Dariano v. Morgan Hill Unified Sch. Dist., No. 11-17858 (9th Cir. Sept. 17, 2014)
Abstract: The U.S. Court of Appeals for the Ninth Circuit, sitting en banc (all active judges in the circuit participating), denied the petition for a panel rehearing and rehearing en banc, and ordered that no further petitions be permitted. The three-judge panel issued an opinion amending its opinion filed on February 27, 2014. The panel held that school officials had not violated students’ free expression, due process, or equal protection rights by prohibiting them from displaying the American flag at school on Cinco de Mayo because such displays might provoke ethnic based violence.
The panel acknowledged that school officials’ decision to restrict the students’ speech gave rise to concerns about a “heckler’s veto.” However, it found, based on a prior history of racial/ethnic tensions on campus, that officials could reasonably forecast violent disturbance if they allowed students to display the American flag. As a result, the panel concluded that school officials’ decision was consistent with constitutional requirements under the “substantial disruption” standard espoused in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
Judge O’Scannlain, joined by Judges Tallman and Bea, dissented from the denial of a hearing en banc. The dissent argued that restricting student speech based on the reaction of other students “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.”
Facts/Issues: Live Oak High School held a Cinco de Mayo celebration on May 5, 2010, 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 had a history of violence among students, including racial violence. At least thirty fights, both between gangs and between Caucasian and Hispanic students, had occurred in the previous six years. A police officer is stationed on campus every day to ensure safety on school grounds. At the previous year’s Cinco de Mayo celebration, Caucasian and Mexican students yelled threats and obscenities at each other after an American flag was displayed, and the school administration had to intervene.
On Cinco de Mayo 2010, three Caucasian students wore T-shirts depicting the American flag. Some students warned the administrators that the shirts might cause trouble and the students might be in danger. Assistant Principal Miquel Rodriguez instructed the three students to either remove the shirts or turn them inside-out so that the flags would not be visible. The students refused both options. Rodriquez told the students that he was concerned for their safety, a point the students did not dispute. All three students said they wanted to wear the shirts and bear the risk of violence against them. One student was permitted to wear his shirt because principal Nick Boden thought its logo was benign and would not receive attention.
The other two students were told again to remove the shirts or to turn them inside-out, or that they could be suspended. When they again refused either option, the administrators sent them home for the day with excused absences. Neither student was disciplined. Both students received threatening messages at home and by text over the next couple days, and their parents kept them home from school out of concern for their safety.
Assistant principal Rodriguez and principal Nick Boden based their decision “on 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.”
The parents filed suit in federal district court on behalf of their children and in their own right against the Morgan Hill Unified School District (MHUSD), Rodriguez and Boden. The suit alleged violations of the students’ federal constitutional rights to free speech, due process and equal protection, and their state constitutional right to free speech. The district court granted Rodriguez’s motion for summary judgment. The claims against Boden were stayed because he had filed for bankruptcy. The court also dismissed all of the claims against MHUSD based on sovereign immunity under the Eleventh Amendment. The parents only appealed the ruling as to the claims against Rodriquez.
Amended Panel Opinion: The “heckler’s veto” doctrine stands for the proposition that government cannot silence a speaker just because of how an audience might react to the speech. The panel addressed the doctrine by indicating that in the school context, the crucial distinction is the nature of the speech, not the source of it. According to the panel, 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. It concluded that an argument based on the doctrine “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.”
Instead, the panel found that the focus of Tinker is on the “school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.” It found that the student speech/expression cases involving Confederate flag displays are illustrative of the principle “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.”
Dissenting Opinion: According to the dissent, the panel’s opinion missed the mark because it ignored the fact that Tinker reaffirmed “the heckler’s veto” doctrine. Referring to Ninth Circuit student speech jurisprudence, the dissent said, “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.”
Acknowledging that the heckler’s veto doctrine does not apply to all categories of speech, such as fighting words, a true threat, or incitement to imminent lawless action, the dissent emphasized that excluding those few exceptions, government officials are not permitted to use an audience’s negative reaction as a basis for suppressing speech.
The dissent warned that such a misinterpretation of Tinker to allow the heckler’s veto “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.” It concluded that “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 dissent rejected the panel’s insistence that other federal circuits “do not distinguish between ‘substantial disruption’ caused by the speaker and ‘substantial disruption’ caused by the reaction of onlookers.” It pointed out that both the Seventh and Eleventh Circuits hold that “a student’s speech cannot be suppressed based on the violent reaction of its audience.” The dissent, citing Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004), stated that the Eleventh Circuit “squarely rejected the claim that the heckler’s veto doctrine does not apply in public schools.”
Finally, the dissent took issue with the panel analogizing the present case with those involving restrictions on Confederate flag displays. In particular, it rejected the argument that such cases illustrate the “principle” that the heckler’s veto does not apply to public schools. Instead, it read those cases as illustrating “a permissive attitude towards regulation of the Confederate flag that is based on the flag’s unique and racially divisive history.”
The dissent concluded that “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.”
Dariano v. Morgan Hill Unified Sch. Dist., No. 11-17858 (9th Cir. Sept. 17, 2014)
[Editor’s Note: In March 2014, Legal Clips summarized the panel’s previous opinion in Dariano v. MHUSD which held that the high school’s assistant principal did not violate students’ free speech rights when he prohibited them from wearing clothing bearing the image of the American flag on the day the school was celebrating the Mexican holiday of Cinco de Mayo. It also concluded that the assistant principal’s action did not violate the students’ equal protection or due process rights.
Relying on Tinker, the panel concluded that the school administrator’s actions were justified because, based on the circumstances, he could reasonably forecast a substantial disruption caused by the wearing of the American flag. It also employed the Tinker “substantial disruption” standard in rejecting the equal protection and due process claims.]