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A federal appeals court is being urged to reverse a ruling that called the American flag a “symbol of racial animus.”

The 9th Circuit Court of Appeals had determined that officials at Live Oak High School in Morgan Hill, Calif., did not violate the constitutional rights of students when they ordered them not to wear U.S. flag shirts on the Mexican Cinco de Mayo holiday.

“The court’s rationale behind this ruling was essentially that it’s not safe to display an American flag in an American public school, for fear of causing offense and disruption,” said John W. Whitehead, president of the Rutherford Institute and author of “A Government of Wolves: The Emerging American Police State.”

“This case signifies so much of what is wrong with America today, where the populace is indoctrinated into a politically correct mindset, starting in the schools, while those who exercise their freedoms are punished for it,” he said.

The appeal was filed by a number of legal teams, including attorneys with the American Freedom Law Center and the Thomas More Law Center.

The case centers on a decision May 5, 2010, by Assistant Principal Miguel Rodriguez. During a break, Rodriguez told the students they were not allowed to wear the flag shirts. He allegedly told them that he had received complaints from some Hispanic students about the flag apparel, and the students were not allowed to wear clothing that would offend them.

Later, Principal Nick Boden met with parents and students and affirmed Rodriguez’ order.

Now, attorneys for Rutherford and the other groups have asked the 9th U.S. Circuit Court of Appeals to review and reverse its order. The court has said the school was acting properly to censor the American flag so as not to offend Hispanic students.

See the full range of flags available at the WND Superstore, from the Star-Spangled Banner to the Betsy Ross flag, the Gadsden Flag, Coast Guard, Navy, Marine, Army and Air Force flags, as well as the Navy Jack and dozens more.

The appeals court “acknowledged that other students were permitted to wear Mexican flag colors and symbols, [but] it ruled that the school was allowed to forbid the American flag apparel out of concerns that it would cause disruption, even though no disruption had occurred,” according to the brief.

Rutherford argued school officials violated long-standing Supreme Court precedent forbidding suppression of protected expression on the basis of a “heckler’s veto.”

The attorneys said the school’s actions constituted viewpoint discrimination against pro-American expression, violating the free speech clause in the First Amendment and the due process and equal rights clauses in the 14th Amendment.

A three-judge panel of the court previously said: “The specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. We hold that school officials … did not act unconstitutionally … in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.”

AFLC’s Robert Muise noted: “Not only is the panel decision wrong as a matter of Supreme Court precedent, the decision affirms a dangerous lesson by rewarding student[s] [who] 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.”

It was pointed out that only violence from “Mexican” students was feared, not violence by those wearing the U.S. flag.

David Yerushalmi, also of AFLC, said the panel “reasoned that because the ‘Mexican’ students were not ‘targeted for violence,’ they were permitted to express their message.”

“Yet, because school officials perceived that the same ‘Mexican’ students might react adversely to the pro-America students, the latter group’s speech – wearing an American flag T-shirt for goodness sakes – should be silenced. This not only creates perverse incentives for student hecklers; it ultimately turns the First Amendment on its head,” he said.

The brief explained: “The panel’s decision conflicts with an existing Supreme Court opinion (Tinker), as well as Supreme Court and circuit precedent regarding the ‘heckler’s veto,’ which is an additional point of law that the panel failed to address.”

The attorneys noted: “The panel went so far as to compare the wearing of American flag images with the wearing of the Confederate flag – an arguable symbol of racism – and to liken relations between ‘American’ and ‘Mexican’ youth in an American school – a distinction not clearly apparent on this record in that it is unclear whether the students referred to as ‘Mexicans’ were citizens of Mexico or of the United States – with racial tensions between white and black students.

“Of course, plaintiffs had a constitutional right to wear shirts bearing the American flag on their public school campus, even on Cinco de Mayo or any other holiday and regardless of the expression of ethnic pride asserted by people aligned with another culture. The obvious and odious premise underlying the panel’s opinion is that the American flag is a symbol of racial animus – an inherently flawed premise,” the argument said.

The brief said that the only issue that developed during the same events a year earlier was when a “group of ‘Hispanic’ students ‘paraded around the campus with a Mexican flag’ during lunch. The students were confrontational, which caused approximately ‘five minutes’ of commotion during the lunch period. No student was disciplined. … No violence occurred. … No classes were canceled. … No classes were delayed or change.”

There had been some “gang activity” at the school, the brief said, but they were Mexican gangs not related to the plaintiffs.

See the full range of flags available at the WND Superstore, from the Star-Spangled Banner to the Betsy Ross flag, the Gadsden Flag, Coast Guard, Navy, Marine, Army and Air Force flags, as well as the Navy Jack and dozens more.

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