9th circuit court: It’s legal for school to ban US flag shirts on Cinco de Mayo

The 9th circuit court in California has denied a rehearing in a case surrounding a high school’s banning of American flag shirts on Cinco de Mayo. The Ninth Circuit Court of Appeals ruled Wednesday that the lawsuit Mariano vs. Morgan Hill Unified School District will not be heard before the full court.

“School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,” read the opinion.

photo/Jennifer Parr

“As a consequence, we conclude that school officials did not violate the students’ rights to freedom of expression, due process, or equal protection.”

Included in the order was a dissent by Ninth Circuit Judge Diarmuid F. O’Scannlain, who was joined by two other justices.

“The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular,” wrote O’Scannlain.

“For that reason, it is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech. It is this bedrock principle — known as the heckler’s veto doctrine — that the panel overlooks ….”

The case stems from events at a San Jose-area high school during the Mexican independence celebration Cinco de Mayo. School officials ordered students who wore shirts displaying the American flag to turn them inside-out saying they feared the shirts would enflame the passions of Latino students celebrating the Mexican holiday. A three-judge panel of the 9th Circuit in February ruled that the school acted properly in banning the American flag.

“Administrators feared the American-flag shirts would enflame the passions of Latino students celebrating the Mexican holiday,” reported the AP.

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