Federal Judge: School can censor student display of American flag

Caroline May | Reporter

A federal court has ruled that school administrators had the right to order California high school students to remove displays of the American flag from their clothing on Cinco De Mayo.

Basing his decision on a concern that violence could result from the display of the American flag on the Mexican holiday, California District Judge James Ware ruled that administrators’ actions to censor the students did not violate the so-called Tinker standard, which protects students’ freedom of speech.

On May 5, 2010, administrators at Live Oak High School told students that if they didn’t turn their American flag-bearing shirts inside-out, they would be sent home for wearing what the school considered to be “incendiary” clothing.

Fox News reported that the order came from Assistant Principal Miguel Rodriguez, who feared an altercation between Mexican-American students celebrating Cinco de Mayo and those wearing the U.S. emblem.

Judge Ware ruled Tuesday that the school was within its right to censor the students for safety purposes.

“In contrast to Tinker, in which the Supreme Court specifically noted that no threats of violence were made here Defendant Rodriguez was warned by two different students that they were concerned that Plaintiffs’ clothing would lead to violence,” Ware wrote in his ruling. “These warnings were made in a context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.”

Ware noted that while no violence actually occurred, it was reasonable for school officials to believe there would be negative implications for allowing the students to wear America-themed clothing.

“Because the school officials were responsible for the safety of Plaintiffs on a day-to-day basis, the Court finds that they did not violate the First Amendment by asking Plaintiffs to turn their shirts inside out to avoid physical harm,” he wrote.

The Student Press Law Center reports the students will be appealing the decision to the 9th Circuit Court of Appeals.

“If (school officials) believe that in 2009 there was evidence that students would become embroiled in some kind of dispute over race or nationalism, then it behooved them not to permit Cinco de Mayo celebrations to take place,” the students’ lead attorney said, according to SPLC. “Instead … they permitted one group to present their message and then disallowed my clients from presenting their message, which, by the way, was not intended to refute or to contest or to challenge the interests of the students who were celebrating Cinco de Mayo.”

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