SAN FRANCISCO – A federal appeals court Thursday wrestled with the novel question of whether it was offensive for Northern California high school students to provocatively 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 didnt 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.
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 2010 in barring 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 childrens free speech rights.
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.
The students attorney, Robert Muise, argued that the potential that 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 flag T-shirts.
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.