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Liberal Ninth Circuit Upholds Ban on American Flag T-Shirts in California High School on "Cinco de Mayo"

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Today, the Ninth Circuit affirmed a decision by a lower federal court in San Francisco that upheld a school district’s ban on the wearing of American flag shirts on a California high school campus in 2010 during Cinco de Mayo (May 5th)—a Mexican holiday.

AFLC Co-Founder and Senior Counsel Robert Muise, who argued the case before the Ninth Circuit, commented: “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. Here, school officials feared that our clients would offend ‘Mexican’ students if they wore their flag shirts to school on Cinco de Mayo, so they ordered the students to either remove their shirts or leave school in direct violation of their First Amendment rights.”

On May 5, 2010, school officials from Live Oak High School in the Morgan Hill Unified School District, California, prevented five students from wearing American flag t-shirts because the officials did not want to offend “Mexican” students on “their day.” That day, some students at the school were celebrating the Mexican holiday known as Cinco de Mayo. School officials approved the Cinco de Mayo celebration, which was co-sponsored by M.E.Ch.A, a school-sanctioned student group.

While school officials claimed that they were concerned about racial tension and potential threats of violence in light of an altercation that occurred between Mexican and American students on campus during a 2009 Cinco de Mayo celebration, the officials nonetheless approved the 2010 Mexican celebration, demonstrating that their fear of violence was nothing short of a pretext.

Moreover, despite banning the American flag, school officials permitted the Mexican students participating in the Cinco de Mayo celebration to wear clothing that had the colors of the Mexican flag. The Ninth Circuit held that this was permissible because school officials were not concerned about any of the American students engaging in violence against the Mexican-flag wearing students.

The Ninth Circuit stated, “As the district court noted, the students offered no evidence ‘demonstrating that students wearing the colors of the Mexican flag were targeted for violence.’ The students offered no evidence that students at a similar risk of danger were treated differently, and therefore no evidence of impermissible viewpoint discrimination.”

The students wearing the American flag shirts had been on campus for over 3 hours when they were approached by an assistant principal and ordered to turn their shirts inside out. When the students refused to disrespect the American flag, the school official directed them to the principal’s office where they were lectured on the importance of Cinco de Mayo and given the option of either removing their shirts or leaving school. The students refused to remove the shirts, so they left school and then filed this civil rights lawsuit.

AFLC Senior Counsel David Yerushalmi commented: “These students and their parents should be commended for standing up and exercising their rights under the First Amendment. Our rights will only have meaning if we are willing to fight for them. That is what the American Freedom Law Center is doing every day, but it also takes courageous citizens, such as our clients in this case, to join us in the fight.”

During the discovery phase of the lawsuit, the evidence overwhelmingly showed that school officials intentionally restricted the students’ speech on May 5, 2010, because they believed that the pro-America message conveyed by the students’ patriotic clothing would offend some Mexican students since it was Cinco de Mayo—“their day,” as one school official testified.

School officials enforced the clothing restriction even though they had no objective evidence that the students were causing any disruption—let alone a material and substantial one—to the operation of the school by wearing the American flag shirts.

Despite this uncontested evidence, the lower federal court ruled in favor of the school district, stating, “Upon review, 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, and therefore did not violate [the First Amendment].” The Ninth Circuit affirmed this ruling.

AFLC intends to file a petition for full court review, which must be filed within 14 days.