Dariano v. Morgan Hill Unified Sch. Dist.

• Decision Date: 27 February 2014
• Docket Number: No. 11–17858.,11–17858.
• Citation: 745 F.3d 354
• Parties: John DARIANO; Dianna Dariano, on behalf of their minor child, M.D.; Kurt Fagerstrom; Julie Ann Fagerstrom, on behalf of their minor child, D.M.; Kendall Jones; Joy Jones, on behalf of their minor child, D.G., Plaintiffs–Appellants, v. MORGAN HILL UNIFIED SCHOOL DISTRICT; Nick Boden, in his official capacity as Principal, Live Oak High School; Miguel Rodriguez, in his individual and official capacity as Assistant Principal, Live Oak High School, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

745 F.3d 354

John DARIANO; Dianna Dariano, on behalf of their minor child, M.D.; Kurt Fagerstrom; Julie Ann Fagerstrom, on behalf of their minor child, D.M.; Kendall Jones; Joy Jones, on behalf of their minor child, D.G., Plaintiffs–Appellants,

v.MORGAN HILL UNIFIED SCHOOL DISTRICT; Nick Boden, in his official capacity as Principal, Live Oak High School; Miguel Rodriguez, in his individual and official capacity as Assistant Principal, Live Oak High School, Defendants–Appellees.

No. 11–17858.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 17, 2013.

Filed Feb. 27, 2014.

Robert J. Muise (argued), American Freedom Law Center, Erin Mersino, Thomas More Law Center, Ann Arbor, MI; William J. Becker, Jr., The Becker Law Firm, Los Angeles, CA; for Plaintiffs–Appellants.

Don Willenburg (argued), Mark S. Posard, and Alyson S. Cabrera, Gordon & Rees LLP, San Francisco, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:10–cv–02745–JW.

Before: SIDNEY R. THOMAS and M. MARGARET McKEOWN, Circuit Judges, and VIRGINIA M. KENDALL, District Judge.^*

OPINION

McKEOWN, Circuit Judge:

We are asked again to consider the delicate relationship between students' First Amendment rights and the operational and safety needs of schools. As we noted in Wynar v. Douglas County School District, 728 F.3d 1062, 1064 (9th Cir.2013), “school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights.” In this case, after school officials learned of threats of race-related violence during a school-sanctioned celebration of Cinco de Mayo, the school asked a group of students to remove clothing bearing images of the American flag.¹

The students brought a civil rights suit against the school district and two school officials, alleging violations of their federal and state constitutional rights to freedom of expression, equal protection, and due process. We affirm the district court's grant of summary judgment as to the only defendant party to this appeal, Assistant Principal Miguel Rodriguez, and its denial of the students' motion for summary judgment, on all claims. School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances. As a consequence, we conclude that school officials did not violate the students' rights to freedom of expression, due process, or equal protection.

Background

This case arose out of the events of May 5, 2010, Cinco de Mayo, at Live Oak High School (“Live Oak” or “the School”), part of the Morgan Hill Unified School District in Northern California. The Cinco de Mayo celebration was 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 likened it to St. Patrick's Day or Oktoberfest. The material facts are not in dispute.

Live Oak had a history of violence among students, some gang-related and some drawn along racial lines. In the six years that Nick Boden served as principal, he observed at least thirty fights on campus, both between gangs and between Caucasian and Hispanic students. A police officer is stationed on campus every day to ensure safety on school grounds.

On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students.² The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students' flag-raising, one Mexican student shouted “f* * * them white boys, f* * * them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F* * * them white boys. Let's f* * * them up.” Rodriguez removed the student from the area.

At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court, “shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.'s] clothing.”

A year later, on Cinco de Mayo 2010, a group of Caucasian students, including the students bringing this appeal, wore American flag shirts to school. A female student approached M.D. that morning, motioned to his shirt, and asked, “Why are you wearing that? Do you not like Mexicans[?]” D.G. and D.M. were also confronted about their clothing before “brunch break.”

As Rodriguez was leaving his office before brunch break, a Caucasian student approached him, and said, “You may want to go out to the quad area. There might be some—there might be some issues.” During the break, another student called Rodriguez over to a group of Mexican students, said that she was concerned about a group of students wearing the American flag, and said that “there might be problems.” Rodriguez understood her to mean that there might be a physical altercation. A group of Mexican students asked Rodriguez why the Caucasian students “get to wear their flag out when we [sic] don't get to wear our [sic] flag?”

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 students and explained that he was concerned for their safety. The students did not dispute that their attire put them at risk of violence. Plaintiff D.M. said that he was “willing to take on that responsibility” in order to continue wearing his shirt. Two of the students, M.D. and D.G., said they would have worn the flag clothing even if they had known violence would be directed toward them.

School officials permitted M.D. and another student not a party to this action to return to class, because Boden considered their shirts, whose imagery was less “prominent,” to be “less likely [to get them] singled out, targeted for any possible recrimination,” and “significant[ly] differen[t]in [terms of] what [he] saw as being potential for targeting.” ³

The officials offered the remaining students the choice either to turn their shirts inside out or to go home for the day with excused absences that would not count against their attendance records. Students D.M. and D.G. chose to go home. Neither was disciplined.

In the aftermath of the students' departure from school, they received numerous threats from other students. D.G. was threatened by text message on May 6, and the same afternoon, received a threatening phone call from a caller saying he was outside of D.G.'s home. D.M. and M.D. were likewise threatened with violence, and a student at Live Oak overheard a group of classmates saying that some gang members would come down from San Jose to “take care of” the students. Because of these threats, the students did not go to school on May 7.

The students and their parents, acting as guardians, brought suit under 42 U.S.C. § 1983 and the California Constitution against Morgan Hill Unified School District (“the District”); and Boden and Rodriguez, in their official and individual capacities, alleging violations of their federal and California constitutional rights to freedom of expression and their federal constitutional rights to equal protection and due process.

On cross-motions for summary judgment, the district court granted Rodriguez's motion on all claims and denied the students' motion on all claims, holding that school officials did not violate the students' federal or state constitutional rights. The district court did not address claims against Boden, because he was granted an automatic stay in bankruptcy. The district court dismissed all claims against the District on grounds of sovereign immunity, a ruling not challenged on appeal. The question on appeal is thus whether Rodriguez, in his official or individual capacity, violated the students' constitutional rights.

Analysis

I. First Amendment Claims

We analyze the students' claims ⁴ under the well-recognized framework of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).⁵ Under Tinker, students may “express [their] opinions, even on controversial subjects ... if [they] do[ ] so without materially and substantially interfer [ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.” Id. at 513, 89 S.Ct. 733 (final alteration in original)) (internal quotation marks omitted). To “justify prohibition of a particular expression of opinion,” school officials “must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. at 509, 89 S.Ct. 733.

That said, “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Id. at 513, 89 S.Ct. 733. Under Tinker, schools may prohibit speech that “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities,” or that constitutes an “actual or nascent [interference] with the schools' work or ... collision with the rights of other students to be secure and to...