Can celebrating Cinco de Mayo lead to litigation?  It did five years ago!    

It was Cinco de Mayo Day at the Live Oak High School in the Morgan Hill USD in California.  Celebrations of Hispanic heritage were planned.

Mid-morning that fateful day, a student advised Assistant Principal Rodriguez that “You may want to go out to the quad area. There might be some issues.”  Another student told Mr. Rodriguez that she was concerned about a group of students who were wearing the American flag. The student told Mr. Rodriguez that “there might be problems.”  On orders from his principal Mr. Rodriguez told the kids who were wearing the U.S. flags that they would have to either turn their shirts inside out, or go home for the day.  Mr. Rodriguez  promised the students that if they went home, it would be treated as an excused absence.  Mr. Rodriguez explained to the students that he was concerned for their safety on this particular day.

The principal, Mr. Boden, later testified that he had good reason to be worried about safety.  During his six years as principal he had personally witnessed at least 30 fights on campus.  Some of these involved gangs, and others were between Anglo and Hispanic students.  There was a police officer on campus every day.

On top of that, there had been tension on Cinco de Mayo the year before. A group of Hispanic students walked around school that day with the Mexican flag.  One of them was shouting direct threats of violence against “them white boys.”  The “white boys” responded by installing a “makeshift American flag” on one of the trees on campus and chanting “USA! USA!”.   This tension still simmered a year later.

In short, Principal Boden had good reason to be concerned about safety.  But were his concerns sufficient to justify the restriction of free speech?  Don’t American citizens have the right to say what they want, even if some people may be offended?

Of course they do. But in a school setting, administrators can suppress student speech if they can “reasonably forecast” that substantial disruption is about to occur.   The federal court in California ruled in favor of the school in this case, and the 9th Circuit affirmed that ruling on February 27, 2014. The court held that there was “evidence of nascent and escalating violence at Live Oak” that day.  All things considered, school officials acted reasonably

I listened to the recording of the oral argument of this case. The lawyer representing the Anglo kids sounds like he is from New Jersey, and he is clearly not familiar with the Hispanic heritage of the Southwest. He repeatedly referred to “Cinco de May-o” pronouncing it as if it were a sandwich spread. Even after one of the judges corrected him, he soon reverted to his erroneous ways.  I don’t think this guy could tell a burrito from a quesadilla.

I would have ruled against him just based on that.  The 9th Circuit judges were more…judicious, but they did rule against him.  The case is Dariano v. Morgan Hill USD, 767 F.3d 764 (9th Cir. 2014).

Here’s hoping you have a festive, non-violent and non-litigious celebration of Cinco de Mayo!