The controversy from Cinco de Mayo 2010 at Live Oak High School
that spurred a federal civil rights lawsuit by the parents of three
students who were asked to turn their American T-shirts inside-out
or leave school is moving through the federal judicial system after
Federal Judge James Ware issued his decision Thursday.
The controversy from Cinco de Mayo 2010 at Live Oak High School that spurred a federal civil rights lawsuit by the parents of three students who were asked to turn their American T-shirts inside-out or leave school is moving through the federal judicial system after Federal Judge James Ware issued his decision Thursday.
The plaintiffs’ attorney William Becker Jr. said by e-mail that he was pleased with the decision by Ware to deny the defendant’s motion to dismiss based on their argument that there was no “live case or controversy” because the Morgan Hill Unified School District has no policy against wearing American-themed clothing and the decision by the LOHS administration was rogue.
“The court’s decision recognizes the significance of the First Amendment issues at stake in this case. It allows us to move the case forward to the ultimate goal of vindicating the student’s free speech rights,” Becker said by e-mail Friday morning.
Attorney Alyson Cabrera is representing MHUSD, former principal Nick Boden – who in a court statement declared he was the “sole decision maker” that day – and former assistant principal Miguel Rodriguez who the plaintiffs allege ordered the boys to Boden’s office to be reprimanded.
“Despite the court’s ruling, we continue to believe that plaintiffs’ prospective relief claims are moot. We appreciate Judge Ware’s consideration of the issues however, and his acknowledgment that, ‘without the ability to protect and foster a safe environment in our public schools, educational equity and the democratic pillar it provides could crumble.’ As we move forward, we will continue to vigorously defend the District and the Administrators in this action,” Cabrera said Friday morning.
Judge Ware likewise granted a part of the defendants’ motion to dismiss claims by the legal guardians of the boys that their constitutional rights were violated that day. Ware ruled that they were not.
In the court document, Ware outlines why what occurred on May 5, 2010 to plaintiff Matt Dariano, now a junior at Live Oak High School, has “alleged sufficient facts to support an injury fairly traceable to defendants’ allegedly unlawful conduct.”
“In particular, the complaint alleges that plaintiff was told by defendants to remove his shirt or go to the office, was detained in the Live Oaks’s office for an extended period and was only hesitantly allowed to return to class. Further, plaintiff remains enrolled in the district and is thus potentially subject to future enforcement of the challenged district policy,” the document reads.
A case management conference is scheduled for 10 a.m. March 14 between the parties and Ware. This part of the process usually occurs after a lawsuit is filed to schedule deadlines and hearings, but before it goes to trial. The parties could decide to settle the lawsuit, and if not, it likely will proceed to trial.
Ware heard the parties’ arguments during their first court appearance Feb. 7 at the Northern District federal courthouse in downtown San Jose. Two of the plaintiffs, Joy Jones and John Dariano, attended the hearing though did not speak before the judge and Superintendent Wes Smith also attended and did not speak before the court either.
The suit was filed June 23 based on an incident May 5, 2010 on the campus of Live Oak High School when four male students were sent home for refusing to remove American T-shirts and apparel after Boden and Rodriguez were concerned about the potential for violence on campus. Since then, Boden has submitted a sworn statement that he was the sole decision maker that day and Rodriguez was only acting on his direction. That day, the boys said their First Amendment rights were stripped. Other LOHS students were seen wearing the colors of the Mexican flag on campus, though were not asked to remove their clothing and no other students were sent home or asked to turn their clothing inside-out.
Superintendent Smith released a statement May 6 following a barrage of media reports saying that he nor the district condoned the decision made by Boden and that there is no policy prohibiting students from wearing patriotic clothing.
The parents of the boys who filed the suit are seeking nominal damages against Boden and Rodriguez for violating their son’s First and 14th Amendment rights, which Rodriguez reportedly called “incendiary” that day. Also, they are seeking “prospective” relief against MHUSD to insert a policy that is specific – not vague as Becker describes the current policy – and ensures no other student’s rights will be shed at the school gates just as it was decided in the Supreme Court decision of 1969 Tinker v. Des Moines Independent Community School District when it was ruled that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.”
Cabrera argued that because Boden and Rodriguez are no longer employed at MHUSD, the possibility of this exact incident occurring again is impossible and so the prospective – or lasting – claim of the case should be dismissed to change school policy.
The district’s administration will not forever be employed, Becker said Feb. 7, therefore there is an opportunity in the future for history to repeat itself. The plaintiffs want students’ rights protected at MHUSD.
“What has happened, is the students’ ability to express themselves, their rights, have been chilled,” Becker said after exiting Ware’s courtroom with two parents of the students he’s representing: Joy Jones and John Dariano. No Live Oak students were present.
The plaintiffs are 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. They are co-represented by the Becker Law Firm in Los Angeles and the Thomas More Law Center in Ann Arbor, Mich.
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.
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From Judge Ware’s response to the defendants’ motion to dismiss:
“Unlike the general right of United States citizens to hold speeches, rally and picket on the sidewalks of our public streets and in the amphitheaters of our public parks, our Constitution grants public school children only limited First Amendment rights when they enter the schoolhouse gates. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). However, these rights are never fully extinguished. Id. Rather, as our public schools provide the equally fundamental democratic function of bestowing educational access to the next generation of citizens without to regard economic, social, ethnic, or racial background, the Constitution has seen fit to balance this first purpose of public schools against the individual autonomous right of First Amendment expression.”
