A Fire Alarm in the Night: Darino v. Morgan Hill Unified Sch. Dist.
Okay, here comes another long one.
Via Volokh, I learned this morning of a case that should make your blood boil, if you are either 1) patriotic, or 2) just a believer in freedom of speech. And of course many of us are 1) patriotic precisely because this is a nation that 2) believes in free speech—the two viewpoints are not neatly segregated. In the case of Darino v. Morgan Hill Unified Sch. Dist., the court held that if a school believes that a certain symbol will so enrage students that any person wearing it is likely to be attacked, they can ban students from wearing that symbol. This is, frankly, a fairly straightforward application of the principles set down in Tinker, where the Court said that speech could be suppressed based on “facts which might have reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” As the Darino court correctly noted, this is a much lower standard justifying a ban in school than government could get away with in dealing with an ordinary citizen walking down the street. As it stands right now, the government cannot ban a drawing of Mohammed in a newspaper; but it probably could ban it in a student newspaper, or even just on a T-shirt.
So three students decided to wear this symbol on a T-shirt to their school on May 5, 2010, and were told to turn their shirts inside out or go home. The court reasoned that the symbol was so offensive to some students that you could expect those students wearing it to be attacked, and school officials could not, or would not, effectively protect the students. And what was this symbol that is so offensive that other students can be expected to fly into a rage at the mere sight of it?
The American Flag.
Read the whole thing here:
http://patterico.com/2011/11/11/a-fire-alarm-in-the-night-darino-v-morgan-hill-unified-sch-dist/#more-63577
