Dariano v. Morgan Hill Unified Sch. Dist.

• Decision Date: 27 February 2014
• Docket Number: No. 11–17858.,11–17858.
• Citation: 767 F.3d 764
• 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

767 F.3d 764

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.

Amended Sept. 17, 2014.

Robert J. Muise (argued), American Freedom Law Center, Ann Arbor, MI; William J. Becker, Jr., Freedom X, Los Angeles, CA; Erin Mersino, Thomas More Law Center, Ann Arbor, MI, 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.^*

Order; Dissent to Order by Judge O'SCANNLAIN ; Opinion by Judge McKEOWN.

ORDER

The opinion filed on February 27, 2014, appearing at 745 F.3d 354 (9th Cir.2014), is hereby amended. An amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing.

The full court has been advised of the petition for rehearing and rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.

Judge O' Scannlain's dissent from denial of rehearing en banc is filed concurrently with this Order.

The motion for en banc consideration of the motion of the Alliance Defending Freedom for leave to file an amicus brief is moot.

O'SCANNLAIN, Circuit Judge, joined by TALLMAN and BEA, Circuit Judges, dissenting from the denial of rehearing en banc:

The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular. For that reason, it is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech. It is this bedrock principle—known as the heckler's veto doctrine—that the panel overlooks, condoning the suppression of free speech by some students because other students might have reacted violently.

In doing so, the panel creates a split with the Seventh and Eleventh Circuits and permits the will of the mob to rule our schools. For these reasons, I must respectfully dissent from our refusal to hear this case en banc.

I

On May 5, 2010, Cinco de Mayo, a group of Caucasian students at Live Oak High School (“Live Oak”) wore shirts depicting the American flag to school.¹ Dariano v. Morgan Hill Unified Sch. Dist., No. 11–17858, amended slip op. at 22 (9th Cir.2014). In the six preceding years, there had been at least thirty fights on campus, some between gangs and others between Caucasians and Hispanics, id. at 21, although the district court made no findings as to whether these fights were related to ethnic tensions, Dariano v. Morgan Hill Unified Sch. Dist., 822 F.Supp.2d 1037, 1043 (N.D.Cal.2011). A year earlier, during Cinco de Mayo 2009, a group of Caucasian students and a group of Mexican students exchanged profanities and threats. Dariano, amended slip op. at 21. When the Caucasian students hung a makeshift American flag and began chanting “U–S–A,” Assistant Principal Miguel Rodriguez intervened and asked the Mexican students to stop using profane language, to which one Mexican student responded, “But Rodriguez, they are racist. They are being racist. F* * * them white boys. Let's f* * * them up.” Id.

One year later, during Cinco de Mayo 2010, three of the students wearing American flag shirts were confronted by other students about their choice of apparel. Id. at 22. One student asked M.D., a plaintiff in this case, “Why are you wearing that? Do you not like Mexicans[?]” Id. A Caucasian student later told Assistant Principal Rodriguez before brunch break, “You may want to go out to the quad area. There might be some—there might be some issues.” Id. During the break, a Mexican student informed Rodriguez that she was concerned “there might be problems” due to the American flag shirts. Id. Another asked Rodriguez why Caucasian students “get to wear their flag out when we don't get to wear our flag?” Id. (alterations omitted). Principal Nick Boden instructed Rodriguez to have the students wearing the American flag shirts turn their shirts inside out or take them off. Id.

Rodriguez met with the students wearing the shirts, who did not dispute that they were at risk of violence due to their apparel. Id. The school officials allowed two students to return to class with their American flag shirts on because their shirts had less prominent imagery and were less likely to cause an incident.Id. at 23. Two other students were given the choice to turn their shirts inside out or to go home. Id. They chose to go home. Id. All plaintiffs in this appeal received threatening messages in the days after the incident. Id.

The students, through their guardians, brought this § 1983 action alleging violations of their First and Fourteenth Amendment rights. Id. at 23–24.

II

In Tinker v. Des Moines Independent Community School District, a group of high school students was suspended for wearing black armbands as a way of protesting the Vietnam War. 393 U.S. 503, 504, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In what has become a classic statement of First Amendment law, the Supreme Court declared, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506, 89 S.Ct. 733. Of course, as the Court has subsequently made clear, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). Nonetheless, Tinker established that, “where students in the exercise of First Amendment rights collide with the rules of the school authorities,” Tinker, 393 U.S. at 507, 89 S.Ct. 733, students' free speech rights “may not be suppressed unless school officials reasonably conclude that it will ‘materially and substantially disrupt the work and discipline of the school.’ ” Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (quoting Tinker, 393 U.S. at 513, 89 S.Ct. 733 ).

Invoking Tinker, the panel holds that the school acted properly to prevent a substantial and material disruption of school activities. Dariano, amended slip op. at 26–28, 33. In the panel's view, school officials acted reasonably given the history of ethnic violence at the school, the 2009 Cinco de Mayo incident, and the indications of possible violence on the day in question. Id. at 28. Because the officials tailored their actions to address the threat, the panel held that there was no violation of the students' free speech rights. Id. at 31. The panel also granted summary judgment with regard to the students' equal protection and due process claims. Id. at 32–35.

III

With respect, I suggest that the panel's opinion misinterprets Tinker 's own language, our precedent, and the law of our sister circuits. The panel claims that the source of the threatened violence at Live Oak is irrelevant: apparently requiring school officials to stop the source of a threat is too burdensome when a more “readily-available” solution is at hand, id. at 28, namely, silencing the target of the threat. Thus the panel finds it of no consequence that the students exercising their free speech rights did so peacefully, that their expression took the passive form of wearing shirts, or that there is no allegation that they threatened other students with violence.² The panel condones the suppression of the students' speech for one reason: other students might have reacted violently against them. Such a rationale contravenes fundamental First Amendment principles.

A

The panel claims to be guided by the language of Tinker, Dariano, amended slip op. at 28, but in fact the panel ignores such language. Indeed Tinker counseled directly against the outcome here: relying on the earlier heckler's veto case of Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the Court explained that students' speech, whether made “in class, in the lunchroom, or on the campus,” cannot be silenced merely because those who disagree with it “may start an argument or cause a disturbance.” 393 U.S. at 508, 89 S.Ct. 733 (citing Terminiello ). Tinker made clear that the “Constitution says we must take th[e] risk” that speech may engender a violent response. Id. Yet, rather than heed Tinker 's guidance, the panel undermines its holding, and, in the process, erodes the “hazardous freedom” and “openness” that “is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Tinker, 393 U.S. at 508–09, 89 S.Ct. 733.

What the panel fails to recognize, and what we have previously held, is that Tinker went out of its way to reaffirm the heckler's veto doctrine; the principle that “the government cannot silence messages simply because they cause discomfort, fear, or even anger.” Ctr. for Bio–Ethical Reform, Inc. v. Los Angeles Cnty., 533 F.3d 780, 788 (9th Cir.2008) (citing Tinker, 393...