Ninth Circuit backs school that ordered students wearing patriotic T-shirts to turn them inside-out

CALIFORNIA — A California high school did not violate the First Amendment when officials ordered students wearing American flag T-shirts to turn them inside-out during a school-sponsored Cinco de Mayo event, a federal appeals court has ruled.

The Ninth U.S. Circuit Court of Appeals sided with Live Oak High School near San Jose, Calif., asserting that administrators acted within their bounds when faced with “threats of race-related violence during a school-sanctioned celebration,” the opinion said. The school has a history of violence among students, in addition to racial tensions specifically on Cinco De Mayo.

The landmark Supreme Court case Tinker v. Des Moines Independent Community School District, which allows students to protest dress codes if there is no “material or substantial disruption” to the order of the school, wasn’t comparable to this case, the court decided.

“Although Tinker guides our analysis, the facts of this case distinguish it sharply from Tinker, in which students’ ‘pure speech’ was held to be constitutionally protected,” the opinion said. “Threats issued in the aftermath of the incident were so real that the parents of the students involved in this suit kept them home from school two days later.”

On Cinco de Mayo in 2009, a year before the events considered in the appeal, an “altercation” occurred between mostly white students and Latino students. Profanities and threats were exchanged, according to the court opinion. The white students began chanting “USA” after a makeshift American flag was hung from a tree. One Latino student responded by saying, “They are being racist. F*** them white boys. Let’s f*** them up,” the court opinion said.

A year later in 2010, a group of white students wore American flag T-shirts to school on Cinco de Mayo, according to the court opinion. Administrators — after being approached by others in the school who had expressed concern — asked the students to turn their shirts inside out, the court opinion said. The students refused. Two were allowed to return to class because their shirts were not as “prominent,” but the others were told to change or go home with an excused absence. They opted to go home.

The group “did not dispute that their attire put them at risk of violence,” the court opinion said. They received threats over the following days, as well, and did not immediately return to school.

Steve Betando, superintendent of Morgan Hill Unified School District, which includes Live Oak High School, said he came into his position after the fact in 2012, but, having been in the courtroom during the Ninth Circuit argument, he “isn’t surprised” by the court’s decision. The school’s actions had nothing to do with favoring one group over another. It was a matter of safety, he said.

“Being in another district when I heard about this, I was quite amazed that action was taken by the administration,” Betando said in an interview. “The media portrayed it — pure and simple — that they were prevented from expressing their patriotism. What I (initially) understood about the situation was through the media. I saw that there was much more to the situation than simply banning someone from wearing an American flag.”

William Becker, one of the attorneys representing the plaintiffs, said he and his clients will petition for an en banc hearing by the Ninth Circuit, in which the case would be reheard before a larger pool of the judges in the circuit. If that fails, they’ll appeal the U.S. Supreme Court.

“There was no actual threat, but the court looked at racial tension that had occurred at the school in years past and found that that was sufficient for the school administrators to believe they needed to take precautions,” said Becker, with California-based conservative law firm Freedom X. “Unfortunately, the school disciplined the wrong students.”

“The cure for that,” Becker said, is to either cancel the Cinco de Mayo celebration or meet with anyone who could be “a potential threat” and discuss what kind of conduct would be expected that day.

“Wearing American flag-patterned clothing should not in any way pose a threat of harm to anybody in this country,” Becker said. “And what it shows is a failure on the part of the students with a Mexican background to love this country and to assimilate.”

Eugene Volokh, a law professor at the University of California Los Angeles, said the court’s decision, while legally sound, sends a troubling message: Americans cannot always openly display their country’s flag. Volokh said he is an immigrant, and he supports immigration, but this could rile tensions on the issue.

“I think under Tinker that the panel decision was probably correct,” Volokh said. “This having been said, the message that that school is sending is if you’re a thug, you win. … If you don’t like speech, all you need to do is threaten violence against the speakers, and the school will be on your side.”

By Rex Santus, SPLC staff writer. Contact Santus by email or at (703) 807-1904 ext. 119.