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March 3, 2014
Bruce Maiman: It's not un-American to put safety first in public schools

flag_painting.JPG(March 3 - By Bruce Maiman, Special to The Bee)

If a Muslim student came to school wearing a T-shirt that read "Allahu Akbar," would you be offended?

What if he wore it on Sept. 11? Would you object to administrators requiring him to turn the shirt inside out to avoid any provocation that might lead to campus violence?

If the student were to refuse, then what? Send him home?

What if the student's parents sued the school district claiming their child's free speech rights were violated? Throw in a religious freedom argument, too, while you're at it.

What would you say?

Those questions are worth pondering in light of last week's unanimous decision by a three-judge panel of 9th U.S. Circuit Court of Appeals that a South Bay high school was within its legal rights to order students wearing American-flag adorned shirts to turn them inside out during a 2010 Cinco de Mayo celebration.

On May 5, 2010, five students at Live Oak High School in Morgan Hill showed up on Cinco de Mayo in T-shirts emblazoned with American flags. School officials told them to remove the shirts or turn them inside out, fearing a repeat of the previous year's racially charged clash between students celebrating the holiday and other students responding to that with pro-America chants.

Three of those students (and their parents) sued the school for violating their free-speech rights.

The three-judge panel affirmed a lower court conclusion that the school's actions were reasonable because student safety outweighed student First Amendment claims.

Predictable jingoistic outrage ensued, with critics declaring the ruling "un-American."

"This is the United States of America," responded one parent whose flag-wearing son defied the school and was sent home. "The idea that it's offensive to wear patriotic clothing ... regardless of what day it is, is unconscionable to me."

Oh, stop it.

This has nothing to do with patriotism, free speech, or a holiday they don't even celebrate in Mexico; it was entirely about school safety. It was apparent to the judges that five students coordinated their efforts not to be patriotic, but because they took offense at others celebrating their national heritage.

Should students wearing Mexican flags also have been sent home? Wrong question. If they were wearing those colors to celebrate rather than incite, then no, they should not be sent home. For administrators, it comes down to the T-shirt wearer's intent and whether others will react malevolently toward that intent, perceived or otherwise.

Yes, we can question the school's decision to sanction a Cinco de Mayo celebration when a similar fete the year before resulted in racial tensions. The short answer may be that 40 percent of the Live Oak student body is Latino, according to the San Jose Mercury News. Regardless, that argument is hindsight and one for the school to address, not the court.

"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 9th Circuit panel. "(Past events) made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real."

One assumes - one hopes - teachers and administrators know their situations on the ground well enough to make the best possible decisions at a moment's notice that keeps kids safe.

Please don't tell me, "Yeah, but it's the American flag."

If the school did nothing, violence ensued and kids were injured, or even killed, what do you suppose we'd be talking about? Would those parents sue the school over free-speech rights or the school's failure to safeguard their kids?

You're not also going to pretend the school isn't mindful of that possibility, are you?

Additionally, schools have every legal right to curtail a student's free speech. A 1969 U.S. Supreme Court ruling - Tinker v. Des Moines - says that schools are so justified when they can demonstrate a reasonable concern about safety, and the 9th Circuit found that Live Oak administrators met that standard enough to override student free-speech protections.

Funny, I remember when folks viewed American flag clothing as a "desecration." It is, after all, a violation of the Flag Code.

You probably know that Cinco de Mayo commemorates the anniversary of the Battle of Puebla on May 5, 1862, when outnumbered Mexican troops defeated invading French forces of Napoleon III.

You should also know, however, that Napoleon wanted to go through Mexico to establish French influence in an America destabilized by civil war by supplying arms to the Confederacy. Had the Mexican army not beaten the French, we might well be flying a very different flag today. We owe a debt of gratitude to those Mexican soldiers.

Maybe we all ought to be celebrating Cinco de Mayo.

Bruce Maiman is a former radio host who lives in Rocklin. Reach him at