The Judicial Assault on American Flag T-Shirts

Arnold Ahlert is a former NY Post op-ed columnist currently contributing to JewishWorldReview.com, HumanEvents.com and CanadaFreePress.com. He may be reached at atahlert@comcast.net.


SJMN_NTlfernandezLast Thursday, a federal court unanimously determined that officials at Live Oak High School in California acted appropriately when they ordered students wearing American flag t-shirts to turn them inside out, or be sent home during a 2010 Cinco De Mayo celebration. “Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence,” Judge M. Margaret McKeown wrote for the three-member panel of judges from the 9th U.S. Circuit Court of Appeals. The past events “made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real,” she wrote.

The past events to which the court referred included problems between white and Hispanic students on that particular day, as a well as a history of violence between gang members and racial groups. UCLA law professor Eugene Volkh notes that the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), determined that students’ rights are limited, and that their speech can be restricted student if  “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from that speech.

The judges here believed that forecasting such violence was appropriate considering what had occurred the previous year:

On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted “f*** them white boys, f*** them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.” Rodriguez removed the student from the area….

At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court, “shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.’s] clothing.”

A similar chain of events unfolded in 2010. Following the principal’s order that students change their shirts or go home with an excused absence, those students were threatened with violence via a text message, telephone calls, and the possibility of gang violence. Citing Tinker, the court concluded that “both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.” The court further ruled that “school officials, namely Rodriguez, did not act unconstitutionally, under either the First Amendment or Article I, § 2(a) of the California Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.”

While the Court may have acted appropriately, Volkh correctly notes that their decision essentially endorses a “heckler’s veto,” where freedom of speech can be suppressed in order to avoid violence. This is a tactic long employed by the American left, especially on college campuses. Incidents such as the attempt to prevent former Israeli Ambassador Michael Oren from speaking at UC-Irvine in 2010, leading to 11 arrests, or more recently, the shouting down of New York City Police Commissioner Raymond Kelly at Brown College last October, have become commonplace.

And that’s with regard to students who ostensibly support the First Amendment. In a column for The Harvard Crimson, Harvard University student Sandra Korn has decided that academic freedom is, well, too free. “Instead, I would like to propose a more rigorous standard: one of ‘academic justice,’” she writes. “When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue.”

She is echoed by Swarthmore College’s Erin Ching, who was overcome with indignation when it was revealed that left-wing Princeton professor Cornell West and right-wing Princeton professor Robert George were invited to debate on her campus. “What really bothered me is, the whole idea is that at a liberal arts college, we need to be hearing a diversity of opinion,” Ching told the Daily Gazette, the school’s newspaper. “I don’t think we should be tolerating [George’s] conservative views because that dominant culture embeds these deep inequalities in our society.”

At Live Oak High School, the equation is much simpler. A toxic combination of political correctness that promotes the celebration of a Mexican holiday despite a track record of violence, coupled with the calculated impotence that rewards that violence with the suppression of free speech, makes an utter mockery of the educational process. As Volkh explains, the school has “taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?”

That is the education students are getting, and it is an integral part of the left’s multicultural, anti-American agenda. The same ideologues who promote Cinco de Mayo deride Columbus Day as celebrating genocide. They have secularized Christmas celebrations beyond recognition (when they allow celebrations at all), even as the Muslim holiday of Eid al-Adha, honoring Abraham’s willingness to sacrifice his son on God’s command, is added to the list of days off in NYC public schools. The left’s divide and conquer strategy, including the message sent to immigrants that balkanization is preferable to assimilation, is precisely why the students at Live Oak High School have been taught to embrace an us-versus-them mindset, even as a substantial portion of that student body has also been encouraged to view American culture with contempt.

Such PC-inspired nonsense should be called out. “This is the United States of America,” said Kendall Jones, whose son, Daniel Galli, was one of the students sent home by officials. “The idea that it’s offensive to wear patriotic clothing … regardless of what day it is, is unconscionable to me.”

William Becker, one of the lawyers representing the students, is willing to go the distance. He will request that a special 11-judge panel of the appeals court to rehear the case, and he will take it to the Supreme Court if he loses again. “The 9th Circuit upheld the rights of Mexican students celebrating a holiday of another country over U.S. student proudly supporting this country,” he contended.

Last week in a speech on immigration, Britain’s UKIP party leader Nigel Farage delivered a massage that ought to be hammered home by every school official in America, even as it remains completely inimical to aspirations of the American left. Farage desires to “make patriotism a respectable idea once again.”

That is an eminently noble idea, but it is only half the equation. American students, from elementary school through college, must become reacquainted with the idea that free speech extends beyond the borders of that which they consider offensive, or even unpleasant. Preposterous and unconstitutional notions such as academic justice trumping academic freedom, or the desire to dispense with a diversity of opinion, should be relegated to the ash heap of history. What happened at Live Oak High School the year before this debacle occurred should have engendered a series of teachable moments, including the unmistakable message that serious consequences would be implemented against those threatening, or engaged, in violence or other reprisals.

Instead, there was abject surrender by school officials, unanimously sanctioned by the 9th U.S. Circuit Court of Appeals. If there’s a worse teachable moment than that, one is hard-pressed to imagine what it is.

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  • Tim N

    So the Mexican students threatened violence and that is why the American flag was banned.. I suppose I can see the principal following the path of least resistance (i.e. cowardice) and not wanting to deal with trouble.
    Apparently it didn’t occur to him that:
    1- assault is a criminal charge and he should invoke the full force of the law in preventing it or dealing with it.
    and
    2-the idea that displaying the American flag – in America- is somehow a provocation is just plain disgusting.
    I wonder if there are any Vietnam, Korea, or WWII war veterans named, oh Gonzalez or even -say- Rodriquez who served under that same flag and who might show up with one and point to this craven man and these wretched ‘students’ just what flag they wore.

    • tickletik

      I noticed something interesting about the movie animal house, if you look at the principal, you notice that for all his bluster he is actually a very weak man. Instead of personally throwing the morons off campus, he hides behind rules and committees and regulations.

      If you took John Belushi, and put him in a similar situation. ie. imagine Belushi is in charge of a project and a few morons are wrecking it, is there any question that a man like Belushi would come in with a tire iron if that’s what it took to get rid of the bums?

      We live in a society ruled by weak men and deluded women who think they can be as strong as true men. It’s not working.

      • SCREW SOCIALISM

        Estrogen poisoning.

        Too much tofu eating by men.

    • SCREW SOCIALISM

      Threats, calls for violence on “white boys”?

      That’s HATE SPEECH.

      There should be ZERO TOLERANCE for such speech.

      Where is the ACLU?

  • tickletik

    Theodore Beale from voxday.blogspot.com has pointed out that technically we should use this idiotic ruling to hammer those bastards on the left back into submission. Ie, if you can suspend the first amendment for fears of past racial violence, then technically you can do just about anything, up to and including segregating schools because of past concerns of racial violence.

    He says it a lot better

    http://voxday.blogspot.co.il/2014/02/can-public-schools-now-ban-blacks.html

  • Veracious_one

    the 9th U.S. Circuit Court of Appeals is one of the most anti-American courts in the country…it has a track record of insane judgments…

    such as”

    http://www.jihadwatch.org/2007/01/appeals-court-throws-out-sentence-of-millennium-bomber-jihadist

    http://www.jihadwatch.org/2005/11/court-says-muslim-roleplaying-in-school-ok

  • tic…tic…BOOM

    Why not ban the Mexican flag if that incites violence? Why not ban all speech that might incite violence? That would make us a perfect silent nation. No one says anything. At least that would shut up the politicians.

    • tickletik

      Why do you think that isn’t where this is going?

  • A Z

    “Volkh correctly notes that their decision essentially endorses a “heckler’s veto,”

    Who is responsible for this? The Left

    “But Rodriguez, they are racist.”

    Why would the Mexican American boys believe this? The Presstitutes and others on the left taught them this.

    “They are being racist. F*** them white boys. Let’s f*** them up.”

    When a teacher or other school administrator hears “Let’s f*** them up.” And does not discipline those people making a threat they are part of the problem.

    • cxt

      AZ
      “Presstitutes”
      Now that is funny! :)
      And fitting.

      • A Z

        The term has been making the rounds.

        It won’t hurt until some reporter makes an especially egregious & blatant error in reporting for political purposes. Then someone on air should call them a presstitute. If the accuser is not canned and polls drop for the MSM , it will be the beginning of the end for the fourth estate.

    • SCREW SOCIALISM

      A Z AKBAR!

    • DennisMets

      well blacks and now Mexicans can be openly racist and make thereat and even carry them out in knock out games and the bulling they give white kids every day in schools Rodriguez sided with the haters but just could not openly encourage them to do a beating

      • A Z

        “Rodriguez sided with the haters but just could not openly encourage them to do a beating”

        I do not know that is true, but I wonder if it is.

      • A Z

        You were in the Navy, right?

  • A Z

    Let’s take Oktober Fest as an example. If the student body was made up of 20% or 50% German- Americans or recent German Immigrants and they spouted Leftist crap all year long about “Down with America” and all that other crap, what do you think other native born American school kids would do?

    They would wear American Flags during Oktober fest!

    The Problem here is the Left!

  • cxt

    Perverse
    Wearing a shirt with a flag of the county in which you live is now considered an act that causes violence.
    Once again the lesson is “if you are violent enough we will cater to you.” And THAT is truly bad lesson to teach anyone.

    • tagalog

      Not only that; evidently displaying the U.S. flag in the U.S., on government property, when someone is having a Cinco de Mayo celebration, is racist.

      • http://www.amazon.com/Orgy-Blind-Dead-Derrick-Rasmussen-ebook/dp/B0048EL6KW/ref=sr_1_1?ie=UTF8&qid=1393789875&sr=8-1&keywords=orgy+of+the+blind+dead Coffin Joe

        Mexicans, I’m told, don’t even celebrate the holiday in Mexico. They may have misled me, though. The ones I used to work with would get really, really defensive, though, when I told them I’d read in an encyclopedia that Cinco de Mayo was a celebration of a victory of two thousand Mexican soldiers over a small French patrol consisting of less than 200, and that the French nearly beat the Mexicans. They have no direct knowledge of their own history, and were angry when I told them the “truth” about the holiday.

      • DennisMets

        are u filippino ? they are just following what blacks do, that is call every fn thing whites do racist. the people the really hate the flag are the blacks, just ask josh howard, when speak on the anthem he said he is black they dont do that shit(respect the flag and anthem)

    • laura r

      get this: there is no more america. does a building have to fall on your head?

      • DennisMets

        you are absolute correct, they have brought in enough Mexicans , black Somalis , and thugs from Haiti to terrorize local white Christians and have a knock out war on them.

    • SCREW SOCIALISM

      It works in Eurabia.

  • tagalog

    So the school chose to have a celebration about Mexican independence. In a United States school. Well, OK, why not? Strange, but not too far out.

    So some students decided to wear T-shirts with the American flag on them to celebrate the U.S. on that celebration day. And probably to be a little perverse, too, because that’s the way high school kids are. Or maybe they were trying to show a little solidarity. I doubt it…

    Then students celebrating the Mexican holiday begin threatening the U.S. flag-wearing students. A teacher gets involved and actually takes physical action to remove the racist Mexican student.

    And now the burden falls on the U.S. students to modify their behavior.

    Well, the thing was strange from the get-go; why shouldn’t it end strangely?

    Maybe the school should not hold any more Cinco De Mayo celebrations if the Mexican students are going to disrupt the school event as they have done.

    • Tim N

      Good points. Your first couple of paragraphs summed up much of my thinking.

    • BS77

      …Mexico is a corrupt, violent, oppressive, polluted mess…over 40 000 people have been killed in the border regions over the past decade….but let’s act like total idiots and celebrate Cinco de Mayo ….

      • laura r

        it is a revolting culture, for the most part. very aggressive. i dont know why leftwing liberals worship these people like gods. there are some decent mexicans from all levels. they agree w/me. btw, there is a huge thug culture in mexico, boys are trained to kill from a young age. they will do it for $30. this is not only “on the border” but way in central mexico. so many well meaning americans are attracted to help these kids, but the do gooder gets killed or robbed. the beat goes on, the mexican knows the white n american is a masocist. the thug mentality is not only w/the poor, but comfortable middle class. they love to threaten. they do it w/each other, its the way of life. the values are opposite of ours.

        • The March Hare

          They are a macho culture. Many of the men go around talking in a deep gruff voice to sound tough, mean and scary. This is the root of the gang culture and it keeps spreading.

        • DennisMets

          yea the politicians will sell out to get votes, they can bring in millions of Mexicans and refugees from Somalia and Haiti and have plenty of votes, but they set these Somalians up in free housing and school etc and they attack and murder the locals. and whites have been programed to feel sorry for these people because they have been bombarded with pics of starving kids for years, why can we not force the rich people (dictators ) IN SOME OF THOSE countries to take care of their own? well be know how much blacks hate whites their preachers push them to hate the demon whites all the time so getting more of them over here helps their war on crackers

          • laura r

            the darker the mexican the more they hate whites. somolians are off the rails.

      • SCREW SOCIALISM

        40,000 dead over 10 years?

        That’s NOTHING.

        130,000+ have died in Syria over 2 years.

        In both cases its savages killing savages.

  • Gee

    This is the same moronic ‘logic’ that leads the police to close the Temple Mount to Jews because of Islamofascist rioting.

    • BS77

      it’s the same delusion as the much heralded “Two State SOlution”….thinking this will finally bring “peace” to the Middle East. .

    • Drakken

      You should have blown up that abomination a long time ago.

  • shmo123

    Tap your heels together three times and repeat, “Diversity is our strength” and it will go away.

  • joshuasweet

    cancel Cinco de Mayo events as the cause of unrest. easy as all get out.

    • BS77

      I say wear the shirt and get suspended. Who cares? If you can’t show the flag in the US anymore….what’s the point of sitting like an idiot in a classroom???

      • SCREW SOCIALISM

        Test for ACLU.honesty.

        • SCREW SOCIALISM

          Would the ACLU defend the “white boys” and their American flag shirts?

      • BS77

        On Columbus Day Italians proudly march with American flags…on St. Patrick’s Day, the Irish have color guards with US flags….We celebrate with American flags because this is America. If you don;t like it, move somewhere else.

  • David Shestokas

    Not only did the 9th Circuit get it wrong, they misused Supreme Court precedent to get there: http://www.shestokas.com/legal-news/court-approves-hecklers-veto-over-flag-wearing-students/

  • CurmudgyOne

    There isn’t much we can say about this situation and what it signifies that hasn’t been said … but the Left has won this battle. Pretty soon, the war will be over, and conservative, traditionalist, patriotic Americans will no longer be allowed to fly the Stars and Stripes in front of their own homes, on their own property … oh, wait … THAT’s already happened too. Oh, my … let’s wring our hands and do nothing else.

  • LawReader

    At this juncture in American history, we’ve basically just seen a court rule free speech isn’t a right in public schools because public schools aren’t responsible for maintaining discipline of the students in public schools.

    At least the last 40 years of American public schools make it pretty clear how we wound up with such judicial buffoons. It’s rather surprising they could spell ‘flag’.

    • joshuasweet

      bandera

  • wileyvet

    Isn’t it funny that without a Columbus sailing under a Spanish flag, setting the stage for the actions of Hernand Cortez and the conquest of Mexico, there would not be a Spanish culture to celebrate a Cinqo de Mayo, or any other Hispanic holiday, in the US or anywhere else. Yet as noted above these multiculturalist celebrate one, and eschew the other holiday. You see Columbus was evil only in the sense in how the result subsequently affected the American Indian in America not evidently how it resulted in the destruction of indigenous people and culture by Spanish conquistadors 100 years BEFORE the settling of Jamestown or Massachusetts by Englishmen. Conquest by Spaniard good, settlement by Englishmen bad.

    • SCREW SOCIALISM

      And lets point out Spanish IMPERIALISM and the products of that imperialism.

      OK class, how did Spanish become the primary language of Central and South America and were did the Spanish language originate???

  • SCREW SOCIALISM

    California is getting as bad as the UK.

    The latter gives absolute deference to anti-british islamofascist.
    The slavish former gives absolute deference to la raza fascists.

    WHAT IS GOING ON?!!!!!!!!!!!!!!!!!!!!!

    • laura r

      there are millions of mexicans there & more coming. thats whats going on. these are not shy people.

  • Digli

    Swarthmore students can protest that College’s Erin Ching by wearing American flags on “Chinko de Mayo”.
    The irony is that Mexicans in Mexico don’t make a big deal out of May 5th like high school morons in Morgan Hill.
    They should make the kids turn their shirts inside out and wear their underwear on the outside to make sure it’s not red, white and blue. That way when they change for Gym no one gets violent.

    • SCREW SOCIALISM

      erin ching can end her brutal and racist occupation of Native American land.

  • mendezjb

    Funny how these mexicans are in the US because their beloved motherland, the failed state of mehico, cannot provide opportunities for mexicans. And they hate this country and celebrate the country they refuse to live in.

    hilarious

    • laura r

      they are takers- these types. the older ones wanted to be american.

    • nomoretraitors

      and sickening

    • DennisMets

      Really how dam strange they encourage Mexicans to honor their old home then do not want southerners to do the same in their states

  • laura r

    if i was on charge i would return their land. then it would be called axteca or mexico. since they are a seperate country (part of mexico) they lose all benefits. the white folks & some mexican US citizens can still receive soc sec or disabilty etc. but it would be as if they are in another country, they will have to deal w/the american consulate. its a good plan, they can have some land back, except hollywood.

  • laura r

    white boys are the lowest on the food chain, thats for sure.

  • Major

    Time to apply for some seasonal beaner hunting permits.

    • Drakken

      Ever since that rancher in AZ got sued by La Raza and other wetback groups for turning in illegals that invaded his property, no one is calling the Border Patrol and turning in illegals anymore. Hmmm the farmers and ranchers must be out can shooting.

      • 11bravo

        Wetback groups? Wow! Not only a threatening post, but racist as well. Are you a republican-Tea Party member, or a conservative?

        • Major

          It’s an accurate and well known description. And there’s a reason for it caused by the mexi’s themselves. It’s for their exceptional ability to tread the waters of the Rio Grande…you supercilious “sensitive” kumquat.

          Oh…and FYI…mexicans are NOT a race…so STFU & GFU sally.

    • 11bravo

      Wow! Not only a threatening post, but racist as well. Are you a republican-Tea Party member, or a conservative?

      • laura r

        its this kind of ignorant talk that amkes things worse. no different than the mexicans.

        • Major

          WTF…this from an eggplant that can’t spell, Capitalize appropriately in a sentence…
          or make sense. You are no doubt….a mexican.

          • laura r

            nice you do spell check. i need a secretary. interested? i do the thinking, you do the office stuff. looking for low to middle skilled workers. let me know.

      • Major

        ICE happens to hunt them all the time…kumquat. And I know what you are…sweety.

  • http://www.amazon.com/Orgy-Blind-Dead-Derrick-Rasmussen-ebook/dp/B0048EL6KW/ref=sr_1_1?ie=UTF8&qid=1393789875&sr=8-1&keywords=orgy+of+the+blind+dead Coffin Joe

    “When thuggery pays, the result is more thuggery.”

    Wait a minute, isn’t the word “thug” the new n-word? So, when n#ggery pays, the result is more n#ggery?

    • tagalog

      That’s a big YES.

  • Jeff Ludwig

    I couldn’t agree more about the surrender to PC. The Pledge of Allegiance had not been said in most New York City high schools from 1966, the height of the “debate” about the Vietnam War, until after 9/11. At that time, standing for and reciting the Pledge was mandated in the public schools. However, over time some schools abandoned saying the pledge. My daughter is a senior in her high school, and the Pledge has not been recited once during any school day in 3-1/2 years. In the high school where I taught for 15 years until 2012, the Pledge was recited everyday but then was discontinued until I made a point about it, and it was restored. However, in my 21 years in the New York Public High Schools, not one patriotic song has been sung during the school years, e.g., America the Beautiful, God Bless America, My Country Tis of Thee, or Battle Hymn of the Republic. Only the Star-Spangled Banner was sung in any high school where I taught, but then only once a year — at graduation (to put on a show for the parents I assumed).

    • tagalog

      In 1966, in New York City, the “debate” over the Vietnam War was still pretty muted. That year was the first one in which the LBJ administration began sending draftees to Vietnam instead of strictly volunteers. The “debate” over Vietnam didn’t reach its peak until about 1970, although there was plenty of heat in 1968 and 1969, but the Kent State/Jackson State shootings are generally accepted as the zenith of the Vietnam War protests. But when thinking about New York City specifically, one can’t forget the WBAI-fostered Spring Equinox police riot at Grand Central Station in 1968.

  • spitfire1938

    Wait…wait! America is gone…lost to a silent communist coup led by an insurgent illegal alien mulatto puppet! The communist have ended the US Constitution! They have ended the rule of law! The Court system is corrupt. The idea of citizenship is ended and we ‘subjects’ have no need to be represented by a Congress. The US Flag “NOW” represents communism…why would you want to wear one?

  • Lanna

    The American flag represents Freedom, and many millions of veterans and soldiers fought and died for it with their blood. I for one am not going to quit wearing it anywhere I please and I think many of us know that communism wants to define our lives, and take away our freedoms…Look how obsessed the commies are to take away your freedoms…its really not WHAT you are wearing, its your ideologies that don’t agree with theirs!

  • nomoretraitors

    i say we schedule a Mexican flag burning in front of the school on 5/5

  • SCREW SOCIALISM

    Time to SHAME the ACLU.

  • laura r

    there are more holidays in mexico than you can count. may 5th is not a special there, only in the US.

  • DennisMets

    This is why sh?t is so screwed up here in the states, we now have enough of them to dictate our policies and silence the locals . what do you think would happen if you allowed chinna to export more people to the states than were in our communities you would have more than little china you soon after a few generations would have a blood bath war and that is where we are headed

  • DennisMets

    If you look back at the history of the United States and Native Indians., there were thousands of Indians until so many whites from Europe came in and move them out or killed them. guess what the politicians are making sure this same thing is played out again, this time with black Somalis and Haitians and all the Mexicans they program to hate white Christians.

  • David Barkin

    Naturally the ACLU deplores the fact that the Free Speech Rights of these kids was abridged by this school board, and they filed an amicus brief to support them. Indeed they point out that if there are divisions in the school, that IS the fault of the school, and it’s a poor education indeed, to vilify those using their Constitutional Rights.

    But the actual interests of the students doesn’t seem to occur to whomever wrote this article, or to many of those who comment below.

    https://www.aclu.org/blog/free-speech/students-american-flag-t-shirts-are-protected-speech

    https://www.youtube.com/watch?v=eV36dgAooy0#t=131