Dariano v. Morgan Hill Unified School District
767 F.3d 764, 2014 WL 4627973 (2014)
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Rule of Law:
School officials may restrict student speech, even if it is passive, when they reasonably forecast that the speech will cause a substantial disruption or material interference with school activities, or invade the rights of other students, especially in an environment with a history of racial tension and violence. This forecast can include potential disruption caused by the reactions of other students, not solely by the speaker's conduct.
Facts:
- Live Oak High School had a history of at least thirty fights over six years, some gang-related and others between Caucasian and Hispanic students.
- On Cinco de Mayo in 2009, a group of predominantly Caucasian students hung a makeshift American flag and chanted "U-SA," prompting a group of Mexican students to respond with profanities and threats, with one student explicitly stating they wanted to "f * them white boys."
- Student M.D. wore American flag clothing on Cinco de Mayo 2009 and was confronted by a male student who shoved a Mexican flag at him and expressed anger at his clothing.
- On Cinco de Mayo in 2010, several Caucasian students, including M.D., D.G., and D.M., wore American flag shirts to Live Oak High School.
- Other students confronted M.D. asking, "Why are you wearing that? Do you not like Mexicans[?]"
- Assistant Principal Miguel Rodriguez was warned by two separate students that there "might be some issues" or "problems" related to the American flag shirts and that a physical altercation was possible.
- A group of Mexican students asked Rodriguez why Caucasian students "get to wear their flag out when we don’t get to wear our flag?"
- Principal Nick Boden directed Rodriguez to have the students wearing American flag shirts turn them inside out or take them off; students D.M. and D.G. chose to go home, while M.D. and another student with less prominent imagery were permitted to return to class.
Procedural Posture:
- Students, through their guardians, brought a civil rights lawsuit under 42 U.S.C. § 1983 and the California Constitution against the Morgan Hill Unified School District, Principal Nick Boden, and Assistant Principal Miguel Rodriguez (in both official and individual capacities), alleging violations of their First and Fourteenth Amendment rights to freedom of expression, equal protection, and due process.
- The district court granted Assistant Principal Rodriguez's motion for summary judgment on all claims and denied the students' motion for summary judgment on all claims.
- The district court dismissed all claims against the Morgan Hill Unified School District on grounds of sovereign immunity.
- Principal Nick Boden was granted an automatic stay in bankruptcy, so claims against him were not addressed by the district court.
- The students appealed the district court's decision regarding Assistant Principal Rodriguez to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does a public school violate students' First Amendment rights to freedom of expression when school officials, reasonably forecasting a substantial disruption or violence due to a history of racial tension and specific threats from other students, require students to modify or remove American flag apparel?
Opinions:
Majority - McKeown, Circuit Judge
Yes, school officials did not violate the students' First Amendment rights because they reasonably anticipated violence or substantial disruption of school activities, and their response was appropriately tailored. The court applied the Tinker v. Des Moines Indep. Cmty. Sch. Dist. framework, which permits schools to prohibit speech if they can reasonably forecast that it will "materially and substantially disrupt the work and discipline of the school" or invade the rights of others. The court found that the factual context of Live Oak High School, including a history of racial tension, prior Cinco de Mayo altercations, and specific warnings of impending violence on the day in question, provided a reasonable basis for school officials to forecast substantial disruption. Unlike Tinker, where there was no evidence of nascent interference, here there was evidence of escalating violence. The officials' actions were tailored, as they did not punish the students and allowed some to return to class based on the perceived threat level of their attire. The court recognized concerns about a "heckler's veto" but concluded that in the school context, Tinker allows officials to limit speech where it materially disrupts classwork or involves substantial disorder, regardless of whether the disruption originates from the speaker or the audience's reaction, citing Taylor v. Roswell Indep. Sch. Dist. and cases involving Confederate flag bans. The court also rejected the students' equal protection claim, finding no evidence of impermissible viewpoint discrimination, and their due process claim, holding the school dress code was not unconstitutionally vague and aligned with Tinker standards.
Dissenting - O’Scannlain, Circuit Judge
No, the school officials did violate the students' First Amendment rights because the panel's opinion condones a "heckler's veto," allowing the government to suppress speech based on the potential violent reaction of others. Justice O’Scannlain argued that the panel misinterpreted Tinker, which, along with precedents like Terminiello v. Chicago, affirms the bedrock principle that speech cannot be silenced merely because it causes discomfort, fear, or anger, or because those who disagree might react violently. He contended that the students' expression was peaceful and passive, and there was no allegation that they threatened violence. The dissent asserted that the panel's decision creates a split with the Seventh Circuit (Zamecnik v. Indian Prairie Sch. Dist. No. 204) and the Eleventh Circuit (Holloman ex rel. Holloman v. Harland), both of which rejected the heckler's veto doctrine in the school setting. Justice O’Scannlain distinguished the Confederate flag cases cited by the majority, arguing they deal with a symbol "widely regarded as racist and incendiary," unlike the American flag, and do not override Tinker's core principles. He warned that the ruling sends a dangerous message that threats of violence can silence disfavored viewpoints, imperiling free speech in schools.
Analysis:
This case significantly interprets the Tinker standard within the Ninth Circuit, granting substantial deference to school officials' proactive measures to prevent violence, even when the potential disruption stems from audience reaction rather than the speaker's intent. It distinguishes the school context from broader public forums concerning the "heckler's veto," effectively permitting schools to prioritize safety and order over unfettered expression in racially charged environments. The ruling potentially widens the scope under which student speech can be restricted and may lead to more cautious approaches by school administrations facing similar tensions, reinforcing the "special characteristics of the school environment" doctrine.
