From The Rutherford Institute:

Rutherford Institute Asks Ninth Circuit to Protect Right of Calif. Students to Wear American Flag T-Shirts to School, Declare Flag Ban Unconstitutional

SAN FRANCISCO, Calif. — Attorneys for The Rutherford Institute have appealed to the Ninth Circuit Court of Appeals on behalf of a group of students at a California public school who were ordered to cover up their apparel emblazoned with American flags or be sent home on the Mexican holiday Cinco de Mayo, allegedly out of a concern that it might offend Hispanic students. Noting that other students were permitted to wear Mexican flag colors and symbols, Institute attorneys contend that school officials violated long-standing Supreme Court precedent forbidding viewpoint discrimination. Insisting that “the celebration of the American flag should be protected no less than its desecration,” Institute attorneys have asked the Ninth Circuit to reverse the district court’s ruling that school officials at Live Oak High School in Morgan Hill, Calif., fearing the flag apparel might cause a disruption, were justified in censoring the students’ pro-U.S.A. message.

The Rutherford Institute’s appellate brief in Dariano et al. v. Morgan Hill Unif. Sch. Dist. is available at www.rutherford.org.

“This case is, at heart, about school officials trying to impose their politically correct views on students,” said John W. Whitehead, president of The Rutherford Institute. “If the lower court’s decision is allowed to stand, any speech a school official happens to dislike will be censored. This type of discrimination and censorship cannot be allowed to prevail in our schools or it will destroy the First Amendment.”

On May 5, 2010, three Live Oak High School students wore patriotic t-shirts, shorts and shoes to school bearing various images of the U.S. flag. During a mid-morning “brunch break,” the students were approached by Assistant Principal Miguel Rodriguez, who told the students they could not wear their pro-U.S.A. shirts and gave them the option of either removing their shirts or turning them inside out. When the students refused because the options would be disrespectful to the flag, Rodriguez ordered them to his office. After two of the students’ parents arrived at the school, Rodriguez is alleged to have lectured the group about Cinco de Mayo, indicating that he had received complaints from some Hispanic students about the stars and stripes apparel, and again ordered that the clothing be covered up to prevent offending the Hispanic students on “their” day. Principal Nick Boden also met with the parents and students and affirmed Rodriguez’s order, allegedly because he did not want to offend students who were celebrating Cinco de Mayo.

Arguing that the decision by school officials constituted viewpoint discrimination against pro-U.S.A. expression, Institute attorneys filed suit on behalf of the students and their parents seeking a declaration that the action violated the First Amendment and injunctive relief against a vague school district policy allowing prior restraints on speech to be imposed upon students. The lawsuit asserted that school officials violated the students’ rights to Free Speech under the First Amendment, and their Due Process and Equal Protection rights under the Fourteenth Amendment. In November 2011, the district court ruled in favor of school officials, citing a concern for school safety. Institute attorneys have asked the Ninth Circuit Court of Appeals to declare that the district court erred in its ruling. Affiliate attorney William J. Becker, Jr. assisted The Rutherford Institute with the appeal.