SAN JOSE, Calif. — Attorneys for The Rutherford Institute have asked a federal court to rule that a California public school district and its officials violated the First Amendment when they told students they could not wear t-shirts and other items emblazoned with American flags to school on the Mexican holiday Cinco de Mayo. In a motion for summary judgment filed in the U.S. District Court for the Northern District of California in Dariano et al. v. Morgan Hill Unif. Sch. Dist., Institute attorneys argue that school officials at Live Oak High School in Morgan Hill, Calif., violated long-standing Supreme Court precedent forbidding viewpoint discrimination when they ordered students to cover up their stars and stripes apparel or leave the school. School officials allegedly issued the clothing ban after some Hispanic students complained about the patriotic articles of clothing being worn to school on May 5, 2010.
“This is a clear violation of the students’ right to free expression guaranteed under the First Amendment,” said John W. Whitehead, president of The Rutherford Institute. “It is past due time that school officials respect the constitutional rights of students.”
According to the motion, on May 5, 2010, three Live Oak High School students wore patriotic t-shirts, shorts and shoes to school which bore various images of the U.S. flag. During a mid-morning “brunch break,” the students were approached by Assistant Principal Miguel Rodriguez, who allegedly told the students they could not wear their pro-U.S.A. shirts and gave them the option of either removing their shirts or turning them inside out. When the students refused because the options would be disrespectful to the flag, Rodriguez ordered them to go to his office.
After two of the students’ parents arrived at the school, Rodriguez is alleged to have lectured the group about Cinco de Mayo, indicating he received complaints from some Hispanics students about the stars and stripes apparel, and again ordered that the clothing be covered up to prevent offending the Hispanic students on “their” day. Principal Nick Boden also met with the parents and students and affirmed Rodriguez’s order, allegedly because he did not want to offend students who were celebrating Cinco de Mayo.
Alleging that the decision by school officials constitutes viewpoint discrimination against pro-U.S.A. expression, Rutherford Institute attorneys filed suit on behalf of the students and their parents seeking a declaration that the action violated the First Amendment and injunctive relief against a vague school district policy allowing prior restraints on speech to be imposed upon students. The lawsuit asserts that school officials violated the students’ rights under the Free Speech Clause of the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the protection of freedom of speech granted by the California Constitution. In asking the court to issue summary judgment in favor of the censored students, Rutherford Institute attorneys assert that the undisputed facts show that the officials had no grounds for fearing disruption from the flag apparel and that the school district’s policies give officials too much discretion in censoring student speech.
