Appeals court OKs school restriction on American flag shirts

SAN FRANCISCO — A Northern California high school did not violate the constitutional rights of students when it ordered them to remove shirts emblazoned with the American flag during a celebration of Cinco De Mayo, a federal appeals court decided unanimously Thursday.

A three-judge panel of the U.S. 9th Circuit Court of Appeals said administrators at Live Oak School in the Morgan Hill Unified School District had reason to fear that a potentially violent, race-related disturbance might occur during the school-sanctioned celebration of the Mexican holiday in 2010.


"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 ruling stemmed from a civil rights lawsuit brought by students against the school district. A trial judge had ruled for the school district, and Thursday's 9th Circuit decision upheld that ruling.

The panel said school administrators had received warnings of  impending violence and asked those wearing American flag shirts to remove them or turn them inside-out.

"The  school's actions presciently avoided an altercation," the court said. They were "tailored to avert violence and focused on student safety."

The Anglo students in the flag apparel argued they suffered discrimination because students wearing the colors of the Mexican flag were not required to change their clothing.

But the court said only those students in American flag shirts were targeted for possible violence.

[Updated at 12:14 p.m. PST Thursday, Feb. 27: William Becker Jr., who represented three students who sued, said the school should have just canceled the Cinco de Mayo celebration if administrators were worried about violence. “I am pretty astonished that in this country you can’t express your patriotic freedom without offending people of other national origins,” the Los Angeles lawyer said. “The 1st Amendment protects this type of speech, and it shouldn’t have to take a back seat to somebody’s sensitivities regarding their own national heritage.”

Becker, whose nonprofit group,  Freedom X, advocates for the free-speech rights of conservatives and Christians, said he would ask a larger panel of the 9th Circuit to review the decision.

An attorney for the school district could not immediately be reached for comment.]

Twitter: @mauradolan