Ninth Circuit Turns First Amendment Inside Out

flag-shirtOn May 5, 2010, Live Oak High School in Morgan Hill California celebrated Cinco de Mayo supposedly a Mexican holiday. That day five Live Oak students wore T-shirts bearing imagery of the American flag. School officials told the students they had to turn their shirts inside out, otherwise they would send the students home, which they did. Last week the Ninth Circuit Court of Appeals upheld that action, a ruling with profound implications for freedom of speech.

In 2010 the students’ parents duly sued the district charging violation of First Amendment rights and discrimination. The school took no action against those who wore imagery of the Mexican flag. In 2011, Chief U.S. District Judge James Ware, an appointee of George H.W. Bush, sided against the students and their parents, and for the school. Ware ruled that school students have the right to engage in non-disruptive free speech, but that “does not require that school officials wait until disruption occurs before they act.” Now the Ninth Circuit has sided against the students and for the school.

Judge M. Margaret McKeown, an appointee of Bill Clinton, wrote that past events, presumably disturbances at previous Cinco de Mayo celebrations, “made it reasonable for school officials to proceed as though the threat of potentially violent disturbance was real.”

One of the five students sent home was Daniel Galli. After the ruling, his father Kendall Jones told reporters, “This is the United States of America. The idea that it’s offensive to wear patriotic clothing, regardless of what day it is, is unconscionable to me.”

McKeown’s ruling at least raised a legitimate point. “Our role is not to second-guess the decision to have a Cinco de Mayo celebration,” she wrote. That decision is indeed highly questionable.

Cinco de Mayo is not Mexican independence day, which falls on September 16. Cinco de Mayo recalls a Mexican military victory over French forces in the Battle of Puebla in 1862. Cinco de Mayo is barely celebrated in Mexico, if at all, so American schools have even less reason to hold an official event for it.

A Sacramento Bee column by Bruce Maiman supported the school’s decision and pointed out that the Live Oak student body was “40 percent Latino.” And this report cited “a history of threats and campus strife between Latino and Anglo students.”

The five students Live Oak sent home were Clayton Howard, Daniel Galli, Austin Carvalho, Matthew Dariano and Dominic Maciel. The last four have as much claim to legitimate Latin extraction as anyone from Mexico. But in politically correct usage, “Latino” is form of identity theft and evasion of reality.

At Live Oak the breakdown was between those who thought it appropriate to officially highlight a Mexican non-holiday and those who did not. Even with the potential for strife, politically correct school officials continued to recognize Cinco de Mayo and punish those students who protested by wearing American flag imagery.

Maiman’s column charged that those who protested the school’s decision were guilty of  “predictable jingoistic outrage.” So it was their problem, not anything to do with the First Amendment or free-speech rights. And Americans should be grateful to Mexico for defeating Napoleon III, who was out to supply the Confederacy. “Had the Mexican army not beaten the French, we might well be flying a very different flag today. Maybe we all ought to be celebrating Cinco de Mayo.”

In California many celebrate Cinco de Mayo by drinking lots of margaritas.  But for this non-holiday bars are restaurants are better venues than American public schools. Live Oak made bad decisions, violated students’ rights, and a liberal court agreed. But the parents of Clayton Howard, Daniel Galli, Austin Carvalho, Matthew Dariano and Dominic Maciel are not giving up.

The 9th Circuit is the most liberal appeal court and frequently overturned. The parents will ask the 9th Circuit to reconsider the case with an 11-judge panel. If they have to, the parents will take their case all the way to the U.S. Supreme Court.

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  • mackenzie wunderlich

    My Uncle Jacob got a year 2013 Audi TT RS
    Coupe by working part time online. imp source B­u­z­z­3­4­.­ℂ­o­m

    • tagalog

      Did he celebrate Cinco de Mayo in high school?

    • Matthew

      What does that have to do with our free ,lol..free ? nation becoming a third world power instead of a Sovereign nation that is being torn apart by an egotistical arrogant president whose sole purpose is to attack the very elements that keep this nation from being threatened by a world power as the Russians want .If Putin can overthrow a country with threats and intimidations then who is to say that Obama can’t do the same ? Matt

    • Wolfthatknowsall

      Flagged …

  • TheOrdinaryMan

    These moronic school officials should be fired, not only for their violation of these student’s First Amendment rights, but also for their absolute cluelessness regarding U.S. history. The French actually rebuffed Confederate diplomatic overtures to Maximillian, and they stayed in Mexico until 1867. Someone should tell these airheads that 1867 was AFTER the end of our Civil War; they probably don’t know THAT, either. The elitist school officials are the Jingoes, towards their own country!

    • Gee

      Plus the minor fact that no amount of arms would have changed the course of the war in the slightest. The South never had a chance

      • Wolfthatknowsall

        I disagree. In so doing, I will qualify that statement by saying that the last chance the Confederacy had to actually win the war was July, 1863. If they defeated the Army of the Potomac at Gettysburg, they would have won. They didn’t, so they lost in a long bloody haul.

        • Charles Hammond Jr

          I partially agree with your conclusion: The South needed a swift victory before the tides of the economy turned against them. The only reason why Southern Cotton had any value during that period of history was because the only other source of cotton (Egypt) wasn’t producing nearly as much cotton as it once was.

          As soon as Egypt started producing enough cotton again then the financial strategy of the south would have made funding the war impossible for much longer. Gettysburg could have allowed a swift southern victory but the southern economy would still have been wrecked with no chance of a quick recovery.

          Even if the Civil War were won the only end result would be a temporary victory over the North. The South would have had no financial recourse to deal with the costs of the war afterwards. The south might have survived on its own for a decade out at best then it would have collapsed under the weight of it’s own debt.

          • Wolfthatknowsall

            Charles, I understand what you’re saying, and I can agree with the economic arguments you make. This assumes, however, that the government of an independent Confederacy would not have guided the Southern states toward a new economic paradigm

            Slavery was dying by the economic costs of the institution, and not even victory would have saved it. By the time mechanization had been instituted on the cotton fields, American cotton would have been cheaper and there would have been more of it, on the world markets.

            But then, there is the costs to the world of there being two Americas, especially in the 20th Century. These costs would take a book to analyze properly.

  • Sheik Yerbouti

    It’s interesting that they admit the Mexican students will become violent. Who would have thought of that?

    • mtnhikerdude

      LOL !

    • BS77

      Why on earth are the school administrators allowing observance of Cinco De Mayo in a US public school? Oh, yeah mandated diversity…..the PC agenda . Cinco de Mayo…eat a taco, get drunk, throw up….what a celebration. HAHAHA

      • Thedocumentarian

        Funny how Americans celebrate cinco de mayo WAY more than Mexican Americans.

  • tagalog

    The threatened, as I understand it, came from the students celebrating Cinco de Mayo, who, it is reported, called the U.S. flag-wearing students, “racist” and threatened them physically by advancing on them to the point where a teacher had to step in and physically remove one of the Cinco de Mayo celebrators from the immediate area. If the threat of disruption came from the Cinco de Mayo celebrators and not from the U.S. flag-wearing students, wouldn’t it have been more just to bring a halt to the celebration of Cinco de Mayo?
    Wouldn’t it be a good idea if, in the future, the school didn’t sponsor this kind of celebration, since it is so disruptive?

  • CaoMoo

    It’s the muslim precedent be violent get your own way. Then when anyone calls you on it the authorities will shut them down for fear of community violence. The ones perpetrating the violence are rewarded and the ones who are exercising their free speech find themselves less equal before the law.

    The end result is civilization crumbles as more people learn this lesson and faith in the rule of law is diminished.

    • Lightbringer

      It’s called the heckler’s veto. Scream loudly enough, threaten or commit sufficient disruption, property damage, and violence, and you get your way. Just like a three-year-old throwing a fit in the supermarket when Mommy has already put in a long day at work: Give the little beast the candy and shut him up.

  • Demetrius Minneapolis

    So wearing the American flag is now disruptive? Fuuuudge. The Axis of Evil really have taken over just as Bill Cooper (RIP) said they would.

  • mtnhikerdude

    The Ninth Circuit Court is the same court that overturned prop 187 that California voters / citizens passed with a 60% margin. “Insanity Rules”

    • f

      This is why I say that we should scrutinize lawyers who want to become president. Judges have become more and more activist in defiance of the power of the legislature — representatives whom the people elect. Rather than upholding and judging according to the law, they can’t help taking their judicial power to the next level and usurp the legislature. Something must be done here decisively. There should be a definite deterrent to judicial misconduct.

  • sprinklerman

    There’s a reason why they call it the Ninth Circus. This case is just one more reason.

  • mtnhikerdude

    They have opened the door in California to ban any clothing or books bearing the American flag as it may offend an “Illegal” or a Terrorist .
    “Appeasers believe if you keep throwing steaks at a tiger it will become a
    vegetarian.” Michael Ladeed

  • Chiron_Venizelos

    We know the hidden agenda of the 0bama regime but few are willing to acknowledge it – it is to destroy our Constitution and abolish individual rights and freedoms.
    When reading articles such as these, I often think of the great teacher Sun Tzu. I used to think of Aristotle’s treatment of ethics but have concluded it is impossible to apply ethics when dealing with the unethical.
    Ultimately, we (those of us who revere our Constitution and love our freedoms) are being forced into a situation with which we would rather not contend. We see a tipping point past which any action we might have otherwise taken to regain our freedoms and re-establish governance under our Constitution would be futile.
    The old blacksmith’s saying “strike while the iron is hot” comes more often to mind.

  • Richard Fontaine

    More than likely the school officals are so lacking in historical knowledge and awareness that they probably didn’t know that Cinco de Mayo wasn’t a real Mexican holiday. Kwanza anyone?

  • JacksonPearson

    If appealed, this will be another classic 9th circuit reversal by the SCOTUS.

    Continuous attacks against the Bill of Rights needs to be stopped being shredded by stupid, low information Nazis. How? By congress passing legislation enabling heavy court fines on violators, and awards to plaintiff’s. Enough is enough!

  • Habbgun

    Never expect a court decision that will interfere with the right of public school officials to simply muddle through and take the administratively easy way out. No vouchers, no hope.

  • Servo1969

    So now the ‘Heckler’s veto’ is the law of the land?

  • Erudite Mavin

    Here in CA we call it, the 9th Circus

  • Hector Ruiz III

    California is already becoming part of Mexico. I see it every single day in Los Angeles. The Mexican flag flies proudly points east of the 110. And Mexico is so awesome (murder, kidnapping, extortion, corruption), it’s no wonder people want that for California. Dreams really can come true.

  • thatsitivehadenough

    I lived in Sacto back in 1971 and even back then Mexicans expected to take back California.

  • Ron

    The 9th “circus” should be disbanded. They are a worthless band of Pelosi’s that should have never been allowed.

  • David O’Brien

    *sigh*… I wish folks would keep their heads on — and actually read and think.

    But why do that when you can go on a B.S. Obama attack? G.W.Bush (w/Karl Rove) also wanted to toss out the Constitution.

    The Constitution is our law of the land. The 9th Circuit believes the SCOUS 1969 Tinker v. Des Moines Indep. Comm. School District decision gives the school a right to trample on the First Amendment. The 9th Circuit didn’t make that decision, the SCOUS did.

    Note that even a George H.W. Bush appointee sided against the students and for the school.

    I’m totally pissed at this decision – but this is the same legal process that is getting us our proper 2nd Amendment Rights in California.

    So instead of the B.S., lets do something about this! Either get the SCOUS to state that 1969 Tinker was wrongly interpreted by the 9th Circuit. Or, get our law makers to pass a law that one can were USA patriotic clothing (and make other patriotic gestures) 24/7 in all places of this land.

    Also, vote out the Morgan Hill Unified School District Board that supports denying citizens to display the U.S. flag. It is appalling that if the school feared violence they didn’t cancel this school sponsored Cinco de Mayo celebration. The school made a 180 degree wrong decision here. Hold them accountable!

  • David O’Brien

    Folks should review the Morse v. Frederick (2007) decision (aka, “Bong Hits 4 Jesus”). The 9th Circuit ruled in favor of the student — that school officials could not “punish and censor non-disruptive” speech by students at school-sponsored events simply because they object to the message.

    The school appealed to the SCOUS and SCOUS over-turned the 9th Circuit’s ruling that supported of the student’s free speech rights. Roberts even wrote the majority opinion — citing Tinker (1969) as providing the controlling analysis. Given this, I can see how the 9th Circuit ruled they way they did.

    It’s time to do something about Tinker (1969) and how it is often used to justify trampling on the First Amendment.

    • Lightbringer

      Or maybe it’s time to do something about Roberts. How about early retirement so that he can have lots of quality time with the family?

  • fiddler

    “A Sacramento Bee column by Bruce Maiman supported the school’s decision and pointed out that the Live Oak student body was “40 percent Latino.” And this report cited “a history of threats and campus strife between Latino and Anglo students.””

    Gee how about doing something about the violence instead of timidly denying certain people their free speech. Too hard? Yeah, I guess it’s better to appease the perpetrators and punish peaceful speech. It works for the school.

  • fiddler

    “Maiman’s column charged that those who protested the school’s decision were guilty of “predictable jingoistic outrage.””
    Yep, put a PC label on it and that justifies selective application of freedoms. So peaceful “jingoism” is worse than offending people.

  • Alleged Comment

    Well, like all illegal treasonous unconstitutional laws we don’t obey them. Why should we practice civil disobedience like them?

    THEN we go after the treasonous traitors who keep harassing us, right? We then put them on trial and then they go to jail.

    So what’s the problem here?

  • Drakken

    The Balkanization of the US continues to its inevitable conclusion.

  • Hymie

    Maiman’s got it backwards. Cinco de Mayo was a mere temporary setback for the victorious French. Only the US threat of war got the French to withdraw.

  • Hymie

    . . . not that agree with the withdrawal. Mexican girls with French accents and there’d be no border. Oo la la.

  • Thedocumentarian

    I support the school. It’s not a violation of 1st amendment rights, it’s a violation of safety.

    These kids are not patriotic. Why did they only wear it on May 5th, why didn’t they wear it for the other 365 days our of the year.

    These 5 kids were trying to pick a fight, plan and simple.

    • Hymie

      And the “Newcomers” were patriotic?

      • Thedocumentarian

        Newcomers? What are you talking about? Who are the newcomers?