9th Circuit wrestles with American flag shirts and free speech

SAN FRANCISCO -- A federal appeals court wrestled with a case Thursday that pits the right of students to wear American flag T-shirts against the need for school administrators to ensure campus safety.

A three-judge panel of the U.S. 9^th Circuit Court of Appeals, meeting here for arguments, appeared inclined to accept that school officials had reason to be concerned when several boys showed up in U.S. flag shirts on Cinco de Mayo in 2010 at a Northern California high school where there had been racial tensions.

But the judges did not clearly indicate whether that concern for safety justified a school official’s decision to tell the students to turn their shirts inside out or go home. The students went home.

The court is considering whether to revive a lawsuit against the Morgan Hill Unified School District by parents of three Live Oak High School students who wore the T-shirts. A federal district judge had dismissed the case.

School officials said they acted after students warned them the T-shirts might provoke a volatile and dangerous reaction. The students’ parents said their sons were merely expressing patriotism and meant no offense to Latinos.

“If you have a tolerance day, don’t you have to endure the views of anti-tolerance?” asked 9^th Circuit Judge Sydney R. Thomas, a Clinton appointee.

Thomas noted “proactive free speech often provokes some disruption.”

But Judge M. Margaret McKeown observed the Supreme Court has given schools a lot of latitude when it comes to student safety.

“Do you have to wait until they duke it out in the courtyard before you make them take off their T-shirts?” she asked.

The court is likely to rule on the case within the next few months.

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