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Court ruling says school can ban US flag shirts for safety

Recent ruling reminiscent of Denair incident

Court ruling says school can ban US flag shirts for safety

Denair Middle School student Cody Alicea is pictured here in a parade of support after he was asked to remove the American flag from bike while at school in November 2010.


POSTED February 27, 2014 8:44 p.m.

When Denair Middle School student Cody Alicea was asked in 2010 to take an American flag off his bike due to safety concerns, it sparked a nationwide response that flooded the small Valley town with patriotic supporters of Old Glory and a debate on students' right to free speech.

The school district said that the request to remove Alicea’s flag was based on safety concerns and was needed to give school staff time to investigate a potentially dangerous situation involving threats.

“While it is our responsibility to ensure that all students are safe at school, we also support students’ First Amendment rights,” said then-DUSD Superintendent Ed Parraz in a community letter.

Stanislaus County Superintendent Tom Changnon supported the district's decision at the time to put safety concerns above all else.

“A student’s safety is the upmost priority, but you don’t want to take their rights away,” said Changnon in 2010. “You need to address the problem of safety and address the issues at hand.”

After Alicea's family made the incident public, the school received thousands of phone calls — including at least one death threat made against the school superintendent. Television news crews surrounded the campus for weeks and hundreds poured into the town to escort Alicea to school in parade fashion, with the American flag on full display.

The school district eventually reversed its ban on American flags and the issue never made it to the court system. If it had, DUSD's initial flag ban may still be in place, as a  federal appeals court ruled Thursday that officials at a Northern California high school acted appropriately when they ordered students wearing American flag T-shirts to turn the garments inside out during the Mexican heritage celebration Cinco de Mayo.

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.

In Denair, the safety concerns that prompted Alicea being asked to remove the American flag from his bike stemmed from other students being asked previously to remove the Mexican flag from their belongings on Cinco de Mayo. Those students thought that the flag ban should apply to both the Mexican and American flags.

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.

"The 9th Circuit upheld the rights of Mexican students celebrating a holiday of another country over U.S. student proudly supporting this country," Becker said.

—Associated Press contributed to this story.

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