School Justified in Banning American Flag Shirts for Safety, Court Rules

By Paul Elias and NBC Bay Area Staff
|  Friday, Feb 28, 2014  |  Updated 7:26 AM PDT
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A boy wearing an American flag t-shirt is seen in this file image.

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Officials at a Bay Area high school acted appropriately when they ordered students wearing American flag T-shirts to turn the garments inside out during the Mexican independence celebration Cinco de Mayo, a federal appeals court says.

The 9th U.S. Circuit Court of Appeals ruled Thursday that school officials’ safety concerns outweighed the students' right to free speech.

Administrators feared the American flag shirts would enflame the passions of Latino students celebrating the Mexican holiday back in 2010. Live Oak High School in the San Jose suburb of Morgan Hill had a history of problems between white and Latino students on that day.

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On May 5, 2010, four Live Oak students showed up wearing T-shirts with American flags on them. The school principal and vice principal told the boys to turn the shirts inside out because they could incite violence. When the boys refused, they were sent home.

The unanimous three-judge panel said past problems gave school officials sufficient and justifiable reasons for their actions. The court said schools have wide latitude in curbing certain civil rights to ensure campus safety.

"Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence,'' Judge M. Margaret McKeown wrote for the panel. The past events "made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real,'' she wrote.

The case garnered national attention as many expressed outrage that students were barred from wearing patriotic clothing. The Ann Arbor, Mich.-based American Freedom Law Center, a politically conservative legal aid foundation, and other similar organizations took up the students' case and sued the high school and the school district.

William Becker, one of the lawyers representing the students, said he plans to ask a special 11-judge panel of the appeals court to rehear the case. Becker said he would appeal to the U.S. Supreme Court if he loses again.

"The 9th Circuit upheld the rights of Mexican students celebrating a holiday of another country over U.S. student proudly supporting this country,'' Becker said.


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