School’s Ban on U.S. Flag Shirts on Cinco de Mayo Upheld

By Mark Walsh — February 27, 2014 2 min read
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A federal appeals court has upheld a California school administrator who barred white students from wearing U.S. flag apparel during a high school’s Cinco De Mayo celebration because of hostilities between the white students and students of Mexican descent.

The case stems from the Cinco de Mayo celebration at Live Oak High School in the Morgan Hill Unified School District in 2010. The school has a history of violence and gang issues, and the 2009 Cinco de Mayo event had sparked a minor clash between white students and students of Mexican descent.

The next year, several white students wore American flag shirts to school on Cinco de Mayo, a May 5 celebration of Mexican heritage and pride that is primarily observed in the United States. Some students of various ethnic backgrounds expressed concerns that the U.S. flag shirts were intended to provoke Mexican or Mexican-American students.

During lunchtime, a group of students of Mexican descent gathered in the school’s outdoor quad, court papers say. One asked Assistant Principal Daniel Rodriguez why the white students got to wear “their flag” while Mexican students could not wear “our flag.” (The record suggests that at least some students were allowed to wear Mexican-flag clothing and were not required to stop.)

Rodriguez met with the white students and told them they had to turn their U.S. flag shirts inside out or else go home. Two students who were wearing shirts with less prominent flag designs were allowed to return to class.

Two other students refused to turn their shirts inside out and opted to go home. They were not disciplined. Those students, identified only as D.M. and D.G., and their parents sued the school district and Rodriguez, among others, alleging a violation of the First Amendment free speech rights.

A federal district judge in 2011 dismissed the school district as a defendant on sovereign immunity grounds, which the appeal didn’t challenge. The district judge granted summary judgment to Rodriguez, holding that the assistant principal did not violate the students’ rights.

In its Feb. 27 decision in Dariano v. Morgan Hill Unified School District, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously upheld the district court.

“There was evidence of nascent and escalating violence at Live Oak,” the appeals court said, with the school imposing “minimal” restrictions on student expression. “In keeping with our precedent, school officials’ actions were tailored to avert violence and focused on student safety.”

“The events of 2010 took place in the shadow of similar disruptions a year earlier, and pitted racial or ethnic groups against each other,” the court added. “Moreover, students warned officials that there might be physical fighting at the break.”

The opinion by U.S. Circuit Judge M. Margaret McKeown notes that “our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence.”

Usually when a judge phrases the idea that way, it means that he or she actually does have at least some doubts about a school’s policy or decision.

A version of this news article first appeared in The School Law Blog.