On May 5, 2010, the Live Oak High School sanctioned a Cinco de Mayo celebration in the "spirit of cultural appreciation."  Live Oak had a history of violence among students.  On Cinco de Mayo of the previous year, there was an altercation on campus between predominantly Caucasian students and a group of Mexican students.  Some Caucasian students hung a makeshift American flag on one of the trees on campus.  At the same time, students carrying a Mexican flag shouted profanities at the Caucasian students and threatened them.

A year later, a group of Caucasian students wore American flag shirts to school.  That day various students informed Assistant Principal Miguel Rodriguez that there may be altercations and a group of Mexican students asked Rodriguez why the Caucasian students were allowed to wear their flag while the Mexican students were not.  Principal Nick 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 Caucasian students who were wearing the shirts and expressed his concern for their safety.  Several students expressed a willingness to accept the risk.  School officials permitted two students to return to class wearing their shirts because Boden considered the shirts to be less "prominent" and less likely to get the students singled out.  School officials offered the remaining students the choice to either turn their shirts inside out or to go home for the day.  Two students chose to go home.  Neither was disciplined.

The students who wore the American flag shirts received numerous threats from other students.  The students and their parents brought suit against the Morgan Hill Unified School District, Boden and Rodriguez alleging violations of federal and California constitutional rights to freedom of expression, equal protection and due process.  On summary judgment, the trial court held that the school officials did not violate the students' constitutional rights and that the District had sovereign immunity.  On appeal, the students argued only that Rodriguez violated the students' constitutional rights.

The United States Supreme Court has long recognized that students may express their opinions, even on controversial subjects, if they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.  School officials must show that their actions were caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint.  The Ninth Circuit reiterated that schools may prohibit speech that "might" reasonably lead school authorities to forecast substantial disruption or material interference and that it is not necessary to wait until actual disruption occurs. 

The Ninth Circuit further found that there was evidence of escalating violence at Live Oak.  On the morning of May 5, 2010, each student wearing an American flag shirt was confronted about their clothing by other students.  On that same day Rodriguez was warned about the threat of physical altercation.  These warnings came within the context of ongoing racial tension and gang violence within the school.  School officials explicitly referenced anticipated disruption, violence and concerns about student safety in the conversations with the students at the time of the events.

The Ninth Circuit held that the actions of the school officials were tailored to avert violence and focus on safety.  For example, the officials did not punish the students wearing the American flag shirts.  In addition, the officials did not enforce a blanket ban on American flag apparel, but allowed two students to return to class because their shirts were unlikely to make them targets of violence.  Accordingly, Rodriguez did not violate the constitution by asking students to turn their shirts inside out, remove them, or leave school for the day to avoid substantial disruption or violence.

The students' equal protection claim alleged that they were treated differently than students wearing the colors of the Mexican flag.  Again, the United States Supreme Court previously ruled that schools may ban certain images that could cause substantial disruption.  There was no evidence that students wearing the colors of the Mexican flag were targeted for violence.  Thus, the equal protection claim was rejected.

Lastly, the students sought to permanently enjoin the school district's dress code alleging that it failed to provide objective standards by which to referee student attire in violation of the Due Process Clause.  The Ninth Circuit rejected the claim on the grounds that school disciplinary rules require flexibility due to unanticipated disruptive conduct and because the dress code incorporated the standards sanctioned in Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503.

Dariano v. Morgan Hill Unified School District (2014) ___ F.3d ____ [2014 WL 768797].