Lawyer Will Challenge Flag Desecration Charge Against Teacher

An attorney in south-central Idaho says he will ask a judge to dismiss a flag-mutilation charge filed against a former Minico High School teacher.

“This was clearly an act of free expression,” Keith Roark told the South Idaho Press newspaper. “A political opinion was being expressed. And everybody knows that. I think the school handled this very badly.”

Roark said the Idaho statute that bans flag desecration is “clearly unconstitutional” and the court has no place injecting itself into a racial controversy at the high school.

The educator accused of stomping on a U.S. flag after a Cinco de Mayo incident has been charged with mutilating the flag under a law passed in 1981 by the Idaho Legislature.

Dan Luker was charged late last month in 5th District Court with one count of “public mutilation of the flag,” a misdemeanor punishable with up to 180 days in jail and a fine of $1,000. Luker pleaded not guilty May 23. A pretrial hearing is planned for July 2. The charges stem from an incident on May 5 at Minico High School, where Luker was employed as an English as a second language teacher. He has since resigned.

Luker’s attorney has told the Minidoka County prosecutor’s office that a motion to dismiss will be filed ahead of that date, said Melissa Aston, a deputy prosecuting attorney. She said when that happens, a hearing will be set before July 2.

The U.S. Supreme Court has previously struck down laws forbidding flag desecration.

“We are aware that there are some free speech constitutional challenges that will be asserted,” said Aston. “The statute is still a valid statute in Idaho, and our office obviously is supposed to uphold and prosecute violations of the laws of the state of Idaho.”

Some students had brought Mexican flags to the school on May 5 in celebration of Cinco de Mayo, which recognizes Mexico’s victory over the French army on that day in 1862.

A gym instructor took a Mexican flag away from a student and put it in a garbage can. Luker said he was responding to that incident, and that his actions were also triggered by the school administration’s indifference to what he called generalized mistreatment of Latino students.

“For me, it was less about the flag than it was about preventing the abuse of students and staff,” Luker told a local newspaper. “I had made abuse reports previously and the abuse that I reported previously had been allowed to continue.”

Authorities say Luker threw the U.S. flag on the floor of an administrator’s office at the school and stomped on it, breaking the wooden stem and ripping the flag off its fastenings.

“We feel like the issue has been appropriately resolved,” said Scott Rogers, Minidoka County School District superintendent. “It’s now taking its course through potential legal avenues. We’ve been directed to not talk about it by legal counsel.”

The incidents with the flags early in May led to protests and counter protests at the school, which heightened security amid the ethnic tension.

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