Court rules for high school that asked students to remove flag shirts

SAN FRANCISCO — A Northern California high school that asked students to remove American flag shirts on Cinco de Mayo acted reasonably to avoid igniting ethnic tensions, a federal appeals court ruled unanimously Thursday.

The ruling stemmed from a 2010 incident that provoked angry commentary across the country and a lawsuit by students claiming their constitutional rights had been violated.

In siding with the Morgan Hill Unified School District, a three-judge panel of the U.S. 9th Circuit Court of Appeals said administrators at Live Oak School had reason to fear the flag attire might spark a potentially violent race-related disturbance during the school-sanctioned celebration of the Mexican holiday.

After being warned of possible trouble, the school administration asked a group of white students to remove the American flag attire or turn their shirts inside out. The administrator told the students he was concerned for their safety, the court said.

Two students whose shirts were not considered highly provocative were permitted to go to class, and two who refused to change were sent home but not disciplined, the court said. The students who went home later received threatening text messages.

“Live Oak had a history of violence among students, some gang-related and some drawn along racial lines...,” Judge M. Margaret McKeown wrote for the court. “The school’s actions presciently avoided an altercation.”

An attorney for three students who sued said he would ask a larger panel of the 9th Circuit to overturn the ruling.

“I am pretty astonished that in this country you can’t express your patriotic freedom without offending people of other national origins,” said William Becker Jr., who represented the students on behalf of FreedomX, a nonprofit he heads to advocate free-speech cases for conservatives and Christians.

If the school feared a disturbance, it should have canceled the Cinco de Mayo celebration, “not deprived students of their 1st Amendment rights to patriotic expression,” he said.

The court said the school did not violate the students’ free-speech rights because its actions were “tailored to avert violence and focused on student safety.” Although students were restricted from wearing flag shirts, they were not punished for it, the court said.

“School officials have greater constitutional latitude to suppress student speech than to punish it,” the court said.

In determining whether a constitutional violation occurred, the court said it was significant that the school did not flatly ban all flag apparel and allowed two students with shirts that were less inflammatory to return to class. The less inflammatory shirts were emblazoned with the logo of a martial arts company that had flag iconography.

The court also rejected a claim that the white students suffered discrimination because others who wore the colors of the Mexican flag were not required to change. There was a practical reason for the distinction, the court said. Only those wearing American flag shirts were targeted for violence.

Neither the lawyer for the school district nor a district spokesperson were available to comment.

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