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“Viva La Raza!”: Saying That Can Get You Fired in One Texas School District


by Richard Fossey - September 05, 2008

In March 2006, Efren Garcia, a school employee at a Texas high school, said “Viva la Raza!” on the morning that student protesters walked out of Del Valle High School in protest of an immigration bill that had been passed by the U.S. House of Representatives. He was fired at least partly for making that statement, and a federal court upheld the school district’s action. Garcia v. Montenegro, as the case was styled, illustrates how a school employee’s right to comment as a citizen on matters of public concern may be restricted by a federal court when the employee’s speech conflicts with a school employer’s legitimate interest in preserving school discipline.

In December 2005, the U.S. House of Representatives passed House Bill 4437, also known as the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. HB 4437 was a draconian, mean-spirited law that would criminalize all undocumented immigrants and make felons of anyone who assisted them in any way.


In the spring of 2006, a public outcry arose over HB 4437 all over the United States. Senator Hillary Clinton strenuously opposed the bill, saying that it “would literally criminalize the Good Samaritan and probably even Jesus Himself” (Bernstein, 2006). Cardinal Roger Mahoney of Los Angeles denounced the “hysterical” political climate that fostered the bill and ordered the priests in his archdiocese to disobey HB 4437 if it ever became law (Washington Lunacy, 2006).


Not surprisingly, Hispanic Americans in every section of the country rose up against this inhumane bill, and protesters marched in many American cities. In the El Paso region of Far West Texas, where the population is predominately Hispanic, high school students staged walkouts in several schools during late March of 2006 (Bracamontes, 2006).


One student walkout, which took place on March 30, 2006, figured in a federal court case entitled Garcia v. Montenegro (2008). In April 2008, a federal judge issued an opinion in that case, ruling that school officials in Ysleta Independent School District had not acted unconstitutionally when they fired a school employee for saying “Viva la Raza!” a few hours after student protestors had staged a walkout at one of the district’s high schools.


Garcia v. Montenegro: A School Employee Says “Viva la Raza!” After a Student Walkout


This is what happened in the Garcia case. On the morning of March 30, 2006, Paul Pearson, principal of Del Valle High School, was alerted to the possibility of a student walkout at his school on that very day. Pearson directed his assistant principals to hold a staff meeting in order to caution school employees not to do anything that might incite students and to be on the lookout for any student actions that might cause a disruption. Efren Garcia, an attendance clerk at Del Valle High School, attended this meeting.


Later in the morning, Del Valle students walked out of school en masse. According to a newspaper account, someone pulled the fire alarm and students began leaving the school campus around 8:40 a.m. Also, according to newspaper reports, some sort of altercation occurred between student protesters and a school administrator that day, but apparently not at Del Valle. The police responded and handcuffed two boys. (Meritz, 2006).


Later in the morning, Garcia and two other school employees conversed in the school’s attendance office about “the pros and cons of the protest marches as well as the proper immigration policy of the United States” (Garcia, p. 741).


About 11:30 a.m., almost three hours after the student walkout, Garcia rose from his desk to go to lunch. “As he stood,” the federal court recounted, “he raised his hand and said to [his] co-workers, “…Viva la Raza!” (Garcia, p. 742).  School authorities said later that at least two students were in the attendance office when Garcia made this remark.


About two-and-a-half weeks later, Principal Pearson met with Garcia and told him that his “Viva la Raza” statement had violated Pearson’s instructions on the morning of the walkout and had “undermined the school’s efforts to ensure student safety” (p. 742). Pearson later sent a letter to the school district’s employee relations director, recommending that Garcia be fired in part because he had stated “Viva la Raza!” after being told at the morning staff meeting “to act in a professional manner and keep our students calm” (Garcia, p. 742).  (Pearson also accused Garcia of being disrespectful to Pearson and another school employee in an unrelated incident.) Shortly thereafter, Garcia was fired.


Garcia sued four Isleta school administrators, accusing them of violating his constitutional right to free speech under the First Amendment. The four defendants moved for summary judgment, arguing that they had not violated Garcia’s constitutional rights. In April of this year, Judge Martinez granted this motion and dismissed Garcia’s lawsuit. According to the judge, Garcia’s First Amendment rights were not violated.


Why Isn’t “Viva la Raza!” Constitutionally Protected Speech?


Judge Martinez based his ruling on classic First Amendment jurisprudence. In Garcetti v. Ceballos (2006), the Supreme Court instructed that public employees enjoy no First Amendment protection when they are speaking in connection with their job duties. In this case, however, Judge Martinez determined that Garcia was not speaking in an official capacity when he said “Viva la Raza!” He was speaking as a citizen. This conclusion was in Garcia’s favor.


Judge Martinez next looked to a second Supreme Court opinion in ruling on Garcia’s claim: Connick v. Myers (1983). In Connick, the Supreme Court made clear that public employees have no First Amendment protection for workplace speech about some personal dispute. But in this case, Judge Martinez conceded, Garcia had spoken in the context of a national debate about immigration. Garcia was not speaking on a personal matter when he proclaimed “Viva la Raza!” He was speaking on a matter of public concern. Again, this conclusion favored Garcia.


But then Judge Martinez turned to a third Supreme Court precedent: Pickering v. Board of Education (1968). In Pickering, the Supreme Court recognized that school employees enjoy a First Amendment right to comment as citizens on matters of public concern, but that this right must be weighed against a school’s legitimate interest in censoring employee speech that interferes with the school’s ability to maintain an efficient work environment. An employee might be disciplined, for example, for speech that undermines workplace morale or damages close working relationships. Thus, the Supreme Court fashioned what has since been called the “Pickering balancing test,” whereby the courts weigh the right of a public employee to freedom of expression against the school employer’s interest in maintaining workplace efficiency.


In the Garcia case, there was no evidence showing that Efren Garcia created any hint of disorder when he proclaimed, “Viva la Raza!” Nevertheless, according to Judge Martinez, school authorities reasonably believed that Garcia’s statement “thwarted their ability to maintain discipline and order at the school” (Garcia, p. 746). In addition, school authorities “believed that [Garcia’s] statement was made in front of at least two students working in the attendance office only hours after the student walkout” (p. 747). Under these circumstances, the school’s interest in preserving order outweighed Garcia’s right to engage in political commentary.


Most educators can understand the perspective of the school administrators in this case. Del Valle High School was tense on the day Garcia spoke. A student walkout had already taken place, and the police had been summoned after a walkout at another school. The last thing Del Valle needed was a school employee saying anything that might incite further disorder.


On the other hand, we can also admire the students at Del Valle High School who daringly seized the day and walked out of school in protest of a harsh and inhumane piece of legislation. Perhaps these students’ protests helped persuade the U.S. Senate not to approve HB 4437, thus preventing it from becoming law.


And we can also admire Efren Garcia, the intrepid attendance clerk who boldly registered his opinion on March 30, 2006, the day of the Del Valle High School walkout. Unfortunately for Mr. Garcia, Judge Martinez concluded that Del Valle High School was no country for bold men, at least not on the day that Mr. Garcia proclaimed “Viva la Raza!” on his way to lunch.


References


Bernstein, N. (2006, March 23). Mrs. Clinton says G.O.P.'s immigration plan is at odds with the Bible. New York Times.


Bracamontes, R. (2006, March 30). About 125 stage walkout at Riverside. El Paso Times.


Connick v. Myers, 461 U.S. 138 (1983).


Garcetti v. Ceballos, 547 U.S. 410 (2006).


Garcia v. Montenegro, 547 F.Supp.2d 738 (W.D.Tex. 2008).


Meritz, D. (2006, March 31). 300 students from Del Valle, Ysleta run into resistance. El Paso Times, p. 13A.


Pickering v. Board of Education, 391 U.S. 563 (1968).


Washington Lunacy; ‘Feed the hungry. Clothe the naked. Go to jail.’ (2006, March 3). San Diego Union, p. B8.




Cite This Article as: Teachers College Record, Date Published: September 05, 2008
https://www.tcrecord.org ID Number: 15364, Date Accessed: 10/23/2021 1:15:35 PM

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About the Author
  • Richard Fossey
    University of North Texas
    E-mail Author
    RICHARD FOSSEY is a Professor and Senior Policy Researcher at the Center for the Study of Education Reform at the University of North Texas.
 
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