Can students be barred from wearing patriotic clothes? Dispute goes to court.
High school officials in Morgan Hill, Calif., told three students to go home after they refused to turn their US flag-themed T-shirts inside out during Cinco de Mayo. Administrators cited lingering racial tensions at the school between Hispanics and Anglos.
The right of American students to wear to school patriotic clothing – or just an image of the US flag – is at the core of a volatile constitutional case going in front of the Ninth Circuit Court of Appeals in San Francisco on Thursday.Skip to next paragraph
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On May 5, 2010, Live Oak High School officials in Morgan Hill, Calif., told three students to go home after they refused to turn their US flag-themed T-shirts inside out during Cinco de Mayo, the celebration of a Mexican battle victory over France. Administrators cited lingering racial tensions at the school between Hispanics and Anglos dating back to the previous year’s Cinco de Mayo celebration.
In their lawsuit, the students – listed as D.M., M.D., and D.G. – contend that there’s no evidence that the T-shirts had sparked any disruptions and that “American schools cannot logically ban the American flag for any duration or reason.”
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Not surprisingly, the decision to send the students home for wearing the national flag generated outrage and wall-to-wall media coverage, touching a raw nerve in a country riven by, among other things, the immigration debate and the rise of the tea party, a patriotic conservative grass-roots movement.
But to constitutional scholars and First Amendment experts, the case presents a broader test of the courts’ traditional deference toward schools. It also involves the notion of “the heckler’s veto,” or the ability of government to suppress rowdy speech that it believes could spark violence or suppress the free speech of others.
Moreover, the case touches on the “viewpoint neutrality” principle – where the state, at least technically, is not allowed to discriminate against particular viewpoints, even ones that some people find offensive or distasteful.
“The real oddity of this is that students wearing the same T-shirt on Memorial Day would be applauded, which makes it pretty tough on administrators to divine whether an American flag T-shirt is subversive or patriotic,” says Ken Paulson, former editor in chief of USA Today and now president of the First Amendment Center in Nashville, Tenn.
The students lost the first round, when a US district judge ruled that school officials were within their rights to send the students home. Judge James Ware cited concerns where the flag-wearing Anglo students could be in danger of attack from angry Hispanic students.
“Although no school official can predict with certainty which threats are empty and which will lead to true violence, the Court finds that these school officials were not unreasonable in forecasting that the Plaintiffs’ clothing exposed them to significant danger,” Judge Ware wrote.