Now the event involving a Mexican Flag was the year BEFORE this incident, but one of the students who had on an American Flag (and was permitted to continue to wear it for it was viewed as "Non provocative" by school officials) was the student who had had a Mexican Flag "shoved...at him" the year before.
The demand that T-Shirts with US Flags be turned inside out was to reduce violence, NOT the potential of violence, but actual violence. The recent decision was a brief denial to rehear the case by the full panel of the 9th Circuit court of appeals. Thus the previous decision by a three judge panel is the final decision of the 9th Circuit court of appeals.
Here is the actual opinion in this case (This is the RECENT Decision in regards to reargument, it has a LONG dissent but the actual decision is just one page long):
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/09/17/11-17858.pdf
Here is the previous decision (it is from February):
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf
Previous DU Thread on this case (again from February):
http://www.democraticunderground.com/1014740752#post2
The Facts of the case, as found by the District Judge and adopted by the 9th Circuit court of appeals (This is from the THREE Judge Panel decision in February 2014):
This case arose out of the events of May 5, 2010, Cinco de Mayo, at Live Oak High School (“Live Oak” or “the School”), part of the Morgan Hill Unified School District in Northern California. The Cinco de Mayo celebration was presented in the “spirit of cultural appreciation.” It was described as honoring “the pride and community strength of the Mexican people who settled this valley and who continue to work here.” The school likened it to St. Patrick’s Day or Oktoberfest. The material facts are not in dispute.
Live Oak had a history of violence among students, some gang-related and some drawn along racial lines. In the six years that Nick Boden served as principal, he observed at least thirty fights on campus, both between gangs and between Caucasian and Hispanic students. A police officer is stationed on campus every day to ensure safety on school grounds.
On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students.2 The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted “f***them white boys, f*** them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.” Rodriguez removed the student from the area.
At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court,
“shoved a Mexican flag at him and said something in Spanish expressing anger at M.D.’s clothing.” A year later, on Cinco de Mayo 2010, a group of Caucasian students, including the students bringing this appeal, wore American flag shirts to school. A female student approached M.D. that morning, motioned to his shirt, and asked, “Why are you wearing that? Do you not like Mexicans?” D.G. and D.M.were also confronted about their clothing before “brunch break.”
As Rodriguez 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. A group of Mexican students asked Rodriguez why the Caucasian students “get to wear their flag out when we [sic] don’t get to wear our [sic] flag?” Boden directed Rodriguez to have the students either turn their shirts inside out or take them off. The students refused to do so.
Rodriguez met with the students and explained that he was concerned for their safety. The students did not dispute that their attire put them at risk of violence. Plaintiff D.M. said that he was “willing to take on that responsibility” in order to continue wearing his shirt. Two of the students, M.D. and D.G., said they would have worn the flag clothing even if they had known violence would be directed toward them.
School officials permitted M.D. and another student not a party to this action to return to class, because Boden considered their shirts, whose imagery was less “prominent,” to be “less likely [to get them] singled out, targeted for any possible recrimination,” and “significant[ly] differen[t] in [terms of] what [he] saw as being potential for targeting.”
The officials offered the remaining students the choice either to turn their shirts inside out or to go home for the day with excused absences that would not count against their attendance records. Students D.M. and D.G. chose to go home. Neither was disciplined.
In the aftermath of the students’ departure from school, they received numerous threats from other students. D.G. was threatened by text message on May 6, and the same afternoon, received a threatening phone call from a caller saying he was outside of D.G.’s home. D.M. and M.D. were likewise threatened with violence, and a student at Live Oak overheard a group of classmates saying that some gang members would come down from San Jose to “take care of”
the students. Because of these threats, the students did not go to school on May 7.
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf
In the recent denial of a hearing by the whole panel of the 9th Circuit, the dissent wrote a lengthy dissent, here is they opinion as to the facts of the case, notice it is NOT that different from the above:
On May 5, 2010, Cinco de Mayo, a group of Caucasian students at Live Oak High School (“Live Oak”) wore shirts depicting the American flag to school.1 Dariano v. Morgan Hill Unified Sch. Dist., No. 11-17858, amended slip op. at 22 (9th Cir. 2014). In the six preceding years, there had been at least thirty fights on campus, some between gangs and others between Caucasians and Hispanics, id. at 21, although the district court made no findings as to whether these fights were related to ethnic tensions, Dariano v. Morgan Hill Unified Sch. Dist., 822 F. Supp. 2d 1037, 1043 (N.D. Cal. 2011). A year earlier, during Cinco de Mayo 2009, a group of Caucasian students and a group of Mexican students exchanged profanities and threats. Dariano, amended slip op. at 21. When the Caucasian students hung a makeshift American flag and began chanting “U–S–A,” Assistant Principal Miguel Rodriguez intervened and asked the Mexican students to stop using profane language, to which one Mexican student responded, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.” Id.
One year later, during Cinco de Mayo 2010, three of the students wearing American flag shirts were confronted by other students about their choice of apparel. Id. at 22. One student asked M.D., a plaintiff in this case, “Why are you wearing that? Do you not like Mexicans[?]” Id. A
Caucasian student later told Assistant Principal Rodriguez before brunch break, “You may want to go out to the quad area. There might be some—there might be some issues.” Id. During the break, a Mexican student informed Rodriguez that she was concerned “there might be problems” due to the American flag shirts. Id. Another asked Rodriguez why Caucasian students “get to wear their flag out when we don’t get to wear our flag?” Id. (alterations omitted). Principal Nick Boden instructed Rodriguez to have the students wearing the American flag shirts turn their shirts inside out or take them off. Id.
Rodriguez met with the students wearing the shirts, who did not dispute that they were at risk of violence due to their apparel. Id. The school officials allowed two students to return to class with their American flag shirts on because their shirts had less prominent imagery and were less likely to cause an incident. Id. at 23. Two other students were given the choice to turn their shirts inside out or to go home. Id. They chose to go home. Id. All plaintiffs in this appeal received threatening messages in the days after the incident. Id.
As the three Judge Panel Ruled, this is a case of balancing Free Speech with public order, here you have clear evidence of violence unless something was done and what was done was the bare minimum to maintain peace. This was NOT a case of POTENTIAL violence but actual violence and the efforts to control such violence was done on the minimal level.
We) will not allow the politically correct judiciary to insult our flag," he said.
= new reply since forum marked as read
