03/03/2014 02:44 pm ET Updated May 03, 2014

How the 9th Circuit's T-Shirt Decision Is a Bad Omen for Immigration Reform

Last week, the 9th Circuit upheld a school's ability to have a student remove a t-shirt that the school in good faith believed would lead to a violent altercation. In Dariano v. Morgan Hill Unified School District, the Court upheld a long standing judicial deference afforded to schools to allow them to act in a way that would otherwise be a Constitutional violation if the act is necessary for the orderly administration and education of students. This isn't a new line of thinking either. In 1986, Bethel School District v. Fraser established that speech that would otherwise be protected by the First Amendment can still lead to school action and discipline. It was distinguished from Tinker v. Des Moines that invalidated a suspension for students who wore Vietnam War protest arm bands because there was no disruption. The key is disruption, or in the case of Dariano, a high likelihood of disruption. So we can stop all this self-righteous indignation and chest thumping -- this isn't a free speech issue and the case wasn't even a close one, but it may very well be a bellwether for the current state of immigration reform.

The problem with this case is that the t-shirt in question was basically a wearable American flag. Now, you might be asking yourself, how can a patriotic shirt cause a disruption? Well, the student wore it on Cinco de Mayo and the previous year, there had been a profanity laced altercation between students walking around carrying the Mexican flag and students who hung a makeshift USA flag and chanted USA. Personally, I love a good USA chant, especially when it's lead in by a solid slow clap, but it seems pretty apparent this had less to do with supporting the USA and more to do with not supporting Mexico. Fast forward a year and this kid is rocking an American flag t-shirt, more likely than not, solely to be a teenager. We were all teenagers once; we all did things solely to be jerks -- it happens; however, this kid actually made a federal case out of being a teenager. The Court was absolutely right to make him remove it. He was being a jerk -- I get it, I've been there -- but you got caught and were punished. He should have moved on instead of going up against pretty solid Supreme Court juris prudence.

Here's the rub though: This case is a perfect microcosm of how both sides of the immigration debate are not helping the cause and both sides are getting more entrenched. The Court perfectly analogized Cinco de Mayo to St. Patrick's Day which I doubt anyone with their bloomers in a knot over this decision thinks is un-American to celebrate. On one side, you have the natives who would make Daniel Day Lewis proud, claiming this is our country and that unchecked immigration is a problem. Their argument, however, lacks the nuance of balancing national security with current labor needs. There's a reason Silicon Valley wants more legal immigration and it's not because they need low paid laborers. On the other side, you have immigrants, or first or second generation Americans, who have not completely assimilated to American culture, lagging behind their non-immigrant counterparts, and they make easy targets. These are the students of Mexican heritage waving a Mexican flag and fighting students brandishing American flags. Seriously, this case was basically the plot of Gangs of New York without the guy from Step Brothers playing a corrupt Irish cop. Both sides need to understand the opposing viewpoint because the cream-filled middle is really were progress will be made.

I'm an Alexis de Tocqueville American. I'm a firm believer that this country is a melting pot and that is what has made us an unstoppable force; however, it would be mistaken to think that this animosity toward immigrants is new. Irish immigrants in the late 19th century were not welcome in the U.S. and this, in part, contributed to the Draft Day Riots in New York City which left as many as 119 dead. We can still, in theory because Korematsu has not been overturned, round up people of Japanese descent and throw them into internment camps. In New Orleans in 1891, 11 Italians were lynched in anti-immigration anger. So while this backlash against immigrants is deplorable, it's not new, and if history is any indicator, it's certainly something that we can get past. I don't remember any recent lynching of Italians or Irishmen rioting in New York City -- then again St. Patty's day is only a few weeks away.

Unfortunately, this incident and the predictable indignation from one side and pomposity from the other, shows that we haven't crossed the precipice into Americans accepting immigrants and immigrants embracing U.S. culture enough to be assimilated into society. This isn't to say immigrants need to get rid of their culture; however, there is a uniquely American culture, (beyond obesity and selfies) which immigrants will have to embrace just as America embraces parts of immigrant culture. I love celebrating Cinco de Mayo as much as St. Patty's Day, and the turn in immigration will come once both sides realize that there is a give and take to make this melting pot work and it does not involve bloodshed or being a jerk. For reform to be meaningful, it has to be accepted by most and the reaction to this case shows that while statutes may be reformed, American attitudes are still a ways off.