Imagine, in the United States of America and the land of the First Amendment, a bunch of white kids are denied the right to wear clothing bedecked with the American flag to their own high school. And, worse yet, the liberal-leaning, evil-minded judges for the U.S. Court of Appeals for the Ninth Circuit upheld the school's ability to censor such patriotic speech.
But wait, there's even more egregiousness to come. On Monday, March 30, the U.S. Supreme Court -- nearly five long years after the censorship occurred -- refused to hear an appeal from the Ninth Circuit's ruling in the case of Dariano v. Morgan Hill Unified School District.
This means that attorneys for the wannabe American-flag wearing students could not even convince the Court's typically solid block of four conservative-leaning justices to hear the case. That's called the rule of four, by the way -- it only takes four of the nine justices to want to hear a case, and then the court will take it up.
But here's the part of the story that is likely to go missing, as it were, from much of the reporting on the case among conservative news outlets and talk radio that will occur this week.
First, the high school in question, located in Northern California, has a long history of racial trouble between white and Latino students. As the Los Angeles Times reported, school officials "had seen at least 30 fights between white and Latino students."
Second, school officials banned the wearing of the American-flag clothing on only one day of the school year. What day was that? Cinco de Mayo -- a day to celebrate Mexican heritage. School officials did not ban American-flag clothing on any other school day -- just one.
Steve Betando, superintendent of the Morgan Hill Unified School District, issued a press release Monday explaining the district's position:
This case has never been about the American flag, which Live Oak proudly flies above our school every day as it did on the 5th of May, 2010. This case has always been about protecting the safety of students.
The United States Supreme Court has put an end to this case by its denial, acknowledging that the administrators did not violate the Constitution when they acted to protect the student-plaintiffs, and potentially all of the students on the Live Oak campus, against threats of harm.
Public school student do possess First Amendment speech rights. The U.S. Supreme Court made that clear in its 1969 ruling in Tinker v. Des Moines Independent Community School District.
In Tinker, the nation's high court protected the right of Mary Beth Tinker, her brother and Christopher Eckhardt to wear home-made black armbands emblazoned with peace symbols to their school to protest the war in Vietnam.
But the court in Tinker also made it clear that students' speech rights are not absolute when they are on campus. In fact, school administrators can stop student speech without violating the First Amendment if the administrators have actual facts that would reasonably lead them to believe that the speech in question is likely to cause a substantial and material disruption of the educational atmosphere.
In the Dariano case, the Ninth Circuit ruled that, given the past history of racial trouble at the high school, officials indeed had actual facts that would reasonably lead them to predict that white students wearing American-flag clothing on Cinco De Mayo might spark a substantial disruption with Latino students, if not even lead to violence.
This is the same rule, it is important to note, that applies to high schools that seek to ban clothing that sports the Confederate battle flag. If there hasn't been any recent history of racial trouble between whites and blacks at a school, then a ban at that school on wearing Confederate-flag adorned clothes would violate the First Amendment. Conversely, if there is history of trouble between the two races at the school, then school officials are within their rights to ban Confederate-flag clothing.
In Dariano, of course, the trouble was not between whites and blacks, but between whites and Latinos. But the same principle from Tinker applies and, ultimately, the U.S. Supreme Court got it correct on Monday when it refused to reverse the Ninth Circuit's ruling. Now whether certain elements in the news media report all of the facts about the case remains to seen.