Tag Archives: STUDENTS

Can celebrating Cinco de Mayo lead to litigation? It did in California!

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. Some 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, (“Counsel….we pronounce it ‘my-o’”) 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!


 File this one under: FIRST AMENDMENT, STUDENTS

Enjoy the weekend! The Daily Dawg returns on Monday.

Attorney General issues opinion on Fort Worth ISD transgender guidelines.

When the superintendent of Fort Worth ISD issued administrative guidelines pertaining to transgender students he opened up a political can of worms. The Lieutenant Governor held a press conference in Fort Worth demanding that the superintendent resign. He has not. Mr. Patrick then requested an opinion from the Attorney General about the legality of the transgender guidelines. On June 28th, Ken Paxton issued Opinion KP-100.

The Opinion does not weigh in on the issue of which bathroom transgender students are to use. Instead, the focus is on how much information should be given to parents. Citing Chapter 26 of the Education Code and its strong provisions for treating parents as “partners with educators” Mr. Paxton opined that the Fort Worth guidelines violated this Chapter. Key Quotes:

Far from creating a partnership between parents, educators, and administrators regarding their children’s education, the Guidelines relegate parents to a subordinate status, receiving information only on a “need-to-know” basis.

Thus, to the extent that the Guidelines limit parental access to information about a parent’s child and operate to encourage students to withhold information from their parents, they violate Chapter 26 of the Education Code.

Fort Worth administrators were aware of this problem with the Guidelines, as they indicated in their brief to the A.G. that parental access issues would be “clarified.” Subsequent to the issuance of the A.G. Opinion the district made changes to more fully involve parents.

On a second issue, the Attorney General did not say that the superintendent lacked the authority to issue guidelines without board approval. But he did say that any such guidelines must be aligned with board policy. Key Quote:

While the superintendent has characterized these regulations as Guidelines that “are in alignment with Board Policy FFH (Local),” decisions to withhold information from a parent regarding a student’s gender identity or suggest that employees might work with a student to restrict parental involvement are in fact significant and controversial matters of policy that do not appear to have previously addressed by the FWISD board of trustees.

I take that to mean that the A.G. thinks the Guidelines do not align with board policy. This does not mean that superintendents cannot adopt guidelines about controversial issues—it just means that any such guidelines must align with state law and board policy.

One of my law partners made the observation that we seem to have more lawyers (and politicians) working on the issue of transgender students than we have transgender students. That may be so. So let us all keep calm and carry on, providing safety, privacy and security to all students.


File this one under: STUDENTS