Students hope to reverse American flag T-shirt ruling

Update as of 3 p.m. Thursday:
Oral arguments were heard today, Thursday, at 10 a.m. before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco with co-counsel Robert Muise speaking on behalf of the former Live Oak High School students who were lobbying to reverse a San Francisco federal judge’s November 2011 ruling that their constitutional free speech and equal protection rights were not violated.
“I think it’s certainly a very interesting case,” said Muise in a brief phone interview. “Obviously from our perspective the students speech should be protected under the Constitution.”
Muise argued that the wearing of American T-shirts by the students was a “silent, passive, peaceful way” to protest and a form of pure speech. 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 incident took place.
“I think I argued what I needed to argue,” said Muise.
During the appeal proceedings, each attorney is given 15 minutes to hit on their points and, during that time, the judges can ask questions of them.
Muise said it will take “about a year” before the judges make their decision. From his experience, Muise noted that one judge takes the lead and draws up a ruling, which is then reviewed and revised by the other two judges before being issued.
If the panel rules against the students, Muise said he plans on making a request for a full court review in which case both sides will go before an 11-judge panel. If they are denied again, Muise said he will take it to the U.S. Supreme Court.
The infamous 2010 Cinco de Mayo case involving three former Live Oak High School students who were ordered by school administrators to remove their American T-shirts on the Mexican holiday will go before the U.S. 9th Circuit Court of Appeals today, Thursday.
The students hope to reverse a San Francisco federal judge’s November 2011 ruling that their constitutional free speech and equal protection rights were not violated, according to Los Angeles attorney William J. Becker, of the Becker Law Firm that represents the students.
“This isn’t about money. This is about establishing a constitutional principle that students enjoy First Amendment protection just as anyone else would,” Becker said.
He added that this is “especially true when we’re talking about expressions of patriotism which are in essence a reflection of democratic values.”
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.
Oral arguments will be heard today on the students’ behalf by co-counsel Rob Muise of the American Freedom Law Center. Becker noted that a decision may take at least six months.
MHUSD Interim Superintendent Steve Betando declined to say anything about the case, noting “we can’t comment on pending litigation.”
The boys were sent home in 2010 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.
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.
“This has been quite a hardship on the students because they’ve already graduated,” said Becker, who hopes “to vindicate their rights” despite the fact that “they won’t be able to enjoy those rights.”
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 Live Oak High School.
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.
Becker said “the principle needs to be established from this case” so students can “express their patriotism to America.”
The driving force is “to protect the first amendment and their free of speech right,” he said.
This is a developing story. Check back soon for updates.