Judge: School Can Ban American Flag Shirts on Cinco De Mayo

A federal judge ruled that a California school had the authority to ban student displays of the American flag on Cinco de Mayo. Parents of some of the students had sued the school on First Amendment grounds, arguing that their child’s freedom of speech rights had been violated. They also argued that the school violated their 14th Amendment right to equal protection under the law and their freedom of expression rights under the California constitution.

The principal of Live Oak High School in Morgan Hill, Calif., argued the ban was necessary to provide for the safety of the students. The school's ban on American flag displays stemmed from a clash between white and Latino students on May 5, 2009.

Most Mexican-Americans, and increasingly more Americans, celebrate Cinco de Mayo, Spanish for “fifth of May,” a Mexican holiday celebrating Mexico's victory over the French in the Battle of Puebla on May 5, 1862.

On May 5, 2009, the Cinco de Mayo celebrations became on occasion for heightened racial tension at the school. Mexican-American students were carrying a Mexican flag in a celebratory nature. The white students then hoisted a make-shift American flag and began chanting “USA! USA! … .” The two groups then began shouting profanities at each other.

The school banned displays of the American flag on student clothing for the next Cinco de Mayo – May 5, 2010. Students who showed up wearing clothing displaying the American flag, and refused to change their attire, were the plaintiffs in the suit.

“The Court finds that based on these undisputed facts, the school officials reasonably forecast that Plaintiffs’ clothing could cause a substantial disruption with school activities,” U.S. District Court Judge James Ware wrote in his opinion.

An expectation that the students clothing might result in danger to the students was sufficient reason to ban the American flag displays and did not violate the First Amendment's Freedom of Speech Clause, according to Judge Ware.

“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 Plaintiffs’ clothing exposed them to significant danger. Because the school officials were responsible for the safety of Plaintiffs on a day-to-day basis, the Court finds that they did not violate the First Amendment by asking Plaintiffs to turn their shirts inside out to avoid physical harm,” Ware wrote.

Judge Ware also said that the school was not discriminatory by not banning Mexican flag displays because there was no expectation that Mexican flag displays would cause a danger to students.

The Rutherford Institute, a non-profit organization devoted to defending civil liberties filed suit on behalf of the students, arguing that the school engaged in viewpoint discrimination.

John Whitehead, founder and president of The Rutherford Institute, said, in a statement, “this is nothing more than a victory for political correctness. If the court's decision is allowed to stand, any speech a school official happens to dislike will be censored. Those who wrote our Constitution would be shocked.”

The defense relied, in part, upon the Supreme Court case of Tinker v. Des Moines Independent Community School District (1969), which upheld student's rights to wear black armbands to protest the Vietnam War.

Judge Ware noted that several appellate court decisions since Tinker allowed schools to ban displays of the Confederate flag when racial tension and student safety were causes for concern.

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