On Monday (December 15, 2014), the Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, MI, along with two other entities, asked the US Supreme Court to review the Ninth Circuit Court of Appeals decision which upheld a California public school’s ban on the display of the American flag because it feared the flag might incite Mexican students to violence. In his minority dissent, Judge Diarmuid O’Scannlain criticized the decision as permitting “the will of the mob to rule our schools.”
On May 5, 2010, Assistant Principal Miguel Rodriguez of Live Oak High School in Morgan Hill, California ordered several students wearing t-shirts emblazoned with the American flag to turn them inside out or leave school. Rodriguez claims he acted out of concern that Mexican students would react violently because the patriotic shirts were worn on the day the school was celebrating Cinco de Mayo, a Mexican holiday. Two of the students chose to leave rather than disrespect the American flag. Ironically, and to his credit and that of his parents, one of the students was of Mexican descent.
Richard Thompson, TMLC’s President and Chief Counsel, commented, “What happened in Live Oak High School is emblematic of what is happening in public schools across our nation – multiculturalism is trumping allegiance to America.”
As a result of Live Oak High School’s ban on the American flag while allowing displays of the Mexican flag, the Thomas More Law Center and California attorney Bill Becker filed a federal lawsuit against the school and school officials on behalf of three of the students in June 2010. A subsequent lower court decision in favor of the school was affirmed by a divided panel of the Ninth Circuit Court of Appeals.
The sharply worded dissent written by Judge Diarmuid O’Scannlain joined by Judges Tallman and Bea, stated: “It is a foundational tenet of the First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech.” He goes on to write, “It is this bedrock principle—known as the heckler’s veto doctrine—that the panel overlooks, condoning the suppression of free speech by some students because other students might have reacted badly.”
The petition for review by the TMLC and two other firms draws on this criticism: “The question presented is whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro-America message.”
The petition states, too, that “if the decision is permitted to stand, it will have a detrimental impact on all student speech by rewarding violence over civil discourse.”