Judge sides with Calif. school that told students to take off American flag shirts

CALIFORNIA ­— ThreeCalifornia high school students who donned American flag T-shirts for Cinco deMayo presented a possible “substantial disruption,” and school officials werewithin their authority to ask them to remove the shirts, a judge ruled Tuesday.

District Judge James Ware granted the Morgan Hill UnifiedSchool District’s motion for summary judgment, ruling that administratorssatisfied the Tinker standard and didnot violate the students’ First Amendment rights by prohibiting them fromwearing attire deemed a potential risk to their safety.

The legal dispute stems from a 2010 incident in which fivestudents at Live Oak High School in Morgan Hill, located just south of SanJose, wore clothing with images of the American flag to school on the same dayas Cinco de Mayo festivities.

That morning, Assistant Principal Miguel Rodriguez asked thestudents to remove their shirts or turn them inside out, explaining he wasconcerned for their safety. The students refused to comply.

Shortly thereafter, Dianna Dariano, mother of one of thestudent plaintiffs, met with Principal Nick Boden, and she decided to removeher son from school for the day.

School officials’ reasoning was based on fear that theshirts would cause an altercation among students, as happened with a 2009verbal spat between groups of white and Mexican students, according to courtdocuments. Dariano’s son had worn an American flag shirt that day and had beenthreatened by another student.

In the hours and days following the 2010 incident, the threeplaintiffs received threatening calls and messages as well.

“These warnings were made in a context of ongoing racialtension and gang violence within the school, and after a near-violentaltercation had erupted during the prior Cinco de Mayo over the display of theAmerican flag,” the court’s order reads.

As such, Ware ruled that administrators could “reasonablyforecast” the shirts might cause a disruption to school activities, the testset down by the Supreme Court in Tinkerv. Des Moines in determining whether expression can be curtailed.

“Although no school official can predict with certaintywhich threats are empty and which will lead to true violence, the Court findsthat these school officials were not unreasonable in forecasting that Plaintiffs’clothing exposed them to significant danger,” the ruling reads.

Mark Posard and Alyson Cabrera, attorneys for the schooldistrict, said this case, from the start, was about the safety of students.

“We think it’s very difficult for administrators; they’remaking judgment calls in the moment,” Cabrera said. “It’s always been aboutprotecting student safety, and Judge Ware’s opinion will be helpful to thatextent.”

Such precautions came at the expense of the plaintiffs’constitutional rights, said William Becker, lead attorney for the plaintiffs.

“If (school officials) believe that in 2009 there wasevidence that students would become embroiled in some kind of dispute over raceor nationalism, then it behooved them not to permit Cinco de Mayo celebrationsto take place,” Becker said. “Instead … they permitted one group to presenttheir message and then disallowed my clients from presenting their message,which, by the way, was not intended to refute or to contest or to challenge theinterests of the students who were celebrating Cinco de Mayo.”

To the allegation that the school usurped one set ofstudents’ rights in favor of another’s, Ware ruled that “school officials haveoffered substantial evidence that all students whose safety was in jeopardy weretreated equally.”

The students plan to appeal the decision to the 9th U.S. Circuit Court of Appeals, Becker said.