Court weighs Calif. school’s US flag ban

SAN FRANCISCO — A federal appeals court on Thursday wrestled with the novel question of whether it was offensive for Northern California high school students to display the American flag during a school day dedicated to celebrating Mexican heritage.

The three-judge panel of the 9th U.S. Circuit Court of Appeals didn’t tip its hand on how it would decide in sharply questioning lawyers on both sides of the issue during a 30-minute hearing in San Francisco.

The outcome of the case will help define how far school officials can go in policing student dress. Courts have routinely upheld public schools right to institute dress codes and prohibit patently offensive clothing.

So the question before the court Thursday was whether public school administrators can ban patriotic displays of the American flag on shirts on “Mexican Heritage Day” at a campus plagued by violence and racial strife. The administrators at Live Oak High School in Morgan Hill, about 20 miles south of San Jose, said they were concerned that the shirts would lead to violence and verbal altercations. They told the students to turn the shirts inside out or go home. The students went home and their parents a month later filed a lawsuit, alleging the school and its administrators violated their children’s free speech rights.

Inside the courtroom, Judge Virginia Kendall argued that school officials have a responsibility to prevent violence and disruptions on campus, noting that students allegedly warned the vice principal that trouble was brewing because of the American flag T-shirts.

“Do you have to wait until they duke out in the courtyard,” before administrators can step in and ban the shirts, Kendall asked.

The students’ attorney Robert Muise argued that the “potential” the shirts would cause disruptions on campus was a “risk” the school had to take in deference to the students free speech rights to wear the American flag T-shirts.

The school’s attorney Don Willenburg argued that the school was within its right to ban the shirts for just that single day.

“No one was prevented from expressing views,” Willenburg said.

University of California, Los Angeles, law professor and free speech expert Eugene Volokh calls such punishment a “heckler’s veto.” In public, speakers are protected from such a restriction and allowed to voice most opinions. On-campus students don’t enjoy the same free speech rights. Still, Volokh said administrators can — and sometimes do — go too far and overreact to a perceived threat that may not cause a big enough on-campus stir to warrant the censorship.

“The fact of the matter is that these Americans were punished for wearing the American flag at an American school,” Volokh said.

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