Live Oak High School in Morgan Hill, Calif., set out to celebrate Cinco de Mayo in 2010 in a "spirit of cultural appreciation." It didn't work out that way.
Some students decided they wanted to celebrate by wearing shirts with the American flag. Other students objected. A student warned an administrator she thought there would be problems. Fearing for the safety of students wearing red, white and blue, administrators asked those teens to turn their shirts inside out or go home under an excused leave.
Three students -- minors known as M.D., D.M. and D.G. -- have sued the district for violating their rights to free speech and equal protection. Last week, a three-judge panel ruled that the Morgan Hill Unified School District had not violated the students' right to free expression, because the administrators' goal was not to censor U.S. flags but to protect students whose safety might have been threatened.
What "a horrible lesson to teach the kids," responded the plaintiffs' attorney Robert Muise of the American Freedom Law Center in Michigan. According to Judge Margaret McKeown, some Live Oak students believed that it was racist or anti-Mexican for white students to wear American flags that day. Then, because school officials believed that those students might act violently, administrators inadvertently rewarded those who wanted to get rid of the American flag for a day. Now the notorious 9th U.S. Circuit Court of Appeals has put its stamp of approval on the arrangement. It's shameful.
"This is a classic 'heckler's veto' -- thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence," prolific law blogger Eugene Volokh wrote of the decision.
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My guess is school officials meant well, are not hostile to the American flag and simply wanted to defuse tension.
Alyson S. Cabrera, an attorney for the school, reiterated: "The district did not impose any ban on the American flag or on any other flag on May 5, 2010. The American flag flew above the schoolhouse that day as it did on every day both before and after May 5, 2010. But for the information received from school administrators indicating that the safety of the student-plaintiffs was potentially in jeopardy, these students would not have been asked to remove their T-shirts or leave with excused absences for the day."
For his part, Muise believes that if the American Flag Three had been allowed to remain in school, the flap would be over now.
But if school officials were right that M.D., D.M. and D.G. were in danger and they based that belief on a spirited altercation between wavers of Mexican flags and wavers of Old Glory during Cinco de Mayo 2009, maybe they should not have feted Cinco de Mayo.
But they did. And then they sent home the kids who wanted to wear American flags, but they didn't identify and discipline students who ostensibly threatened M.D., D.M. and D.G. That is, they underreacted to a security threat and overreacted against the students who had every right to express their love of country.
I'm guessing that because they're busy and stressed out, administrators resort to such expediencies all the time, but that doesn't mean courts should sanction them.
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