On The Front Lines

Ninth Circuit Court of Appeals Refuses to Protect Right of Calif. Public School Students to Wear American Flag T-Shirts to School, Rejects 1st Amend. Arguments

SAN FRANCISCO, Calif. — In a blow to the rights of students to engage in peaceful, patriotic expression, a federal appeals court has ruled that California public school officials did not violate the First Amendment rights of several students who were ordered to cover up their patriotic apparel emblazoned with American flags or be sent home on the Mexican holiday Cinco de Mayo, allegedly out of a concern that it might offend Hispanic students. Although the appeals court acknowledged that other students were permitted to wear Mexican flag colors and symbols, it ruled that the school was allowed to forbid the American flag apparel out of concerns that it would cause disruption, even though no disruption had occurred.  Institute attorneys contended that school officials violated long-standing Supreme Court precedent forbidding viewpoint discrimination, insisting that “the celebration of the American flag should be protected no less than its desecration.”

“The decision to bar students from expressing themselves by wearing patriotic apparel to school demonstrates the absurd situation which young Americans face in the public schools today,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Between zero tolerance policies and heavy censorship of student viewpoints, school administrators throughout the country have made it clear that they have no respect for the constitutional rights of young people, who are just as deserving of the rights afforded to them under the Bill of Rights as any other American.”

On May 5, 2010, three Live Oak High School students wore patriotic t-shirts, shorts and shoes to school bearing various images of the U.S. flag.  During a mid-morning “brunch break,” the students were approached by Assistant Principal Miguel Rodriguez, who told the students they could not wear their pro-U.S.A. shirts and gave them the option of either removing their shirts or turning them inside out. When the students refused because the options would be disrespectful to the flag, Rodriguez ordered them to his office. After two of the students’ parents arrived at the school, Rodriguez is alleged to have lectured the group about Cinco de Mayo, indicating that he had received complaints from some Hispanic students about the stars and stripes apparel, and again ordered that the clothing be covered up to prevent offending the Hispanic students on “their” day. Principal Nick Boden also met with the parents and students and affirmed Rodriguez’s order, allegedly because he did not want to offend students who were celebrating Cinco de Mayo.

Arguing that the decision by school officials constituted viewpoint discrimination against pro-U.S.A. expression, Institute attorneys filed suit on behalf of the students and their parents seeking a declaration that the action violated the First Amendment and injunctive relief against a vague school district policy allowing prior restraints on speech to be imposed upon students. The lawsuit asserted that school officials violated the students’ rights to Free Speech under the First Amendment, and their Due Process and Equal Protection rights under the Fourteenth Amendment. In November 2011, the district court ruled in favor of school officials, citing a concern for school safety. Affiliate attorney William J. Becker, Jr. is assisting The Rutherford Institute in its defense of the students.