John Dariano v. Morgan Hill Unified School Dis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DARIANO; DIANNA DARIANO, No. 11-17858
on behalf of their minor child, M.D.;
KURT FAGERSTROM; JULIE ANN D.C. No.
FAGERSTROM, on behalf of their 5:10-cv-02745-
minor child, D.M.; KENDALL JONES; JW
JOY JONES, on behalf of their minor
child, D.G.,
Plaintiffs-Appellants, ORDER AND
AMENDED
v. OPINION
MORGAN HILL UNIFIED SCHOOL
DISTRICT; NICK BODEN, in his
official capacity as Principal, Live
Oak High School; MIGUEL
RODRIGUEZ, in his individual and
official capacity as Assistant
Principal, Live Oak High School,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
October 17, 2013—San Francisco, California
Filed February 27, 2014
2 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Amended September 17, 2014
Before: Sidney R. Thomas and M. Margaret McKeown,
Circuit Judges, and Virginia M. Kendall, District Judge.*
Order;
Dissent to Order by Judge O’Scannlain
Opinion by Judge McKeown
SUMMARY**
Civil Rights
The panel amended its prior opinion, appearing at 745
F.3d 354 (9th Cir. 2014), filed an amended opinion, denied a
petition for panel rehearing, denied a petition for rehearing en
banc on behalf of the court, and ordered that no further
petitions shall be permitted.
The panel affirmed the district court’s summary judgment
in a civil rights suit brought by high school students who
were asked to remove clothing bearing images of the
American flag after school officials learned of threats of race-
related violence during a school-sanctioned celebration of
Cinco de Mayo.
*
The Honorable Virginia M. Kendall, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 3
The panel held that school officials did not violate the
students’ rights to freedom of expression, due process, or
equal protection. Recognizing that, in certain contexts,
limiting speech because of reactions to the speech may give
rise to concerns about a “heckler’s veto,” the panel held that
in the school context, the crucial distinction is the nature of
the speech, not the source of it. The panel noted that prior
cases do not distinguish between “substantial disruption”
caused by the speaker and “substantial disruption” caused by
the reactions of others. The panel held that given the history
of prior events at the school, including an altercation on
campus, it was reasonable for school officials to proceed as
though the threat of a potentially violent disturbance was real.
The panel held that school officials anticipated violence or
substantial disruption of or material interference with school
activities, and their response was tailored to the
circumstances.
Dissenting from the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Tallman and Bea, would hold
that the reaction of other students to the student speaker is not
a legitimate basis for suppressing student speech absent a
showing that the speech in question constitutes fighting
words, a true threat, incitement to imminent lawless action, or
other speech outside the First Amendment’s protection.
COUNSEL
Robert J. Muise (argued), American Freedom Law Center,
Ann Arbor, Michigan; William J. Becker, Jr., The Becker
Law Firm, Los Angeles, California; Erin Mersino, Thomas
More Law Center, Ann Arbor, Michigan, for Plaintiffs-
Appellants.
4 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Don Willenburg (argued), Mark S. Posard, and Alyson S.
Cabrera, Gordon & Rees LLP, San Francisco, California, for
Defendants-Appellees.
ORDER
The opinion filed on February 27, 2014, appearing at
745 F.3d 354 (9th Cir. 2014), is hereby amended. An
amended opinion is filed concurrently with this order.
With these amendments, the panel has voted to deny the
petition for panel rehearing.
The full court has been advised of the petition for
rehearing and rehearing en banc. A judge requested a vote on
whether to rehear the matter en banc. The matter failed to
receive a majority of votes of the nonrecused active judges in
favor of en banc consideration. Fed. R. App. P. 35.
The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for en banc or
panel rehearing shall be permitted.
Judge O’Scannlain’s dissent from denial of rehearing en
banc is filed concurrently with this Order.
The motion for en banc consideration of the motion of the
Alliance Defending Freedom for leave to file an amicus brief
is moot.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 5
O’SCANNLAIN, Circuit Judge, joined by TALLMAN and
BEA, Circuit Judges, dissenting from the denial of rehearing
en banc:
The freedom of speech guaranteed by our Constitution is
in greatest peril when the government may suppress speech
simply because it is unpopular. For that reason, it is a
foundational tenet of First Amendment law that the
government cannot silence a speaker because of how an
audience might react to the speech. It is this bedrock
principle—known as the heckler’s veto doctrine—that the
panel overlooks, condoning the suppression of free speech by
some students because other students might have reacted
violently.
In doing so, the panel creates a split with the Seventh and
Eleventh Circuits and permits the will of the mob to rule our
schools. For these reasons, I must respectfully dissent from
our refusal to hear this case en banc.
I
On May 5, 2010, Cinco de Mayo, a group of Caucasian
students at Live Oak High School (“Live Oak”) wore shirts
depicting the American flag to school.1 Dariano v. Morgan
Hill Unified Sch. Dist., No. 11-17858, amended slip op. at 22
(9th Cir. 2014). In the six preceding years, there had been at
least thirty fights on campus, some between gangs and others
between Caucasians and Hispanics, id. at 21, although the
district court made no findings as to whether these fights were
1
Like the panel, I use the ethnic and racial terminology employed by the
district court, referring, for instance, to students of Mexican
origin—whether born in the United States or in Mexico—as “Mexican.”
6 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
related to ethnic tensions, Dariano v. Morgan Hill Unified
Sch. Dist., 822 F. Supp. 2d 1037, 1043 (N.D. Cal. 2011). A
year earlier, during Cinco de Mayo 2009, a group of
Caucasian students and a group of Mexican students
exchanged profanities and threats. Dariano, amended slip op.
at 21. When the Caucasian students hung a makeshift
American flag and began chanting “U–S–A,” Assistant
Principal Miguel Rodriguez intervened and asked the
Mexican students to stop using profane language, to which
one Mexican student responded, “But Rodriguez, they are
racist. They are being racist. F*** them white boys. Let’s
f*** them up.” Id.
One year later, during Cinco de Mayo 2010, three of the
students wearing American flag shirts were confronted by
other students about their choice of apparel. Id. at 22. One
student asked M.D., a plaintiff in this case, “Why are you
wearing that? Do you not like Mexicans[?]” Id. A
Caucasian student later told Assistant Principal Rodriguez
before brunch break, “You may want to go out to the quad
area. There might be some—there might be some issues.”
Id. During the break, a Mexican student informed Rodriguez
that she was concerned “there might be problems” due to the
American flag shirts. Id. Another asked Rodriguez why
Caucasian students “get to wear their flag out when we don’t
get to wear our flag?” Id. (alterations omitted). Principal
Nick Boden instructed Rodriguez to have the students
wearing the American flag shirts turn their shirts inside out or
take them off. Id.
Rodriguez met with the students wearing the shirts, who
did not dispute that they were at risk of violence due to their
apparel. Id. The school officials allowed two students to
return to class with their American flag shirts on because
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 7
their shirts had less prominent imagery and were less likely
to cause an incident. Id. at 23. Two other students were
given the choice to turn their shirts inside out or to go home.
Id. They chose to go home. Id. All plaintiffs in this appeal
received threatening messages in the days after the incident.
Id.
The students, through their guardians, brought this § 1983
action alleging violations of their First and Fourteenth
Amendment rights. Id. at 23–24.
II
In Tinker v. Des Moines Independent Community School
District, a group of high school students was suspended for
wearing black armbands as a way of protesting the Vietnam
War. 393 U.S. 503, 504 (1969). In what has become a
classic statement of First Amendment law, the Supreme Court
declared, “It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate.” Id. at 506. Of course,
as the Court has subsequently made clear, “the constitutional
rights of students in public school are not automatically
coextensive with the rights of adults in other settings.” Bethel
Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
Nonetheless, Tinker established that, “where students in the
exercise of First Amendment rights collide with the rules of
the school authorities,” Tinker, 393 U.S. at 507, students’ free
speech rights “may not be suppressed unless school officials
reasonably conclude that it will ‘materially and substantially
disrupt the work and discipline of the school.’” Morse v.
Frederick, 551 U.S. 393, 403 (2007) (quoting Tinker,
393 U.S. at 513).
8 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Invoking Tinker, the panel holds that the school acted
properly to prevent a substantial and material disruption of
school activities. Dariano, amended slip op. at 26–28, 33. In
the panel’s view, school officials acted reasonably given the
history of ethnic violence at the school, the 2009 Cinco de
Mayo incident, and the indications of possible violence on the
day in question. Id. at 28. Because the officials tailored their
actions to address the threat, the panel held that there was no
violation of the students’ free speech rights. Id. at 31. The
panel also granted summary judgment with regard to the
students’ equal protection and due process claims. Id. at
32–35.
III
With respect, I suggest that the panel’s opinion
misinterprets Tinker’s own language, our precedent, and the
law of our sister circuits. The panel claims that the source of
the threatened violence at Live Oak is irrelevant: apparently
requiring school officials to stop the source of a threat is too
burdensome when a more “readily-available” solution is at
hand, id. at 28, namely, silencing the target of the threat.
Thus the panel finds it of no consequence that the students
exercising their free speech rights did so peacefully, that their
expression took the passive form of wearing shirts, or that
there is no allegation that they threatened other students with
violence.2 The panel condones the suppression of the
2
The district court stated that the following facts are “undisputed”: “no
classes were delayed or interrupted by Plaintiffs’ attire, no incidents of
violence occurred on campus that day, and prior to asking Plaintiffs to
change Defendant Rodriguez had heard no reports of actual disturbances
being caused in relation to Plaintiffs’ apparel.” Dariano, 822 F. Supp. 2d
at 1045.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 9
students’ speech for one reason: other students might have
reacted violently against them. Such a rationale contravenes
fundamental First Amendment principles.
A
The panel claims to be guided by the language of Tinker,
Dariano, amended slip op. at 28, but in fact the panel ignores
such language. Indeed Tinker counseled directly against the
outcome here: relying on the earlier heckler’s veto case of
Terminiello v. Chicago, 337 U.S. 1 (1949), the Court
explained that students’ speech, whether made “in class, in
the lunchroom, or on the campus,” cannot be silenced merely
because those who disagree with it “may start an argument or
cause a disturbance.” 393 U.S. at 508 (citing Terminiello).
Tinker made clear that the “Constitution says we must take
th[e] risk” that speech may engender a violent response. Id.
Yet, rather than heed Tinker’s guidance, the panel undermines
its holding, and, in the process, erodes the “hazardous
freedom” and “openness” that “is the basis of our national
strength and of the independence and vigor of Americans
who grow up and live in this relatively permissive, often
disputatious, society.” Tinker, 393 U.S. at 508–09.
What the panel fails to recognize, and what we have
previously held, is that Tinker went out of its way to reaffirm
the heckler’s veto doctrine; the principle that “the
government cannot silence messages simply because they
cause discomfort, fear, or even anger.” Ctr. for Bio-Ethical
Reform, Inc. v. Los Angeles Cnty., 533 F.3d 780, 788 (9th Cir.
2008) (citing Tinker, 393 U.S. at 508). Quoting Tinker, we
have explained:
10 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
[I]n our system, undifferentiated fear or
apprehension of disturbance is not enough to
overcome the right to freedom of expression.
Any departure from absolute regimentation
may cause trouble. Any variation from the
majority’s opinion may inspire fear. Any
word spoken, in class, in the lunchroom, or on
the campus, that deviates from the views of
another person may start an argument or cause
a disturbance. But our Constitution says we
must take this risk . . . .
Bio-Ethical Reform, 533 F.3d at 788 (quoting Tinker,
393 U.S. at 508).3 Our precedents take the position, then, that
far from abandoning the heckler’s veto doctrine in public
schools, Tinker stands as a dramatic reaffirmation of it.4
3
Bio-Ethical Reform was not a school case, but this is irrelevant. What
is relevant is that in Bio-Ethical Reform we correctly held that Tinker,
which is a school case, applied the heckler’s veto doctrine. Bio-Ethical
Reform, in other words, makes clear that the heckler’s veto doctrine
applies in public schools, as it did in Tinker.
4
We also recognized the importance of the heckler’s veto doctrine to
Tinker’s analysis in Jones v. Board of Regents of University of Arizona,
436 F.2d 618 (9th Cir. 1970). The plaintiff had been ordered by campus
police to cease distributing handbills on university grounds, in part due to
“the fact that two members of the crowd were moved to tear the sandwich
boards from Jones’ body” and that “certain unidentified members of the
community had threatened to remove him from the campus.” Id. at 621.
Citing Tinker for the heckler’s veto doctrine, we said:
Jones was lawfully and nonviolently exercising
rights guaranteed to him by the Constitution of the
United States . . . . [I]n this case, the action of the police
was misdirected. It should have been exerted so as to
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 11
Given the central importance of the doctrine to First
Amendment jurisprudence, that should come as no surprise.5
B
The heckler’s veto doctrine is one of the oldest and most
venerable in First Amendment jurisprudence. See
Terminiello v. City of Chicago, 337 U.S. 1, 5 (1949). Indeed,
the Court has gone far to protect speech where it might incur
a hostile and even violent reaction from an audience. In
Street v. New York, for example, a man was convicted for
“publicly defy[ing] . . . or cast[ing] contempt upon (any
American flag) by words.” 394 U.S. 576, 590 (1969). The
Court invalidated the conviction, rejecting the state’s
justification that the man’s speech had a “tendency . . . to
prevent the infringement of Jones’ constitutional right
by those bent on stifling, even by violence, the peaceful
expression of ideas or views with which they disagreed.
Id. Those wise principles are just as applicable in the context of this case.
5
None of the precedents cited by the panel are to the contrary. In Wynar
v. Douglas County School District, it was the speaker who “threatened the
student body as a whole and targeted specific students by name,” and we
held that the school was justified in punishing the student for engaging in
speech of that nature. 728 F.3d 1062, 1070–72 (9th Cir. 2013). The same
was true in LaVine v. Blaine School District, where we stated that the
speech in question indicated that the student “was intending to inflict
injury upon himself or others,” 257 F.3d 981, 990 (9th Cir. 2001).
Although Karp v. Becken mentions concerns about “the provocation of an
incident, including possible violence,” the conduct and speech of the
speaker was itself disruptive. See 477 F.2d 171, 173, 176 (9th Cir. 1973)
(describing the speaker as attempting to lead a “chant” and walk-out while
also bringing news media to campus “to publicize [his] demonstration”).
None of these cases stand for the proposition that peaceful, passive
expression can be suppressed based on the reactions of other students.
12 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
provoke violent retaliation.” Id. at 592. The heckler’s veto
doctrine also protected a civil rights leader’s peaceful speech
during a lunch counter sit-in protest, despite the state’s
alleged fear that “‘violence was about to erupt’ because of the
demonstration.” Cox v. Louisiana, 379 U.S. 536, 550 (1965).
As the Court said in Cox, “[T]he compelling answer . . . is
that constitutional rights may not be denied simply because
of hostility to their assertion or exercise.” Id. at 551 (internal
quotation marks omitted).
Of course, this doctrine does not apply to all categories of
speech. The Court has recognized that there are “certain
well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought
to raise any Constitutional problem.” Chaplinsky v. New
Hampshire, 315 U.S. 568, 571–72 (1942); see also United
States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (listing types
of speech that are not part of “the freedom of speech”).
Where, for instance, speech constitutes “‘fighting’
words—those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace,” Chaplinsky,
315 U.S. at 572; is “directed to inciting or producing
imminent lawless action and is likely to incite or produce
such action,” Brandenburg v. Ohio, 395 U.S. 444, 447
(1969); or is a “true threat,” Virginia v. Black, 538 U.S. 343,
358–60 (2003), such speech may be prohibited, subject to
certain limitations, see R.A.V. v. City of St. Paul, 505 U.S.
377, 383–86 (1992). But apart from these well-recognized
categories, “the government may not give weight to the
audience’s negative reaction” as a basis for suppressing
speech. Ctr. for Bio-Ethical Reform, Inc., 533 F.3d at 789;
see also Texas v. Johnson, 491 U.S. 397, 408–09 (1989) (“[A]
principal function of free speech under our system of
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 13
government is to invite dispute.”) (internal quotation marks
omitted) (quoting Terminiello) (citing Tinker).
C
Despite Tinker’s emphasis on the actions of the speaker
and its reaffirmation of the heckler’s veto doctrine, the panel
ignores these foundational precepts of First Amendment
jurisprudence and condones using the heckler’s veto as a
basis for suppressing student speech.
The established First Amendment principles that the panel
disregards exist for good reason. Rather than acting to
protect the students who were peacefully expressing their
views, Live Oak decided to suppress the speech of those
students because other students might do them harm. Live
Oak’s reaction to the possible violence against the student
speakers, and the panel’s blessing of that reaction, sends a
clear message to public school students: by threatening
violence against those with whom you disagree, you can
enlist the power of the State to silence them. This perverse
incentive created by the panel’s opinion is precisely what the
heckler’s veto doctrine seeks to avoid.
In this case, the disfavored speech was the display of an
American flag. But let no one be fooled: by interpreting
Tinker to permit the heckler’s veto, the panel opens the door
to the suppression of any viewpoint opposed by a vocal and
violent band of students. The next case might be a student
wearing a shirt bearing the image of Che Guevara, or Martin
Luther King, Jr., or Pope Francis. It might be a student
wearing a President Obama “Hope” shirt, or a shirt
exclaiming “Stand with Rand!” It might be a shirt
proclaiming the shahada, or a shirt announcing “Christ is
14 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
risen!” It might be any viewpoint imaginable, but whatever
it is, it will be vulnerable to the rule of the mob. The
demands of bullies will become school policy.
That is not the law.
IV
The Seventh and Eleventh Circuits agree that a student’s
speech cannot be suppressed based on the violent reaction of
its audience. Thus the panel is simply wrong that our sister
circuits’ cases “do not distinguish between ‘substantial
disruption’ caused by the speaker and ‘substantial disruption’
caused by the reaction of onlookers.” Dariano, amended slip
op. at 29. In Zamecnik v. Indian Prairie School District No.
204, a student wore a t-shirt to school on the Day of Silence
bearing the slogan, “Be Happy, Not Gay.” 636 F.3d 874, 875
(7th Cir. 2011). The school sought to prohibit the student
from wearing the shirt based, in part, on “incidents of
harassment of plaintiff Zamecnik.” Id. at 879. The Seventh
Circuit squarely rejected that rationale as “barred by the
doctrine . . . of the ‘heckler’s veto.’” Id. Zamecnik made
clear that Tinker “endorse[s] the doctrine of the heckler’s
veto” and described the rationale behind that doctrine:
Statements that while not fighting words
are met by violence or threats or other
unprivileged retaliatory conduct by persons
offended by them cannot lawfully be
suppressed because of that conduct.
Otherwise free speech could be stifled by the
speaker’s opponents’ mounting a riot, even
though, because the speech had contained no
fighting words, no reasonable person would
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 15
have been moved to a riotous response. So
the fact that homosexual students and their
sympathizers harassed Zamecnik because of
their disapproval of her message is not a
permissible ground for banning it.
Id. The court affirmed the grant of summary judgment to
Zamecnik. Id. at 882.
The Eleventh Circuit is of the same opinion. In Holloman
ex rel. Holloman v. Harland, a school punished a student for
silently holding up a fist rather than reciting the Pledge of
Allegiance. 370 F.3d 1252, 1259 (11th Cir. 2004). School
officials justified their actions, in part, by citing “concern that
[the student’s] behavior would lead to further disruptions by
other students.” Id. at 1274. The Eleventh Circuit
acknowledged that Tinker governed its analysis, and in an
impassioned paragraph, the court invoked the heckler’s veto
doctrine:
Allowing a school to curtail a student’s
freedom of expression based on such factors
turns reason on its head. If certain bullies are
likely to act violently when a student wears
long hair, it is unquestionably easy for a
principal to preclude the outburst by
preventing the student from wearing long hair.
To do so, however, is to sacrifice freedom
upon the alter [sic] of order, and allow the
scope of our liberty to be dictated by the
inclinations of the unlawful mob.
16 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Id. at 1275. Particularly relevant here, the Eleventh Circuit
squarely rejected the claim that the heckler’s veto doctrine
does not apply in public schools:
While the same constitutional standards do
not always apply in public schools as on
public streets, we cannot afford students less
constitutional protection simply because their
peers might illegally express disagreement
through violence instead of reason. If the
people, acting through a legislative assembly,
may not proscribe certain speech, neither may
they do so acting individually as criminals.
Principals have the duty to maintain order in
public schools, but they may not do so while
turning a blind eye to basic notions of right
and wrong.
Id. at 1276. The court reversed the district court’s grant of
summary judgment to the school and reinstated Holloman’s
claims. Id. at 1294–95.
The panel’s holding, then, represents a dramatic departure
from the views of our sister circuits.6 Yet, one would never
6
Unable to distinguish Zamecnik or Holloman convincingly, the panel
looks for support from Taylor v. Roswell Independent School District,
713 F.3d 25 (10th Cir. 2013). But Taylor offers no support for its view.
Taylor did not involve a heckler’s veto, and, in fact, the Tenth Circuit
implied that the heckler’s veto doctrine would have applied if the facts had
implicated it. This is revealed in a footnote, quoted only in part by the
panel. Dariano, amended slip op. at 29 (quoting Taylor, 713 F.3d at 38
n.11). In the footnote’s omitted conclusion, the Tenth Circuit observes:
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 17
know it from reading the panel’s opinion, since the contrary
decisions of those circuits are barely mentioned and
completely mis-characterized.
V
Finally, the panel attempts to analogize this case to those
involving school restrictions on Confederate flags. See
Dariano, amended slip op. at 30–31. But these cases, dealing
solely with a symbol that is “widely regarded as racist and
incendiary,” Zamecnik, 636 F.3d at 877, cannot override
Tinker here.7
The panel takes the Confederate flag cases to be a single
“illustrat[ion]” of the much broader “principle” that the
heckler’s veto doctrine does not apply to schools. Dariano,
amended slip op. at 30. But as that broad “principle” is
incorrect, the Confederate flag cases cannot illustrate it.
Moreover, there is no indication in this case that the
problematic student disruptions were aimed at stopping
plaintiffs’ expression, and plaintiffs did not otherwise
develop such an argument.
713 F.3d at 38 n.11. (emphasis added). Thus, contrary to what the panel
implies, the speech restriction in Taylor was permissible not because the
heckler’s veto doctrine was inapplicable to Roswell public schools, but
because Taylor’s facts simply did not involve a heckler’s veto.
7
In fact the Eleventh Circuit has suggested that displays of the
Confederate flag may not even be deserving of the full protection of
Tinker, but rather are offensive under the standard of Bethel School
District v. Fraser, 478 U.S. 675 (1986). See Scott v. School Bd. Of
Alachua Cty., 324 F.3d 1246, 1248 (11th Cir. 2003) (per curiam); Denno
v. Sch. Bd. Of Volusia Cty., Fla., 218 F.3d 1267, 1273–74 (11th Cir.
2000).
18 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Indeed, what the cases actually illustrate is a permissive
attitude towards regulation of the Confederate flag that is
based on the flag’s unique and racially divisive history.8
Whether or not this history provides a principled basis for the
regulation of Confederate icons, it certainly provides no
support for banning displays of the American flag.
8
The Confederate flag cases cited by the panel all emphasize that, across
America, Confederate symbols carry an inherently divisive message. See,
e.g., Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 436 (4th Cir
2013) (describing the flag as a “symbol of racial separation and
oppression”); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir.
2009) (justifying regulation in part on “the racially inflammatory meaning
associated with the Confederate flag”); Barr v. Lafon, 538 F.3d 554, 570
(6th Cir. 2008) (describing the perception that Confederate icons celebrate
“white supremacy”); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734,
742 (9th Cir. 2009) (explaining that some view the Confederate flag “as
a statement of racism”); West v. Derby Unified Sch. Dist. No. 260, 23
F. Supp. 2d 1223, 1233 (D. Kan. 1998) (describing the Confederate flag as
representing “[t]o many” an “expression of continuing contempt for the
rights of African-Americans”), aff’d, 206 F.3d 1358 (10th Cir. 2000)
(adopting the reasoning of the district court); Scott v. Sch. Bd of Alachua
Cnty., 324 F.3d 1246, 1249 (11th Cir. 2003) (per curiam) (finding it
“correct” to assert that the Confederate flag represents “approval of white
supremacy” and “has acquired numerous racist associations to the point
that the flag itself has understandably come to be perceived as a racist
symbol”).
Indeed, in another case upholding a ban on Confederate flags in
schools, the Sixth Circuit supported its decision with the observation that
several federal appellate courts have commented “on the Confederate
flag’s inherent racial divisiveness.” D.B. ex rel. Brogdon v. Lafon, 217
Fed.Appx. 518, 523–24 (6th Cir. 2007) (emphasis added) (citing NAACP
v. Hunt, 891 F.2d 1555, 1564 (11th Cir. 1990); Briggs v. State of
Mississippi, 331 F.3d 499, 506 (5th Cir. 2003), cert. denied, 540 U.S. 1108
(2004); Castorina ex rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536,
540 (6th Cir. 2001)).
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 19
VI
The panel’s opinion contravenes foundational First
Amendment principles, creates a split with the Seventh and
Eleventh Circuits, and imperils minority viewpoints of all
kinds. Like our sister circuits, I would hold that the reaction
of other students to the student speaker is not a legitimate
basis for suppressing student speech absent a showing that the
speech in question constitutes fighting words, a true threat,
incitement to imminent lawless action, or other speech
outside the First Amendment’s protection. See Zamecnik,
636 F.3d at 879 (rejecting the heckler’s veto “because the
speech had contained no fighting words”); Holloman,
370 F.3d at 1275–76 (citing Street for the proposition that
“the possible tendency of appellant’s words to provoke
violent retaliation is not a basis for banning those words
unless they are ‘fighting words’” (internal quotation marks
omitted)).
I respectfully dissent from our regrettable decision not to
rehear this case en banc.
OPINION
McKEOWN, Circuit Judge:
We are asked again to consider the delicate relationship
between students’ First Amendment rights and the
operational and safety needs of schools. As we noted in
Wynar v. Douglas County School District, 728 F.3d 1062,
1064 (9th Cir. 2013), “school administrators face the daunting
task of evaluating potential threats of violence and keeping
20 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
their students safe without impinging on their constitutional
rights.” In this case, after school officials learned of threats of
race-related violence during a school-sanctioned celebration
of Cinco de Mayo, the school asked a group of students to
remove clothing bearing images of the American flag.1
The students brought a civil rights suit against the school
district and two school officials, alleging violations of their
federal and state constitutional rights to freedom of
expression, equal protection, and due process. We affirm the
district court’s grant of summary judgment as to the only
defendant party to this appeal, Assistant Principal Miguel
Rodriguez, and its denial of the students’ motion for summary
judgment, on all claims. School officials anticipated violence
or substantial disruption of or material interference with
school activities, and their response was tailored to the
circumstances. As a consequence, we conclude that school
officials did not violate the students’ rights to freedom of
expression, due process, or equal protection.
BACKGROUND
This case arose out of the events of May 5, 2010, Cinco
de Mayo, at Live Oak High School (“Live Oak” or “the
School”), part of the Morgan Hill Unified School District in
Northern California. The Cinco de Mayo celebration was
presented in the “spirit of cultural appreciation.” It was
described as honoring “the pride and community strength of
the Mexican people who settled this valley and who continue
to work here.” The school likened it to St. Patrick’s Day or
Oktoberfest. The material facts are not in dispute.
1
Because the students’ names are confidential, we refer to them
collectively as “the students,” or by their initials, M.D., D.G., and D.M.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 21
Live Oak had a history of violence among students, some
gang-related and some drawn along racial lines. In the six
years that Nick Boden served as principal, he observed at
least thirty fights on campus, both between gangs and
between Caucasian and Hispanic students. A police officer is
stationed on campus every day to ensure safety on school
grounds.
On Cinco de Mayo in 2009, a year before the events
relevant to this appeal, there was an altercation on campus
between a group of predominantly Caucasian students and a
group of Mexican students.2 The groups exchanged
profanities and threats. Some students hung a makeshift
American flag on one of the trees on campus, and as they did,
the group of Caucasian students began clapping and chanting
“USA.” A group of Mexican students had been walking
around with the Mexican flag, and in response to the white
students’ flag-raising, one Mexican student shouted “f***
them white boys, f*** them white boys.” When Assistant
Principal Miguel Rodriguez told the student to stop using
profane language, the student said, “But Rodriguez, they are
racist. They are being racist. F*** them white boys. Let’s
f*** them up.” Rodriguez removed the student from the area.
At least one party to this appeal, student M.D., wore
American flag clothing to school on Cinco de Mayo 2009.
M.D. was approached by a male student who, in the words of
2
We use the ethnic and racial terminology employed by the district
court (Caucasian, Hispanic, Mexican). For example, the district court at
times referred to students of Mexican origin born in the United States and
students born in Mexico collectively as “Mexican.” We adopt the same
practice here, for the limited purpose of clarifying the narrative.
22 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
the district court, “shoved a Mexican flag at him and said
something in Spanish expressing anger at [M.D.’s] clothing.”
A year later, on Cinco de Mayo 2010, a group of
Caucasian students, including the students bringing this
appeal, wore American flag shirts to school. A female student
approached M.D. that morning, motioned to his shirt, and
asked, “Why are you wearing that? Do you not like
Mexicans[?]” D.G. and D.M. were also confronted about their
clothing before “brunch break.”
As Rodriguez was leaving his office before brunch break,
a Caucasian student approached him, and said, “You may
want to go out to the quad area. There might be some—there
might be some issues.” During the break, another student
called Rodriguez over to a group of Mexican students, said
that she was concerned about a group of students wearing the
American flag, and said that “there might be problems.”
Rodriguez understood her to mean that there might be a
physical altercation. A group of Mexican students asked
Rodriguez why the Caucasian students “get to wear their flag
out when we [sic] don’t get to wear our [sic] flag?”
Boden directed Rodriguez to have the students either turn
their shirts inside out or take them off. The students refused
to do so.
Rodriguez met with the students and explained that he
was concerned for their safety. The students did not dispute
that their attire put them at risk of violence. Plaintiff D.M.
said that he was “willing to take on that responsibility” in
order to continue wearing his shirt. Two of the students, M.D.
and D.G., said they would have worn the flag clothing even
if they had known violence would be directed toward them.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 23
School officials permitted M.D. and another student not
a party to this action to return to class, because Boden
considered their shirts, whose imagery was less “prominent,”
to be “less likely [to get them] singled out, targeted for any
possible recrimination,” and “significant[ly] differen[t] in
[terms of] what [he] saw as being potential for targeting.”3
The officials offered the remaining students the choice
either to turn their shirts inside out or to go home for the day
with excused absences that would not count against their
attendance records. Students D.M. and D.G. chose to go
home. Neither was disciplined.
In the aftermath of the students’ departure from school,
they received numerous threats from other students. D.G. was
threatened by text message on May 6, and the same
afternoon, received a threatening phone call from a caller
saying he was outside of D.G.’s home. D.M. and M.D. were
likewise threatened with violence, and a student at Live Oak
overheard a group of classmates saying that some gang
members would come down from San Jose to “take care of”
the students. Because of these threats, the students did not go
to school on May 7.
The students and their parents, acting as guardians,
brought suit under 42 U.S.C. § 1983 and the California
Constitution against Morgan Hill Unified School District
(“the District”); and Boden and Rodriguez, in their official
and individual capacities, alleging violations of their federal
and California constitutional rights to freedom of expression
3
The students permitted to return to class were wearing “Tap Out” (or
“TapouT”) shirts, which bear the logo of a popular martial arts company,
sometimes (as here) with flag iconography.
24 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
and their federal constitutional rights to equal protection and
due process.
On cross-motions for summary judgment, the district
court granted Rodriguez’s motion on all claims and denied
the students’ motion on all claims, holding that school
officials did not violate the students’ federal or state
constitutional rights. The district court did not address claims
against Boden, because he was granted an automatic stay in
bankruptcy. The district court dismissed all claims against the
District on grounds of sovereign immunity, a ruling not
challenged on appeal. The question on appeal is thus whether
Rodriguez, in his official or individual capacity, violated the
students’ constitutional rights.
ANALYSIS
I. FIRST AMENDMENT CLAIMS
We analyze the students’ claims4 under the well-
recognized framework of Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969).5 Under
4
Because California follows federal law for free expression claims
arising in the school setting, the students’ federal and state claims stand
or fall together. Cal. Teachers Ass’n v. Governing Bd. of San Diego
Unified Sch. Dist., 45 Cal. App. 4th 1383, 1391–92 (1996).
5
As we noted in Wynar, 728 F.3d at 1067, student speech that is
“vulgar, lewd, obscene [or] plainly offensive” is governed by Bethel
School District Number 403 v. Fraser, 478 U.S. 675 (1986); speech that
is “school-sponsored” is governed by Hazelwood School District v.
Kuhlmeier, 484 U.S. 260 (1988); and speech that “falls into neither of
these categories” is governed by Tinker. See Chandler v. McMinnville Sch.
Dist., 978 F.2d 524, 529 (9th Cir. 1992) (listing standards).
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 25
Tinker, students may “express [their] opinions, even on
controversial subjects . . . if [they] do[] so without materially
and substantially interfer[ing] with the requirements of
appropriate discipline in the operation of the school and
without colliding with the rights of others.” Id. at 513 (final
alteration in original) (internal quotation marks omitted). To
“justify prohibition of a particular expression of opinion,”
school officials “must be able to show that [their] action was
caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an
unpopular viewpoint.” Id. at 509.
That said, “conduct by the student, in class or out of it,
which for any reason— whether it stems from time, place, or
type of behavior—materially disrupts classwork or involves
substantial disorder or invasion of the rights of others is, of
course, not immunized by the constitutional guarantee of
freedom of speech.” Id. at 513. Under Tinker, schools may
prohibit speech that “might reasonably [lead] school
authorities to forecast substantial disruption of or material
interference with school activities,” or that constitutes an
“actual or nascent [interference] with the schools’ work or . . .
collision with the rights of other students to be secure and to
be let alone.” Id. at 508, 514; see also Wynar, 728 F.3d at
1067 (quoting Tinker, 393 U.S. at 508, 514.). As we have
explained, “the First Amendment does not require school
officials to wait until disruption actually occurs before they
may act. In fact, they have a duty to prevent the occurrence of
disturbances.” Karp v. Becken, 477 F.2d 171, 175 (9th Cir.
1973) (footnote omitted). Indeed, in the school context, “the
level of disturbance required to justify official intervention is
relatively lower in a public school than it might be on a street
corner.” Id. As the Seventh Circuit explained, “[s]chool
authorities are entitled to exercise discretion in determining
26 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
when student speech crosses the line between hurt feelings
and substantial disruption of the educational mission.”
Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874,
877–78 (7th Cir. 2011).
Although Tinker guides our analysis, the facts of this case
distinguish it sharply from Tinker, in which students’ “pure
speech” was held to be constitutionally protected. 393 U.S. at
508. In contrast to Tinker, in which there was “no evidence
whatever of petitioners’ interference, actual or nascent, with
the schools’ work or of collision with the rights of other
students to be secure and to be let alone,” id., there was
evidence of nascent and escalating violence at Live Oak. On
the morning of May 5, 2010, each of the three students was
confronted about their clothing by other students, one of
whom approached student M.D. and asked, “Why are you
wearing that? Do you not like Mexicans[?]” Before the
brunch break, Rodriguez learned of the threat of a physical
altercation. During the break, Rodriguez was warned about
impending violence by a second student. The warnings of
violence came, as the district court noted, “in [the] context of
ongoing racial tension and gang violence within the school,
and after a near-violent altercation had erupted during the
prior Cinco de Mayo over the display of an American flag.”
Threats issued in the aftermath of the incident were so real
that the parents of the students involved in this suit kept them
home from school two days later.
The minimal restrictions on the students were not
conceived of as an “urgent wish to avoid the controversy,” as
in Tinker, id. at 510, or as a trumped-up excuse to tamp down
student expression. The controversy and tension remained,
but the school’s actions presciently avoided an altercation.
Unlike in Tinker, where “[e]ven an official memorandum
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 27
prepared after the [students’] suspension that listed the
reasons for the ban on wearing the armbands made no
reference to the anticipation of such disruption,” id. at 509,
school officials here explicitly referenced anticipated
disruption, violence, and concerns about student safety in
conversations with students at the time of the events, in
conversations the same day with the students and their
parents, and in a memorandum and press release circulated
the next day.
In keeping with our precedent, school officials’ actions
were tailored to avert violence and focused on student safety,
in at least two ways. For one, officials restricted the wearing
of certain clothing, but did not punish the students. School
officials have greater constitutional latitude to suppress
student speech than to punish it. In Karp, we held that school
officials could “curtail the exercise of First Amendment
rights when they c[ould] reasonably forecast material
interference or substantial disruption,” but could not
discipline the student without “show[ing] justification for
their action.” 477 F.2d at 176; cf. Wynar, 728 F.3d at 1072
(upholding expulsion, despite its “more punitive character,”
as a justified response to threats); LaVine v. Blaine Sch. Dist.,
257 F.3d 981, 992 (9th Cir. 2001).
For another, officials did not enforce a blanket ban on
American flag apparel, but instead allowed two students to
return to class when it became clear that their shirts were
unlikely to make them targets of violence. The school
distinguished among the students based on the perceived
threat level, and did not embargo all flag-related clothing. See
Background, supra.
28 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Finally, whereas the conduct in Tinker expressly did “not
concern aggressive, disruptive action or even group
demonstrations,” 393 U.S. at 508, school officials at Live
Oak reasonably could have understood the students’ actions
as falling into any of those three categories, particularly in the
context of the 2009 altercation. The events of 2010 took
place in the shadow of similar disruptions a year earlier, and
pitted racial or ethnic groups against each other. Moreover,
students warned officials that there might be physical fighting
at the break.6
We recognize that, in certain contexts, limiting speech
because of reactions to the speech may give rise to concerns
about a “heckler’s veto.”7 But the language of Tinker and the
school setting guides us here. Where speech “for any reason
. . . materially disrupts classwork or involves substantial
disorder or invasion of the rights of others,” school officials
may limit the speech. Tinker, 393 U.S. at 513. To require
school officials to precisely identify the source of a violent
threat before taking readily-available steps to quell the threat
would burden officials’ ability to protect the students in their
charge—a particularly salient concern in an era of rampant
school violence, much of it involving guns, other weapons, or
6
Our recent case of Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014),
is not instructive here, since that case, unlike this one, involved compelled
speech in the form of a mandatory uniform policy and did not involve the
intersection of the First Amendment and violence or a threat of violence
in the school setting. Id. at 1204.
7
The term “heckler’s veto” is used to describe situations in which the
government stifles speech because it is “offensive to some of [its] hearers,
or simply because bystanders object to peaceful and orderly
demonstrations.” Bachellar v. Maryland, 397 U.S. 564, 567 (1970)
(internal citations and quotation marks omitted).
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 29
threats on the internet—and run counter to the longstanding
directive that there is a distinction between “threats or acts of
violence on school premises” and speech that engenders no
“substantial disruption of or material interference with school
activities.” Id. at 508, 514; see also id. at 509, 513.
In the school context, the crucial distinction is the nature
of the speech, not the source of it. The cases do not
distinguish between “substantial disruption” caused by the
speaker and “substantial disruption” caused by the reactions
of onlookers or a combination of circumstances. See, e.g.,
Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38, 38 n. 11
(10th Cir. 2013) (observing that “Plaintiffs note that most
disruptions occurred only because of wrongful behavior of
third parties and that no Plaintiffs participated in these
activities . . . . This argument might be effective outside the
school context, but it ignores the ‘special characteristics of
the school environment,’” and that the court “ha[d] not
found[] case law holding that school officials’ ability to limit
disruptive expression depends on the blameworthiness of the
speaker. To the contrary, the Tinker rule is guided by a
school’s need to protect its learning environment and its
students, and courts generally inquire only whether the
potential for substantial disruption is genuine.” (quoting
Tinker, 393 U.S. at 506)); Zamecnik, 636 F.3d at 879–80
(looking to the reactions of onlookers to determine whether
the speech could be regulated); Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1272 (11th Cir. 2004) (looking to
the reactions of onlookers to determine whether a student’s
expression “cause[d] (or [was] likely to cause) a material and
substantial disruption”) (alterations and internal quotation
marks omitted).
30 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Perhaps no cases illustrate this principle more clearly than
those involving displays of the Confederate flag in the school
context. We respect the American flag, and know that its
meaning and its history differ greatly from that of the
Confederate flag. Nevertheless, the legal principle that
emerges from the Confederate flag cases is that what matters
is substantial disruption or a reasonable forecast of substantial
disruption, taking into account either the behavior of a
speaker—e.g., causing substantial disruption alongside the
silent or passive wearing of an emblem—or the reactions of
onlookers. Not surprisingly, these cases also arose from
efforts to stem racial tension that was disruptive. Like
Dariano, the reasoning in these cases is founded on Tinker.
See, e.g., Hardwick, 711 F.3d at 437 (Fourth Circuit case
upholding school officials’ ban on shirts with labels like
“Southern Chicks,” “Dixie Angels,” and “Daddy’s Little
Redneck,” and the Confederate flag icon, even though the
bearer contended that hers was a “silent, peaceable display”
that “even drew positive remarks from some students” and
“never caused a disruption” because “school officials could
reasonably forecast a disruption because of her shirts”
(internal quotation marks omitted)); A.M. ex rel. McAllum v.
Cash, 585 F.3d 214, 223 (5th Cir. 2009) (noting that “[o]ther
circuits, applying Tinker, have held that administrators may
prohibit the display of the Confederate flag in light of racial
hostility and tension at their schools”); Barr v. Lafon,
538 F.3d 554, 567–68 (6th Cir. 2008) (noting the “disruptive
potential of the flag in a school where racial tension is high,”
and that “[o]ur holding that the school in the circumstances of
this case reasonably forecast the disruptive effect of the
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 31
Confederate flag accords with precedent in our circuit as well
as our sister circuits”).8
Our role is not to second-guess the decision to have a
Cinco de Mayo celebration or the precautions put in place to
avoid violence where the school reasonably forecast
substantial disruption or violence. “We review . . . with
deference[] schools’ decisions in connection with the safety
of their students even when freedom of expression is
involved,” keeping in mind that “deference does not mean
abdication.” LaVine, 257 F.3d at 988, 992. As in Wynar, the
question here is not whether the threat of violence was real,
but only whether it was “reasonable for [the school] to
proceed as though [it were].” 728 F.3d at 1071; Karp,
477 F.2d at 175 (noting that “Tinker does not demand a
certainty that disruption will occur, but rather the existence of
facts which might reasonably lead school officials to forecast
substantial disruption”). Here, both the specific events of May
5, 2010, and the pattern of which those events were a part
made it reasonable for school officials to proceed as though
the threat of a potentially violent disturbance was real. We
hold that school officials, namely Rodriguez, did not act
unconstitutionally, under either the First Amendment or
Article I, § 2(a) of the California Constitution, in asking
students to turn their shirts inside out, remove them, or leave
school for the day with an excused absence in order to
prevent substantial disruption or violence at school.
8
Other circuits that have considered the question have adopted the same
logic. See, e.g., B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734,
739–40 (8th Cir. 2009); West v. Derby Unified Sch. Dist. No. 260,
206 F.3d 1358, 1365–66 (10th Cir. 2000); Scott v. Sch. Bd. of Alachua
Cnty., 324 F.3d 1246, 1248 (11th Cir. 2003) (per curiam).
32 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
II. EQUAL PROTECTION CLAIM
The students’ equal protection claim is a variation of their
First Amendment challenge. Cf. U.S. CONST. amend. XIV,
§ 1 (stating that “[n]o State shall . . . deny to any person
within its jurisdiction the equal protection of the laws”). They
allege that they were treated differently than students wearing
the colors of the Mexican flag, and that their speech was
suppressed because their viewpoint was disfavored. We note
that the students had no response when asked why they chose
to wear flag clothing on the day in question. The school
responds that it had a viewpoint-neutral reason—student
safety—for suppressing the speech in question, and that they
treated “all students for whose safety they feared in the same
manner.”
Government action that suppresses protected speech in a
discriminatory manner may violate both the First Amendment
and the Equal Protection Clause. R.A.V. v. City of St. Paul,
505 U.S. 377, 384 n.4 (1992) (noting that the Supreme Court
“has occasionally fused the First Amendment into the Equal
Protection Clause in this fashion, but . . . with the
acknowledgment . . . that the First Amendment underlies its
analysis”). Where plaintiffs allege violations of the Equal
Protection Clause relating to expressive conduct, we employ
“essentially the same” analysis as we would in a case alleging
only content or viewpoint discrimination under the First
Amendment. Barr v. Lafon, 538 F.3d 554, 575 (6th Cir.
2008).
In the school context, we look again to Tinker. 393 U.S.
at 510; see also Barr, 538 F.3d at 576–77; Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir. 2004)
(stating that Tinker “applies to school regulations directed at
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 33
specific student viewpoints”). According to Tinker, schools
are not forced to “prohibit the wearing of all symbols of
political or controversial significance” in order to justify a
prohibition against the wearing of a certain symbol, if such a
prohibition is “necessary to avoid material and substantial
interference with schoolwork or discipline.” 393 U.S. at
510–11. Schools may, under Tinker, ban certain images, for
example images of the Confederate flag on clothing, even
though such bans might constitute viewpoint discrimination.
See, e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166,
1184–85 (9th Cir. 2006) (noting that “[w]hile the Confederate
flag may express a particular viewpoint, ‘[i]t is not only
constitutionally allowable for school officials’ to limit the
expression of racially explosive views, ‘it is their duty to do
so’” (alteration in original) (quoting Scott v. Sch. Bd. of
Alachua Cnty., 324 F.3d 1246, 1249 (11th Cir. 2003) (per
curiam)), judgment vacated on other grounds sub nom.
Harper ex rel. Harper v. Poway Unified Sch. Dist., 549 U.S.
1262 (2007); Scott, 324 F.3d at 1248 (upholding district court
order barring Confederate symbols based on “the potential
disruption that the displaying of Confederate symbols would
likely create”); West v. Derby Unified Sch. Dist. No. 260,
206 F.3d 1358, 1366–67 (10th Cir. 2000) (upholding ban on
Confederate symbols based on a “series of racial incidents or
confrontations,” including “hostile confrontations between a
group of white and black students”).
As the district court noted, the students offered no
evidence “demonstrating that students wearing the colors of
the Mexican flag were targeted for violence.” The students
offered no evidence that students at a similar risk of danger
were treated differently, and therefore no evidence of
impermissible viewpoint discrimination.
34 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.
Because the record demonstrates that the students’ shirts
“might reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities,” Tinker, 393 U.S. at 514, the authorities’ actions
were permissible under Tinker. We reject the students’ equal
protection claim.
III. DUE PROCESS AND INJUNCTIVE RELIEF CLAIMS
The students further challenge the District’s dress code,
which prohibits clothing that “indicate[s] gang affiliation,
create[s] a safety hazard, or disrupt[s] school activities.” They
seek to permanently enjoin the use of the dress code, claiming
that it fails to provide objective standards by which to referee
student attire, in violation of the Due Process Clause.9 We
reject the students’ due process claims.
The Supreme Court has “recognized that maintaining
security and order in the schools requires a certain degree of
flexibility in school disciplinary procedures,” and has thus
specified that, “[g]iven the school’s need to be able to impose
disciplinary sanctions for a wide range of unanticipated
conduct disruptive of the educational process, the school
disciplinary rules need not be as detailed as a criminal code
. . . . ” Bethel Sch. Dist., 478 U.S. at 686 (holding that a
school had not violated a student’s due process rights by
disciplining him for lewd speech under a policy prohibiting
“obscene” speech).
9
Although the District is not a party to this appeal, we consider the
students’ dress code claims because they brought suit against Rodriguez
in his official capacity.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 35
The District’s dress code is in line with others that the
federal courts have held to be permissible. See, e.g.,
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 441,
444 (4th Cir. 2013) (upholding code prohibiting
“disrupt[ive]” or “offensive” clothing, including clothing that
“distract[s]” or “interfere[s]”), cert. denied, 134 S. Ct. 201
(2013); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224 (5th
Cir. 2009) (upholding code prohibiting clothing with
“inappropriate symbolism”).
Significantly, the dress code challenged here incorporates
the standards sanctioned in Tinker: safety and disruption. See
B.W.A. v. Farmington R-7 Sch. Dist., 508 F. Supp. 2d 740,
750–51 (E.D. Mo. 2007) (holding that a dress code that
contains language that “tracks Tinker” poses “no real danger”
of compromising the First Amendment rights of students),
aff'd 554 F.3d 734 (8th Cir. 2009); see also Hardwick,
711 F.3d at 441. It would be unreasonable to require a dress
code to anticipate every scenario that might pose a safety risk
to students or that might substantially disrupt school
activities. Dress codes are not, nor should they be, a school
version of the Code of Federal Regulations. It would be
equally unreasonable to hold that school officials could not,
at a minimum, rely upon the language Tinker gives them.
We affirm the district court’s holding that the policy is
not unconstitutionally vague and does not violate the
students’ right to due process.
AFFIRMED.