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Bench Memos

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Thug’s Veto Prevails in Ninth Circuit



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In a ruling yesterday (in Dariano v. Morgan Hill Unified School District), a Ninth Circuit panel held that high-school officials did not violate the constitutional rights of students whom they required to remove clothing bearing images of the American flag. School officials took that action because they anticipated that clothing with images of the American flag would trigger violence from “Mexican students” (the odd term that the panel embraces to refer both “to students of Mexican origin born in the United States and students born in Mexico”) in connection with a school-sponsored Cinco de Mayo celebration.

I broadly agree with what Eugene Volokh wrote about the ruling yesterday, including that it may well be a “faithful application” of the Supreme Court’s 1969 precedent in Tinker v. Des Moines Independent Community School District. Volokh soundly observes that even if the ruling is right, “[s]omething is badly wrong” when a school “feels unable to prevent [student-on-student] attacks (by punishing the threateners and the attackers)” and instead allows a “heckler’s veto”—“thug’s veto” seems more apt—to prevail. As he puts it, “When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?”

To illustrate the unfairness of the thug’s veto, consider this: The plaintiff students brought an equal-protection claim in which they alleged that they were treated differently than students wearing the colors of the Mexican flag. Their claim failed because they “offered no evidence ‘demonstrating that students wearing the colors of the Mexican flag were targeted for violence.’” In other words, if only they (or other “Caucasian students”—again, the panel’s terms) had been as thuggish, they might have prevailed on their claim. (Alternatively, perhaps under those circumstances the school would have barred students from wearing the colors of the Mexican flag on Cinco de Mayo.)



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