Ninth Circuit

morgan hills

Yesterday, the US Ninth Circuit confirmed a February decision by a panel of that court that school officials can forbid students who are American citizens from wearing American flag themed clothing to school because of the threats made against those students (see earlier RedState coverage here and here).

Rejecting free speech arguments from parents, Republican lawmakers and conservative groups, a federal appeals court on Wednesday refused to reconsider a ruling that found a South Bay high school had the legal right to order students wearing American-flag adorned shirts to turn them inside out during a 2010 Cinco de Mayo celebration.

The 9th U.S. Circuit Court of Appeals let stand its February ruling in favor of Live Oak High School administrators, who argued that a history of problems on the Mexican holiday justified the decision to act against the American flag-wearing students. Officials at the Morgan Hill school ordered the students to either cover up the shirts or go home, citing past threats and campus strife between Latino and white students that raised fears of violence.

The facts in this case are sad, from the dissent (pdf) to the decision by Judge Diarmuid O’Scanliann:

On May 5, 2010, Cinco de Mayo, a group of Caucasian students at Live Oak High School (“Live Oak”) wore shirts depicting the American flag to school.1 Dariano v. Morgan Hill Unified Sch. Dist., No. 11-17858, amended slip op. at 22 (9th Cir. 2014). In the six preceding years, there had been at least thirty fights on campus, some between gangs and others between Caucasians and Hispanics, id. at 21, although the district court made no findings as to whether these fights were related to ethnic tensions, Dariano v. Morgan Hill Unified Sch. Dist., 822 F. Supp. 2d 1037, 1043 (N.D. Cal. 2011). A year earlier, during Cinco de Mayo 2009, a group of Caucasian students and a group of Mexican students exchanged profanities and threats. Dariano, amended slip op. at 21. When the Caucasian students hung a makeshift American flag and began chanting “U–S–A,” Assistant Principal Miguel Rodriguez intervened and asked the Mexican students to stop using profane language, to which one Mexican student responded, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.” Id.

One year later, during Cinco de Mayo 2010, three of the students wearing American flag shirts were confronted by other students …read more    

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