Morgan Hill schools' ban on U.S. flag shirts upheld

Three conservative judges accused a federal appeals court Wednesday of catering to "the will of the mob" by refusing to reconsider a ruling upholding Morgan Hill school officials' decision to ban shirts showing American flags on Cinco de Mayo for fear of ethnic violence.

The Ninth U.S. Circuit Court of Appeals in San Francisco ruled in February that given previous clashes at Live Oak High School, officials had reason for concern and thus did not violate freedom of speech when they refused to let students wear U.S. flags on their shirts on May 5, 2010.

The year before, a group of Mexican American students at the high school had walked around campus with a Mexican flag. Some Anglo students responded by hoisting a makeshift American flag up a tree, chanting "USA" and exchanging threats and profanities with the Latino youths.

On the 2010 holiday, the court said, several Anglo students wore U.S. flag shirts, and three of them were confronted by other students. Warned by students from both ethnic groups of potential problems, the principal told the youths either to turn their shirts inside out or go home.

Two chose to go home and were given excused absences, without punishment, while the other students turned their shirts inside out.

Three students and their parents then sued the Morgan Hill Unified School District, citing a 1969 U.S. Supreme Court ruling upholding students' right to wear black armbands to class in a silent protest against the Vietnam War. But the appeals court said schools can limit student expression to prevent the kind of disruption that seemed likely in Morgan Hill.

The school's actions "were tailored to avert violence and focused on student safety," Judge Margaret McKeown said in the 3-0 ruling.

On Wednesday, the panel said the plaintiffs' request for a rehearing had failed to gain a majority of votes on the 29-judge court. In a dissenting opinion, three conservative judges said the court should have reconsidered and reversed the February ruling as a violation of free speech.

The ruling "permits the will of the mob to rule our schools," said Judge Diarmuid O'Scannlain, joined by Judges Richard Tallman and Carlos Bea. He said the court was allowing students to silence others by threatening them with violence.

Robert Muise of the American Freedom Law Center in Michigan, an attorney representing the students, said the youths would appeal to the U.S. Supreme Court. "This is a decision that imperils the First Amendment," he said.