A California school’s ban on wearing the American flag on Cinco de Mayo  is now in the hands of a federal appeals court.
The legal battle stems from a 2010 incident where three California male high school students wore American flag T-shirts to school on May 5. Live Oak High School claims that racial tensions, gang problems, and both verbal and physical altercations plagued the observation of the Mexican holiday during the prior school year.
Live Oak High School is located in the San Jose area. When some students allegedly told officials at the California high school that trouble could occur if their peers went ahead with plans to wear American flag shirts to class on Cinco de Mayo, the school told the patriotic teens to either turn their shirts inside out or go on home. They went home.
Even though the American flag-wearing students have since graduated, their lawsuit against the California high school rages on. The US Ninth Circuit Court of Appeals in San Francisco heard oral arguments Oct. 17 and will determine if the students’ First Amendment  rights were violated by Live Oaks High School .
A lower federal court threw out the free speech lawsuit in December 2011. Chief Judge James Ware, who has since retired, said, “Our Constitution grants public school children only limited First Amendment rights when they enter the schoolhouse gates.”
University of California Los Angeles (UCLA) law professor Eugene Volokh told the Associated Press that the lower court’s ruling in the First Amendment lawsuit amounted to a “heckler’s veto.” According to the free speech expert, school officials can and have overreacted to a perceived problem that may or may not be so disruptive that censorship is warranted. Volokh said, “The fact of the matter is that these Americans were punished for wearing the American flag at an American school.”
Critics of the school’s decision are asking: Would it have made the same decision if Hispanic students wore Mexican flag T-shirts on the anniversary of the Alamo or if Muslim students wore a Middle Eastern-themed T-shirt on 9/11? The attorneys for the California students who wore American flag T-shirts to school on Cinco de Mayo work for non-profit legal centers focused on politically conservative causes, according to Fox News.
Attorney William J. Becker Jr., of the Freedom X group feels the lower court judge was “wrapped up in political correctness and an immediate threat of a disruption or violence should have been present in order to ban the American flag t-shirts. Becker also said, “Nobody is alleging that any disruption was caused by the shirts. The students in the case were deprived of their Constitutional rights simply by displaying their patriotism. American Freedom Law Center and Thomas More Law Center attorneys also represent the group of students sent home from school for wearing American flag T-shirts.
Attorneys for Live Oaks High School wrote in court briefs: “This is not a case about the flag, or the First Amendment rights of adults in a public forum. This is a case about whether we allow school administrators, familiar with circumstances in their schools, to take reasonable steps to protect student safety in the face of threats and a history or violence.”
But attorneys for the American Freedom Law Center said it was “political correctness run amok.”
“It is a sad day in our nation’s history when, for any reason, government officials ban the American flag on a public high school campus,” said Robert J. Muise, an attorney for the American Freedom Law Center  and lead counsel in the case. “Here, school administrators violated the First Amendment rights of our clients because of an unsubstantiated fear that they would offend … students by wearing their pro-American apparel to school on Cinco de Mayo. Indeed, the Supreme Court has long held that neither teachers nor students surrender their constitutional rights at the schoolhouse gate.”
The case  is John Dariano, et al v. Morgan Hill Unified School. The three-judge panel gave no indication how or when they would rule.