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Supreme Court declines to hear challenge on school American flag clothing ban
The Supreme Court this week let stand a lower court decision, Dariano vs. Morgan Hill, which held that a school could restrict the right of children to wear American flag-themed apparel to school under particular circumstances that might incite violence.

The school never did ban wearing American flag-themed clothing in general, as Clay Calvert, a communications professor at the University of Florida notes in the Huffington Post. They banned it for one day of the year, Cinco de Mayo, on the grounds of deliberate provocation in a school that had a history of racial violence.

The Supreme Court's decision not to hear the case was, as usual, made without comment, but it does mean that fewer than four justices voted to hear the case.

And as Calvert points out, the school had a long history of racial tension between Latinos and whites, and the school argued that avoiding provocation that one day of the year was a necessary compromise for safety.

Calvert cites the 1969 Supreme Court decision Tinker vs. Des Moines Independent School District, which famously held that students "don't shed their constitutional rights at the school house gates."

"But the court in Tinker also made it clear that students' speech rights are not absolute when they are on campus," Calvert writes. "In fact, school administrators can stop student speech without violating the First Amendment if the administrators have actual facts that would reasonably lead them to believe that the speech in question is likely to cause a substantial and material disruption of the educational atmosphere."

The court also declined to hear a companion case that had very similar facts and also came from California. In that case, the lower court judges "documented at least 30 fights on campus during a six-year span between gangs and "between Caucasian and Hispanic" students and that administrators had good reason to tell the boys not to wear the T-shirts on a Mexican holiday, court documents state. One of those fights occurred a year before the day in question, when mostly white students hung an American flag on campus, chanted "USA," and cussed at Mexican students," NBC Bay Area reported.
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