Students prohibited from wearing American flag T-shirts in school on Cinco de Mayo day stated valid First Amendment speech claim against school district and individual school administrators
Dariano v. Morgan Hill Unified Sch. Dist., No. 10-2745 (N.D. Cal. Feb. 17, 2011)
Abstract:A federal district court in California has ruled that students who were prohibited by their high school’s former assistant principal and principal from wearing American flag T-shirts on Cinco de Mayo day, may proceed with their suit against the school district and the two former high school administrators in their individual capacities. The court also ruled that the students’ parents did not have independent federal and state constitutional claims that they could pursue against the defendants. The district court, therefore, denied the defendants’ motion to dismiss the students’ federal free speech, due process and equal protection claims and their state free speech claim, but granted the defendants’ motion as to the parents’ individual claims.
Facts/Issues: Three students at Live Oak HIgh School (LOHS), who were wearing T-shirts depicting the American flag, were informed by Assistant Principal Rodriguez that they would have to either remove the T-shirts or turn them inside-out so the flag would not be visible. The students refused both options. When one of them asked Rodriguez why American flag T-shirts were being banned, he ordered the students to his office. The students were eventually told that the shirts were prohibited because its was Cinco de Mayo day. When the parents of the students arrived at LOHS, they demanded to meet with Principal Boden. Boden informed the parents that the students could wear the T-shirts on any day but Cinco de Mayo.
One student, M.D., was permitted to return to class because his T-shirt did not contain a purely pro-U.S.A. message. The other two students were told that they had to either remove the shirts or turn them inside-out or they could be suspended. When they again refused either option, they were sent home for the day. Rodriguez and Boden justified their actions on the basis of a Morgan Hill Unified School District (MHUSD) policy that states: “Clothing . . . or actions which . . . disrupt school activities will not be tolerated. Such actions or the wearing and/or possession of these items may be cause for suspension.” Subsequently, MHUSD Superintendent Smith disavowed Rodriguez and Boden’s actions and publicly stated that MHUSD had no policy barring students from wearing patriotic clothing to school. Rodriguez and Boden left their employment with MHUSD.
The parents filed suit in federal district court on behalf of the students and in their own right against MHUSD, Rodriguez and Boden. The suit alleged violation of their federal constitutional rights to free speech, due process and equal protection, and their state constitutional right to free speech. The defendants filed a motion to dismiss the suit for lack of subject matter jurisdiction on the grounds: ”(1) there is no live ‘case or controversy’ on which to base claims for injunctive and declaratory relief; (2) claims for nominal damages against the District and Assistant Principal Rodriguez and Principal Boden in their official capacities are barred by the Eleventh Amendment; (3) Plaintiff M.D. did not suffer any ‘injury in fact’ on which to base claims for a First Amendment violation; and (4) Plaintiff Parents cannot bring a constitutional challenge on their own behalf, as they are not students at Live Oak High School.”
Ruling/Rationale: The district court denied the defendants’ motion as to mootness, Eleventh Amendment sovereign immunity, and lack of “injury in fact” to M.D. The court granted the defendants’ motion, however, as to the parents’ assertion of any claims independent of those raised by the students.
The court first addressed the question of whether the case was mooted by the Smith’s subsequent disavowal of Rodriguez and Boden’s action and public clarification that the policy does not ban patriotic clothing, in combination with Rodriguez and Boden leaving their employment with MHUSD. It pointed out that “[v]oluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It concluded that, based on the students’ allegations, it was not “absolute;y clear” that the wrongful behavior could not reasonably be forecast to recur. The students were challenging the policy on the basis that the policy allows school administrators unbridled discretion to ban student viewpoints they dislike without objective standards. Specifically, the students charge that the policy allows school officials “to engage in a prior restraint of student speech by prohibiting students from wearing message-bearing clothing without any objective evidence that the speech caused or will cause substantial or material disruption to the school environment.”
Given these allegations, along with the conflicting evidence that Rodriguez and Boden were acting as decision-makers in regard to the policy, the court found Rodriguez and Boden’s cessation of employment insufficient to moot the case. In addition, it found that MHUSD had failed to demonstrate mootness based on voluntary cessation of the policy because there was no evidence that: (1) the policy at issue has been amended; (2) other policies have been issued to prevent recurrence; or (3) MHUSD has voluntarily ended enforcement.
Regarding the defendants’ claim of Eleventh Amendment immunity, the district court pointed out that the students’ claim for nominal damages was asserted against Rodriguez and Boden in their individual, not official, capacities. Thus, the Eleventh Amendment did not apply because “the Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal liability’ on state officials ….”
As to the claim that the student M.D. did not suffer an injury in fact because he was allowed to return to class, the court found that the students had alleged sufficient facts to establish injury traceable to the defendants’ actions because he was ”allegedly threatened with enforcement of the challenged policy and detained.”
Lastly, while the court stated that the parents can bring a suit on behalf of their minor children, it found that to the extent the parents “assert claims individually against Defendants for violations of Plaintiff Parents’ First Amendment rights, Plaintiffs fail to state a claim on which relief might be granted.”
Dariano v. Morgan Hill Unified Sch. Dist., No. 10-2745 (N.D. Cal. Feb. 17, 2011)
[Editor's Note: The Gilroy Dispatch reported on the district court's ruling, quoting the students' attorney, William Becker Jr., as saying, "The court's decision recognizes the significance of the First Amendment issues at stake in this case. It allows us to move the case forward to the ultimate goal of vindicating the student's free speech rights."
Attorney Alyson Cabrera, who is representing all the defendants, responded, "Despite the court's ruling, we continue to believe that plaintiffs' prospective relief claims are moot. We appreciate Judge Ware's consideration of the issues however, and his acknowledgment that, 'without the ability to protect and foster a safe environment in our public schools, educational equity and the democratic pillar it provides could crumble.' As we move forward, we will continue to vigorously defend the district and the administrators in this action."
The article also provides some additional background, not found in the court's opinion. On the day in question, other LOHS students were seen wearing the colors of the Mexican flag on campus, but were not asked to remove their clothing. No other students were sent home or asked to turn their clothing inside-out. Boden and Rodriguez were concerned about the potential for violence on campus. The article is available at the first link below.
In November 2010, a U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) three-judge panel ruled that a school district’s ban on displays of the Confederate flag in school does not violate students’ free speech rights. Although the decision was unanimous, the judges split on what standard should apply. Two of the judges concluded that the ban met the requirements of the substantial disruption standard enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The third judge relied on the U.S. Supreme Court’s reasoning in Morse v. Frederick, 551 U.S. 393 (2007), to uphold the ban. It enumerated two principles for its reliance on Morse instead of Tinker. First, the Supreme Court in Morse recognized that “the mode of analysis set forth in Tinker is not absolute.” Second, just as the Court in Morse recognized an “’important, perhaps compelling interest’ in deterring drug use in the schools, there is of course a comparably ‘important, perhaps compelling’ interest in reducing racial tension in the public schools.” A summary of the opinion is available at the second link below.]
Source: Gilroy Dispatch, 2/21/11, By Lindsay Bryant (Morgan Hill Times)