FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

D.C. No.

5:10-cv-02745-

JW

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

October 17, 2013—San Francisco, California

Filed February 27, 2014
2 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

Amended September 17, 2014

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

SUMMARY**

Civil Rights

The panel amended its prior opinion, appearing at 745

F.3d 354 (9th Cir. 2014), filed an amended opinion, denied a

petition for panel rehearing, denied a petition for rehearing en

banc on behalf of the court, and ordered that no further

petitions shall be permitted.

The panel affirmed the district court’s summary judgment

in a civil rights suit brought by high school students who

were asked to remove clothing bearing images of the

American flag after school officials learned of threats of racerelated violence during a school-sanctioned celebration of

Cinco de Mayo.

* The Honorable Virginia M. Kendall, District Judge for the U.S. District

Court for the Northern District of Illinois, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 3

The panel held that school officials did not violate the

students’ rights to freedom of expression, due process, or

equal protection. Recognizing that, in certain contexts,

limiting speech because of reactions to the speech may give

rise to concerns about a “heckler’s veto,” the panel held that

in the school context, the crucial distinction is the nature of

the speech, not the source of it. The panel noted that prior

cases do not distinguish between “substantial disruption”

caused by the speaker and “substantial disruption” caused by

the reactions of others. The panel held that given the history

of prior events at the school, including an altercation on

campus, it was reasonable for school officials to proceed as

though the threat of a potentially violent disturbance was real. 

The panel held that school officials anticipated violence or

substantial disruption of or material interference with school

activities, and their response was tailored to the

circumstances. 

Dissenting from the denial of rehearing en banc, Judge

O’Scannlain, joined by Judges Tallman and Bea, 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.

COUNSEL

Robert J. Muise (argued), American Freedom Law Center,

Ann Arbor, Michigan; William J. Becker, Jr., The Becker

Law Firm, Los Angeles, California; Erin Mersino, Thomas

More Law Center, Ann Arbor, Michigan, for PlaintiffsAppellants.
4 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

Don Willenburg (argued), Mark S. Posard, and Alyson S.

Cabrera, Gordon & Rees LLP, San Francisco, California, for

Defendants-Appellees.

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.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 5

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

1 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.”
6 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 7

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 (1969). In what has become a

classic statement of First Amendment law, theSupreme 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. 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 (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, 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 (2007) (quoting Tinker,

393 U.S. at 513).
8 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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

2 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.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 9

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 (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 (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.

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). Quoting Tinker, we

have explained:
10 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

[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).3 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.4

3 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.

4 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
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 11

Given the central importance of the doctrine to First

Amendment jurisprudence, that should come as no surprise.5

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 (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 (1969). The

Court invalidated the conviction, rejecting the state’s

justification that the man’s speech had a “tendency . . . 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.

5 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.
12 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

provoke violent retaliation.” Id. at 592. 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 (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 (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 (1942); see also United

States v. Alvarez, 132 S. Ct. 2537, 2544 (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; 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

(1969); or is a “true threat,” Virginia v. Black, 538 U.S. 343,

358–60 (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 (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 (1989) (“[A]

principal function of free speech under our system of
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 13

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 principlesthat 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
14 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 15

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.
16 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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.6 Yet, one would never

 

6

 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 ifthe 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:
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 17

know it from reading the panel’s opinion, since the contrary

decisions of those circuits are barely mentioned and

completely mis-characterized.

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.7

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. 

Moreover, there is no indication in this case that the

problematic student disruptionswere 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.

7

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 (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).
18 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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.

8

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.

8 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

(6thCir. 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 (5thCir. 2003), cert. denied, 540 U.S. 1108

(2004); Castorina ex rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536,

540 (6th Cir. 2001)).
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 19

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
20 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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.

1 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.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 21

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

2 We use the ethnic and racial terminology employed by the district

court (Caucasian, Hispanic, Mexican). For example, the district court at

times referred to students of Mexican origin born in the United States and

students born in Mexico collectively as “Mexican.” We adopt the same

practice here, for the limited purpose of clarifying the narrative.
22 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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. andD.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.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 23

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

 

3

 The students permitted to return to class were wearing “Tap Out” (or

“TapouT”) shirts, which bear the logo of a popular martial arts company,

sometimes (as here) with flag iconography.
24 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

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’ claims4under the wellrecognized framework of Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969).5 Under

4 Because California follows federal law for free expression claims

arising in the school setting, the students’ federal and state claims stand

or fall together. Cal. Teachers Ass’n v. Governing Bd. of San Diego

Unified Sch. Dist., 45 Cal. App. 4th 1383, 1391–92 (1996).

5 As we noted in Wynar, 728 F.3d at 1067, student speech that is

“vulgar, lewd, obscene [or] plainly offensive” is governed by Bethel

School District Number 403 v. Fraser, 478 U.S. 675 (1986); speech that

is “school-sponsored” is governed by Hazelwood School District v.

Kuhlmeier, 484 U.S. 260 (1988); and speech that “falls into neither of

these categories” is governed byTinker. See Chandler v. McMinnville Sch.

Dist., 978 F.2d 524, 529 (9th Cir. 1992) (listing standards).
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 25

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 (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.

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. 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

be let alone.” Id. at 508, 514; see also Wynar, 728 F.3d at

1067 (quoting Tinker, 393 U.S. at 508, 514.). As we have

explained, “the First Amendment does not require school

officials to wait until disruption actually occurs before they

may act. In fact, they have a duty to prevent the occurrence of

disturbances.” Karp v. Becken, 477 F.2d 171, 175 (9th Cir.

1973) (footnote omitted). Indeed, in the school context, “the

level of disturbance required to justify official intervention is

relatively lower in a public school than it might be on a street

corner.” Id. As the Seventh Circuit explained, “[s]chool

authorities are entitled to exercise discretion in determining
26 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

when student speech crosses the line between hurt feelings

and substantial disruption of the educational mission.”

Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874,

877–78 (7th Cir. 2011).

Although Tinker guides our analysis, the facts of this case

distinguish it sharply from Tinker, in which students’ “pure

speech” was held to be constitutionally protected. 393 U.S. at

508. In contrast to Tinker, in which there was “no evidence

whatever of petitioners’ interference, actual or nascent, with

the schools’ work or of collision with the rights of other

students to be secure and to be let alone,” id., there was

evidence of nascent and escalating violence at Live Oak. On

the morning of May 5, 2010, each of the three students was

confronted about their clothing by other students, one of

whom approached student M.D. and asked, “Why are you

wearing that? Do you not like Mexicans[?]” Before the

brunch break, Rodriguez learned of the threat of a physical

altercation. During the break, Rodriguez was warned about

impending violence by a second student. The warnings of

violence came, as the district court noted, “in [the] context of

ongoing racial tension and gang violence within the school,

and after a near-violent altercation had erupted during the

prior Cinco de Mayo over the display of an American flag.”

Threats issued in the aftermath of the incident were so real

that the parents of the students involved in this suit kept them

home from school two days later.

The minimal restrictions on the students were not

conceived of as an “urgent wish to avoid the controversy,” as

in Tinker, id. at 510, or as a trumped-up excuse to tamp down

student expression. The controversy and tension remained,

but the school’s actions presciently avoided an altercation.

Unlike in Tinker, where “[e]ven an official memorandum
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 27

prepared after the [students’] suspension that listed the

reasons for the ban on wearing the armbands made no

reference to the anticipation of such disruption,” id. at 509,

school officials here explicitly referenced 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.

In keeping with our precedent, school officials’ actions

were tailored to avert violence and focused on student safety,

in at least two ways. For one, officials restricted the wearing

of certain clothing, but did not punish the students. School

officials have greater constitutional latitude to suppress

student speech than to punish it. In Karp, we held that school

officials could “curtail the exercise of First Amendment

rights when they c[ould] reasonably forecast material

interference or substantial disruption,” but could not

discipline the student without “show[ing] justification for

their action.” 477 F.2d at 176; cf. Wynar, 728 F.3d at 1072

(upholding expulsion, despite its “more punitive character,”

as a justified response to threats); LaVine v. Blaine Sch. Dist.,

257 F.3d 981, 992 (9th Cir. 2001).

For another, officials did not enforce a blanket ban on

American flag apparel, but instead allowed two students to

return to class when it became clear that their shirts were

unlikely to make them targets of violence. The school

distinguished among the students based on the perceived

threat level, and did not embargo all flag-related clothing. See

Background, supra.
28 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

Finally, whereas the conduct in Tinker expressly did “not

concern aggressive, disruptive action or even group

demonstrations,” 393 U.S. at 508, school officials at Live

Oak reasonably could have understood the students’ actions

as falling into any of those three categories, particularly in the

context of the 2009 altercation. The events of 2010 took

place in the shadow of similar disruptions a year earlier, and

pitted racial or ethnic groups against each other. Moreover,

students warned officials that there might be physical fighting

at the break.6

We recognize that, in certain contexts, limiting speech

because of reactions to the speech may give rise to concerns

about a “heckler’s veto.”7 But the language of Tinker and the

school setting guides us here. Where speech “for any reason

. . . materially disrupts classwork or involves substantial

disorder or invasion of the rights of others,” school officials

may limit the speech. Tinker, 393 U.S. at 513. To require

school officials to precisely identify the source of a violent

threat before taking readily-available steps to quell the threat

would burden officials’ ability to protect the students in their

charge—a particularly salient concern in an era of rampant

school violence, much of it involving guns, other weapons, or

6 Our recent case of Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014),

is not instructive here, since that case, unlike this one, involved compelled

speech in the form of a mandatory uniform policy and did not involve the

intersection of the First Amendment and violence or a threat of violence

in the school setting. Id. at 1204.

7 The term “heckler’s veto” is used to describe situations in which the

government stifles speech because it is “offensive to some of [its] hearers,

or simply because bystanders object to peaceful and orderly

demonstrations.” Bachellar v. Maryland, 397 U.S. 564, 567 (1970)

(internal citations and quotation marks omitted).
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 29

threats on the internet—and run counter to the longstanding

directive that there is a distinction between “threats or acts of

violence on school premises” and speech that engenders no

“substantial disruption of or material interference with school

activities.” Id. at 508, 514; see also id. at 509, 513.

In the school context, the crucial distinction is the nature

of the speech, not the source of it. 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. See, e.g.,

Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38, 38 n. 11

(10th Cir. 2013) (observing that “Plaintiffs note that most

disruptions occurred only because of wrongful behavior of

third parties and that no Plaintiffs participated in these

activities . . . . This argument 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. To the contrary, the Tinker rule is guided by a

school’s need to protect its learning environment and its

students, and courts generally inquire only whether the

potential for substantial disruption is genuine.” (quoting

Tinker, 393 U.S. at 506)); Zamecnik, 636 F.3d at 879–80

(looking to the reactions of onlookers to determine whether

the speech could be regulated); Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1272 (11th Cir. 2004) (looking to

the reactions of onlookers to determine whether a student’s

expression “cause[d] (or [was] likely to cause) a material and

substantial disruption”) (alterations and internal quotation

marks omitted).
30 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

Perhaps no cases illustrate this principle more clearly than

those involving displays of the Confederate flag in the school

context. We respect the American flag, and know that its

meaning and its history differ greatly from that of the

Confederate flag. Nevertheless, the legal principle that

emerges from the Confederate flag cases is 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. Not surprisingly, these cases also arose from

efforts to stem racial tension that was disruptive. Like

Dariano, the reasoning in these cases is founded on Tinker.

See, e.g., Hardwick, 711 F.3d at 437 (Fourth Circuit case

upholding school officials’ ban on shirts with labels like

“Southern Chicks,” “Dixie Angels,” and “Daddy’s Little

Redneck,” and the Confederate flag icon, even though the

bearer contended that hers was a “silent, peaceable display”

that “even drew positive remarks from some students” and

“never caused a disruption” because “school officials could

reasonably forecast a disruption because of her shirts”

(internal quotation marks omitted)); A.M. ex rel. McAllum v.

Cash, 585 F.3d 214, 223 (5th Cir. 2009) (noting that “[o]ther

circuits, applying Tinker, have held that administrators may

prohibit the display of the Confederate flag in light of racial

hostility and tension at their schools”); Barr v. Lafon,

538 F.3d 554, 567–68 (6th Cir. 2008) (noting the “disruptive

potential of the flag in a school where racial tension is high,”

and that “[o]ur holding that the school in the circumstances of

this case reasonably forecast the disruptive effect of the
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 31

Confederate flag accords with precedent in our circuit as well

as our sister circuits”).8

Our role is not to second-guess the decision to have a

Cinco de Mayo celebration or the precautions put in place to

avoid violence where the school reasonably forecast

substantial disruption or violence. “We review . . . with

deference[] schools’ decisions in connection with the safety

of their students even when freedom of expression is

involved,” keeping in mind that “deference does not mean

abdication.” LaVine, 257 F.3d at 988, 992. As in Wynar, the

question here is not whether the threat of violence was real,

but only whether it was “reasonable for [the school] to

proceed as though [it were].” 728 F.3d at 1071; Karp,

477 F.2d at 175 (noting that “Tinker does not demand a

certainty that disruption will occur, but rather the existence of

facts which might reasonably lead school officials to forecast

substantial disruption”). Here, both the specific events of May

5, 2010, and the pattern of which those events were a part

made it reasonable for school officials to proceed as though

the threat of a potentially violent disturbance was real. We

hold that school officials, namely Rodriguez, did not act

unconstitutionally, under either the First Amendment or

Article I, § 2(a) of the California Constitution, in asking

students to turn their shirts inside out, remove them, or leave

school for the day with an excused absence in order to

prevent substantial disruption or violence at school.

8 Other circuits that have considered the question have adopted the same

logic. See, e.g., B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734,

739–40 (8th Cir. 2009); West v. Derby Unified Sch. Dist. No. 260,

206 F.3d 1358, 1365–66 (10th Cir. 2000); Scott v. Sch. Bd. of Alachua

Cnty., 324 F.3d 1246, 1248 (11th Cir. 2003) (per curiam).
32 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

II. EQUAL PROTECTION CLAIM

The students’ equal protection claim is a variation of their

First Amendment challenge. Cf. U.S. CONST. amend. XIV,

§ 1 (stating that “[n]o State shall . . . deny to any person

within its jurisdiction the equal protection of the laws”). They

allege that theywere treated differently than students wearing

the colors of the Mexican flag, and that their speech was

suppressed because their viewpoint was disfavored. We note

that the students had no response when asked why they chose

to wear flag clothing on the day in question. The school

responds that it had a viewpoint-neutral reason—student

safety—for suppressing the speech in question, and that they

treated “all students for whose safety they feared in the same

manner.”

Government action that suppresses protected speech in a

discriminatorymanner mayviolate both the First Amendment

and the Equal Protection Clause. R.A.V. v. City of St. Paul,

505 U.S. 377, 384 n.4 (1992) (noting that the Supreme Court

“has occasionally fused the First Amendment into the Equal

Protection Clause in this fashion, but . . . with the

acknowledgment . . . that the First Amendment underlies its

analysis”). Where plaintiffs allege violations of the Equal

Protection Clause relating to expressive conduct, we employ

“essentially the same” analysis as we would in a case alleging

only content or viewpoint discrimination under the First

Amendment. Barr v. Lafon, 538 F.3d 554, 575 (6th Cir.

2008).

In the school context, we look again to Tinker. 393 U.S.

at 510; see also Barr, 538 F.3d at 576–77; Porter v.

Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir. 2004)

(stating that Tinker “applies to school regulations directed at
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 33

specific student viewpoints”). According to Tinker, schools

are not forced to “prohibit the wearing of all symbols of

political or controversial significance” in order to justify a

prohibition against the wearing of a certain symbol, if such a

prohibition is “necessary to avoid material and substantial

interference with schoolwork or discipline.” 393 U.S. at

510–11. Schools may, under Tinker, ban certain images, for

example images of the Confederate flag on clothing, even

though such bans might constitute viewpoint discrimination.

See, e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166,

1184–85 (9th Cir. 2006) (noting that “[w]hile the Confederate

flag may express a particular viewpoint, ‘[i]t is not only

constitutionally allowable for school officials’ to limit the

expression of racially explosive views, ‘it is their duty to do

so’” (alteration in original) (quoting Scott v. Sch. Bd. of

Alachua Cnty., 324 F.3d 1246, 1249 (11th Cir. 2003) (per

curiam)), judgment vacated on other grounds sub nom.

Harper ex rel. Harper v. Poway Unified Sch. Dist., 549 U.S.

1262 (2007); Scott, 324 F.3d at 1248 (upholding district court

order barring Confederate symbols based on “the potential

disruption that the displaying of Confederate symbols would

likely create”); West v. Derby Unified Sch. Dist. No. 260,

206 F.3d 1358, 1366–67 (10th Cir. 2000) (upholding ban on

Confederate symbols based on a “series of racial incidents or

confrontations,” including “hostile confrontations between a

group of white and black students”).

As the district court noted, the students offered no

evidence “demonstrating that students wearing the colors of

the Mexican flag were targeted for violence.” The students

offered no evidence that students at a similar risk of danger

were treated differently, and therefore no evidence of

impermissible viewpoint discrimination.
34 DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

Because the record demonstrates that the students’ shirts

“might reasonably have led school authorities to forecast

substantial disruption of or material interference with school

activities,” Tinker, 393 U.S. at 514, the authorities’ actions

were permissible under Tinker. We reject the students’ equal

protection claim.

III. DUE PROCESS AND INJUNCTIVE RELIEF CLAIMS

The students further challenge the District’s dress code,

which prohibits clothing that “indicate[s] gang affiliation,

create[s] a safetyhazard, or disrupt[s]school activities.” They

seek to permanently enjoin the use of the dress code, claiming

that it fails to provide objective standards by which to referee

student attire, in violation of the Due Process Clause.9 We

reject the students’ due process claims.

The Supreme Court has “recognized that maintaining

security and order in the schools requires a certain degree of

flexibility in school disciplinary procedures,” and has thus

specified that, “[g]iven the school’s need to be able to impose

disciplinary sanctions for a wide range of unanticipated

conduct disruptive of the educational process, the school

disciplinary rules need not be as detailed as a criminal code

. . . . ” Bethel Sch. Dist., 478 U.S. at 686 (holding that a

school had not violated a student’s due process rights by

disciplining him for lewd speech under a policy prohibiting

“obscene” speech).

9 Although the District is not a party to this appeal, we consider the

students’ dress code claims because they brought suit against Rodriguez

in his official capacity.
DARIANO V. MORGAN HILL UNIFIED SCH. DIST. 35

The District’s dress code is in line with others that the

federal courts have held to be permissible. See, e.g.,

Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 441,

444 (4th Cir. 2013) (upholding code prohibiting

“disrupt[ive]” or “offensive” clothing, including clothing that

“distract[s]” or “interfere[s]”), cert. denied, 134 S. Ct. 201

(2013); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224 (5th

Cir. 2009) (upholding code prohibiting clothing with

“inappropriate symbolism”).

Significantly, the dress code challenged here incorporates

the standards sanctioned in Tinker: safety and disruption. See

B.W.A. v. Farmington R-7 Sch. Dist., 508 F. Supp. 2d 740,

750–51 (E.D. Mo. 2007) (holding that a dress code that

contains language that “tracks Tinker” poses “no real danger”

of compromising the First Amendment rights of students),

aff'd 554 F.3d 734 (8th Cir. 2009); see also Hardwick,

711 F.3d at 441. It would be unreasonable to require a dress

code to anticipate every scenario that might pose a safety risk

to students or that might substantially disrupt school

activities. Dress codes are not, nor should they be, a school

version of the Code of Federal Regulations. It would be

equally unreasonable to hold that school officials could not,

at a minimum, rely upon the language Tinker gives them.

We affirm the district court’s holding that the policy is

not unconstitutionally vague and does not violate the

students’ right to due process.

AFFIRMED.