SCOTUS May Consider Cinco de Mayo US Flag Case UPDATE: Denied

UPDATE: The Supreme Court has declined to hear the case.

The U.S. Supreme Court, prompted by the May 5, 2010 incident at Live Oak High School near San Jose where several students were punished after they wore shirts emblazoned with the American flag on Cinco de Mayo, may institute new standards for free speech.

On Cinco de Mayo 2009, Mexican-American students at the school raised a Mexican flag and marched around the campus, some white students responded by chanting, “USA! USA!” The white students answered one year later with the shirts adorned by American flags; the Mexican-American students then called them racists and protested to Assistant Principal Miguel Rodriguez.

Rodriguez told some of the white students wearing the shirts to American flag to turn their shirts inside out or leave the school; they left the school. Parents including John and Dianna Dariano and two other families then sued the school, filing a free-speech suit (Dariano v. Morgan Hill Unified School District), but a federal judge in San Francisco said the school was trying to prevent violence. That decision was upheld by the 9th Circuit Court in San Francisco in 2014, when it refused to rehear the case.

The Supreme Court’s standard has been that the First Amendment protects the rights of students to peacefully protest at school, as long as there is no subsequent “substantial disruption.”

In February 2014, William Becker, an attorney representing the students, said that if the appeals court refused to rehear the case, he would appeal to the U.S. Supreme Court, saying, “The 9th Circuit upheld the rights of Mexican students celebrating a holiday of another country over U.S. student proudly supporting this country.”

Now an appeal in Dariano v. Morgan Hill Unified School District stands before the Supreme Court, asking whether wearing an American flag in an American, taxpayer-funded school is deemed an unnecessary provocation against Mexican aliens celebrating a Mexican holiday, or stands as a 1st Amendment right. The school district’s attorneys want the Supreme Court to dismiss the case; but some 1st Amendment lawyers think the Supreme Court may consider the matter, according to the Los Angeles Times.

The only case involving free speech and public schools considered by the Supreme Court in recent years occurred in 2007, when the court said a principal could discipline a student with a banner reading, “Bong Hits for Jesus.” The court stated that the banner could be construed as promoting illegal drugs.