Our president read the tea leaves accurately years ago with his dismissive attitude about old-fashioned patriotism. Seven years ago I wrote a piece about then candidate Obama refusing to wear the American flag pin saying it was too divisive; and as a way of showing solidarity with the "blame America" crowd. Unfortunately, it turned out to be a teaching moment for Mexicans living in America.
Last week the Ninth Circuit Court of Appeals handed down a decision in Dariano v. Morgan Hill Unified School District, affirming a federal district court's summary judgment in a civil rights case brought by Live Oak high school students who were told to "remove clothing bearing images of the American flag" (American flag T-shirts), because of "threats of race-related violence during a school sanctioned celebration of Cinco de Mayo." (The record was silent about any violence on Grito de Dolores, Mexican Independence Day in September.) The students on campus were told to turn their T-shirts inside out. They were told that displaying the American flag would inflame the passions of the Mexican students celebrating Cinco de Mayo.
The appeals court affirmed the trial court's holding on the basis that school officials could curtail the exercise of First Amendment rights if they could reasonably forecast material interference or substantial disruption.
Stop here a minute. I don't know whether to be sad or mad. There was a point in my life when I would have been stunned - but not in today's America. Both this district court and this court of appeals are in the United States of America - not Mexico. And Cinco de Mayo is a Mexican holiday celebrating the defeat of French forces that invaded Mexico in 1862 - not the United States. Secondly, being Hispanic is an ethnic category, not racial.
Live Oak has had a history of gang related and ethnic violence among students. The Cinco de Mayo celebration was described by the school system as "honoring the pride and community strength of the Mexican people who settled this valley and who continue to work here." It is compared to St. Patrick's Day by the school system. (I don't recall protests by Irish Americans at the sight of an American flag on St. Pat's day.)
This three judge panel held that the students' Frist Amendment rights were not violated, nor were they denied the equal protection of the laws. The plaintiffs claimed they were treated differently than students wearing the colors of the Mexican flag, but couldn't point to any incidents when Mexican students "were targeted for violence." Really? This speaks volumes about how brainwashed Californians have become since the Mexican invasion. Mexicans are not harassed for wearing a Mexican flag T-shirt on American soil, but Americans cannot wear American flag T-shirts in America because this incites violence. As the record shows, one Mexican motioned to plaintiff's American flag T-shirt and asked, "Why are you wearing that? Do you not like Mexicans?
A trial court can grant a summary judgment when it believes there is no genuine issue of material fact to warrant the case going to a jury. Perhaps the trial court thought it too risky to allow even a California jury to pass judgment on a school's decision to ban the American flag on a campus, but not the Mexican flag.
This might have been the time for a court to engage in creative jurisprudence, both to enforce constitutionally First Amendment free expression and to deter ethnic violence on campus. The Supreme Court has ruled that the federal courts had the discretion to employ tools to achieve constitutionally mandated desegregated schools, and supervise compliance. We know that some depositions were taken, but we don't know the extent of discovery.
It would be helpful to know why this school district didn't simply discontinue official approval of Cinco de Mayo activities, given the anticipated violence. It could be relevant to know if this school district celebrates National Flag Day established by an act of Congress, or for that matter permits a celebration of Mexican Flag Day (Dia de la Bandera). And do they require a Pledge of Allegiance to the American Flag with participation by all students?
For all practical purposes the Mexican invasion was sanctioned by the federal government and has created an almost impossible dilemma for our country. Their large numbers are out of control and give them more political clout than American citizens - thanks to" open border" progressive Democrats ever pandering for votes.
A petition for an en banc review will be filed before an 11 judge panel of this same court. I predict the three-judge panel will be affirmed, and that the U.S. Supreme Court will not take this case.
We live in different times. When my father emigrated to the U.S. from Europe, he would have tattooed the American flag on his chest if that had been a requirement for citizenship. Fast forward to 2007, and we have a president who refused to wear the American flag pin.
John Reiniers is a retired attorney and regular columnist who lives in Spring Hill. Email him at firstname.lastname@example.org.