambassador Michael Oren from speaking at UC-Irvine in 2010, leading to 11 arrests, or more recently, the shouting down of New York City Police Commissioner Raymond Kelly at Brown College last October, have become commonplace.
And that’s with regard to students who ostensibly support the First Amendment. In a column for The Harvard Crimson, Harvard University student Sandra Korn has decided that academic freedom is, well, too free. “Instead, I would like to propose a more rigorous standard: one of ‘academic justice,’” she writes. “When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue.”
She is echoed by Swarthmore College’s Erin Ching, who was overcome with indignation when it was revealed that left-wing Princeton professor Cornell West, and right-wing Princeton professor Robert George were invited to debate on her campus. “What really bothered me is, the whole idea is that at a liberal arts college, we need to be hearing a diversity of opinion,” Ching told the Daily Gazette, the school’s newspaper. “I don’t think we should be tolerating [George’s] conservative views because that dominant culture embeds these deep inequalities in our society.”
At Live Oak High School, the equation is much simpler. A toxic combination of political correctness that promotes the celebration of a Mexican holiday despite a track record of violence, coupled with the calculated impotence that rewards that violence with the suppression of free speech, makes an utter mockery of the educational process. As Volkh explains, the school has “taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?”
Such PC-inspired nonsense was called out. “This is the United States of America,” said Kendall Jones, whose son, Daniel Galli, was one of the students sent home by officials. “The idea that it’s offensive to wear patriotic clothing … regardless of what day it is, is unconscionable to me.”
William Becker, one of the lawyers representing the students, is willing to go the distance. He will request that a special 11-judge panel of the appeals court rehear the case, and he will take it to the Supreme Court if he loses again. ”The 9th Circuit upheld the rights of Mexican students celebrating a holiday of another country over U.S. student proudly supporting this country,” he contended.
Last week in a speech on immigration, Britain’s UKIP party leader Nigel Farage delivered a massage that ought to be hammered home by every school official in America, even as it remains completely inimical to aspirations of the American left. Farage desires to ”make patriotism a respectable idea once again.”
That is an eminently noble idea, but it is only half the equation. Americans students, from elementary school through college, must become reacquainted with the idea that free speech extends beyond the borders of that which they consider offensive, or even unpleasant. Preposterous and unconstitutional notions such as academic justice trumping academic freedom, or the desire to dispense with a diversity of opinion, should be relegated to the ash heap of history. What happened at Live Oak High School the year before this debacle occurred should have engendered a series of teachable moments, including the unmistakable message that serious consequences would be implemented against those threatening, or engaged, in violence or other reprisals.
Instead, there was abject surrender by school officials, unanimously sanctioned by the 9th U.S. Circuit Court of Appeals. If there’s a worse teachable moment than that, one is hard-pressed to imagine what it is.
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