California High School Sends Kids Home for Wearing American Flag on Cinco de Mayo

From the Gilroy Dispatch:

Five Live Oak High School students’ First Amendment rights were challenged this morning when they were asked to leave school because they donned American flag T-shirts on Cinco de Mayo. Officials at the school chose not to comment on the situation, but one student said an official called the T-shirts “incendiary.”

“They said we were starting a fight, we were fuel to the fire,” said sophomore Matt Dariano….

The five teens were sitting at a table outside during their brunch break about 10:10 a.m. when Assistant Principal Miguel Rodriguez asked two boys to take off their American flag bandannas. The boys said they complied. In the same conversation, sophomore Dominic Maciel said, Rodriguez told the group to “walk with him to the office.”

Dariano called his mother Diana, who spread the word to the other parents, who all arrived soon after to have a conference with Rodriguez and Principal Nick Boden. The group said they were not instigating anything and did what they always do at break — sit and talk and eat.

The boys were told they must turn their T-shirts inside-out or be sent home — and that it would not be considered a suspension — but that Rodriguez did not want any fights to break out among Mexican-American students and those wearing American flags. Dariano said other students were wearing American flags but since they were a group of five “we were the easiest target to cause trouble” according to Rodriguez, he said….

More than 100 students were spotted wearing red, white and green as they were leaving school. Some had the Mexican flag painted on their faces or on their arms.

Nothing in Live Oak’s dress code policy addresses what transpired Wednesday, but it does state that “the school has the right to request that any student dressing inappropriately for school will change into other clothes, be sent home to change, and/or be subject to disciplinary action.” …

Some Mexican-American students said that their flags were taken away or asked to be put away, but none were sent home for wearing red, white and green. Since Boden would not comment, it’s uncertain if any other students were sent home for what they were wearing on Cinco de Mayo.

Live Oak High School even hosted a group of professional baile folklorico dancers, who waved flags and played traditional music from Mexico.

If there is a reasonably predictable likelihood (not just a bare conjecture) that speech or expressive conduct will cause substantial disruption — which is not clear under these facts — then the school may legally restrict it without violating the First Amendment. That’s the holding of Tinker v. Des Moines Indep. Community School Dist. (1969). (I speak here only of whether the district may legally do this, not whether it should.)

But California Education Code § 48950 deliberately gives students more protection than the First Amendment does. And the high school’s actions, if they were reported accurately, would violate that statute:

(a) School districts operating one or more high schools … shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment ….

(b) A pupil who is enrolled in a school at the time that the school has made or enforced a rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action pursuant to this section….

(d) This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected….

(f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations.

The “time, place, and manner regulations” restriction doesn’t apply here, because the restriction here was justified with reference to the content of the expression (and the supposed harm that it might cause). Time, place, and manner regulations must be unrelated to content, and focused instead on matters such as noise, blockage of hallways, and other effects of speech that don’t stem from the message that the speech communicates.

Thanks to InstaPundit for the pointer.