SAN FRANCISCO – A federal appeals court on Thursday wrestled with the novel question of whether it was offensive for Northern California high school students to display the American flag during a school day dedicated to celebrating Mexican heritage.
The three-judge panel of the 9th U.S. Circuit Court of Appeals didn't tip its hand on how it would decide in sharply questioning lawyers on both sides of the issue during a 30-minute hearing in San Francisco.
Public school officials have broad powers to establish dress codes, such as restricting certain colors in clothing or barring the wearing of sports jerseys, in areas where gangs are considered a problem. But the American flag case poses different questions about how far school officials can go in reacting to a potential problem by spontaneously barring what students wear, even if that includes a T-shirt bearing the iconic American flag.
"Dress codes are legal as long as they are content neutral," said Eugene Volokh, a University of California, Los Angeles law professor and free speech expert. "This case is different and has nothing to do with the dress codes."
Instead, Volokh said the American flag case will turn on whether the administrators overreacted in barring the American flag in the face of a perceived threat of violence.
So the question before the court Thursday was whether public school administrators can ban patriotic displays of the American flag on shirts on "Mexican Heritage Day" at a campus plagued by violence and racial strife. The administrators at Live Oak High School in Morgan Hill, about 20 miles south of San Jose, said they were concerned that the shirts would lead to violence and verbal altercations. They told the students to turn the shirts inside out or go home. The students went home, and a month later, their parents filed a lawsuit, alleging the school and its administrators violated their children's free speech rights.
The May 5, 2010, incident sparked a national debate, prompting satellite news trucks to camp outside the school for several days as pundits across the political spectrum argued the issue over the airwaves.
"It's all about not being ashamed to wear the American flag," Kendall Jones, a parent of one of the students, said to reporters outside the hearing Thursday. "What's wrong with that?"
Inside the courtroom, Judge Virginia Kendall argued that school officials have a responsibility to prevent violence and disruptions on campus, noting that students allegedly warned the vice principal that trouble was brewing because of the American flag T-shirts.
"Do you have to wait until they duke out in the courtyard," before administrators can step in and ban the shirts, Judge Virginia Kendall asked.
The students' attorney Robert Muise argued that the "potential" the shirts would cause disruptions on campus was a "risk" the school had to take in deference to the students' free speech rights to wear the American flag T-shirts.
The school's attorney Don Willenburg argued that the school was within its right to ban the shirts for just that single day.
"No one was prevented from expressing views," Willenburg said.
Judge Sidney Thomas suggested the case may need to be returned to a lower court and sent to a jury to determine whether the shirts posed an actual threat that day.
A lower court tossed out the students' lawsuit in December 2011, ruling that school administrators have wide legal latitude to ensure the safety and effective operation of their campuses and a "perceived threat" of violence vindicated the principal's decision.
The lower court judge who tossed out the case, the now-retired Chief Judge James Ware, noted that "our Constitution grants public school children only limited First Amendment rights when they enter the schoolhouse gates," while conceding this case has landed in "important legal territory."
Volokh calls such punishment a "heckler's veto." In public, speakers are protected from such a restriction and allowed to voice most opinions. On-campus students don't enjoy the same free speech rights.
"A school may restrict a student's speech," Volokh said, "to prevent unruly disruptions."
Still, Volokh said administrators can – and sometimes do – go too far and overreact to a perceived threat that may not cause a big enough on-campus stir to warrant the censorship.
"The fact of the matter is that these Americans were punished for wearing the American flag at an American school," Volokh said.