Follow-Up: The First Amendment at Live Oak High School

Yesterday, I posted a lesson on the First Amendment.  It seems that the Mexican American students and their supporters took the advice of adding speech on top of more speech to heart.  On Thursday, 200 students walked out of the classrooms of Live Oak High School and marched to the school district headquarters.

All I can say is: Go you!

Aren’t you happy that the First Amendment (kinda*) allows you to do that?!

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One thing bugs me about the news article and what it reported about the motives about the marchers:

“The students say they want people to know they’re proud of their heritage and they believe wearing red, white and blue on Cinco de Mayo is disrespectful.”

I get how wearing red, white, and blue could be construed as disrespectful.  But, the school district cannot force people to change just because it’s disrespectful.  If that was true, I’d petition the school districts to ban Spandex from being worn. (Spandex-wearers are disrespecting my vision!  But I digress.)

I applaud you for how you’re trying to get respect, though.  You’re marching, you’re using the First Amendment for good.  You get many props for that.  There’s honor in the way you chose to get your message out.  My only message to you would be: allow others to do the same.

* What’s with the “kinda”?  Again, Tinker allows school officials to limit free speech if that speech disrupts school operations.  Walking out of the classroom (and essentially skipping class) is a major disruption – more so than a “fight”.  The school officials could punish these kids for their walk-out without violating the First Amendment.  Furthermore, each of those students could be detained by a police officer for skipping school, since they are breaking the compulsory education laws of California.  But, given the state of things surrounding this entire controversy, I doubt any of these students will be punished.

Really think about that.  Now, compare that to the shirts.   Regardless of what you may think about wearing the American flag on Cinco de Mayo, what happened to the Live Oak Five was just wrong.

Companion Lesson: Religion & the First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]”

It’s First Amendment Day. Not only because of the fall-out from the Live Oak Five, but because today is the “National Day of Prayer”.   All we need now is government censoring of the press …

The National Day of Prayer is established by statute:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals. 36 U.S.C. § 199.

In my opinion, this statute does not pass the Lemon Establishment Clause test (Prong 1: “The statute must have a secular legislative purpose”).  This is not to say that the government is establishing a religion.  At most, this statute assumes there is an underlying belief in “God” (or other supernatural deity) who people “turn to in prayer”.

From my perspective of the world, belief in God does not equal a religion.  Yes, belief in God is a fundamental belief in many religions, but it’s not religion in and of itself.  (If it were, why haven’t the world’s religions merged already?)  I can believe that God exists and has brothers and sisters that are in charge of their own universes.  Is that belief a religion?  Religion, to me, is more than that.

But I understand that there are those in the world who do equate the acknowledgment that God exists as being religious, thus, the government should have nothing to say on the matter.

It’s been a constant struggle between two sets of people:  those advocating for complete separation of church and state and those who don’t mind religion being mentioned, as long as one religion isn’t favored over the other.  From the cases I’ve read regarding the Establishment Clause, it really is a toss-up on who wins on a certain issue.

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Lesson: The First Amendment

On May 5, 2010, five students were asked to either change their attire or go home.  These students had the audacity to wear the American flag on Cinco de Mayo.

On any other day at Live Oak High School in Morgan Hill, Daniel Galli and his four friends would not even be noticed for wearing T-shirts with the American flag. But Cinco de Mayo is not any typical day especially on a campus with a large Mexican American student population.

Galli says he and his friends were sitting at a table during brunch break when the vice principal asked two of the boys to remove American flag bandannas that they wearing on their heads and for the others to turn their American flag T-shirts inside out. When they refused, the boys were ordered to go to the principal’s office.

“They said we could wear it on any other day,” Daniel Galli said, “but today is sensitive to Mexican-Americans because it’s supposed to be their holiday so we were not allowed to wear it today.”

The vice principal said the image of the America flag could be incendiary; some students were offended.  On any other day, it would be incendiary.  On any other day, students would not be offended.  On any other day, the five teens would have failed to garner attention.  But, the actions of the vice principal catapulted these students into the national spotlight.  Now it’s the First Amendment versus Respect of Other Cultures.

“Students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” | Tinker v. Des Moines

The Tinker case is akin to what happened to the Live Oak Five.  Instead of American flags, the students wore black armbands in protest to the Viet Nam War.  Not knowing the motivation behind the students’ decisions to wear the American flag on Cinco de Mayo, it is still safe to say that wearing the flag, in general, is speech meant to impart patriotism.

Going by Tinker, school officials must reasonably foresee that the speech would  cause a “substantial disruption” or “material interference” with school activities or would “invade the rights of others” before censoring.   This is why the vice principal said the American flag shirts were incendiary.  The vice principal only wanted to avoid a fight.  The vice principal only wanted to protect those students who were offended.

Obviously, the vice principal is failing at teaching children the basic lessons of living in the United States.  Here’s the lesson: there is no right to be not offended.  We cannot protect children from everything that may hurt their feelings.  That is not the way the world works.  Teach children that they will be offended, then teach children how to deal with it.  Teach children that instead of literally fighting the offense, they should add more speech on top of it – drown it out.  That’s the beauty of free speech.

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