Students appeal Cinco de Mayo ruling

It’s the case that put Morgan Hill in the national media spotlight when former principal Nick Boden and former assistant principal Miguel Rodriguez told Live Oak High School students they could wear their American T-shirts on any other day other than Cinco de Mayo 2010.
Those three high school students who were ordered to remove their American flag clothing or get sent home, filed an appeal with the U.S. 9th Circuit Court of Appeals Wednesday morning, according to Los Angeles attorney William J. Becker, of the Becker Law Firm that represents the students. The students hope to reverse the San Francisco federal judge’s November 2011 ruling that their constitutional free speech and equal protection rights were not violated, said Becker.
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 in May 2010.
The boys were sent home after refusing to remove the shirts or turn them inside out. Boden and 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 back in 2010.  
“The American flag is not a symbol of racism or race hatemongering. 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. “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.”
The lawsuit sought nominal damages including changing school policies to clearly state students’ rights and protections under the Bill of Rights and reimbursing lawyer fees and expenses for the cost of litigation.
Attorney Alyson Cabrera of the Gordon & Rees Law Firm representing the Morgan Hill school district said they will have the opportunity to respond to arguments the first week of April. The next steps include the court setting a hearing for the case, with oral arguments heard in the 9th Circuit. The entire process she said could take up to several months.
“The court found that the rights of students promoting their Mexican heritage trumped the rights of students expressing their patriotism and who did not object to the Cinco de Mayo activities. If school officials felt the threat of potential disruption of the school day, they should have canceled the Cinco de Mayo events,” said Becker back in November through email. “Instead, this court held that the solution was to suppress speech that others found to be objectionable: support for this nation.”
When Judge Ware ruled in favor of MHUSD, Becker said they were planning to appeal.
In a statement following the May 5, 2010 events, Superintendent Wes Smith said the district does not prohibit or discourage wearing patriotic clothing. He said the primary concern had been campus safety, and “students should not, and will not, be disciplined for wearing patriotic clothing.”
In an email Wednesday, Smith said because the case is being litigated, he could not offer a comment.
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, 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.
Cinco de Mayo 2011, unlike 2010, was a peaceful event: many students wore white T-shirts with the Live Oak tree across the front to symbolize the school’s unity. No students were sent home for wearing either Mexico’s or America’s flag colors.
“Last year we had great Cinco de Mayo activities throughout our district where we safely and appropriately celebrated one of our country’s greatest assets:  diversity. We intend to do the same this year,” said Smith.