American flag case: Court sides with Morgan Hill school in flap over students’ T-shirts

Flag T-shirts banned on Cinco de Mayo in Morgan HillMercury News – by Howard Mintz

Patriotism aside, a South Bay high school worried about campus safety was within its legal rights to order a group of students wearing American-flag adorned shirts to turn them inside out during a 2010 Cinco de Mayo celebration, a federal appeals court ruled Thursday.

In a unanimous three-judge decision, the 9th U.S. Circuit Court of Appeals sided with the Morgan Hill Unified School District, which had argued that a history of problems on the Mexican holiday justified the Live Oak High School administrators’ decision to act against the flag-wearing students.  

Live Oak officials ordered the students to either cover up the U.S. flag shirts or go home, citing a history of threats and campus strife between Latino and Anglo students that raised fears of violence on the day the school was highlighting Cinco de Mayo. The school’s actions were reasonable given the safety concerns, which outweighed the students’ First Amendment claims, the court concluded.

“Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence,” 9th Circuit Judge M. Margaret McKeown wrote for the panel. “(The past events) made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”

William Becker, a lawyer for parents who sued the district, said they would ask the 9th Circuit to reconsider the case with an 11-judge panel. The parents have vowed to push the case to the U.S. Supreme Court if necessary, and expressed disappointment with Thursday’s ruling.

“This is the United States of America,” said Kendall Jones, whose son, Daniel Galli, was one of the Live Oak students sent home. “The idea that it’s offensive to wear patriotic clothing … regardless of what day it is, is unconscionable to me.”

Don Willenburg, the school district’s lawyer, did not respond to requests for comment. Steve Betando, the district’s superintendent, also could not be reached. But school officials, while saying after the incident that it could have been dealt with differently, have defended their right to take the precautions.

The legal flap has sparked nationwide attention, stemming from the parents’ First Amendment argument that no circumstances warrant a school forbidding a student from wearing a shirt with the American flag. In interviews with this newspaper, the families of the students said the students were only showing their patriotism and did not intend to incite trouble with Latino students on Cinco de Mayo.

The 9th Circuit case centered heavily on U.S. Supreme Court precedent on when school discipline violates students’ First Amendment rights. A 1969 ruling held that schools must demonstrate a reasonable concern about school safety to justify taking action, and the 9th Circuit found that Live Oak administrators met that standard enough to override student free speech protections.

The appeals court upheld a decision by former Chief U.S. District Judge James Ware, who also sided with the school district. Legal experts say the decisions appear to be on firm ground and are likely to stand in further appeal, although the outcome may be unsatisfactory given the students were displaying the flag.

“I can’t fault the (9th Circuit) for this,” said Eugene Volokh, a UCLA law professor. “But, boy, this is a pretty sad commentary. Here we have a school saying it’s too dangerous for students to wear an American flag to an American school.”

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at

14 thoughts on “American flag case: Court sides with Morgan Hill school in flap over students’ T-shirts

    1. Hey I have not been in the loop lately, I have been busy with work, and when I go on the trenches I didn’t see you, I was getting worried! Sorry I like my friends, so Paul said you were here, and I just want to say Hi and I miss ya!!

    2. Hey Missy,

      I recently started a new job and it’s pretty much all day Monday thru Friday. With the long commute home, I barely have time to get something to eat and post a few comments before it is time for me to go to bed again. It sucks, but on the bright side, I have a job and can now afford to purchase some more prep gear in a few weeks, if we even have that long. Thanks for your kind thoughts, though. 🙂

  1. Are they willing to cause an unsafe condition to happen if they do not get to wear t-shirts? It would stand to reason if not wearing them keeps them safe from attacks by latinos then not being able to wear them would cause anglos to attack latinos because of an opposite affect.

  2. This is the typical ‘jewish’ divide-and-destroy.
    Keep us at each others throats over non-nonsensical stupidity
    so we don’t notice the transfer of wealth out of the country until it’s reduced to a 3rd world trash-heap prison.

    The ‘jews’ and their goyfriends will fail and be utterly destroyed.


  3. So instead of sticking up for Americans, they stick up for Mexicans? What a bunch of treasonous bastards running that school. All of them should be hung for high treason!

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