Published time: October 17, 2013 23:48
Edited time: October 18, 2013 00:25
Win McNamee/Getty Images/AFP
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
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
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
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
“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