Bong Hits and American Flags: How Miguel Rodriguez Curtailed Student Expression
May 18, 2010
by Wais Hassan
Parents within the small Santa Clara Valley town of Morgan Hill and across California are still expressing outrage over the persecution of five high school students by an overzealous administrator on May 5. School officials generally have a great deal of discretion to prohibit behavior by students they view as potentially disruptive or injurious to others in the student body but in this case, a school official abused this discretion. The school official in question in this case is Assistant Principal Miguel Rodriguez of Live Oak High School in Morgan Hill, CA.
Rodriguez ordered five students —- Daniel Galli, Austin Carvalho, Matt Dariano, Dominic Maciel and Clayton Howard – to either turn their T-shirts inside out or be sent home. Rodgriguez claimed that wearing American flag t-shirts constituted a provocation and worried that fights could break out between the students and Hispanic students celebrating Cinco de Mayo.
The boys told Rodriguez that turning the shirts inside out was disrespectful and instead opted to go home. Parents of the boys defended their actions and are now considering a possible lawsuit against the school district. According to reports, two of the boys were of Mexican descent and said they didn’t wear the shirts to hurt anyone’s feelings. The school did not place any prohibitions on the large number of Hispanic students who displayed Mexican flags or symbols to celebrate the day. Thus far no disciplinary actions have been taken against administrators at Live Oak High but the district promised to complete an investigation of the incident by June.
Even someone only casually familiar with the law could deduce that the administrators’ actions against the boys violated their 1st Amendment rights. In 1969, the Supreme Court ruled in Tinker v. Des Moines that American students had a constitutional right to freedom of speech which could not be censored unless such speech would, “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” In recent decades, the Court has ruled that promoting illicit drug use or promiscuous sexual behavior did not constitute free speech. Most recently in the infamous ‘Bong Hits for Jesus’ Supreme Court ruling in 2007, the Court ruled that high school student Joseph Frederick did not have a right to display a banner seemingly promoting marijuana smoking, even though the banner was unveiled on non-school grounds. The incident could have easily been seen as a humorous ploy that Frederick staged simply to get on television, rather than a concerted effort to promote drug use. Nonetheless the Court ruled against Frederick and has in recent decades given school administrators greater discretion to stifle any type of speech they might deem as disruptive.
Even the recent expansions of educator discretion the Supreme Court has granted in recent rulings do not come close to justifying the actions of Live Oak administrators on May 5th. The five boys’ behavior did not constitute a major disruption of school operation or pose a threat to other students in the school. Even if one conflates the behavior as an attack on multiculturalism or Mexican ethnicity, such speech is still protected by the 1st Amendment. In 2008 the US Court of Appeals for the Seventh Circuit ruled that school administrators did not have the right to ban students from wearing T-shirts that criticized homosexuality (Nuxoll v. Indian Prairie School District). The American Flag T-shirts the boys wore were obviously much less provocative than shirts condemning homosexuality. Instead of assuming the worst, administrators at Live Oak would have been better served had they opened a dialogue between students from different racial groups and attempted to address any misunderstandings that fuel conflict and tension before cultural holidays like Cinco de Mayo.
