Constitutional Law

9th Circuit mulls high school's ban on US flag T-shirts to avoid Cinco de Mayo trouble


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In a case that pits First Amendment rights of young Americans to display pride in their country against the power of high school administrators to take reasonable measures to promote student safety, a federal appellate panel heard oral arguments Thursday about whether to revive a lawsuit brought by former students who wanted to wear T-shirts featuring the U.S. flag.

A federal district court nixed their suit last year over the May 2010 incident at a Northern California school. Former Chief U.S. District Judge James Ware ruled that potential for “substantial disruption” on Cinco de Mayo justified a decision by administrators of Live Oak High School in Morgan Hill, Calif., to require the plaintiffs to turn their T-shirts inside-out or go home on that one day, the San Jose Mercury News reports.

However, at least one judge on the San Francisco-based 9th U.S. Circuit Court of Appeals panel suggested today that the approach was constitutionally lopsided, a subsequent Mercury News article reports.

“If you have tolerance days, you have to endure the views of anti-tolerance,” Judge Sidney Thomas told a lawyer for the Morgan Hill Unified School District.

A history of strife between Hispanic and Anglo students on the May 5 holiday—which began with an unlikely Mexican victory in battle against the French more than 100 years ago and today commemorates pride in the Mexican heritage—led to the American flag T-shirt ban.

“This is not a case about the flag, or the First Amendment rights of adults in a public forum,” said the school district in a court filing. “This is a case about whether we allow school administrators, familiar with the circumstances in their schools, to take reasonable steps to protect student safety in the face of threats and a history of violence.”

Law professor Eugene Volokh of the University of California-Los Angeles said there is solid authority for the district’s position, although the plaintiffs’ desire to display pride in the American flag is, of course, likely to elicit a sympathetic response.

“In a sense, it’s a heckler’s veto,” he said of school administrators’ decision not to risk disruption of the learning environment by allowing the plaintiffs to wear their T-shirts.

The Associated Press and the L.A. Now page of the Los Angeles Times (sub. req.) also have stories.

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