Judges Told Flag Not Racist!

A federal appeals court is being urged to reverse a ruling that called the American flag a “symbol of racial animus.”

The 9th Circuit Court of Appeals had determined that officials at Live Oak High School in Morgan Hill, Calif., did not violate the constitutional rights of students when they ordered them not to wear U.S. flag shirts on the Mexican Cinco de Mayo holiday.

“The court’s rationale behind this ruling was essentially that it’s not safe to display an American flag in an American public school, for fear of causing offense and disruption,” said John W. Whitehead, president of the Rutherford Institute and author of “A Government of Wolves: The Emerging American Police State.”

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The appeal was filed by a number of legal teams, including attorneys with the American Freedom Law Center and the Thomas More Law Center.

The case centers on a decision May 5, 2010, by Assistant Principal Miguel Rodriguez. During a break, Rodriguez told the students they were not allowed to wear the flag shirts. He allegedly told them that he had received complaints from some Hispanic students about the flag apparel, and the students were not allowed to wear clothing that would offend them.

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Now, attorneys for Rutherford and the other groups have asked the 9th U.S. Circuit Court of Appeals to review and reverse its order. The court has said the school was acting properly to censor the American flag so as not to offend Hispanic students.

The appeals court “acknowledged that other students were permitted to wear Mexican flag colors and symbols, [but] it ruled that the school was allowed to forbid the American flag apparel out of concerns that it would cause disruption, even though no disruption had occurred,” according to the brief.

Rutherford argued school officials violated long-standing Supreme Court precedent forbidding suppression of protected expression on the basis of a “heckler’s veto.”

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A three-judge panel of the court previously said: “The specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. We hold that school officials . . . did not act unconstitutionally . . . in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.”

AFLC’s Robert Muise noted: “Not only is the panel decision wrong as a matter of Supreme Court precedent, the decision affirms a dangerous lesson by rewarding student[s] [who] resort to disruption rather than reason as the default means of resolving disputes. The school district’s proper response should be to educate the audience rather than silence the speaker.”

It was pointed out that only violence from “Mexican” students was feared, not violence by those wearing the U.S. flag.

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The attorneys noted: “The panel went so far as to compare the wearing of American flag images with the wearing of the Confederate flag–an arguable symbol of racism–and to liken relations between ‘American’ and ‘Mexican’ youth in an American school–a distinction not clearly apparent on this record in that it is unclear whether the students referred to as ‘Mexicans’ were citizens of Mexico or of the United States–with racial tensions between white and black students.

“Of course, plaintiffs had a constitutional right to wear shirts bearing the American flag on their public school campus, even on Cinco de Mayo or any other holiday and regardless of the expression of ethnic pride asserted by people aligned with another culture. The obvious and odious premise underlying the panel’s opinion is that the American flag is a symbol of racial animus–an inherently flawed premise,” the argument said.

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There had been some “gang activity” at the school, the brief said, but they were Mexican gangs not related to the plaintiffs.