In response to the recent development in this case, MHUSD Superintendent Steve Betando has issued the following statement, which can be found posted on the district’s website here.
“Given the delicate relationship between students’ First Amendment rights and a school’s duty to keep its students safe, we believe the Ninth Circuit correctly determined that administrators must be afforded reasonable leeway to make difficult decisions when necessary to protect student safety, even where such decisions impact student speech. The District has always maintained that the decisions made by its administrators on that day had nothing to do with favoring one group over another, but rather, stemmed solely from a motivation to protect the safety of the student-plaintiffs and the other eleven hundred students on the Live Oak campus. In holding that the actions of our school administrators were tailored to avert violence and focused on student safety, the Ninth Circuit has now expressly recognized this legitimate motivation.
By its ruling, the Ninth Circuit Court recognizes that maintaining safety, security, and order on school campuses sometimes requires action to change a situation in the interest of student welfare. The behaviors and student interactions at Live Oak High School on Cinco de Mayo in both 2009 and 2010 were clear signs that the threat of a potential disturbance was real. The court found that school officials made a justifiable decision to intervene in the interest of student safety. The administrators gave the students options to diffuse a contentious situation and prevent the potential of student injury. Had the administrators not intervened, the events of this case might be discussed in a completely different court. Had the predicted violence been ignored or dismissed, staff could be responsible for not intervening when signs of potential violence were clearly reported.
We are pleased to have this issue behind us as a District. The students at Live Oak High School came together immediately following the incident to unite the campus in the interest of respect for one another.”
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A three-judge panel of the 9th Circuit Court of Appeals in San Francisco upheld a federal judge’s 2011 ruling today, Thursday, that Live Oak High School officials acted accordingly when they ordered three former students to remove their American patriotic T-shirts on the Cinco de Mayo Mexican holiday.
“It’s pretty incredible that the First Amendment rights of students to express their patriotic views has to take the backseat to the rights of students who want to celebrate another nation,” said Los Angeles-based attorney William J. Becker of the Becker Law Firm, which represents the families of three former LOHS students involved in the 2010 Cinco de Mayo incident on the school campus.
The legal fight isn’t over just yet, however.
Becker told The Times he plans to file a petition for en banc review of the three-judge panel’s ruling before an 11-judge panel of the same 9th Circuit Court of Appeals. An “en banc” session is where a case is heard before all the judges of a court, or before the entire bench, rather than by a panel selected from them.
If the next “preliminary” step does not go in their favor, Becker said he plans to take the case to the U.S. Supreme Court.
Co-counsel Robert Muise argued on behalf of the LOHS students during oral arguments back on Oct. 17, 2013. At that time, he told the panel that the wearing of American T-shirts by the students was a “silent, passive, peaceful way” to protest and a form of pure speech.
But on Cinco de Mayo in 2010, the boys were sent home after refusing to remove the shirts or turn them inside out. Former LOHS principal Nick Boden and former assistant principal Miguel Rodriguez said they were concerned about the potential for violence on campus. Neither the fourth student, Austin Carvalho or his parents, joined the suit.
“If the court believed that there was a record of past disruption on the high school campus, then the solution would have been for the school to cancel the Cinco de Mayo celebration, not to deprive patriotic students their guaranteed First Amendment right of free speech,” added Becker, touching on the basis for the three-judge panel’s decision Thursday.
According to Muise, a similar school-sponsored Cinco de Mayo celebration was held at Live Oak HS in 2009, the year prior, and a conflict ensued. Despite that fact, MHUSD allowed another celebration on school grounds the following year, when the incident took place.
The decision to send the students home in 2010 sparked a media frenzy nationwide on a debate on First Amendment rights in newspapers, talk shows and television news as the story went viral. Bay Area news stations set up camp in front of the LOHS campus.
On May 6, 2010, nearly 200 mostly Hispanic teens from Live Oak and Sobrato high schools marched through downtown Morgan Hill escorted by police to support Mexico, bearing Mexican flags and attire. Hispanic students felt that students wearing American flags were disrespecting Mexican-American students.
Plaintiffs in Dariano vs. Morgan Hill Unified School District Dianna and John Dariano, parents of Matt Dariano; Kurt and Julie Ann Fagerstrom, parents of Dominic Maciel; and Kendall and Joy Jones on behalf of Daniel Galli; filed the lawsuit in June 2010 against MHUSD alleging violations of their First and Fourteenth Amendment rights after their children wore American-themed attire at Live Oak HS in May 2010.
U.S. District Court Chief Judge James Ware ruled in favor of the school district in November 2011, ruling that the school officials acted properly.
