A federal court judge ruled that officials at a California high school had a legal right to send home students wearing shirts showing the American flag on Cinco de Mayo because there was a reasonable fear that the images could lead to violence.

Chief U.S. District Judge James Ware of San Francisco ruled last week that it was not a violation of the freedom of speech for students at Live Oak High School in Morgan Hill to be ordered to turn their shirts with the American flag inside out or go home on May 5, 2010, the San Francisco Chronicle reported.Two students were sent home.

Ware cited past clashes between Mexican-American and Anglo students over clothing on the holiday, which is a celebration of Mexican heritage and in Mexico commemorates a Mexican army victory over the French in 1862. (It is not Mexican Independence Day.)

Students wearing the shirts had sued the Morgan Hill Unified School District on the grounds that their right to free expression had been violated as well as on discrimination because students wearing Mexican flag colors were not censored. Ware rejected both issues.

The Supreme Court in 1969, ruling that students could legally wear black armbands to class to protest the Vietnam War, said schools can bar student expression when there is a threat that there will be disruptions to actual learning.

But the judge noted that federal court rulings since then have said that some student expression could put those students in jeopardy and that school officials could take action if they feared in advanced that trouble could result. Several courts, for example, have approved bans on Confederate flags in schools with racial tension

Ware also rejected the students’ claim of discrimination. The judge wrote that while the students wearing the shirts with American flags had told a school official that they knew they might be in danger but wanted to keep the shirts on anyway, there was no evidence that youths who wore clothing with Mexican flag colors were in danger.

“All students whose safety was in jeopardy were treated equally,” the judge wrote.

Bill Becker, a lawyer for the students, was quoted by the Chronicle as saying, “The court found that the rights of students promoting their Mexican heritage trumped the rights of students expressing their patriotism.” He said he would appeal.

Live Oak High School has about 1,300 students, 20 percent of them English-language learners and 18 percent of students come from low-income families.

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