THE BLOG
03/03/2014 05:14 pm ET | Updated May 03, 2014

The American Flag T-Shirt Case: It's Not About Patriotism

I thought I'd write this article and get a head start on my attempt to neutralize what I anticipate will be a social media outrage-fest concerning the recent decision out of California's 9th Circuit Court of Appeals. It's a decision many people will see as a violation of protected Constitutional rights, with a percentage of those people saving time by just describing it as downright un-American. The truth is, yes, it's a decision that violates Constitutional rights, but only in a legal way that is as American as the American flag itself.

If you are unfamiliar with this case, I'll try to give you a quick summary.

Back in 2009, Live Oak High School (just south of San Jose, CA) was having a school-sanctioned Cinco de Mayo celebration. For whatever reason, a group of predominantly caucasian students created a makeshift American flag and started chanting "USA! USA!" This escalated into an altercation between the two groups. In 2010, on the day of that year's Cinco De Mayo celebration, again for whatever reason, a number of non-hispanic students wore American flag t-shirts. These students were asked by the school administration to either turn the shirts inside out or not attend the celebration with the assurance of that option having no negative impact on their official school attendance. The school cited the previous year's altercations as partial reasons for the request, as well as additional events that had already occurred that morning that led them to believe a replay of the problems might be brewing. The "t-shirt" students complied with the school's wishes one way or the other, but this led to a lawsuit against the school district (Morgan Hill) filed by some of those students and their parents (as guardians), claiming the school had violated those students' civil rights. The original court found in favor of the school district and the families appealed. On February 27, 2014, the court of appeals upheld the original decision in favor of the school district.

Okay, those of you who like to swim in the shallow end of an issue and want to live in a world where it is more fun to be outraged than it is to be rational and reasonable -- you folks can go ahead and start gnashing your teeth, stomping your feet, and posting "this is the death of American patriotism" on the subject lines of your Facebook shares. The rest of you should hang out for a few minutes.

The problem with stories like this is that they trigger the erroneous belief that we U.S. citizens enjoy absolute protection when it comes to our Constitutional rights. Well, we don't. The government can, and does, legally violate our Constitutional rights when in its best interest to do so. In fact, they do it quite often. They just need the right reason. Really important protections, like freedom of speech and freedom of religion, demand really important and highly specified reasons to violate them. Less important protections require... well, not so much. In any particular lawsuit, the courts use different standards of judicial review to help them decide if the government had the appropriate reason to violate the particular right under dispute. In a case dealing with political expression (American flag t-shirts), the highest standard of strict scrutiny is used. This means the government has to show a compelling interest for their actions, that those actions must have been narrowly-tailored to achieve that interest, and that those actions were the least restrictive ones available.

I would be very interested to hear any valid rationale that supports a disagreement with the court's precedent of student safety being a compelling interest for our school system. But as a father who had children in the public school system not too long ago, I should warn you that it would have to be really, really, really valid to get me to flip to your side on that one. So, until then, let's just agree that school safety meets the compelling requirement. And with the background information of the previous year's problems and the events of the morning at issue, it is not difficult to see how the court would find the school's fear of student safety as reasonable. Finally, how would any of us go about trying to keep the students safe at that point? Would you cancel the Cinco de Mayo celebration completely? No, that would be too broad and overreaching. It would impact too many students who weren't even part of the issue. Would you just forget about it, let the students wear the shirts, and possibly have a riot on your hands? If so, I could almost guarantee you there would be a different lawsuit today that would be claiming the school failed to uphold its obligation to keep the students safe. No, the school did the right thing by asking only the students with the t-shirts to do anything different that day. And the court agreed.

Like it or not, there is no injustice here, no travesty that deserves outrage. If anything, it deserves a round of applause because the American judicial system is working quite well in this case given the laws of the day. If this case is appealed to the U.S. Supreme Court, I doubt that the highest court in our land would even accept it for review. This case just doesn't have what it takes to push the envelope of controversy for the SCOTUS to devote the time to it.

What it does have, however, is a bunch of high school students who are probably surprised that being assholes to each other can grow into something that takes up so much time and money and attention. I guess it would be too late for any of them to admit this whole thing began far from the halls of patriotism where we think of lofty expressions of national pride, but rather from the halls of high school where it is it more common to think of how best to get under a rival's skin.

Read other Dirk Hughes blogs at land of quo, American Dream Art Project, Thrifstory, and This Remarkable Life.