SAN FRANCISCO, Calif. — A federal appeals court has refused to reconsider its ruling that it is unsafe to display an American flag in an American public school, for fear of causing offense and disruption. The denial of a petition for rehearing by the U.S. Court of Appeals for the Ninth Circuit came in response to a case being handled by Rutherford Institute attorneys in which school officials ordered several students 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. Three of the nine judges on the Ninth Circuit agreed with The Institute that school officials violated long-standing Supreme Court precedent forbidding suppression of protected expression on the basis of a “heckler’s veto,” which occurs when the government restricts an individual’s right to free speech in order to maintain order.
“There are all kinds of labels being put on so-called ‘unacceptable’ speech today, from calling it politically incorrect and hate speech to offensive and dangerous speech, but the real message being conveyed is that Americans don’t have a right to express themselves if what they are saying is unpopular or in any way controversial,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Whether it’s through the use of so-called ‘free speech zones,’ the requirement of speech permits, or the policing of online forums, what we’re seeing is the caging of free speech and the asphyxiation of the First Amendment.”
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, Rutherford 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. That ruling was affirmed by the Ninth Circuit Court of Appeals in February 2014. Although the appeals court acknowledged that other students were permitted to wear Mexican flag colors and symbols, it ruled that school officials could forbid the American flag apparel out of concerns that it would cause disruption, even though no disruption had occurred. Affiliate attorney William J. Becker, Jr. is assisting The Rutherford Institute in its defense of the students.