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A federal appeals court has been asked to overturn a judge’s determination that a school can order students to remove U.S. flag-themed articles of clothing because  other students celebrating Mexico’s Cinco de Mayo could be upset by Old Glory.

The appeal with the 9th U.S. Circuit Court of Appeals was filed today by several legal teams who are working on behalf of three students attending Live Oak High School in San Francisco’s Morgan Hill Unified School District.

“It is a sad day in our nation’s history when government officials ban the American flag on a public high school campus for any reason,” said Robert Muise, founder and senior counsel for the American Freedom Law Center, one of the groups working on the case.

“Here, school officials feared that our clients would offend ‘Mexican’ students if they wore their flag shirts to school on Cinco de Mayo, so they ordered the students to either remove their shirts or leave school in direction violation of their First Amendment rights,” he said.

The AFLC is working with the Becker Law Firm of Los Angeles as well as the Rutherford Institute on the case.

“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 William J Becker Jr. of the Becker Law Firm. “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.”

Earlier, at the district court level, it was Judge James Ware who ruled that it was reasonable for the school to censor the flag because there were students who apparently hated the emblem enough to threaten with violence students who were wearing it.

He also ruled that the censorship was “equal” with permission by the school for other students to wear the Mexican flag because there was no one who was threatening violence over that.

Ware is the same judge who, in the state’s fight over homosexual marriage and Proposition 8, said it is perfectly fine for a homosexual judge in a long-term relationship with another man to rule on a dispute over homosexual marriage.

In a report about the flag case, the AFLC said, “School officials intentionally restricted the students’ speech on May 5, 2010, because they believed that the message conveyed by their patriotic clothing would offend some Mexican students since it was Cinco de Mayo (i.e., ‘their day’). School officials enforced the clothing restriction even though they had no objective evidence that the students were causing any disruption – let alone a material and substantial one – to the operation of the school.”

The report said the school had approved the day to be recognized by the MEChA student group.

“M.E.Ch.A. is an acronym that stands for ‘movimiento’ [movement] ‘estudiantil’ [student] ‘Chicano’ [an ethnic identity] and ‘Aztlan’ [referring to the mythical homeland of the Aztecs]. ‘Chicanismo’ is a term that includes as part of its definition ‘a personal decision to reject assimilation and work towards the preservation of [the Chicano] cultural heritage.’ In other words, M.E.Ch.A, by its very name, is a student movement that rejects the assimilation of Chicanos into American culture. According to the M.E.Ch.A. club’s ‘Charter/Constitution’ that was filed with school officials at Live Oak High School, the purpose of the club is, in part, to ‘support students who have a desire to keep up their own culture & customs,’” the AFLC said.


Live Oak High School students (from left): Daniel Galli, Austin Carvalho, Matt Dariano and Dominic Maciel (photo: Gilroy Dispatch)

The confrontation developed when, as instructed by Principal Nick Boden, Assistant Principal Miguel Rodriguez “approached the students and directed them to turn their American flag T-shirts inside out.”

School officials were responding to complaints from some students described by Rodriguez as “Mexican American or Mexican students.”

“When the students refused to disrespect the American flag, Rodriguez directed them to go with him to his office. The students complied. After receiving a call from her son, Ms. Diana Dariano, the mother of one of the student plaintiffs, arrived at the school and addressed the matter with Rodriguez. Other parents soon arrived, and a meeting was held with Principal Boden. During this meeting, Boden and Rodriguez made it clear that they objected to the students’ American flag clothing because they believed that its message would offend Mexican students on campus since it was Cinco De Mayo,” the report said.

“Prior to restricting the students’ patriotic message, school officials had no information that the students’ passive speech had caused any disruption whatsoever at the school, even though students had been on campus for over three hours and attended at least two classroom periods as well as homeroom,” the AFLC reported.

After the fact, the school took no action to “deter a school official” from repeating the violation, the AFLC said.

It reported, “Despite banning the American flag, school officials permitted the Mexican students participating in the Cinco de Mayo celebration to wear clothing that had the colors of the Mexican flag.”

AFLC Senior Counsel David Yerushalmi commented: “These students and their parents should be commended for standing up and exercising their rights under the First Amendment. Our rights will only have meaning if we are willing to fight for them. That is what the American Freedom Law Center is doing every day, but it also takes courageous citizens, such as our clients in this case, to join us in the fight.”

During the district court stage of the dispute, evidence revealed that, “One Mexican student shouted, ‘F— them white boys, f— them white boys.’”

When Rodriguez told him to stop using such language, the Mexican student said, “But Rodriguez, they are racist. They are being racist. F— them white boys. Let’s f— them up.’”

The judge noted in another situation that a “male student” approached one of the plaintiffs and “shoved a Mexican flag at him.”

A female student also “approached plaintiff M.D., motioned to his shirt, and said, ‘why are you wearing that, do you not like Mexicans?’” the judge wrote.

Because of such behavior, the school officials were correct to blame those wearing the attire and take action, the judge said.

“The court finds that they did not violate the First Amendment by asking plaintiffs to turn their shirts inside out,” Ware wrote.

The plaintiffs are John and Dianna Dariano, Kurt and Julie Ann Fagerstrom and Kendall and Joy Jones, on behalf of their children.

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