Free speech and the American flag: Lawsuit over T-shirt incident at Morgan Hill school lives on

MORGAN HILL -- As they pick at a few egg rolls at their favorite Chinese restaurant on the outskirts of town here, Kendall and Joy Jones and Dianna Dariano recall Cinco de Mayo in 2010 -- and it still makes them seethe red, white and blue.

Capturing the nation's attention and sparking a patriotic backlash, their sons were ordered by Live Oak High School administrators to turn their American flag-adorned shirts inside out to avoid any conflict with Mexican-American students celebrating Cinco de Mayo.

In many ways, everyone has moved on. The boys have gone off to college. The principal and assistant principal involved have left Live Oak. The Fox News trucks are long gone from the school's parking lot.

But the controversy simmers, reaching a crucial stage Thursday, when a federal appeals court considers the families' free speech lawsuit over the incident. The 9th U.S. Circuit Court of Appeals will hear arguments in the parents' appeal of a ruling last year dismissing their case.

The parents still want the Morgan Hill Unified School District to be held accountable for what they consider an unpatriotic violation of the students' First Amendment right to wear an American flag on a T-shirt on any day of the year.

"It's the principle of the thing," Kendall Jones says. "We don't want anybody else to go through what these kids did."

Adds Dariano, a Latina, "Do not say to anyone in the United States you can't wear an American flag. That's an absolute outrage."

Despite striking a public chord over the episode three years ago, the families and their legal claims have encountered substantial resistance.

Morgan Hill school officials argue that the Live Oak administrators' actions were a necessary safety precaution because of a history of campus strife between Hispanic and Anglo students on Cinco de Mayo. They maintain that safeguarding students trumps free speech concerns.

"This is not a case about the flag, or the First Amendment rights of adults in a public forum," the district said in court papers. "This is a case about whether we allow school administrators, familiar with the circumstances in their schools, to take reasonable steps to protect student safety in the face of threats and a history of violence."

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Free speech and the American flag: Lawsuit over T-shirt incident at Morgan Hill school lives on