A federal appeals court in San Francisco on Wednesday refused to reconsider a ruling that found a Morgan Hill high school had the power to tell students to turn their American-flag clothing inside out during a holiday important to many Latinos, who comprise roughly 40 percent of the student body.
The 9th U.S. Circuit Court of Appeals let stand its February ruling in favor of Live Oak High School Principal Nick Boden and Vice Principal Miguel Rodriguez, who argued that they asked a group of boys to change or conceal their red-white-and-blue clothes out of concern about violence that might break out on Cinco de Mayo in 2010. Both Boden and Rodriguez are no longer at the school.
Morgan Hill Unified School District Supt. Steve Betando said in a statement the “judgment in favor of the school confirms that there is a delicate balance that must be achieved in protecting students’ First Amendment rights within the operational and safety needs of schools.”
The ruling means the students' parents, John and Dianna Dariano, Kurt and Julie Ann Fagerstrom, and Kendall and Joy Jones, can now appeal to the U.S. Supreme Court if they choose. None of the parents could be immediately reached for comment on Wednesday.
But William J. Becker Jr., the parents' lawyer, who is the president and CEO of Freedom X, a group that protects "conservative and religious freedom of expression," vowed to appeal the decision.
"Freedom X will not allow the politically correct judiciary (to) insult our flag," he wrote on his website, citing Colossians 3:17 in his online comments. "Americans have fought and died to protect that flag, and now we are told to conceal it so we don’t offend Mexican aliens, some of whom entered this country illegally. The liberal judges on the court were forced to do rhetorical backflips to come to this outrageous decision.”
Becker Jr. writes he is an "unapologetic warrior for Christ," who also used to report and anchor in the 1970s and '80s for the Las Vegas NBC affliate and well as the Las Vegas Sun.
The original three-judge panel did weigh the Free Speech argument the parents and students had presented. But Presiding District Judge James Ware wrote the court ultimately concluded that there were "minimal restrictions" asked of the students, and that the administrators' request was made out of legitimate safety concerns. "We affirm the district court’s holding that the policy is not unconstitutionally vague and does not violate the students’ right to due process," Waring wrote.
The judges noted that the high school documented at least 30 fights on campus during a six-year span between gangs and "between Caucasian and Hispanic" students, court documents state. One of those fights occurred a year before the day in question, when mostly white students hung an American flag on campus, chanted "USA," and cussed at Mexican students, the judges noted.
“The Court recognized that the protection of student safety must be an administrator’s primary responsibility,” Betando said.
The families had been backed by 20 Republican congressmen, and asked the 9th Circuit to rehear the case with a special 11-judge panel, according to the Mercury News. Three 9th Circuit judges dissented, saying they disagreed with both the court's ruling in the case and its decision to not grant a new hearing. The 9th Circuit decision, the Mercury News reported, relied heavily on the U.S. Supreme Court's 1969 precedent on when schools can cite safety concerns to justify taking action that might violate student free speech rights.
The case at the time drew national attention where many of of the boys were asked for interviews on conservative talk shows and Fox News. And the interest in the story, still hasn't died down completely. This May, a small group of Tea Party patriots picketed in front of the high school with American flags, who were arguing in support of the "restoration of American values and ideas."
As a preemptive strike, the school released a three-minute video asking students to be proud of their heritage without "beating on other people's opinions."