Racial tensions and gang problems were plaguing a Northern California high school when three students arrived for classes in 2010 wearing American flag T-shirts on Cinco de Mayo.
Unpleasant verbal exchanges and altercations marked the previous year’s Cinco de Mayo celebrations at Live Oak High School in Morgan Hill, 20 miles south of San Jose. So when students told administrators that trouble was a possibility because of the American flag attire, the students were ordered to turn their shirts inside out or go home.
They went home, and the incident sparked a national debate, prompting satellite news trucks to camp outside the school for several days afterward as well-known pundits across the political spectrum argued about the issue over the airwaves. Cinco de Mayo is observed by some as a celebration of Mexican heritage.
The three students have since graduated, but a federal appeals court in San Francisco on Thursday was set to consider their lawsuit alleging the school violated their free speech and equal protections rights guaranteed by the U.S. Constitution. A decision in the students’ favor could restrict how broadly schools are able to limit student speech on the grounds that it’s offensive.
The three-judge panel of the 9th U.S. Circuit Court of Appeals is not expected to rule Thursday.
A lower court tossed out the students’ lawsuit in December 2011, ruling that school administrators have wide legal latitude to ensure the safety and effective operation of their campuses and a “perceived threat” of violence vindicated the principal’s decision.
The lower court judge who tossed out the case, the now-retired Chief Judge James Ware, noted that “our Constitution grants public school children only limited First Amendment rights when they enter the schoolhouse gates,” while conceding this particular case has landed in “important legal territory.”
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.
“A school may restrict a student’s speech,” Volokh said, “to prevent unruly disruptions.”
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.