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Smart Summary

Factual and Procedural Background

On May 5, 2010, Cinco de Mayo, a group of Caucasian students at Live Oak High School wore shirts depicting the American flag. The school had a history of at least thirty fights over the previous six years, some involving ethnic tensions between Caucasian and Hispanic students. In the previous year’s Cinco de Mayo, tensions had escalated with profanities and threats exchanged between Caucasian and Mexican students. On the day in question, students wearing American flag shirts were confronted by others, raising concerns of possible violence.

School officials, including Assistant Principal Miguel Rodriguez and Principal Nick Boden, instructed the students wearing the American flag shirts to turn them inside out or remove them to prevent disruption. Some students complied, others chose to go home. Plaintiffs received threatening messages following the incident. The students, through their guardians, filed a § 1983 civil rights lawsuit alleging violations of their First and Fourteenth Amendment rights.

The district court granted summary judgment to the school officials, and the plaintiffs appealed. The Ninth Circuit panel affirmed the district court’s decision, denying rehearing en banc. Judge O’Scannlain dissented from the denial of rehearing en banc.

Legal Issues Presented

  1. Whether school officials violated students’ First Amendment rights by restricting their wearing of American flag shirts to prevent potential violence or disruption.
  2. Whether the school’s actions violated the students’ Fourteenth Amendment rights to equal protection and due process.
  3. Whether the heckler’s veto doctrine applies in the public school context to justify suppressing student speech based on anticipated hostile reactions by other students.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Students do not shed constitutional free speech rights at school; speech may only be suppressed if it materially and substantially disrupts school activities. The panel held that school officials reasonably concluded the students' apparel threatened disruption, justifying restriction under Tinker.
Terminiello v. Chicago, 337 U.S. 1 (1949) Established the heckler's veto doctrine: government cannot silence speech because of hostile audience reaction. Dissenting judge emphasized Terminiello as foundational to rejecting suppression of speech due to others' potential violent reactions.
Center for Bio–Ethical Reform, Inc. v. Los Angeles County, 533 F.3d 780 (9th Cir. 2008) Reaffirmed that government cannot silence speech simply because it causes discomfort, fear, or anger. Used to support the dissent’s argument that the heckler's veto doctrine applies in public schools and was ignored by the panel.
Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013) Speech that threatens others or is disruptive may be restricted. Distinguished from the present case because the speech in Wynar was disruptive or threatening, unlike the peaceful expression here.
Zamecnik v. Indian Prairie School District No. 204, 636 F.3d 874 (7th Cir. 2011) Speech cannot be suppressed based on hostile reactions of others (heckler's veto). Dissent cited this as controlling authority rejecting suppression of student speech due to others' violent reactions.
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) Rejects suppression of student speech based on anticipated violent reactions by other students. Dissent relied on this case to argue that the heckler's veto doctrine applies in schools and school officials must protect speech despite possible hostile reactions.
Street v. New York, 394 U.S. 576 (1969) Speech cannot be restricted merely because it might provoke violent retaliation. Used by dissent to illustrate the principle that constitutional rights cannot be denied due to hostility.
Cox v. Louisiana, 379 U.S. 536 (1965) Peaceful speech cannot be suppressed out of fear of violence from others. Supports dissent’s argument against heckler's veto as justification for suppressing speech.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) Certain categories of speech (e.g., fighting words) are not protected by the First Amendment. Distinguished from the present case where the speech was peaceful and passive, not unprotected speech.
Brandenburg v. Ohio, 395 U.S. 444 (1969) Speech directed to inciting imminent lawless action is not protected. Referenced to clarify that only unprotected speech categories justify suppression.
Virginia v. Black, 538 U.S. 343 (2003) True threats are not protected speech. Referenced by dissent to delineate limits of free speech protection.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) Limitations on certain categories of speech must meet constitutional scrutiny. Used to support the principle that audience reaction alone cannot justify suppression.
Jones v. Board of Regents of University of Arizona, 436 F.2d 618 (9th Cir. 1970) Police should protect speaker’s constitutional rights from hostile audience interference. Dissent invoked this case to emphasize protection against heckler’s veto in educational settings.
LaVine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001) Speech intending to inflict injury or harm may be restricted. Distinguished from the present case where the students’ speech was peaceful and non-threatening.
Karp v. Becken, 477 F.2d 171 (9th Cir. 1973) Disruptive speech by the speaker may be restricted. Distinguished because the speech in this case was not disruptive or provocative by the speaker.
Texas v. Johnson, 491 U.S. 397 (1989) Free speech protects expression that invites dispute, including unpopular or offensive speech. Supports dissent’s argument against suppressing speech due to audience hostility.
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013) Confederate flag is racially divisive and may be regulated in schools. Referenced to distinguish regulation of Confederate flag from regulation of American flag.
A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009) Confederate flag’s racially inflammatory meaning supports regulation. Used to show that unique history of Confederate symbols justifies different treatment than American flag.
Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008) Confederate icons perceived as white supremacy symbols. Supports distinction between Confederate flag and American flag in speech regulation.
B.W.A. v. Farmington R–7 Sch. Dist., 554 F.3d 734 (9th Cir. 2009) Confederate flag viewed as racist statement, justifying regulation. Referenced to highlight the divisive nature of Confederate symbols.
West v. Derby Unified Sch. Dist. No. 260, 23 F.Supp.2d 1223 (D.Kan. 1998) Confederate flag represents contempt for African-American rights. Used to illustrate the racial divisiveness of Confederate symbols in schools.
Scott v. School Bd. Of Alachua Cty., 324 F.3d 1246 (11th Cir. 2003) Confederate flag symbolizes white supremacy and racism. Supports the argument that Confederate flag regulation is based on its unique racial context.
D.B. ex rel. Brogdon v. Lafon, 217 Fed.Appx. 518 (6th Cir. 2007) Confederate flag has inherent racial divisiveness. Supports regulatory distinction between Confederate flag and American flag.

Court's Reasoning and Analysis

The panel majority held that school officials acted reasonably under Tinker by restricting students’ wearing of American flag shirts to prevent a substantial and material disruption of school activities. The school’s history of ethnic violence, prior incidents, and specific warnings on the day of the event justified the officials’ tailored response. Thus, the officials did not violate the students’ First or Fourteenth Amendment rights.

In contrast, the dissenting opinion, authored by Judge O’Scannlain, argued that the panel misapplied Tinker and ignored the heckler’s veto doctrine, a fundamental First Amendment principle prohibiting suppression of speech based on hostile reactions by others. The dissent emphasized that the students’ speech was peaceful and passive, and that suppressing it due to possible violent reactions by other students creates a dangerous precedent that empowers bullies to silence opposing viewpoints through threats. The dissent cited numerous precedents from this and other circuits affirming that speech cannot be restricted merely because it might provoke a hostile audience, absent unprotected speech categories such as fighting words or true threats.

The dissent also noted a circuit split, pointing to the Seventh and Eleventh Circuits’ rejection of the heckler’s veto in similar school speech cases. Furthermore, the dissent distinguished cases involving the Confederate flag, which is widely regarded as racially incendiary, from this case involving the American flag, which does not carry the same divisive connotations.

Holding and Implications

The Ninth Circuit panel affirmed the district court’s grant of summary judgment to the school officials, holding that the restriction on students’ wearing of American flag shirts was justified to prevent substantial disruption.

The direct effect is that the students’ First and Fourteenth Amendment claims were rejected, and the school’s actions were upheld. The court’s decision does not establish new precedent beyond affirming the application of Tinker in this context. The dissent highlights a significant division among circuits regarding the application of the heckler’s veto doctrine in public schools, signaling ongoing debate about the balance between student free speech and school safety.

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, Li

McKEOWN

Affirmed.

Opinion, 745 F.3d 354, amended and superseded on denial of rehearing en banc.

O'Scannlain, Circuit Judge, filed opinion dissenting from the denial of rehearing en banc in which Tallman and Bea, Circuit Judges, joined.

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. 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.

Like the panel, I use the ethnic and racial terminology employed by the district court, referring, for instance, to students of Mexican origin—whether born in the United States or in Mexico—as “Mexican.”

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. 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.

The district court stated that the following facts are “undisputed”: “no classes were delayed or interrupted by Plaintiffs' attire, no incidents of violence occurred on campus that day, and prior to asking Plaintiffs to change Defendant Rodriguez had heard no reports of actual disturbances being caused in relation to Plaintiffs' apparel.” Dariano, 822 F.Supp.2d at 1045.

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 U.S. at 508, 89 S.Ct. 733). Quoting Tinker, we have explained:

[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk....
Bio–Ethical Reform, 533 F.3d at 788 (quoting Tinker, 393 U.S. at 508, 89 S.Ct. 733). 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. Given the central importance of the doctrine to First Amendment jurisprudence, that should come as no surprise.

Bio–Ethical Reform was not a school case, but this is irrelevant. What is relevant is that in Bio–Ethical Reform we correctly held that Tinker, which is a school case, applied the heckler's veto doctrine. Bio–Ethical Reform, in other words, makes clear that the heckler's veto doctrine applies in public schools, as it did in Tinker.

We also recognized the importance of the heckler's veto doctrine to Tinker 's analysis in Jones v. Board of Regents of University of Arizona, 436 F.2d 618 (9th Cir.1970). The plaintiff had been ordered by campus police to cease distributing handbills on university grounds, in part due to “the fact that two members of the crowd were moved to tear the sandwich boards from Jones' body” and that “certain unidentified members of the community had threatened to remove him from the campus.” Id. at 621. Citing Tinker for the heckler's veto doctrine, we said:
Jones was lawfully and nonviolently exercising rights guaranteed to him by the Constitution of the United States.... [I]n this case, the action of the police was misdirected. It should have been exerted so as to prevent the infringement of Jones' constitutional right by those bent on stifling, even by violence, the peaceful expression of ideas or views with which they disagreed.
Id.
Those wise principles are just as applicable in the context of this case.

None of the precedents cited by the panel are to the contrary. In Wynar v. Douglas County School District, it was the speaker who “threatened the student body as a whole and targeted specific students by name,” and we held that the school was justified in punishing the student for engaging in speech of that nature. 728 F.3d 1062, 1070–72 (9th Cir.2013). The same was true in LaVine v. Blaine School District, where we stated that the speech in question indicated that the student “was intending to inflict injury upon himself or others,” 257 F.3d 981, 990 (9th Cir.2001). Although Karp v. Becken mentions concerns about “the provocation of an incident, including possible violence,” the conduct and speech of the speaker was itself disruptive. See 477 F.2d 171, 173, 176 (9th Cir.1973) (describing the speaker as attempting to lead a “chant” and walk-out while also bringing news media to campus “to publicize [his] demonstration”). None of these cases stand for the proposition that peaceful, passive expression can be suppressed based on the reactions of other students.

B

The heckler's veto doctrine is one of the oldest and most venerable in First Amendment jurisprudence. See Terminiello v. City of Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Indeed, the Court has gone far to protect speech where it might incur a hostile and even violent reaction from an audience. In Street v. New York, for example, a man was convicted for “publicly defy[ing] ... or cast[ing] contempt upon (any American flag) by words.” 394 U.S. 576, 590, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). The Court invalidated the conviction, rejecting the state's justification that the man's speech had a “tendency ... to provoke violent retaliation.” Id. at 592, 89 S.Ct. 1354. The heckler's veto doctrine also protected a civil rights leader's peaceful speech during a lunch counter sit-in protest, despite the state's alleged fear that “ ‘violence was about to erupt’ because of the demonstration.” Cox v. Louisiana, 379 U.S. 536, 550, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). As the Court said in Cox, “[T]he compelling answer ... is that constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Id. at 551, 85 S.Ct. 453 (internal quotation marks omitted).

Of course, this doctrine does not apply to all categories of speech. The Court has recognized that there are “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); see also United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (listing types of speech that are not part of “the freedom of speech”). Where, for instance, speech constitutes “ ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766; is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); or is a “true threat,” Virginia v. Black, 538 U.S. 343, 358–60, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), such speech may be prohibited, subject to certain limitations, see R.A. V. v. City of St. Paul, 505 U.S. 377, 383–86, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). But apart from these well-recognized categories, “the government may not give weight to the audience's negative reaction” as a basis for suppressing speech. Ctr. for Bio–Ethical Reform, Inc., 533 F.3d at 789; see also Texas v. Johnson, 491 U.S. 397, 408–09, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (“[A] principal function of free speech under our system of government is to invite dispute.”) (internal quotation marks omitted) (quoting Terminiello ) (citing Tinker ).

C

Despite Tinker 's emphasis on the actions of the speaker and its reaffirmation of the heckler's veto doctrine, the panel ignores these foundational precepts of First Amendment jurisprudence and condones using the heckler's veto as a basis for suppressing student speech.

The established First Amendment principles that the panel disregards exist for good reason. Rather than acting to protect the students who were peacefully expressing their views, Live Oak decided to suppress the speech of those students because other students might do them harm. Live Oak's reaction to the possible violence against the student speakers, and the panel's blessing of that reaction, 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. This perverse incentive created by the panel's opinion is precisely what the heckler's veto doctrine seeks to avoid.

In this case, the disfavored speech was the display of an American flag. But let no one be fooled: 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 next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King, Jr., or Pope Francis. It might be a student wearing a President Obama “Hope” shirt, or a shirt exclaiming “Stand with Rand!” It might be a shirt proclaiming the shahada, or a shirt announcing “Christ is risen!” It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob. The demands of bullies will become school policy.

That is not the law.

IV

The Seventh and Eleventh Circuits agree that a student's speech cannot be suppressed based on the violent reaction of its audience. Thus the panel is simply wrong that our sister circuits' cases “do not distinguish between ‘substantial disruption’ caused by the speaker and ‘substantial disruption’ caused by the reaction of onlookers.” Dariano, amended slip op. at 29. In Zamecnik v. Indian Prairie School District No. 204, a student wore a t-shirt to school on the Day of Silence bearing the slogan, “Be Happy, Not Gay.” 636 F.3d 874, 875 (7th Cir.2011). The school sought to prohibit the student from wearing the shirt based, in part, on “incidents of harassment of plaintiff Zamecnik.” Id. at 879. The Seventh Circuit squarely rejected that rationale as “barred by the doctrine ... of the ‘heckler's veto.’ ” Id. Zamecnik made clear that Tinker “endorse[s] the doctrine of the heckler's veto” and described the rationale behind that doctrine:

Statements that while not fighting words are met by violence or threats or other unprivileged retaliatory conduct by persons offended by them cannot lawfully be suppressed because of that conduct. Otherwise free speech could be stifled by the speaker's opponents' mounting a riot, even though, because the speech had contained no fighting words, no reasonable person would have been moved to a riotous response. So the fact that homosexual students and their sympathizers harassed Zamecnik because of their disapproval of her message is not a permissible ground for banning it.
Id. The court affirmed the grant of summary judgment to Zamecnik. Id. at 882.

The Eleventh Circuit is of the same opinion. In Holloman ex rel. Holloman v. Harland, a school punished a student for silently holding up a fist rather than reciting the Pledge of Allegiance. 370 F.3d 1252, 1259 (11th Cir.2004). School officials justified their actions, in part, by citing “concern that [the student's] behavior would lead to further disruptions by other students.” Id. at 1274. The Eleventh Circuit acknowledged that Tinker governed its analysis, and in an impassioned paragraph, the court invoked the heckler's veto doctrine:

Allowing a school to curtail a student's freedom of expression based on such factors turns reason on its head. If certain bullies are likely to act violently when a student wears long hair, it is unquestionably easy for a principal to preclude the outburst by preventing the student from wearing long hair. To do so, however, is to sacrifice freedom upon the alter [ sic ] of order, and allow the scope of our liberty to be dictated by the inclinations of the unlawful mob.
Id. at 1275. Particularly relevant here, the Eleventh Circuit squarely rejected the claim that the heckler's veto doctrine does not apply in public schools:

While the same constitutional standards do not always apply in public schools as on public streets, we cannot afford students less constitutional protection simply because their peers might illegally express disagreement through violence instead of reason. If the people, acting through a legislative assembly, may not proscribe certain speech, neither may they do so acting individually as criminals. Principals have the duty to maintain order in public schools, but they may not do so while turning a blind eye to basic notions of right and wrong.
Id. at 1276. The court reversed the district court's grant of summary judgment to the school and reinstated Holloman's claims. Id. at 1294–95.

The panel's holding, then, represents a dramatic departure from the views of our sister circuits. Yet, one would never know it from reading the panel's opinion, since the contrary decisions of those circuits are barely mentioned and completely mis-characterized.

Unable to distinguish Zamecnik or Holloman convincingly, the panel looks for support from Taylor v. Roswell Independent School District, 713 F.3d 25 (10th Cir.2013). But Taylor offers no support for its view. Taylor did not involve a heckler's veto, and, in fact, the Tenth Circuit implied that the heckler's veto doctrine would have applied if the facts had implicated it. This is revealed in a footnote, quoted only in part by the panel. Dariano, amended slip op. at 29 (quoting Taylor, 713 F.3d at 38 n. 11). In the footnote's omitted conclusion, the Tenth Circuit observes:
Moreover, there is no indication in this case that the problematic student disruptions were aimed at stopping plaintiffs' expression, and plaintiffs did not otherwise develop such an argument.
713 F.3d at 38
n. 11. (emphasis added). Thus, contrary to what the panel implies, the speech restriction in Taylor was permissible not because the heckler's veto doctrine was inapplicable to Roswell public schools, but because Taylor 's facts simply did not involve a heckler's veto.

V

Finally, the panel attempts to analogize this case to those involving school restrictions on Confederate flags. See Dariano, amended slip op. at 30–31. But these cases, dealing solely with a symbol that is “widely regarded as racist and incendiary,” Zamecnik, 636 F.3d at 877, cannot override Tinker here.

In fact the Eleventh Circuit has suggested that displays of the Confederate flag may not even be deserving of the full protection of Tinker, but rather are offensive under the standard of Bethel School District v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). See Scott v. School Bd. Of Alachua Cty., 324 F.3d 1246, 1248 (11th Cir.2003) (per curiam); Denno v. Sch. Bd. Of Volusia Cty., Fla., 218 F.3d 1267, 1273–74 (11th Cir.2000).

The panel takes the Confederate flag cases to be a single “illustrat[ion]” of the much broader “principle” that the heckler's veto doctrine does not apply to schools. Dariano, amended slip op. at 30. But as that broad “principle” is incorrect, the Confederate flag cases cannot illustrate it. Indeed, what the cases actually illustrate is a permissive attitude towards regulation of the Confederate flag that is based on the flag's unique and racially divisive history. Whether or not this history provides a principled basis for the regulation of Confederate icons, it certainly provides no support for banning displays of the American flag.

The Confederate flag cases cited by the panel all emphasize that, across America, Confederate symbols carry an inherently divisive message. See, e.g., Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 436 (4th Cir.2013) (describing the flag as a “symbol of racial separation and oppression”); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir.2009) (justifying regulation in part on “the racially inflammatory meaning associated with the Confederate flag”); Barr v. Lafon, 538 F.3d 554, 570 (6th Cir.2008) (describing the perception that Confederate icons celebrate “white supremacy”); B.W.A. v. Farmington R–7 Sch. Dist., 554 F.3d 734, 742 (9th Cir.2009) (explaining that some view the Confederate flag “as a statement of racism”); West v. Derby Unified Sch. Dist. No. 260, 23 F.Supp.2d 1223, 1233 (D.Kan.1998) (describing the Confederate flag as representing “[t]o many” an “expression of continuing contempt for the rights of African–Americans”), aff'd, 206 F.3d 1358 (10th Cir.2000) (adopting the reasoning of the district court); Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246, 1249 (11th Cir.2003) (per curiam) (finding it “correct” to assert that the Confederate flag represents “approval of white supremacy” and “has acquired numerous racist associations to the point that the flag itself has understandably come to be perceived as a racist symbol”).
Indeed, in another case upholding a ban on Confederate flags in schools, the Sixth Circuit supported its decision with the observation that several federal appellate courts have commented “on the Confederate flag's inherent racial divisiveness.” D.B. ex rel. Brogdon v. Lafon, 217 Fed.Appx. 518, 523–24 (6th Cir.2007) (emphasis added) (citing NAACP v. Hunt, 891 F.2d 1555, 1564 (11th Cir.1990); Briggs v. State of Mississippi, 331 F.3d 499, 506 (5th Cir.2003), cert. denied, 540 U.S. 1108, 124 S.Ct. 1070, 157 L.Ed.2d 894 (2004); Castorina ex rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536, 540 (6th Cir.2001)).

VI

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. Like our sister circuits, I would hold that the reaction of other students to the student speaker 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. See Zamecnik, 636 F.3d at 879 (rejecting the heckler's veto “because the speech had contained no fighting words”); Holloman, 370 F.3d at 1275–76 (citing Street for the proposition that “the possible tendency of appellant's words to provoke violent retaliation is not a basis for banning those words unless they are ‘fighting words' ” (internal quotation marks omitted)).

I respectfully dissent from our regrettable decision not to rehear this case en banc.

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.

Because the students' names are confidential, we refer to them collectively as “the students,” or by their initials, M.D., D.G., and D.M.

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. OPINION
Briefs and Other Related Documents (Back to top)
• 2012 WL 1423793 (Appellate Brief) Appellants' Reply Brief (Apr. 16, 2012) Original Image of this Document (PDF)
• 2012 WL 948037 (Appellate Brief) Motion for Leave to File Brief of Amicus Curiae Alliance Defense Fund in Support of Appellants and Reversal (Mar. 7, 2012) Original Image of this Document (PDF)
• 11-17858 (Docket) (Nov. 29, 2011)
• 2011 WL 7665466 (Appellate Brief) Appellees' Answering Brief (Apr. 2, 2011) Original Image of this Document (PDF) -------- Notes:




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Dariano v. Morgan Hill Unified Sch. Dist.
(Sep 17, 2014)