Randy Forbes: Banning the American flag?

In 2010, five students went to school at their public high school in California wearing T-shirts that displayed the American flag. That sentence seems anything but newsworthy. In fact, it seems extremely ordinary in a nation where citizens proudly display our flag on apparel, outside our homes, on our cars, inside our schools, and across our towns.  But what happened next at the California high school would start a firestorm of debate, and create a case that would bring it to the U.S. Ninth Circuit Court of Appeals.

You see, the students chose to wear the t-shirts on Cinco de Mayo, a day of celebration in Mexican culture. The California high school had a history of violence among students, both between gangs and between Caucasian and Hispanic students. School administrators feared racial disputes during the school-sanctioned celebration of the Mexican holiday. Rather than cancel the Cinco de Mayo celebration, however, school administrators invoked a special dress code. They said American flag t-shirts were “incendiary” and disrespectful to students celebrating Cinco de Mayo. Administrators said only the Mexican flag could be shown that day. So they told the students wearing American flag t-shirts to either turn their t-shirts inside out or change them, or they would be sent home.

The students chose to be sent home.

The students brought a lawsuit against the school district, saying the school’s decision infringed on their constitutional rights.  The district court sided with school administrators. The case went through the appeals process and just this year, the U.S. Ninth Circuit Court of Appeals heard the case. Last month, a three judge panel for the Ninth Circuit upheld the lower court’s decision, affirming the school officials’ decision to ban the American flag t-shirts.

The appeals court decision is troubling. Although public schools have the authority to prohibit expression that “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school,” they do not have blanket authority to stifle freedom of speech. In a choice between free speech and poor conduct, the court sided with poor conduct. They empowered a heckler’s veto, which is to say that they silenced peaceful demonstration of one group of individuals because a more vocal opposing group threatened violence. This sends a terrible message to young people: if you don’t agree with a particular type of speech, you can simply harass others or threaten violence and win.

Most concerning, however, is that the decision threatens Americans’ basic understanding of our right to free speech. To many Americans, there simply is no question in this case.  The peaceful display of the American flag on a t-shirt is, unquestionably, a right protected by the First Amendment of our Constitution, and a belief I supported in an amicusbrief in the case, asking the full Ninth Circuit Court of Appeals to hear the case.

First adopted by the Continental Congress in 1777, the American flag has long been a national symbol filled with meaning. Its colors symbolize the patriotic ideals of liberty, justice, and equality. Our flag embodies American freedom, and is a symbol of freedom and hope to nations who have none. Families have journeyed across the world towards it, seeking better lives. We welcome our national heroes home with it. We drape it over the caskets of those who have given their lives in service of our nation. We flew it with profound patriotism in New York City and on the side of the Pentagon after the terrorist attacks in 2001. It promises liberty and justice for all. Its legacy is timeless throughout our nation’s history – it was a sign of a new nation, it continues to be a promise of hope during tumultuous times, a signal of peaceful transition of power, and a symbol of celebration each July.

To say that American students cannot wear a symbol that, itself, represents our Constitutional rights is not just ironic – it is egregious. If we can’t display the American flag as a purpose of expression, what can we say?

Randy Forbes represents the Fourth District in Congress.