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October 27, 2020

Updated: Lawsuit filed over T-shirt controversy at Live Oak

The parents of three boys who were sent home from Live Oak High
School on Cinco de Mayo for wearing American flag T-shirts filed a
civil rights lawsuit Wednesday against the Morgan Hill Unified
School District, Principal Nick Boden and Assistant Principal
Miguel Rodriguez for violating their First and Fourteenth Amendment
rights.
The parents of three boys who were sent home from Live Oak High School on Cinco de Mayo for wearing American flag T-shirts filed a civil rights lawsuit Wednesday against the Morgan Hill Unified School District, Principal Nick Boden and Assistant Principal Miguel Rodriguez for violating their First and Fourteenth Amendment rights.

The three boys were part of a group of five students who were told by two Live Oak administrators to remove their red, white and blue clothing or be sent home because other students were celebrating Cinco de Mayo and officials feared a fight might ensue.

“The families are hoping to have their Constitutional rights vindicated,” their attorney, William J. Becker Jr., said Wednesday by phone. “Students shouldn’t be threatened with discipline for expressing their patriotic views. Merely wearing an American shirt with pride is not punishable because it happens to be a Mexican holiday,” he said.

The school district is expected to receive the lawsuit soon. They are required to respond to the complaint – filed in the San Jose division of federal court – within 20 days.

Becker said the plaintiffs believe a “permanent remedy is necessary to foreclose the school district’s ability to draft and implement speech policies that run afoul of the Constitution.” He said an agreement, such as one done informally between the parents and district officials in a meeting locally, would leave open the possibility that a negotiated policy can be modified in the future.

Superintendent Wes Smith would not comment on the lawsuit because he said the school district had not received official notification. Immediately following the incident, Smith called the incident “extremely unfortunate” and said he did not support the decision by Live Oak administrators. “It appears that a decision was made too quickly,” he said May 7.

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, Becker said. However, attorneys’ fees, costs and expenses are also requested to be paid for by the defendant.

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, are named as the plaintiffs. They are co-represented by the Becker Law Firm in Los Angeles and the Thomas More Law Center in Ann Arbor, Mich.

The Thomas More Law Center is a not-for-profit public interest law firm “dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life,” according to its mission statement online. The Thomas More Law Center represents individuals free of charge.

Julie Fagerstrom, Dominic Maciel’s mother, said Thursday by phone that her lawyers advised her not to speak to the media about the lawsuit.

The fourth student who was sent home, Austin Carvalho, could not be reached for comment. The fifth student involved was not sent home May 5, but rather complied with the request and returned to class.

In the lawsuit sent to the Times Wednesday, the plaintiffs say the violation of their right to free speech caused “irreparable harm, including loss of their constitutional rights, entitling them to declaratory and injunctive relief and nominal damages.”

The message the plaintiffs hope to send – if the lawsuit is successful – is that school officials cannot show preference for the content of one group’s message over the content of another group’s message, according to the lawsuit.

The decision by Rodriguez and Boden ignited a media firestorm. TV news cameras from numerous outlets in the Bay Area and national news outlets, such as Fox News, CNN and MSNBC, were camped outside Live Oak May 6 and 7.

The Internet blogosphere was inundated with debates over the First Amendment, illegal immigration laws and racial tension. The TV news vans returned the next week to cover a town hall-style school board meeting May 11 that drew about 300 people, dozens of whom addressed the school board.

Boden and Rodriguez believed the boys’ display of patriotism would cause trouble on campus as many Hispanic students simultaneously celebrated Cinco de Mayo, which included a lunchtime celebration for the Mexican holiday that marks the Mexican army’s victory over the French in the Battle of Puebla on May 5, 1862.

Peter Scheer, the executive director of the First Amendment Coalition, said he was surprised that a lawsuit was filed, “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 on 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 Fourteenth 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.

Timeline of events

May 5: Four students were sent home from LIve Oak High School for wearing American flag T-shirts on Cinco de Mayo.

May 6: Dozens of news cameras camped out in front of LIve Oak and Friday. Several of the students and parents appear on various national talk and radio broadcasts. Live Oak administration receives more than 5,000 e-mails. About 200 mostly Hispanic teens marched through Morgan Hill as a sign of protest.

May 7: The school district issued an apology and Superintendent Wes Smith said he did not agree with the decision made by Principal Nick Boden.

May 8: More than 100 Tea Party members rallied in downtown to support the four students, who also were present

May 11: Several hundred locals attend a school board meeting that addressed the May 5 event. Many media outlets covered the meeting.

June 23: Three of the families involved in the incident file a lawsuit against MHUSD, seeking a revision of its policy to protect students’ freedom of expression.

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