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9th Circuit wrestles with American flag shirts and free speech

SAN FRANCISCO — A federal appeals court wrestled with a case Thursday that pits the right of students to wear American flag T-shirts against the need for school administrators to ensure campus safety.

A three-judge panel of the 9th U.S. Circuit Court of Appeals appeared inclined to accept that school officials had reason to be concerned when several boys showed up in U.S. flag shirts on Cinco de Mayo in 2010 at a Northern California high school where there had been racial tensions.

But the judges did not clearly indicate whether that concern for safety justified a school official's decision to tell the students to turn their shirts inside out or go home. The students went home.

The court is considering whether to revive a lawsuit against the Morgan Hill Unified School District by parents of three Live Oak High School students who wore the T-shirts. A federal district judge had dismissed the case.

School officials said they acted after students warned them the T-shirts might provoke a volatile and dangerous reaction. The students' parents said their sons were merely expressing patriotism and meant no offense to Latinos.

"If you have a tolerance day, don't you have to endure the views of anti-tolerance?" asked 9th Circuit Judge Sydney R. Thomas, an appointee of former President Bill Clinton.

But Judge M. Margaret McKeown observed the Supreme Court has given schools a lot of latitude when it comes to student safety.

The court is likely to rule on the case within the next few months.

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