Students’ right to wear American flag shirts on Cinco de Mayo heads to federal appeals court

Students’ right to wear American flag shirts on Cinco de Mayo heads to federal appeals court
A federal appeals court is considering whether administrators of a school marred by racial tension and gang activity went too far when they sent home students who arrived wearing American flag shirts on a Mexican holiday.

The three students showed up at Live Oak High School on May 5, 2010 and were quickly told to either cover up their attire by turning their shirts inside out or go home. May 5 also happens to be Cinco de Mayo, an annual celebration of Mexican heritage. The holiday is popular throughout the US, particularly in the southwestern states, and is related to the anniversary of a historical battle against French forces observed in the Mexican state of Puebla.  

Administrators said they told the students to hide their clothing because of heightened stress and shouting matches between students on Cinco de Mayo in 2009 at the school, which is located approximately 20 miles from San Jose in central California. The students claim there was no evidence that their clothing had incited any tension and that “American schools cannot logically ban the American flag for any duration or reason.”

Mexican students told KSBW.com that they felt disrespected by the students’ clear decision to coordinate their outfits. “We would never do that on the Fourth of July,” one student said.

I did nothing wrong,” student Daniel Galli said in 2010. “I’m American and I’m proud to be American, so that’s why I wore it.”

Kevin Paulson, former editor in chief of USA Today and the current president of the First Amendment Center, told the Christian Science Monitor that the court case that followed touches on so-called the “viewpoint neutrality.” A speaker in public, for example, is permitted to espouse any belief in public, even ones that might be offensive. Students have not traditionally shared the same privilege.

“The real oddity is that students wearing the same T-shirt on Memorial Day would be applauded, which makes it pretty tough on administrators to [define] whether an American flag T-shirt is subversive or patriotic,” Paulson said.

The now-retired Chief Justice Hames Ware tossed the case from court in 2011, ruling that school administrators have a responsibility to eliminate even the “perceived threat” of violence. He wrote that “our Constitution grants public school children only First Amendment rights when they enter the schoolhouse gates.”

Each student’s lawyer is affiliated with a non-profit firm tied to conservative political causes. William Becker Jr., a counselor at the newly formed Freedom X in Los Angeles, said Ware was “unfortunately too wrapped up in political correctness” in his ruling.

They appealed Ware’s decision and the case was heard on Thursday in the 9th US Circuit Court of Appeals. The three-judge panel is not expected to rule Thursday.

Ninth Circuit Judge Sidney Thomas noted the First Amendment implications that the court’s ruling could have.

If you have tolerance days, you have to endure the views of anti-tolerance,” Thomas told the school district’s lawyer, as quoted by the San Jose Mercury News.

But other judges mentioned how school leaders are now forced to cope with everyday intimidation to the possibility of serious violence on school grounds. How free speech fits into that puzzle remains unclear.

Here, the school is saying on this day, in these circumstances, with racism floating around…we’re not going to risk having a blowup here. So one day only let’s defuse this,” Judge Margaret McKeown said. “What’s wrong with this? You have to wait until they duke it out in the courtyard?”