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It Wasn't the American Flag Versus the Mexican Flag: Dariano v. Morgan Hill Unified School District

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I wish press releases and media reports and even politicians were more scrupulous in reporting what really happened in court cases about free speech. But they most often turn the outcome of a case into an excuse to vent about things they wish were different about our world. Cases are rarely reported accurately to inform. Phil Robertson's temporary exclusion from Duck Dynasty had nothing to do with the First Amendment since no government action occurred, but you wouldn't know that from listening to the Governor of Louisiana or Sarah Palin.

Recently, a decision by the United States Court of Appeals for the Ninth Circuit did not prefer the Mexican flag over the American flag or promote thuggery in schools, in spite of post-opinion commentary suggesting that it did.

The goal of this blog -- the first issue being this one -- is to explain what freedom of expression cases and policies mean to a person not trained and shaped by years in a law library. I want to make clear what others obscure about a case. Free speech is fascinating because every question raised within its bounds pits one person's desires and needs against another's. This is something I have termed, when teaching, as the "boom box phenomenon." Outdated, perhaps, but apt. If one person is on a beach playing music at audacious volume to enjoy its richness, another person's repose is shattered. How does the authority governing the beach, the government, decide what the proper volume is? Out of this basic conflict comes a constant theme in free speech analysis: balance, balance, balance. The law must choose and, when it does, it usually balances.

And if the balance on the beach on Tuesday is one thing, is it different on Sundays? Is it more or less between 9 p.m. and 6 a.m.? Is it different when a car is driving down the street with open windows? The answer to each question changes because the conditions change. But no matter what the answer, someone's ox is being gored. We can't all have our way. The law must balance.

Keep in mind that the text of the First Amendment makes a false guarantee. It says "Congress shall make no law... abridging freedom of speech," but it has come to mean that government shall make no law unless society decides an important reason exists to abridge speech. Think about obscenity, perjury, false advertisement, depicting sexual acts on broadcast TV, all controlled or banned. Free speech is restricted by the government in many ways, despite the lofty words of James Madison. I neither approve of nor apologize for this; I simply say that that's the way it is.

And now about the flag in the Dariano v. Morgan Hill Unified School District. Students wore apparel with American flag designs on them to their high school on May 5. A school-sanctioned Cinco de Mayo celebration was planned that day. You can view the clothing worn for yourself. The school "had a history of violence among students, some gang-related and some drawn along racial lines." Violence was threatened in prior years on that day. It threatened to break out again. School officials offered two students the choice either to turn their shirts inside out or to go home for the day with excused absences that would not count against their attendance records. They went home. Neither was disciplined.

One headlined article said: "School Can Ban American Flag Shirts." A website showed a picture of the American flag hanging on a flag pole upside down below the upright Mexican flag. Neither description was accurate.

Facts not in those reports can be found in the opinion. According to the Court, school officials permitted two other students "to return to class, because the Principal considered their shirts, whose imagery was less 'prominent,' to be 'less likely [to get them] singled out, targeted for any possible recrimination,' and 'significant[ly] differen[t] in [terms of] what [he] saw as being potential for targeting.'" Those shirts bore the logo of a popular martial arts company with flag iconography.

So the American flag wasn't banned at all. Not all flag displays were provocative so they were not embargoed. A flag ban was not what the case was about.

What the case was about was whether one school official broke the law in his attempts at preventing violence. The Court emphasized its job was not to second-guess the school sanctioning a Cinco de Mayo celebration or the precautions the school put in place to avoid violence. That's no surprise, really; it's not what courts do. Courts take the cases that come to them and decide on the facts before them as applied to the law as it exists. At least, they are supposed to do nothing more than that.

One thing the Court said in a single, throwaway sentence is intriguing. The students who had sued "had no response when asked why they chose to wear flag clothing" on that day. What was the Court saying? Did the Court think the students were engaging in taunting by wearing American flag symbols on that particular day? Did the Court suspect the students were trying to incite violence? Google the terms "taunt" along with "gang behavior." It's illuminating.

Yes, the case stirs up all of our concerns about violence in schools, how the pride of different cultures can be accommodated, immigration, threats posed by gangs, the inadequacy of school resources and principals' lack of supervisory creativity and many other things. But this case didn't ban the American flag from the school or prefer a foreign nation's flag over ours. Let's be honest.