Students appeal Cinco de Mayo ruling

Live Oak High School students from left, Daniel Galli, Austin Carvalho, Matt Dariano and Dominic Maciel were sent home from school Wednesday because they were wearing American flag t-shirts on Cinco de Mayo. 5.5.10

Three Morgan Hill high school students who were ordered to remove their American flag clothing to avoid offending students celebrating their Mexican heritage on Cinco de Mayo (May 5) in 2010 filed an appeal with the U.S. Court of Appeals for the 9th Circuit today, according to their attorney William J. Becker, with The Becker Law Firm.

The students hope to reverse a trial judge’s ruling who determined that their constitutional free speech and equal protection rights were not violated, Becker said.

A San Francisco federal judge in the case Dariano, et. al v. Morgan Hill Unified School District ruled in November 2011 that officials at Live Oak High School, acted properly when they ordered the students to remove their clothing depicting the American flag in order to prevent racial tensions from disrupting a school-sanctioned Cinco de Mayo event.

“The American flag is not a symbol of racism or race hate mongering. It should never be ordered into a student’s locker just so it won’t offend people because of their pride in another nation’s culture,” said Becker, one of the attorneys representing the students.

“The American flag symbolizes unity and promotes a public school’s goal of providing students with opportunities to celebrate their cultural heritage. The First Amendment guarantees students the right to express their patriotism every day of the year regardless of whose cultural heritage is being celebrated,” Becker said.

Chief Judge James Ware dismissed the case after deciding that the school had reason to expect an outbreak of violence over the student’s patriotic expression.

Dariano v. Morgan Hill Unified School District, sought “nominal damages” Becker said in June 2011 when the original lawsuit was filed. He said the lawsuit is symbolic as the plaintiffs are not seeking monetary damages or an apology. It’s whether or not Live Oak or any other school in the United States recognizes their duty to not infringe on students’ First Amendment rights, Becker said.

John and Dianna Dariano, parents of Matt Dariano, Kurt and Julie Ann Fagerstrom, parents of Dominic Maciel, and Kendall and Joy Jones on behalf of Daniel Galli were named as the plaintiffs in the lawsuit. They are represented by the Becker Law Firm in Los Angeles and the Thomas More Law Center in Ann Arbor, Mich. Becker and the Thomas More Law Center are also litigating a similar case of discrimination on behalf of a Merced sixth-grade girl who was ordered by school officials to remover her pro-life T-shirt.

The four students were told by former principal Nick Boden and former assistant principal Miguel Rodriguez they could wear their American flag T-shirts on any other day other than Cinco de Mayo. Live Oak maintains it was attempting to quell any violence among Hispanic students and on May 5, Rodriguez called the boys’ dress “incendiary.”

Other students that day wore red, white and green in favor of their pride for the Mexican holiday, which marks the Mexican army’s victory over the French in the Battle of Puebla on May 5, 1862.

The incident pushed Live Oak and Morgan Hill into the national media spotlight. On May 6, about 200 mostly Hispanic teens marched through Morgan Hill as a sign of protest; on May 7, the school district issued an apology and Superintendent Wes Smith said he did not agree with the decision made; on May 8, more than 100 Tea Party members rallied in downtown to support the four students who also attended; and on May 11, several hundred locals and many media outlets covered the school board meeting that addressed the May 5 event.

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