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Student’s Rights Not Violated by T-Shirt Ban

(CN) - A high school administrator's Cinco de Mayo ban on shirts bearing the American flag did not violate the civil rights of his students, the 9th Circuit ruled Thursday.

Miguel Rodriguez, an assistant principal at Live Oak High School in Morgan Hill, Calif., told at least two students to turn their flag-bearing shirts inside out or remove them on Cinco de Mayo 2010. Rodriguez explained to the students that it was for their own safety, as he had received reports that day of possible "race-related violence."

The school uses the Mexican holiday to honor the culture of the region's Mexican-Americans, comparing it to "St. Patrick's Day or Oktoberfest." However, a fight between "Caucasian and Hispanic" students had occurred on Cinco de Mayo the previous year when some students hung a "makeshift American flag" on a tree and "began clapping and chanting USA," inspiring Hispanic students to confront them with obscenities, according to the 9th Circuit.

Hoping to avoid similar problems in 2010, and after receiving reports from students that violence was likely, Rodriguez sent two students home after they refused to remove their flag-emblazoned shirts.

Three students, who are referred to only by their initials in court documents, sued Rodriguez for violating their rights to freedom of expression, equal protection and due process.

U.S. District Judge James Ware in San Jose granted summary judgment to the assistant principal, and the federal appeals court unanimously affirmed on Thursday.

"School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances," wrote Judge M. Margaret McKeown for the three-judge panel. "As a consequence, we conclude that school officials did not violate the students' rights to freedom of expression, due process, or equal protection."

McKeown noted that Rodriguez had not punished the students, but had only "restricted the wearing of certain clothing."

"School officials have greater constitutional latitude to suppress student speech than to punish it," she added.

The students were represented by Robert Muise of the American Freedom Law Center in Ann Arbor, Mich.

Muise said Judge McKeown got it wrong because the students were punished for their speech.

"The point is that they are restricting speech," Muise said in a phone interview. "Whether you restrict speech with a one-dollar fine, a two-day suspension or by ordering kids to turn their shirts inside out or go home -- they were punished."

Muise also disputed the finding that the student's rights were justifiably suppressed over safety concerns.

"For them to claim that they could reasonably forecast violence is nonsense," Muise said. "If the school district was truly that concerned about racial tensions disrupting the school environment, why in the world did they approve the very same celebration for 2010."

Muise said he will seek en banc review by the 9th Circuit.

"All of the evidence overwhelmingly shows that this was a pretext because they didn't want to offend the Mexican students," he added. "Not because there were any real concerns about violence."

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