Ninth Circuit hears arguments in suit challenging school’s ban on American flag T-shirts on Cinco de Mayo

A U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP) three-judge panel recently held oral argument in a suit over whether California high school officials violated the free speech rights of students when they ordered the students to turn their American-flag adorned shirts inside out during a Cinco de Mayo celebration, says the San Jose Mercury News.  The judges appeared sympathetic to the families who sued the Morgan Hill Unified School District (MHUSD) over the May 2010 incident at Live Oak High School (LOHS), suggesting that at the very least a jury should decide whether school administrators’ actions were justified.

LOHS officials demanded the students either cover up the symbols or leave school.  They justified their decision on a history of threats that raised fears of violence during the planned Cinco de Mayo celebration.  However, Judge Sidney Thomas said there could be First Amendment implications to allowing only one message on that day.  “If you have tolerance days, you have to endure the views of anti-tolerance,” Thomas said.

The panel did point out that there is strong legal precedent for giving school leaders wide latitude to cope with threats of campus violence or disruption, even at the expense of free speech rights.  “Here, the school is saying on this day, in these circumstances, with racism floating around … we’re not going to risk having a blowup here.  So one day only let’s defuse this,” Judge M. Margaret McKeown said.  “What’s wrong with this? You have to wait until they duke it out in the courtyard?”

The suit highlights two divergent views of student speech rights.  The students and their parents contend that no circumstances warrant a school forbidding a student from wearing a shirt with the American flag.  They have insisted the students were only showing their patriotism and did not intend to incite trouble with Latino students on Cinco de Mayo.

School officials, however, maintain that Live Oak administrators had a right to avoid trouble, and that they had indications that wearing the U.S. flag shirts that day jeopardized the students.  Don Willenburg, the school district’s lawyer, told the panel,  “We live in a time and age of school violence and this case is about school safety.”

Robert Muise, the parents’ lawyer, on the other hand, asserted “the safety concerns are a pretext.”  He also told the panel: “Their main concern was a viewpoint restriction, not a safety issue.”

Source: San Jose Mercury News, 10/17/13, By Howard Mintz

[Editor's Note: This case was appealed to the Ninth Circuit by the students and their parents after a district court in California granted the LOHS assistant principal's motion for summary judgement.  In November 2011, Legal Clips summarized the district court's ruling in Dariano v. MHUSD.  The claims against the principal were stayed because he had filed for bankruptcy, and the claims against the school district were dismissed based on Eleventh Amendment sovereign immunity.] 

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