Published in the April 15-28, 2015 issue of Morgan Hill Life
“The Constitution is the guide which I never will abandon.”
Those words come from George Washington, who in 1787 presided over the Constitutional Convention, helping to create the document that is the supreme law of our land.
The key word in Washington’s quote is “guide.” Despite what many Americans might believe, the Founding Fathers never wished to make the Constitution a sacred document of strictly held dogma and doctrine. Instead, they gave us a guide for the protection and improvement of the American republic. Washington, Franklin, Madison, Adams and the other Framers expected all generations to use common sense in the application of the Constitution — and that includes the fundamental First Amendment right to freedom of speech. That fact brings us to the recent decision by the United States Supreme Court not to hear the case of Dariano v. Morgan Hill Unified School District.
After the national media descended on Live Oak High School following the May 5, 2010 incident involving five students wearing patriotic-themed clothing to school that Cinco de Mayo, the high school became ground zero on the question of a safety limit in our constitutional right to free speech. The MHUSD administrators at Live Oak took the stand that a child’s safety trumps the right to free speech. That day they gave the boys the choice of either turning their clothing inside out or going home with an excused absence. When Principal Nick Boden told the boys that their wearing the clothing put their safety at risk, one of the students said he was “willing to take on that responsibility.” No doubt, Boden was considering the more than 30 racially-charged fights he had seen on Live Oak’s campus during six years when he told the boy he himself would not take that risk.
The boys went home and told their parents what happened. What came next created in Morgan Hill an atmosphere of intense discord. Within an hour after the boys’ parents notified the media, a Fox News TV van stormed the campus and a reporter began coverage. Soon, other reporters – including radio and newspaper journalists — caught the scent of a controversial story. The game was on. The resulting firestorm of negative publicity about Morgan Hill spread against our community across America on politically-oriented talk shows. Morgan Hill school board members, district personnel and members of the city council received emailed and phoned-in death threats and accusations of being un-American.
Several of the boys’ families sued the school district, arguing that the T-shirts — red, white, and blue attire purchased for their sons the day before at Gilroy’s Old Navy store — symbolized their freedom of expression. A U.S. District Court decision in November 2011 and a 9th U.S. Circuit Court of Appeals decision in September 2014 ruled the school administrators’ primary responsibility is for the safety of the students, and limiting freedom of speech in order to protect them, as required by law, is in their authority’s mandate. Lawyers for the families took the case to the Supreme Court, which denied an appeal March 30.
If the Supreme Court had taken on the Dariano case and decided in favor of the students, the case could potentially have been the most significant case related to education and society since 1954’s Brown v. Board of Education of Topeka which gave impetus to America’s civil rights movement. Suppose the judges did rule in favor of Dariano. All students would be granted by law the right to wear attire that would let them make anti-Semitic, racial, sexually obscene or other politically-charged statements that other students might find offensive. The dangerous result could lead to an increased level of violence in schools as human emotions are intentionally inflamed. Fights and potential deaths could result in campuses across America. The safety for students in public education could suffer greatly as a result.
Let’s be clear that, despite what might be presented in some news and talk-show sources, this case was never about banning the American flag or any right by Live Oak students to express their patriotism. It was about keeping students safe on a campus that had a history of racial tension. That common-sense goal is one that all reasonable people can support.
Ultimately, the Supreme Court justices made the right decision not to take the Dariano case. Freedom of speech is not absolute. All First Amendment freedoms have a limit – a limit based on common sense. The Framers of the Constitution, including George Washington who saw the document as a “guide,” would support the common sense decision by Live Oak High School administrators May 5, 2010 to protect the safety of five boys who wore clothing that might have gotten them hurt — or worse — that Cinco de Mayo day.
