Court In SF: School Didn’t Violate Rights Of Students Told To Remove American Flag T-Shirts

A federal appeal court ruled today that officials of a Morgan Hill high school didn’t violate students’ civil rights when they asked several students to remove American flag T-shirts during a Cinco de Mayo celebration in 2010.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously said the action was justified because the administrators had a reasonable belief that the T-shirts could lead to conflicts and possible violence among students.

“School official anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,” Judge Margaret McKeown wrote.

“As a consequence, we conclude that school officials did not violate the students’ right to freedom of expression, due process or equal protection,” McKeown wrote in the panel’s opinion.

The panel upheld a 2010 decision in which now-retired U.S. District Judge James Ware of San Jose dismissed a lawsuit filed by the parents of three students who wore American flag T-shirts at a Cinco de Mayo celebration at Live Oak High School on May 5, 2010.

The celebration was intended as a cultural appreciation of the heritage from Mexican people who had settled in the area, the school said. At the same event in 2009, groups of predominantly Caucasian students and Mexican-American students had argued and exchanged threats, according to the court.

After being alerted by students of possible altercations related to the American flag emblems worn at the 2010 celebration, Assistant Principal Miguel Rodriguez at the direction of then-Principal Nick Boden told several students wearing the shirts that he was concerned for their safety. He asked them to remove their shirts, turn them inside out, or go home with an excused absence.

Two of the students in the lawsuit went home. The third student whose parents sued was wearing a shirt with a less prominent flag design and was allowed to stay, but his mother took him home.

The incident was widely publicized in local and national media, and former Morgan Hill Unified School District Superintendent Wesley Smith said at the time that the school’s reaction was “extremely unfortunate.”

The appeals court panel based its reasoning on a 1969 U.S. Supreme Court decision in which the high court said students have free speech rights, but the rights can be restricted when school authorities can reasonably “forecast substantial disruption of or material interference with school activities.”

The appeals court said the Live Oak officials’ actions met that standard in view of a history of race-related violence at the school and the warnings of a possible disturbance in 2010.

“Both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real,” MdKeown wrote.

Robert Muise, a lawyer for the parents, said the parents will ask the appeals court to have an expanded 11-judge panel review the case.

“It is truly a sad day when government officials are permitted to ban the American flag on a public high school campus for any reason,” said Muise, who works with the Michigan-based American Freedom Law Center.

District Superintendent Steve Betando said, “By its ruling, the 9th Circuit court recognizes that maintaining safety, security, and order on school campuses sometimes requires action to change a situation in the interest of student welfare.

“Had the predicted violence been ignored or dismissed, staff could be responsible for not intervening when signs of potential violence were clearly reported,” Betando said.

The lawsuit was originally filed against the school district, Boden and Rodriguez, but Rodriguez was the only defendant in the appeal because Ware dismissed the district as a defendant and Boden was dropped from the case.

Julia Cheever, Bay City News

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  • Matthew Cacophony

    I dislike the fact that the American flag was banned from an American high school. Even more than that, I dislike the fact that apparently a few misguided teenagers were using the American flag as a weapon to offend Mexicans. I imagine if it hadn’t been organized as a protest by the students, or meant to offend, it wouldn’t have been an entire collection of students and there wouldn’t have been the threat of altercation. You can make anything offensive, including the US flag, if you try hard enough and are a large enough jerk about it.

    • nikki2sox

      Great comment! I agree 100%.

  • Woz Neak

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” What part of or avridging the freedom of speech” don’t they understand.

    • Matthew Cacophony

      They were essentially wearing red white and blue gang colors. It’s unfortunate that these students perverted the message of the American flag so badly, but they were essentially using it as a gang sign. They meant it to be offensive and were looking for a confrontation. The school did the right thing here, even though I hate to see the flag banned for any reason. Blame the students.

      • Ecclesiastes

        I think your gang analogy is misplaced. Wearing the U.S. flag should not justify violence from another ethnic group. I’m kind of shocked that many of the people posting on this site totally ignore the fact that administrators were worried about violence being perpetrated against the kids wearing the U.S. flag.

        The right to free speech is meant to protect that speech even when it is provocative and uncomfortable for some. While I agree with the school administrators’ decision to avoid violence, the simple fact that violence was a possible outcome is totally unacceptable in this case.

        • Matthew Cacophony

          At no point did anyone imply the violence would be directed *at* the people wearing the American flag. I suspect they thought there would be violence *between* the people wearing American Flags, who were going out of their way to incite it, and people opposed to this. I’m not sure which group would have started the violence… probably would have started as shouting and escalated. Yours is an entirely, 100% unfounded assumption.

          The “right to free speech” both doesn’t apply in schools the same way it’s applicable everywhere else, and the school systems have won similar cases in the past when outlawing things like gang colors or trench coats when they represent a “gang” affiliation.

          • traz569

            That is false, Matthew. From the Washington Post: “one Mexican student shouted “f*** them white boys, f*** them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.”

            Mathew, I think it is very clear that saying, “let’s f*** them up,” is far more than an implication of violence. It is a very clear threat of violence.

          • Ecclesiastes

            The U.S. Flag is not “gang colors or trench coats”. It deserves some special consideration and could be considered a protest symbol. Regardless of the wearers’ intentions, they should not have been punished and there should not have been anything approaching a hostile situation simply for wearing it. End of story.

            This is a case of political correctness taken too far in the wrong direction. Why didn’t the principal remove those threatening confrontation on the other side (those not wearing flags)? C’mon.

          • Matthew Cacophony

            What was the principle supposed to do… remove people for being Mexican??

            Remember, nobody is claiming that the non-flag wearing students would have started the violence, just that there would *be* violence. People getting together to inflame another group because they want to exclude them (there was no *good* message that the people with flags were trying to spread) makes them the instigators, and it’s likely they would have instigated the violence.

          • Ecclesiastes

            The 1st Amendment is important here. Wearing the U.S. flag should not be prohibited just because some ethnic groups find it offensive. We live in the U.S. Let me repeat, we live in the U.S.

      • Woz Neak

        Matthew, I agree with you
        that violence is rarely if ever the correct answer. That being said, those
        students still have a right to wear whatever color they choose, So long as it
        does not offend the public decency. It sound to me like you have first hand knowledge of the situation. If thats true, i’d love to hear more about what you actually saw/witnessed. Were there threats of violence?

  • patriot

    why do we allow this to happen it seems to me that U.S citizens take a back seat on our own soil well I have a huge problem with this we have a right to where our flag any where in the U.S.A that’s our right guaranteed by the constitution of the UNITED STATES OF AMERICA if any foreign or illegal thinks he is being treated so bad please by all means leave the country my family gave there LIVES so I could live free. So to the 9th circuit court they need to be fired. they gave an oath to up hold the constitution that is treason I hate to see what this country going to be in 30 or 40 years. the way I see it declare war on mexico take the hole dam country and make our 51 first state they want to be American well lets give it to them

    • Matthew Cacophony

      They meant to make the flag offensive and succeeded. You can pervert
      the meaning of pretty much anything to be offensive if you’re enough of a
      jerk. To me, this is similar to the people who wave the cross in the
      faces of homosexuals. It’s unfortunate that they chose the American
      flag as their “gang sign” in this case, but that’s essentially what
      happened. Red white and blue gang colors.

      • traz569

        You apparently believe “offensive” speech should be banned. Actually, that is the most important type of speech to protect.

        • Matthew Cacophony

          No, I don’t. I *do* think schools should have different standards of free speech for several reasons, which *should* ban certain types of speech intended to incite violence / conflict. I also think that visible gang affiliation of any type is *already* banned in most schools, and using the American Flag as a gang symbol (essentially what they did) is both offensive to me as a flag-loving American, and not a loophole we should leave open. Finally I think the school has a *legal* obligation to protect its students when they’re on school property (they could be sued etc., as they’re taking temporary guardianship of the students) and had a legal obligation to protect the students from harm even if it meant limiting their speech in a small way temporarily.

          We’re talking about teenagers in a school building here, not “banning offensive speech.” They’re young, inexperienced, and full of emotion and hormones. If you don’t think an adult has a responsibility to protect them from themselves as much as from other people, I don’t know what to say to you.

    • Jay

      This comment does not dignify responses.. You are too willfully braindead!

    • dawdler

      You have a huge problem with punctuation too.

  • Solymar

    Wearing an American flag T shirt should not provoke anyone living here in the USA much less attending a tax funded high school. Anyone causing a disruption of any sort should face the consequences of their actions. Peace at all costs sends a bad message. The American flag is a symbol of unity for all of us despite where we come from. And should be respected and recognized as such. This decision is WRONG.

    • Matthew Cacophony

      “The American flag is a symbol of unity for all of us despite where we come from.”

      That’s what the American flag *should* be. Don’t be mad at the faculty, be mad at the students who were perverting the message of the flag from what it should be to “There is no room for Mexican pride here!” which is what they were intending. They meant to make the flag offensive and succeeded. You can pervert the meaning of pretty much anything to be offensive if you’re enough of a jerk. To me, this is similar to the people who wave the cross in the faces of homosexuals. It’s unfortunate that they chose the American flag as their “gang sign” in this case, but that’s essentially what happened. Red white and blue gang colors.

      • Solymar

        Even if some did find the flag offensive, it does not give them the right to violence. High school is a good place to learn self control and that actions have consequences.

  • Franc012

    I wonder if these same American students would have been as patriotic on St. Patrick’s day? It amazes me how many people in this country are offended by the Mexican flag, and don’t seem offended by any other flag. In fact, there are plenty of American kids that will where the Union Jack (which nobody seems to be offended by), even though it’s the flag of the only country that has actually invaded these United States (think of the War of 1812).

    • Matthew Cacophony

      Japan invaded the US in the Aleutian Islands in WWII actually, just so far from the continental US that nobody really remembers.

  • patriot

    Land of the free well not every body just for certain few

  • Sam

    What happens to the old days when immigrants came to United States to be part of the family? While it’s ok to bring along some of their native culture, it was more important for them to learn the language, learn the history, and assimilate into the American culture. That is a very basic respect.

    These days, I think it’s more like we (born or naturalized) Americans yielding to the new comers. We are the ones being assimilated. Why bother with citizenship test or anything like, just open the God darn border and let them change our laws, and our flag as well!

    • Matthew Cacophony

      I don’t think you understand the issue here at all. This isn’t a case of Mexican kids failing to integrate. This is a case of American kids using the flag to exclude Mexicans who were celebrating May 5 (which does *not* mean they didn’t also celebrate July 4). These kids were trying to send a message that Mexican holidays have no place here, which is not true. They *weren’t* supporting America, they were detracting from Mexico (which just besmirches the flag they chose as their hate symbol).

  • Jay

    Nobody likes to see the American flag temporarily suspended at any school, I mean we do pledge allegiance to it everyday from the time we’re like 6 years old. But these students were not randomly wearing flag shirts to be patriotic. These kids knowingly conspired to use their American flag shirts on Cinco de Mayo as a form of defiance and provocation to promote their intolerance for any Mexican pride on their school campus. Clearly these kids feel as if their white privilege is being threatened by immigrants from Mexico who have their boot on the necks of the white man. The school officials did the right thing, it doesn’t take a genius to see that these white kids were trying to provoke their Mexican classmates by hiding behind the flag and symbolically saying “screw you Mexicans, go home!” Only a moron would fall for their halfbaked teenaged charade of “Mommy, Daddy, help me sue the school because they hate white American kids like me” game. These are a small group of kids whose parents have taught them the art of small minded bigotry and intolerance.