- The Washington Times - Tuesday, March 25, 2014

Twenty members of Congress lent their support Tuesday to a lawsuit filed on behalf of three California students who were forbidden from wearing American flag T-shirts at their high school during a Cinco de Mayo celebration, a decision an appeals court upheld last month.

The American Center for Law and Justice filed an amicus brief on behalf of the lawmakers and its 84,000-member Committee to Protect the American Flag, arguing that the decision by school officials “was not only wrong but unconstitutional.”

“Instead of addressing the real issue at play in this case — threats of violence by a group of students — the appeals court panel backed the school’s decision to ignore those threats and move to silence their opponents,” said ACLJ executive director Jordan Sekulow in a statement. “That is exactly why the full panel of the appeals court must consider this case.”

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Feb. 27 that school administrators at Live Oak High School in Morgan Hill acted appropriately in order to stave off racially charged violence between Hispanic students and those wearing the American flag shirts.

“Live Oak had a history of violence among students, some gang-related and some drawn along racial lines,” said Judge M. Margaret McKeown in the opinion.

“In the six years that Nick Boden served as principal, he observed at least thirty fights on campus, both between gangs and between Caucasian and Hispanic students.”

The American Freedom Law Center, which represents the students, filed an appeal March 13 asking for the full court to hear the case, contending that the panel’s decision essentially gives a “heckler’s veto” to students who might have caused trouble.

“It is never appropriate to ban an American flag on a public high school campus in America,” said AFLC senior counsel Robert J. Muise in a statement.

“Moreover, not only is the panel’s decision wrong as a matter of Supreme Court precedent, the decision affirms a dangerous lesson by rewarding [students that] resort to disruption rather than reason as the default means of resolving disputes. The school district’s proper response should be to educate the audience rather than silence the speaker,” he said.

The 20 House members cited in the brief are all Republicans: Rob Bishop, Jim Bridenstine, Jeff Duncan, Blake Farenthold, Bill Flores, Randy Forbes, Trent Franks, Phil Gingrey, Tim Huelskamp, Mike Kelly, Steve King, Jack Kingston, Doug LaMalfa, Cynthia Lummis, Jeff Miller, Steven Palazzo, Joe Pitts, Scott Tipton, Randy Weber and Lynn Westmoreland.

On May 5, 2010, several students told an assistant school principal that “there might be a problem” with students wearing American flag T-shirts during the Cinco de Mayo celebration at the suburban San Jose high school, according to school-district attorneys.

“Ultimately, school administrators directed the students wearing the American flag shirts either to remove the shirts or turn them inside out. When the students refused, they were sent home with excused absences. No student was disciplined for refusing to remove their American flag shirt,” said attorneys for the Morgan Hill Unified School District in a March 2014 brief.

The attorneys argued that school administrators acted appropriately, saying that “regulation of student expression to quell actual or foreseeable disruption to the school environment.”

The AFLC said in its March 13 statement that if school administrators were truly concerned about violence, they would not have approved the Cinco de Mayo celebration.

“While school officials claimed that they were concerned about racial tension and potential threats of violence in light of an altercation that occurred between Mexican and American students on campus during a 2009 Cinco de Mayo celebration, the officials nonetheless approved the 2010 Mexican celebration, demonstrating that their fear of violence was nothing short of a pretext,” said the AFLC.

Mr. Sekulow said that, “Such a decision empowers violence, incentivizes further disruption, and targets disfavored speech for punishment.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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