Students Ordered to Remove Flag Shirts Ask High Court to Hear Their Case

As Supreme Court justices wrestle with a free speech case over specialty-license plates, another high-profile First Amendment dispute may soon reach the court.

On Friday, the justices are scheduled to discuss in private whether to review a ruling against a group of white public high school students from California who sued their school for ordering them to remove their American flag shirts on a day when many other classmates were celebrating their Mexican heritage.

Lawyers for the students are asking the Supreme Court to reverse a ruling last year by the Ninth U.S. Circuit Court of Appeals, which held that the school didnt infringe on anyones constitutional rights.

As Law Blog recounted earlier, the suit was brought by three white students who attended Live Oak High School in northern California. On Cinco de Mayo in 2010, they showed up in t-shirts adorned in stars and stripes, outraging Mexican students who perceived the attire as a racist attack, court documents say.

Alerted to a potential fight brewing, an assistant principal asked the students to turn their shirts inside out or take them off. Several students refused to comply with the order and two of them had to go home for the day with excused absences. The next day, according to the Ninth Circuits opinion, those two students received numerous threats from other students and missed school another day out of fear for their safety.

School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances, Ninth Circuit Judge M. Margaret McKeown wrote in last years opinion, which noted that Live Oak had a history of violence among students, some gang-related and some drawn along racial lines.

The students are represented by the American Freedom Law Center, a conservative public interest law firm co-founded by lawyer Robert J. Muise.

[T]here is never a legitimate basis for banning the display of an American flag on an American public school campus, wrote Mr. Muise in a December petition to the high court. And by incentivizing and rewarding violence as a legitimate response to unpopular speech, the Ninth Circuits decision is contrary to our foundational First Amendment principles and provides a dangerous lesson in civics to our public school students.

Attorneys for the school and its district argue that whats at stake isnt the First Amendment but the ability of school officials to protect their students and curb disruptions. In an opposition brief, they invoked some of Americas bloodiest episodes of school violence:

School officials on the scene had ample reason to believe violence and disruption were about to happen. School officials across the Nation act against a backdrop of the need to prevent another Santee, Columbine, Littleton, or any of the hundreds of school shootings that have happened since Tinker was decided. This is a case about school actions to protect students, which had the incidental effect of regulating the dress of two students on one afternoon. Not the expression of any particular opinion, nor regulation of any expression at any other time.

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Students Ordered to Remove Flag Shirts Ask High Court to Hear Their Case