A federal appeals court upheld a school ban that said students cannot wear American flag t-shirts on Cinco de Mayo, a Mexican holiday that is celebrated in the United States, for safety reasons.

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The Northern California high school feared the flag shirts could ignite violence, and forced students to turn their shirts inside out. Students were allowed to wear Mexican flag t-shirts.

The mother of a student who wore the American flag shirt said, “This is the United States of America. The idea that it’s offensive to wear patriotic clothing, regardless of what day it is, is unconscionable to me.”

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The Associated Press reported:

The 9th U.S. Circuit Court of Appeals said the officials' concerns of racial violence outweighed students' freedom of expression rights. Administrators feared the American-flag shirts would enflame the passions of Latino students celebrating the Mexican holiday. Live Oak High School, in the San Jose suburb of Morgan Hill, had a history of problems between white and Latino students on that day.

The unanimous three-judge panel said past problems gave school officials sufficient and justifiable reasons for their actions. The court said schools have wide latitude in curbing certain civil rights to ensure campus safety.

"Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence," Judge M. Margaret McKeown wrote for the panel. The past events "made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real," she wrote.


William Becker, one of the lawyers representing the students, said he plans to ask a special 11-judge panel of the appeals court to rehear the case. Becker said he would appeal to the U.S. Supreme Court if he loses again.

On Happening Now, former federal prosecutor Fred Tecce disagreed with the court’s decision. “I think it’s a fundamental First Amendment right to be able to express your patriotism and wear our flag. And the fact that this court ruled that this was in some way incendiary or insulting, I think is ridiculous.”

Putting emotions aside, Tecce said, instead of intruding on the students’ First Amendment rights, the school could have banned the Cinco de Mayo celebration.

Regardless, Tecce said he doesn't see the case reaching the Supreme Court. "I don't like it, but I don't see it getting overturned."

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