Abstract: A U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK. HI, GU, MP) three-judge panel rules that a high school assistant principal did not violate students’ free speech rights when he prohibited them from wearing clothing bearing the image of the American flag on the day the school was celebrating the Mexican holiday of Cinco de Mayo. It also concluded the assistant principal’s action did not violate the students’ equal protection or due process rights.
Relying on Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 624 (1969), the panel concluded that the school administrator’s actions were justified because, based on the circumstances, he could reasonably forecast a substantial disruption caused by the wearing of the American flag. It also employed the Tinker substantial disruption standard in rejecting the equal protection and due process claims.
SAN FRANCISCO — An attorney is vowing to appeal a federal court ruling that a Northern California high school that asked students to remove American flag shirts on Cinco de Mayo acted reasonably to avoid igniting ethnic tensions.
The ruling stemmed from a 2010 incident that provoked angry commentary across the country and a lawsuit by students claiming their constitutional rights had been violated.
An attorney for three students who sued said he would ask a larger panel of the 9th Circuit to overturn the ruling.
“I am pretty astonished that in this country you can’t express your patriotic freedom without offending people of other national origins,” said William Becker Jr., who represented the students on behalf of FreedomX, a nonprofit he heads to advocate free-speech cases for conservatives and Christians.
If the school feared a disturbance, it should have canceled the Cinco de Mayo celebration, “not deprived students of their 1st Amendment rights to patriotic expression,” he said.