Attorneys with the Freedom X law firm have held true to their promise of taking the Dariano v. Morgan Hill Unified School District case to the U.S. Supreme Court—filing a “petition for writ of certiorari” Monday asking the nation’s highest court to review the legal dispute.
The firm is acting on behalf of three of four former Live Oak High School students who were sent home from class after refusing to remove their American flag-themed t-shirts on the Cinco de Mayo holiday in 2010—an incident that brought nationwide attention to the east Morgan Hill campus and a debate on First Amendment rights at school.
Despite previous appeals court rulings rejecting their argument, Freedom X maintains that the students’ constitutional rights were unlawfully denied by school staff. But local education officials and advocates just want the firm to accept those rulings and let the issue rest.
“It’s unbelievable that we need to remind the courts that American students at an American school have just as much right to celebrate their heritage as Mexican students have,” Freedom X President and General Counsel William J. Becker said. “If the principal had banned Mexican-American students from wearing Mexican flag t-shirts on Memorial Day, you can bet the Ninth Circuit would have struck that down.”
Members of the school community, including Superintendent Steve Betando, as well as other sectors of the local community, wish the Los Angeles-based nonprofit, public interest legal organization would just leave well enough alone.
“The continuing legal actions and the controversial media attention that Mr. Becker draws is a distraction to our community,” Betando said. “Many members of the Morgan Hill community on both sides of the issue have expressed to me that they are tired of it.”
Julian Mancias, an activist within the Hispanic community who helped organize meetings between school, police, students and concerned residents leading up to this year’s May 5 protests in front of Live Oak High School, is one of them.
“What they basically told the community was that they, the students, wanted to be left alone so that they could concentrate on their education,” Mancias recalled. “It is anyone’s guess whether this fiasco will continue. We are hoping that it doesn’t. But, if it does, we will once again align ourselves in support of the students.”
Bob Benevento, Board of Education President, declined to comment when asked about the latest news, stating “it is not customary for board members to discuss pending litigation.”
The widely debated case—pitting student safety against First Amendment rights to freedom of expression—stems from a May 5, 2010 incident on the LOHS campus. School administrators demanded that four students turn their patriotic-themed t-shirts inside-out or remove them on Cinco de Mayo because some Hispanic classmates viewed it as a sign of disrespect. The students refused and were later sent home by former LOHS principal Nick Boden and former assistant principal Miguel Rodriguez. Neither administrator is currently employed with the district.
Cinco de Mayo is a celebration to commemorate the Mexican army’s unlikely victory over French forces at the Battle of Puebla on May 5, 1862. In the U.S., it is a day to celebrate Mexican heritage and pride.
The principals’ decision—motivated by a concern for campus safety—sparked a nationwide media frenzy and a debate on First Amendment rights as the story went viral on television, newspapers and social media. Bay Area and national news stations set up camp in front of the LOHS campus for days following the 2010 flag flap.
The Ninth Circuit Court of Appeals twice upheld a federal judge’s initial ruling that school officials properly defused a potentially volatile situation on campus and did not violate the four former students’ constitutional rights by sending them home for not complying with school officials’ request.
“The Ninth Circuit concluded that our Constitution imposes a one-day-per-year calendar restriction on the right to display our patriotism,” said Becker. “The First Amendment does not give some people free speech rights while denying it to others.”
Georgine Scott-Codiga, president of the Gilroy-Morgan Hill Patriots group that protested the Ninth Court’s decision back in May, believes that the school district, as well as the courts thus far, have got it wrong.
“I am thankful for organizations such as Freedom X who fight to protect the rights of all Americans to speak freely, not just a select few as in this case, by taking the case to the Supreme Court,” said Scott-Codiga, whose group stands firm that anyone wearing American flag-themed clothing should not be punished for doing so.
Freedom X is a nonprofit firm “dedicated to protecting religious and conservative freedom of expression,” according to their website.
Four of the nine U.S. Supreme Court Justices must vote to accept a case before it is reviewed. The Court accepts between 100-150 of the more than 7,000 cases that it is asked to review each year. Most of those selected have “national significance,” according to uscourts.gov.
After the Ninth Circuit Court’s latest ruling in February, the Patriots staged a peaceful protest on May 5, 2014. At that protest, about 50 Patriots members held 10-foot high poles with large American flags attached hovering over both sides of East Main Avenue as LOHS students arrived to school. Later that day, the 2 Million Bikers to D.C. motorcycle club led a convoy of about 30 bikers from around the Bay Area through downtown Morgan Hill to the front of LOHS where they recited the Pledge of Allegiance and continued to display American flags and patriotic garb.
With heavy police presence at the school, there were no arrests or violence reported. However, LOHS’s attendance on May 5 was 62 percent—with 207 unexcused and 197 excused absences out of 1,066 total students, according to data provided by the district.
