American flag T-shirts make it to federal appeals court

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SAN FRANCISCO — A high school’s decision to prevent students from wearing American flag T-shirts on Cinco De Mayo forced a federal appeals court Thursday to consider the friction between free speech and pupil safety.

A three-judge panel of the U.S. 9th Circuit Court of Appeals, meeting here for arguments, appeared inclined to accept that school officials in a Northern California district had reason to be concerned about racial tensions when several boys showed up in U.S. flag shirts on a day set aside to celebrate Mexican heritage.

But the judges did not clearly indicate whether that concern for safety justified a decision by school officials to tell some of the students to turn their shirts inside out or go home. The students went home.


The court is considering whether to revive a lawsuit against the Morgan Hill Unified School District by parents of three Live Oak High School students who wore the T-shirts. A federal district judge had thrown out the suit.

School officials said they acted after students warned them that the T-shirts might provoke a volatile and dangerous disturbance. The school had dealt with racial animosity in the past. The parents said their sons were merely expressing patriotism and meant no offense to Latinos.

“If you have a tolerance day, don’t you have to endure the views of anti-tolerance?” asked 9th Circuit Judge Sydney R. Thomas, a Clinton appointee.

Thomas noted that “proactive free speech often provokes some disruption.”

At the same time, Thomas questioned whether there was any difference between banning students from wearing gang colors, which courts have upheld, and forbidding the flag shirts.

“Isn’t the argument the same?” he asked.

Judge M. Margaret McKeown observed that the Supreme Court has given schools a lot of latitude when it comes to student safety.

“Do you have to wait until they duke it out in the courtyard before you make them take off their T-shirts?” asked McKeown, also a Clinton appointee.


The students involved in the 2010 incident have since graduated, but the action by school officials sparked an outcry from pundits and some 1st Amendment scholars. The court could uphold the dismissal of the lawsuit or permit it to go to trial.

Robert J. Muise, the students’ lawyer, said the school violated the Constitution by permitting some students to celebrate their Mexican heritage while preventing others from showing pride in the U.S. The flag-emblazoned shirts simply represented the students’ desire “to peacefully, passively and silently express a patriotic message,” he argued.

Don Willenburg, representing the school district, countered that the school had a duty to prevent a disturbance and to protect the safety of those wearing the T-shirts. “These students actually did get threats,” he said.

He argued that the school’s administrators, living “in an age of school violence,” had reason to believe the shirts would incite trouble.

The court is likely to rule on the case within the next few months.