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U.S. Flags on Cinco de Mayo: Student Speech Rights

By Jason Beahm on May 07, 2010 | Last updated on March 21, 2019

There is controversy in Morgan Hill, California, after a vice-principal at Live Oak High School asked two students to remove their American flag t-shirts and bandanas. It was Cinco de Mayo, and because the school has large Mexican-American student population, he believed the flags could cause a disruption. 

Several media outlets have already reported on the story, focusing primarily on the controversy. 

For example, George Kiriyama of MSNBC reports that Julie Fagerstrom, one of the student's mothers said, "I think it's absolutely ridiculous. ... All they were doing was displaying their patriotic nature. They're expressing their individuality."

"I think they should apologize 'cause it is a Mexican Heritage Day," said Live Oak High student Annicia Nunez, continuing, "[w]e don't deserve to be get disrespected like that. We wouldn't do that on the Fourth of July." 

We're going to leave the debate as to the controversy of the flag t-shirt issue and instead focus on the law and a brief discussion on student speech, which may prove to be an important but little commented on, area of this story.

While students have some First Amendment rights at school, they possess lesser protections than adults. The courts have had a difficult time sorting out this area of law. Different courts have come to different conclusions and the law is somewhat unsettled. However, as a pointed out in some of our February posts, the courts must weigh student's right to free speech against the impact that speech has on the school's capability to educate.

Judges typically consider the following:

Did this speech take place on or off campus, and did it disrupt the school environment?

If the speech took place on campus and was likely to have caused a disruption, administrators are often given wide latitude to restrict the speech. 

With this consideration in mind, whether or not a court would find the actions of the vice-principal reasonable would depend on the validity of the judgment that the American flag t-shirts and bandanas were likely to cause a disruption. If the vice-principal had reason to believe the students wore the American flag specifically because it was Cinco de Mayo and they hoped to antagonize Mexican-American students into violence, his actions could be upheld by a court.

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