Court OK’s School’s American Flag Ban on Cinco de Mayo

Morgan Hill School District authorities were within their rights to order several students to turn their American-flag adorned shirts inside out during a Cinco de Mayo celebration, over school concerns of violence, a federal appeals court ruled.

The 9th U.S. Circuit Court of Appeals said Thursday that in the balance between public school safety needs and students’ free speech rights, the assistant principal Miguel Rodriguez’ reaction was “tailored to the circumstances.”

Three students brought a civil rights suit against the school and two officials, Principal Nick Boden and Rodriguez, for alleged violation of federal and state constitutional rights of free expression, equal protection and due process.

The suit grew out of a May 5, 2010, Cinco de Mayo celebration at LiveOakHigh School in the district south of San Francisco.  The celebration was presented in the “spirit of cultural appreciation,” according to the court and honored the Mexican community that settled the valley in the 1800s.  The school likened it to a St. Patrick’s Day or Oktoberfest celebration.

But Live Oak has a history of violence among students, some gang-related and some along racial lines, with as many as 30 fights on campus.  Just one year earlier there was an incident when one of the three students who sued wore an American flag.

Rodriguez met with the students wearing the American flag clothing and explained he was concerned for their safety.  Officials told several of the students their could either turn the shirts inside out or go home for the day with excused absences that would not count against their attendance.  The students chose to leave and neither was disciplined.

Judge Margaret McKeown said the long standing precedent holds that students may express their opinions, even on controversial subjects, so long as they don’t interfere with the operation of the school, with discipline and without colliding with the rights of others.

To justify prohibiting certain opinions, school officials must show it is more than a mere desire to avoid discomfort with an unpopular viewpoint.

“The controversy and tension remained, but the school’s actions presciently avoided n altercation,” McKeown wrote.

“In keeping with our precedent, school officials’ actions were tailored to avert violence and focused on student safety, in at least two ways.  For one, officials restricted the wearing of certain clothing, but did not punish the students,” she said.

As for the equal protection argument, that they were treated differently than students wearing the colors of the Mexican flag, “we note that the students had no response when asked why they chose to wear flag clothing on the day in question,” she wrote.

The panel upheld the lower courts ruling that the school did not violate their constitutional rights.

Case: Dariano v. Morgan Hill USD, No. 11-17858


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s