Three-judge panel says administrators were correct in their decision

Published in the March 19-April 1, 2014 issue of Morgan Hill Life

By Staff Report

Live Oak High School administrators did not violate students’ civil rights in the campus’s 2010 Cinco de Mayo patriotic T-shirt controversy, according to a three-judge panel of the 9th Circuit Court of Appeals issued Feb. 27. Last month’s decision affirms a federal judge’s November 2011 ruling.

The parents of Live Oak students Matt Dariano, Dominic Maciel and Daniel Galli brought the case to court. Attorney Robert Muise of the American Freedom Law Center argued to the judges in October that their sons’ constitutional rights to freedom of expression, due process and equal protection had been violated May 5, 2010 when, under the direction of Live Oak Principal Nick Boden, Assistant Principal Miguel Rodriguez told the students to either turn their shirts featuring American colors inside-out or go home with an excused absence.

Circuit Judge M. Margaret McKeown wrote the opinion of the court in a 16-page document that can be read as a PDF in Morgan Hill Life’s website ( The court weighed the relationship between the students’ constitutional rights with the operation and safety needs of schools, the decision read. The judges learned that Live Oak High School had experienced prior to the 2010 event a series of racial and gang incidents, including an altercation on campus the previous Cinco de Mayo over the display of an American flag. The school officials anticipated violence or “substantial disruption of material interference with school activities,” and their action toward the plaintiff’s sons reflected these circumstances on the campus, the court report read.

“Live Oak had a history of violence among students, some gang-related and some drawn along racial lines,” McKeown wrote in the court’s opinion. “In the six years that Nick Boden served as principal, he observed at least 30 fights on campus, both between gangs and between Caucasian and Hispanic students.”

According to the court document: “As Rodriquez was leaving his office before brunch break, a Caucasian student approached him, and said, ‘You may want to go out to the quad area. There might be some – there might be some issues.’ During the break, another student called Rodriguez over to a group of Mexican students, said that she was concerned about a group of students wearing the American flag, and said that ‘there might be problems.’ Rodriguez understood her to mean that there might be a physical altercation.”


Rodriguez met with the students wearing the American flag T-shirts and told them he was concerned for their physical safety, the court opinion said. The students did not dispute that their clothes put them at risk of violence. Maciel said he was “willing to take on that responsibility” in order to continue wearing his shirt, and Dariano and Galli said they would have worn the T-shirts even with knowledge that such an action would cause violence directed at them, according to the court’s opinion.

Following their departure from the school that day, the students received numerous threats of violence by text message and phone calls, the document read, and their parents kept them home from school for the following two days.

“It is truly a sad day when government officials are permitted to ban the American flag on a public high school campus for any reason,” Muise said in an online statement about the Feb. 27 ruling. “Here, school officials feared that our clients would offend ‘Mexican’ students if they wore their flag shirts to school on Cinco de Mayo, so they ordered the students to either remove their shirts or leave school in direct violation of their First Amendment rights.”

Morgan Hill Unified School District Superintendent Steve Betando said in a statement on the court’s recent opinion: “The district has always maintained that the decisions made by its administrators on that day had nothing to do with favoring one group over another, but rather, stemmed solely from a motivation to protect the safety of the student-plaintiffs and the other eleven hundred students on the Live Oak campus.”

Marty Cheek

Marty Cheek

Publisher at Morgan Hill Life
Marty Cheek is the publisher of Morgan Hill Life and Gilroy Life. He is also the co-author with Congressman Jerry McNerney of the book Clean Energy Nation: Freeing America From the Tyranny of Fossil Fuels.
Phone: (408) 782-7575
Marty Cheek