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Appeal Denied in Lawsuit Against High School That Banned American Flag Shirts

Mariano v. Morgan Hill Unified School District
The plaintiffs in a student free speech case, Mariano v. Morgan Hill Unified School District. Students were reportedly told that they were not allowed to wear clothing with the American flag on it during a Cinco de Mayo celebration at Live Oak High School. |

An appeals court has denied a rehearing in a case surrounding a California high school's banning of American flag shirts on Cinco de Mayo.

The Ninth Circuit Court of Appeals ruled Wednesday that the lawsuit Mariano vs. Morgan Hill Unified School District will not be heard before the full court.

"School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances," read the opinion.

"As a consequence, we conclude that school officials did not violate the students' rights to freedom of expression, due process, or equal protection."

Included in the order was a dissent by Ninth Circuit Judge Diarmuid F. O'Scannlain, who was joined by two other justices.

"The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular," wrote O'Scannlain.

"For that reason, it is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech. It is this bedrock principle — known as the heckler's veto doctrine — that the panel overlooks …."

Live Oak High School
The campus of Live Oak High School in the Morgan Hill Unified School District of California. |

In 2010, a group of Caucasian students at Live Oak High School of the Morgan Hill Unified School District opted to wear clothing with American flags on them during a school-wide observance of Cinco de Mayo.

The students who decided to wear such clothing were told by the principal that their attire might cause tension within the racially diverse school.

Two of the students were allowed to return to class, reportedly because the flags on their clothing were less prominent. Two other students were told to turn their shirts inside out or go home. They chose to do the latter.

In response to the school's ultimatum to the students, the parents of the teenagers involved filed a lawsuit against Live Oak and Morgan Hill arguing that their children's First and Fourteenth Amendment rights were violated.

In late February, a three judge panel of the Ninth Circuit ruled unanimously in favor of the school, with the Associated Press noting that "the officials' concerns of racial violence outweighed students' freedom of expression rights."

"Administrators feared the American-flag shirts would enflame the passions of Latino students celebrating the Mexican holiday," reported the AP.

"Live Oak High School, in the San Jose suburb of Morgan Hill, had a history of problems between white and Latino students on that day."

The students and their parents were represented by the American Freedom Law Center, who requested a rehearing before the en banc Ninth Circuit.

Regarding the Ninth Circuit's decision to not rehear the case, AFLC senior counsel and co-founder Robert Muise stated his disapproval of the result.

"As Judge O'Scannlain's dissent makes clear, this decision imperils our First Amendment freedoms and permits the will of the mob to rule our school," stated Muise.

Muise also stated that "this fight is far from over" and that the AFLC "will be seeking review in the U.S. Supreme Court."

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