On February 27 of this year, a three-judge Ninth Circuit panel issued its opinion in Dariano v. Morgan Hill Unified School District. The lawsuit emerged after school officials at Live Oak High School, in Northern California, learned of threats of race-related violence that had occurred during a school-sanctioned Cinco de Mayo Celebration. School authorities then asked a group of students to remove clothing bearing images of the American flag.
The Civil Rights Suit
The students then brought a civil rights suit against the school district and two school officials. But the Ninth Circuit panel held that because school officials anticipated violence or substantial disruption, the officials’ response of banning the shirts was tailored to the circumstances.
The High School’s General History of Violence and Disruption
Bolstering its conclusion, the Ninth Circuit panel noted that the school at issue, Live Oak High School, in Northern California, had a history of violence among students, some gang-related and some along racial (“Mexican”/Caucasian) lines. Principal Nick Boden,who has served over a period of six years, observed that 30 fights had occurred on campus over those years. (The Ninth Circuit followed the usage of the district court in deeming a student “Mexican” even if he or she was not born in Mexico, in order, the district court said, simply to clarify the narrative of events.)
The High School’s Recent History of Violence Regarding Cinco De Mayo
In 2009–the year preceding 2010,when the events underlying this litigation occurred—the high school experienced violence related to Cinco De Mayo. Specifically, there was:
(1) an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students during which the groups exchanged profanities and threats.
(2) an incident in which some students hung a makeshift American flag on a campus tree, after which the group of Caucasian students began to chant “USA”.
(3) another incident in which a group of “Mexican” students who had been walking around with the Mexican flag, and, in one incident, a “Mexican” student shouted “F*ck them white boys.” The Assistant Principal told the student to stop using profane language, whereupon, a Mexican student responded by pointing out that the Caucasian students were also making racist remarks as well, but that Mexican student also made a threat, whereupon the Assistant Principal removed that student from the area.
(4) A final 2009 incident occurred when a student wore American flag clothing, whereupon the student claimed that another student “shoved a Mexican flag at him” and said something in Spanish expressing anger at his clothing.
The High School’s 2010 History of Potential Violence Regarding Cinco De Mayo
The controversy over Cinco De Mayo repeated itself the next year, 2010. Among the incidents that occurred were: (1) the wearing of flag shirts, including by students who are appellees in this case; (2) A few verbal confrontations that ensued due to the wearing of the flag; (3) A group of students’ assembling in the quad with American flags on their shirts, with a sense among some other students of something about to happen.
Principal Boden directed Assistant Principal Rodriguez to tell the students wearing their shirts to either turn their American flag shirts inside-out, or take them off. Rodriguez conveyed the message, but some students refused to comply and kept their shirts on nonetheless, even when Rodriguez pointed out that they would take a risk of being a victim of violence as a result. Meanwhile school officials allowed some students to go back to class on the analysis that their particular shirts bore less prominent imagery than the others.
Other students were offered the choice between (1) turning their shirts inside out, an option offered earlier, and now once again; and (2) going home with excused absences that would not affect their attendance records.
The First Amendment Analysis
The First Amendment analysis here derives from Tinker v .Des Moines Indep. Sch. Dist. (1969).
As the U.S. Court of Appeals for the Ninth Circuit noted, Tinker allows public school students to express opinions, even on controversial subjects, if they do so without materially and substantially interfering with appropriate discipline in the operation of the school, and without colliding with the rights of others. But the Ninth Circuit analyzed this case as being very different from Tinker, which involves pure speech. Here, in the Dariano case, violence was not only present but also escalating. The court praised the school for taking actions that were tailored to avert violence and focused on student safety
The Ninth Circuit also noted that after the flag-wearers went home, they received numerous threats from other students via text-message and phone call. Due to the threats, the flag-wearers stayed home the next day. Specifically, the court praised the school for restricting certain clothing, but did not punish the students for having worn it. The court’s concern, just as it should be, was to keep all students safe, as well as calming the situation.
By upholding the school’s decision to penalize the students wearing representations of the American flag, rather than those who issued threats of violence against them, the court engaged in a miscarriage of justice. Legally supporting the use of violent threats to control the behavior of other citizens is profoundly unjust. Requiring citizens to forgo the exercise of their Constitutional rights because of terrorist threats against them, rather than acting against those who make the threats, is profoundly unjust. This decision was a travesty.