Dariano v. Morgan Hill Unified Sch. Dist.

School officials do not violate students' right to freedom of expression, due process, and equal protection when they ask students to remove clothing bearing the American flag if it is reasonable for the officials “to proceed as though the threat of potentially violent disturbance [i]s real.”

On May 5, 2010 (Cinco de Mayo), in response to various altercations and a history of intraschool racial, ethnic, and nationality-based threats, school officials at Live Oak High School asked certain students to remove clothing bearing images of the American flag. School officials were warned about impending violence and threats when several students wore shirts bearing the American flag. Fearing further violence, school officials asked several students wearing the shirts to either turn them inside out or go home with an excused absence. Two students, “D.M.” and “M.D.,” chose to go home. They were not disciplined by the school. In the following days, several threats were made to D.M. and M.D. They didn't attend school on May 7 for fear of violence. The parents of D.M and M.D. brought suit against the district under 42 U.S.C. § 1983, claiming violations of their federal and state rights to freedom of expression and their constitutional rights to equal protection and due process. The district court held for the school district, finding that the policy enacted by the officials on May 5 was not unconstitutionally vague. The students appealed. Regarding the freedom of expression and equal protection claims, the Ninth Circuit distinguished the present case from Tinker v. Des Moines Independent Community School District, finding that here, the school officials explicitly referenced anticipated violence, disruption, and concerns for students' safety. Because the policy was tailored to protecting students against a reasonable fear of violence, the panel found no violation of the students' freedom of expression or equal protection. The panel also rejected the students' due process claim, finding that the policy was not unconstitutionally vague and that school officials are granted a certain degree of flexibility when protecting the security and order of the school. AFFIRMED.