U.S. flag shirts at school – a civil right?

Live Oak High School students from left, Daniel Galli, Austin

The parents of the students who became poster boys for
patriotism on Cinco de Mayo last year await a Jan. 24 court hearing
of their civil rights lawsuit against the Morgan Hill Unified
School District and Live Oak High School administrators who they
claim violated their sons’ First and 14th Amendment rights when
they were asked to remove their patriotic clothing because it
was

incendiary.

The parents of the students who became poster boys for patriotism on Cinco de Mayo last year await a Jan. 24 court hearing of their civil rights lawsuit against the Morgan Hill Unified School District and Live Oak High School administrators who they claim violated their sons’ First and 14th Amendment rights when they were asked to remove their patriotic clothing because it was “incendiary.”

Attorney Alyson Cabrera, who is representing the school district, former Principal Nick Boden and former Assistant Principal Miguel Rodriguez, filed a motion to dismiss the case based on lack of jurisdiction – though the motion does not seek to reject the case altogether. The motion could dismiss MHUSD from the lawsuit and leave Boden and Rodriguez as individual defendants.

“The point of the motion is to demonstrate a live case or controversy,” said Cabrera, an attorney for Gordon & Rees LLP in San Francisco.

The defendants’ motion to dismiss is based on Article III of the Constitution that states courts can’t hear cases that do not pose a controversy – the basis of the defendants’ argument because the school district maintained it does not prohibit patriotic clothing and because the “sole decision maker” former principal Nick Boden no longer is employed by the district.

The lawsuit was filed June 23 in the U.S. District Court, San Jose division by the parents of three of four Live Oak students who on May 5 were sent home with an excused absence after they refused to turn their patriotic T-shirts inside-out.

The motion would not completely dismiss the case, but rather dismiss certain claims or certain parties, Cabrera said. In the court documents, Boden takes full responsibility for asking the students to remove their red, white and blue clothing and the school district reiterates its claim since May 5, 2010 that the district “does not prohibit nor do we discourage wearing patriotic clothing.”

Cabrera argues because the district maintained its policy since Boden’s decision, it lacks jurisdiction and falls under Article III.

The lawsuit, Dariano v. Morgan Hill Unified School District, would change the school district policy to formally protect the freedom of expression. The lawsuit states that the plaintiffs ask “to permanently enjoin the defendants’ policy, practice, procedure, and/or custom of banning pro-U.S.A. messages and viewpoints.” It also seeks “nominal damages,” which is symbolic, said Bill Becker of Becker Law Firm. However, attorneys’ fees, costs and expenses are also requested to be paid for by the defendant.

The plaintiffs are John and Dianna Dariano, parents of Matt Dariano, 16; Kurt and Julie Ann Fagerstrom, parents of Dominic Maciel, 15; and Kendall and Joy Jones on behalf of Daniel Galli, 16. They are co-represented by the Becker Law Firm in Los Angeles and the Thomas More Law Center in Ann Arbor, Mich.

Becker filed their response in opposition to the motion to dismiss Dec. 23. The defendants have until Jan. 10 to file its response, then the case will be heard Jan. 24 in San Jose by U.S. District Court Judge James Ware.

“The defendants’ motion to dismiss the lawsuit is wholly without merit. We have complete confidence that the court will recognize its duty to decide this case on its merits since it involves substantial First Amendment issues,” Becker wrote by e-mail Monday. “Students have a right to know that their patriotic expressions are not prohibited simply because other students wish to monopolize the views that can be expressed on a public school’s campus. In no way are the issues in this case moot.”

But, the defendants’ motion to dismiss states that because Boden was not acting according to school district policy and the “offending school officials are no longer employed by the school district” that there is “no threat of future harm,” making the action moot.

Yet, Becker argues Boden was following school district policy which was “the moving force behind the constitutional violations;” that clothing that disrupts school activities will not be tolerated. The requirement that the students must remove their clothing depicting American flags and red, white and blue was a clear violation of their rights. Also, the plaintiffs argue, the defendants’ “alleged cessation of their illegal conduct” isn’t enough to deny the court’s jurisdiction, which they call “an important First Amendment case.”

The defendants also argue the plaintiffs are “blatantly … attempting to use this suit to obtain a “declaration” from the court intended solely to advance their personal and political ideologies, all in flagrant disregard of Article III’s limitations.”

Boden and Rodriguez are no longer employed by MHUSD. Boden retired in June and Rodriguez accepted a new job in Palo Alto.

In his sworn statement dated Aug. 31, Boden states he did not act pursuant to a policy of the MHUSD in deciding what action to take with respect to the student plaintiffs.

“Rather, I made a judgment call based on the larger context of the situation, including events that occurred prior to May 5, 2010,” he wrote. He said he wanted to ensure a safe campus and that he was the “sole decision maker” and directed Rodriguez in his action to call them into the office that day.

The plaintiffs argue that based on the Supreme Court decision of 1969 Tinker v. Des Moines Independent Community School District, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.”

Becker argues the students were deprived of their right to freedom of speech, due process and equal protection of the law. While, the four students were asked to remove their patriotic clothing, students were permitted to express their patriotism for Mexico at Live Oak that day, by wearing “patriotic clothing” on campus.

Peter Scheer, the executive director of the First Amendment Coalition, said in June that he was surprised “given that the school administration in this case appeared to come to their senses very quickly and acknowledge they made the mistake. Perhaps the students or their lawyers have reason to believe that the school will violate their rights again and in the same way,” he said.

Smith and Boden released an apology May 7.

“It’s important to understand that this was never about whether the students were allowed to wear patriotic clothing on our campuses. They can. It was about ensuring that our high school campus was orderly and safe,” Smith said. “In this situation, it appears that a decision was made too quickly.”

The First Amendment to the Constitution protects the right to freedom of religion and to the freedom of expression, which consists of the rights to freedom of speech, press and assembly and to petition the government. The due process clause of the 14th Amendment protects the rights in the First Amendment from interference of state governments.

“The school administration made a mistake in this case. Just as students in the 1960s had a First Amendment right to wear an American flag upside down as a protest of government policy, so students today have First Amendment protection to wear the flag as a symbol of their support,” Scheer said.

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