Patriotism aside, a South Bay high school worried about campus safety was within its legal rights to order a group of students wearing American-flag adorned shirts to turn them inside out during a 2010 Cinco de Mayo celebration, a federal appeals court ruled Thursday.
In a unanimous, three-judge decision, the 9th U.S. Circuit Court of Appeals sided with the Morgan Hill Unified School District, which had argued that a history of problems on the Mexican holiday justified the Live Oak High School administrators' decision to act against the flag-wearing students.
Live Oak officials ordered the students to either cover up the U.S. flag shirts or go home, citing a history of threats and campus strife between Latino and Anglo students that raised fears of violence on the day the school was highlighting Cinco de Mayo. The school's actions were reasonable given the safety concerns, which outweighed the students' First Amendment claims, the court concluded.
"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," 9th Circuit 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."
William Becker, a lawyer for parents who sued the district, said they would ask the 9th Circuit to reconsider the case with an 11-judge panel. The parents have vowed to push the case to the U.S. Supreme Court if necessary and expressed disappointment with Thursday's ruling.
"This is the United States of America," said Kendall Jones, whose son, Daniel Galli, was one of the Live Oak students sent home. "The idea that it's offensive to wear patriotic clothing ... regardless of what day it is, is unconscionable to me."
Steve Betando, Morgan Hill Unified's superintendent, said he was relieved the 9th Circuit backed the school's concerns about trying to avert violence.
"We believe the 9th Circuit correctly determined that administrators must be afforded reasonable leeway to make difficult decisions when necessary to protect student safety, even where such decisions impact student speech," he said.
The legal flap has sparked nationwide attention, stemming from the parents' First Amendment argument that no circumstances warrant a school forbidding a student from wearing a shirt with the American flag. In interviews with this newspaper, the families of the students said the students were only showing their patriotism and did not intend to incite trouble with Latino students on Cinco de Mayo.
The 9th Circuit case centered heavily on U.S. Supreme Court precedent on when school discipline violates students' First Amendment rights. A 1969 ruling held that schools must demonstrate a reasonable concern about school safety to justify taking action, and the 9th Circuit found that Live Oak administrators met that standard enough to override student free speech protections.
The appeals court upheld a decision by former Chief U.S. District Judge James Ware, who also sided with the school district. Legal experts say the decisions appear to be on firm ground and are likely to stand in further appeal, although the outcome may be unsatisfactory given the students were displaying the flag.
"I can't fault the (9th Circuit) for this," said Eugene Volokh, a UCLA law professor. "But, boy, this is a pretty sad commentary. Here we have a school saying it's too dangerous for students to wear an American flag to an American school."
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.