Judge sides with Calif. school that told students to take off American flag shirts

Students plan to appeal

CALIFORNIA ­— Three California high school students who donned American flag T-shirts for Cinco de Mayo presented a possible “substantial disruption,” and school officials were within their authority to ask them to remove the shirts, a judge ruled Tuesday.

District Judge James Ware granted the Morgan Hill Unified School District’s motion for summary judgment, ruling that administrators satisfied the Tinker standard and did not violate the students’ First Amendment rights by prohibiting them from wearing attire deemed a potential risk to their safety.

The legal dispute stems from a 2010 incident in which five students at Live Oak High School in Morgan Hill, located just south of San Jose, wore clothing with images of the American flag to school on the same day as Cinco de Mayo festivities.

That morning, Assistant Principal Miguel Rodriguez asked the students to remove their shirts or turn them inside out, explaining he was concerned for their safety. The students refused to comply.

Shortly thereafter, Dianna Dariano, mother of one of the student plaintiffs, met with Principal Nick Boden, and she decided to remove her son from school for the day.

School officials’ reasoning was based on fear that the shirts would cause an altercation among students, as happened with a 2009 verbal spat between groups of white and Mexican students, according to court documents. Dariano’s son had worn an American flag shirt that day and had been threatened by another student.

In the hours and days following the 2010 incident, the three plaintiffs received threatening calls and messages as well.

“These warnings were made in a context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of the American flag,” the court’s order reads.

As such, Ware ruled that administrators could “reasonably forecast” the shirts might cause a disruption to school activities, the test set down by the Supreme Court in Tinker v. Des Moines in determining whether expression can be curtailed.

“Although no school official can predict with certainty which threats are empty and which will lead to true violence, the Court finds that these school officials were not unreasonable in forecasting that Plaintiffs’ clothing exposed them to significant danger,” the ruling reads.

Mark Posard and Alyson Cabrera, attorneys for the school district, said this case, from the start, was about the safety of students.

“We think it’s very difficult for administrators; they’re making judgment calls in the moment,” Cabrera said. “It’s always been about protecting student safety, and Judge Ware’s opinion will be helpful to that extent.”

Such precautions came at the expense of the plaintiffs’ constitutional rights, said William Becker, lead attorney for the plaintiffs.

“If (school officials) believe that in 2009 there was evidence that students would become embroiled in some kind of dispute over race or nationalism, then it behooved them not to permit Cinco de Mayo celebrations to take place,” Becker said. “Instead ... they permitted one group to present their message and then disallowed my clients from presenting their message, which, by the way, was not intended to refute or to contest or to challenge the interests of the students who were celebrating Cinco de Mayo.”

To the allegation that the school usurped one set of students’ rights in favor of another’s, Ware ruled that “school officials have offered substantial evidence that all students whose safety was in jeopardy were treated equally.”

The students plan to appeal the decision to the 9th U.S. Circuit Court of Appeals, Becker said.

California, Morgan Hill Unified School District, news

More Information