Dariano v. Morgan Hill Unified School District

Live Oak StudentsOn May 5, 2010, three plaintiff students and two other students wore to school various items of clothing (t-shirts, shorts, shoes) which had depictions of the American flag or American-flag like motifs (i.e., stars and stripes).  That day, some students at the school were celebrating the Mexican holiday known as Cinco de Mayo.  School officials approved the Cinco de Mayo celebration, which was co-sponsored by M.E.Ch.A, a school-sanctioned 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.”

Moreover, the students participating in the Cinco de Mayo celebration were permitted to wear clothing that had the colors of the Mexican flag.  In fact, school officials acknowledged seeing the Mexican flag painted on some students on May 5, 2010.

During brunch break on May 5th, and as instructed by the school’s Principal Nick Boden—a defendant in this case—the school’s Assistant Principal Miguel Rodriguez—also a defendant in this case—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.  During his deposition, Rodriguez testified, “So these Mexican students called me over and they asked me in reference to the boys, part of the . . . plaintiffs and other students in the center of the quad.  And their question to me was, why do they get to wear the American flag when we don’t get to wear our flag?  In fact, during this meeting with the parents, the school officials claimed that the students’ pro-America  message was objectionable because “this is their [i.e., Mexicans’] day,” referring to Cinco De Mayo, “an important day in [Mexican] culture.”  Rodriguez further testified, “[T]he fact that it was Cinco de Mayo that day, I asked [the students wearing the American flag shirts] ‘Why today out of all days?  Why today?’”

After being detained for over 90 minutes, one of the student plaintiffs and two other students were permitted to return to class because, according to Boden, the depiction of the American flag on their clothing was not as large or as “blatant and prominent” as the flag depictions on the clothing worn by the remaining two student plaintiffs.  Rodriguez admitted during his deposition that three of the students “were allowed to go back because the clothing that they wore was not explicitly American flags.”  Nevertheless, Ms. Dariano removed her son from school because she was concerned that the school was creating a pro-Mexican/anti-America atmosphere and that would subject her son to further discrimination.  In fact, when the three students were allowed to return to class, Rodriguez warned the returning students to be “respectful” of the Cinco De Mayo activities that were to occur during lunch that day.

Because the depiction of the American flag on the clothing worn by the two remaining student plaintiffs was, according to Boden, “very, very large,” “blatant and prominent,” he directed them to change clothing, turn their shirts inside out, cover them up, or go home.  The students stood strong and refused to change or remove their flag clothing.  As a result, they were ordered to leave school with their parents.

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 3 hours and attended at least two classroom periods as well as homeroom.

In sum, 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.

Following the May 5, 2010 incident, the School District did not promulgate any new policies that would secure or protect a student’s right to expression on campus in light of the May 5th incident.  In fact, the School District does not believe in the first instance that Boden and Rodriguez violated any student’s rights when they ordered them to remove their patriotic clothing on May 5, 2010.  Boden testified that he found no need to apologize for his actions.  Indeed, neither Boden nor Rodriguez was subject to any adverse employment consequence as a result of their actions on May 5, 2010.

To this day, the School District has taken no formal policy action that would deter a school official from repeating the offense of May 5, 2010, or protect a student from being subjected to such an offense in the future.  There were no formal changes to board policy that came about as a result of the May 5, 2010, incident.  Any claim by the School District that it has “repented” or “reformed” was merely a “talking point” for the press to deflect all of the negative criticism the School District had received from the public.

In the final analysis, to this day, if any student wore patriotic clothing in any school in the Morgan Hill Unified School District—particularly on Cinco de Mayo—and a school official, based on his or her own subjective judgment and discretion, believes that the clothing may cause a “disruption” (i.e., the patriotic message may offend some students) without evidence of any actual interference with school activities, then the student wearing the clothing is subject to possible suspension.  In other words, there is absolutely nothing preventing a repeat of the May 5, 2010 incident.

On June 23, 2010, AFLC Senior Counsel Robert Muise, along with co-counsel, filed a civil rights lawsuit. [Read the complaint here]

On November 8, 2011, a federal judge presiding in the U.S. District Court for the Northern District of California held that the school officials did not violate the Constitution by restricting the students’ patriotic speech.  The judge stated, “Upon review, the Court finds that based on these undisputed facts, the school officials reasonably forecast that Plaintiffs’ clothing could cause a substantial disruption with school activities, and therefore did not violate [the First Amendment].”

The American Freedom Law Center has appealed this decision to the U.S. Court of Appeals for the Ninth Circuit.

UPDATE (February 29, 2012): Opening Brief filed with the U.S. Court of Appeals for the Ninth Circuit.  Read brief here.

UPDATE (April 16, 2012): Reply brief filed with the U.S. Court of Appeals for the Ninth Circuit. Read brief here.

UPDATE (October 17, 2013): Senior Counsel Robert Muise presented oral argument before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at the James R. Browning U.S. Courthouse in San Francisco, California.

UPDATE (February 17, 2014): AFLC filed a supplemental authority letter in the Ninth Circuit Court of Appeals, highlighting the court’s recent decision in Frudden v. Pilling, in which it held that public school students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, and that a content- or viewpoint-based restriction on student speech (even “in light of the special characteristics of the school environment”) must pass the most exacting scrutiny to survive a First Amendment challenge.

In its letter, AFLC argued that, consistent with Frudden, the school officials’ decision to prohibit several students from wearing American flag apparel to school on Cinco de Mayo violated the students’ First Amendment rights.

UPDATE (February 27, 2014): A three-judge panel in the Ninth Circuit affirmed the lower federal court decision. AFLC will be seeking an en banc review.

UPDATE (March 12, 2014): AFLC filed a petition for en banc review the the three-judge panel’s decision.

UPDATE (March 30, 2014): AFLC Co-Founder and Senior Counsel discusses the case in the video below:

UPDATE (September 17, 2014): Ninth Circuit denies petition for rehearing en banc (full court), with 3 judges dissenting.

UPDATE (December 16, 2014): AFLC filed a petition for writ of certiorari, asking the U.S. Supreme Court to review and reverse the Ninth Circuit’s decision.

UPDATE (March 9, 2015): AFLC filed its reply brief in the U.S. Supreme Court in support of its petition for writ of certiorari.

UPDATE (March 30, 2015): The U.S. Supreme Court denied review.