SAN FRANCISCO -- Stuck between preserving order at public schools and students' free speech rights, a federal appeals court on Thursday struggled over whether a South Bay high school overstepped three years ago when it ordered some students to turn their American-flag adorned shirts inside out during a Cinco de Mayo celebration.

A three-judge 9th U.S. Circuit Court of Appeals panel at times appeared sympathetic to three families who have sued the Morgan Hill Unified School District over the May 2010 incident at Live Oak High School, suggesting at the very least that a jury should decide whether school administrators' actions were justified.

Live Oak officials ordered the students to either cover up the U.S. flag shirts or go home, citing a history of threats that raised fears of violence on the day the school was highlighting the Mexican holiday. But 9th Circuit Judge Sidney Thomas said there could be First Amendment implications to allowing only one message on that day.

"If you have tolerance days, you have to endure the views of anti-tolerance," Thomas told the school district's lawyer.

However, the judges also noted the strong legal precedent for giving school leaders wide latitude to cope with threats of campus violence or disruption, even at the expense of free speech rights.

"Here, the school is saying on this day, in these circumstances, with racism floating around ... we're not going to risk having a blowup here. So one day only let's defuse this," Judge M. Margaret McKeown said to the parents' lawyer. "What's wrong with this? You have to wait until they duke it out in the courtyard?"

The legal flap stems from the parents' First Amendment lawsuit, which argues that no circumstances warrant a school forbidding a student from wearing a shirt with the American flag. In recent interviews with this newspaper, two of the families said the students were only showing their patriotism and did not intend to incite trouble with Latino students on Cinco de Mayo.

School officials, however, maintain that Live Oak administrators had a right to avoid trouble, and that they had indications that wearing the U.S. flag shirts that day jeopardized the students.

"We live in a time and age of school violence and this case is about school safety," Don Willenburg, the school district's lawyer, told the judges.

The arguments centered heavily on how the Live Oak situation fits with a major 1969 U.S. Supreme Court ruling in a case called Tinker, which set the boundaries for when school discipline violates students' First Amendment rights. Morgan Hill Unified maintains that Live Oak's "reasonable" worry about violence complies with that Supreme Court precedent, but the students' lawyer disagreed.

"I contend the safety concerns are a pretext," Robert Muise, the parents' lawyer, told the judges. "Their main concern was a viewpoint restriction, not a safety issue."

The 9th Circuit is reviewing the parents' appeal of a federal judge's ruling that Live Oak's handling of the incident was a necessary safety precaution that trumped the students' free speech rights.

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.

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Read the legal arguments in the lawsuit over students' right to wear U.S. flag T-shirts at www.mercurynews.com/crime-courts.