F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O H N D A R I A N O ; D I A N N A D A R I A N O , on behalf of their minor child, M.D.; K U R T F A G E R S T R

O M ; J U L I E A

N N F A G E R S T R

O M , on behalf of their minor child, D.M.; K E N D A L L J O

N E S ; J O Y J O N E S , on behalf of their minor child, D.G., Plaintiffs-Appellants

,

v

.

M O R G A N H I L L U

N I F I E D S C H O O L D I S T R I C T ; N I C K B O D E

N , in his official capacity

as Principal, L ive Oak Hig h School; M I G U E L R O D R I G U E Z , in his individual and official capacity

as Assistant Principal, L ive Oak Hig h School,

Defendants-Appellees

. N o. 11-17858

D.C. No. 5:10-cv-02745- J W

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Northern District of California J ames W are, District J udg e, Presiding

Arg ued and Submitted October 17, 2013—San F rancisco, California

F iled F ebruary

27, 2014D A R I A N O V

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Amended September 17, 2014

B efore: Sidney

R. Thomas and M. Marg aret McKeown, Circuit J udg es, and Virg inia M. Kendall, District J udg e. *

Order; Dissent to Order by

J udg e O’Scannlain Opinion by

J udg e McKeown

SUMMARY * *

Civil Rights

The panel amended its prior opinion, appea r i n g a t 745 F .3d 354 (9th Cir. 2014), filed an amended opinion, d enied a petition for panel rehearing

, d enied a petition for rehearing en b a n c o n behalf of the court, and ordered that no furth e r petitions shall be permitted.

The panel affirmed the district c ourt’s summary judg ment in a civil r ig hts suit broug ht by hig h school stud en ts w ho

w e r e a sked to remove c lothing bearing imag es of the American flag after school officials learned of threats of racerelated violence during a school-sanctioned celebration o f Cinco de May o

.

* T h e H o n orab le Virg in ia M. Ken d all, District J u d g e f o r th e U .S. District Co u rt f o r th e No rth ern District o f Illin ois, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D A R I A N O V

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The panel held that school officials did n o t violate the

s tudents’ r ig hts to freedom of ex pression, due p rocess, o r equal protection. Rec o gniz ing that, in c ertain c ontex ts, limiting speech because of reactions to the speech may g ive rise to concerns about a “heckler’s veto,” the panel held that in the school c ontex t, the c r ucial d istinction is the nature o f the speech, not t h e s o u r ce of it. The panel noted that prior

cases do not d isting uish b e t we e n “substantial disruption” caused b y the speaker and “ substantial disruption” caused b y the reactions of o thers. The p anel held that g iven the history of prior events at the school, including an altercation on campus, it w as reasona

ble for school officials to proceed a s thoug h the threat of a p otentially violent disturbance w as real. The panel he l d that school officials a nticipated violence o r substantial disruption of or material interference with school activities, a

nd their response was tailore d t o the circumstances.

Dissenting from the denial o f rehearing e n banc

, J udg e O’Scannlain, joined by J udg es Tallman a nd B ea, would hold that the reaction of other students to the student speaker is not

a leg itimate basis for suppressing s t u d e n t speech absent a showing that the speech in question constitutes figh ting words, a true threat, incitement to imminent lawless a ction, o r other speech outside the F irst Amendment’s protection.

COUNSEL

Robert J

. Muise (arg

ued ), American F reedom L aw Center, Ann Arbor, Michig an; W illiam J

. B ecker, J r., The B ecker L aw Fi rm , L os A ng eles, California; Erin Mersino, T h omas More L a w Center, Ann A rbor, M i chig an, for PlaintiffsAppellants.D A R I A N O V

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Don W illenburg (arg

ued), Mark S

. Posard, and Aly son S. Cabrera, Gordon & Rees L L P, San F rancisco, California, for Defendants-Appellees.

ORDER

The opinion filed on F ebruary 27, 2014, appearing at 745 F .3d 354 ( 9 t h Cir. 2014), is hereby a mended. An amended opinion is filed concurrently with this order.

W ith these amendments, the panel has voted to deny the petition for panel rehearing

.

The full court h as been advis e d of the petition for rehearing and rehearing e n banc. A judg e requested a vote on whether to rehear the matter e n banc. The matter faile d to receive a majority o f votes of the nonrecused active judg es in favor of en banc consideration. F ed. R. App. P. 35.

The petition for panel rehearing and petition for rehearing

en banc are DENIED

. No further petitions for en banc o r panel rehearing

shall be permitted.

J udg e 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 o f the Alliance Defending F reedom for leave to file an amicus brief is moot.D A R I A N O V

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O’SCANNL AI

N, Circuit J udg e, joined by TAL L MAN a nd B EA, Circuit J udg es, dissenting from the denial of rehearing en banc:

The freedom of speech g uaranteed by our Constitution is in g reatest peril when the g o vernment may suppress speech simply because it is u npop u l a r

. F or that reason, it is a foundational tenet of F irst Amendment law that the
g overnment c annot silence a speaker because of h ow an audience mig ht react to the speech. I t is this bedr o ck
pr i n c iple—known as the heckler’s veto doctrine—that the panel overlooks, condoning the suppression of free speech b y

some student s b e cause other students mig ht have reacted violently

.

I n doing so, the panel c reates a split w ith the Seventh a nd Eleventh Circuits and permits the w ill of the mob to rule our

s c h o o l s

. F or these reasons, I must r e spectfully dissent f r om our refusal to hear this case en banc.

I

On May 5, 2010, Cinco de May o , a g roup of Caucasian students at L ive Oak Hig h School (“L ive Oak ” ) w o r e shirts depicting the A me r ican flag to school. 1 Dariano v. M organ Hill Unified Sch. Dist.
, No. 1 1 -17858, amended slip op. at 22 (9th Cir. 2014). I n the six p receding y ears, there had been at least thirty fig hts on campus, some between g ang s and others between Caucasians and Hispanics, id. at 21, alt h o u g h the district court made no finding s a s to whether these fig hts were

1 L ik e th e p an el, I u se th e eth n ic an d racial t erm in o lo g y em p lo y ed b y th e d istrict c o u r t , ref

errin g , f or in s tan ce, t o stu d en ts o f Mex ican

o rig in —w h eth er b o rn in th e Un ited States o r in Mex ico

— as “ Mex i can .”D A R I A N O V

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r e l ated to ethnic tensions, Dariano v. Morgan Hill Unifie d Sch. D ist.
, 822 F

. Supp. 2d 1037, 1043 (N.D. Cal. 2011). A
y ear earlier, durin g C i n co de May o 2009, a g roup o f Caucasian st u d e n ts and a g r oup o f Mex ican students

ex c h a ng e d p rofanities and thre a ts. Dariano
, amended slip op. at 21. W hen the Caucasi a n s t u d ents hung a makeshift American flag and b eg an chanting “U–S–A,” Assistant Principal Mig uel Rodrig uez interv ened and asked the Mex ican students to stop usi n g profane lang uag e, to which

o ne Mex ican student responded, “B u t Rodrig uez , they a r e racist. They are being racist. F *** them white b o y s

. L e t’s f*** them up.” I

d.

One y ear later, d u ring Cinco de May o 2 010, three of the students w earing American flag shirts were confronted b y other students about their ch o i c e o f apparel. Id. a t 2 2

. One student asked M.D., a plaintiff in this c a s e , “ W h y are y ou wearing th at ? Do y ou n ot like Mex icans[ ? ] ” Id. A Caucasian student later told Assistant P rincipal Rodrig uez before brunch break, “You may want to g o o u t to the quad

a r e a

. There mig ht be some—there mig ht be some issue s

. ” Id. During the break, a Mex ican student informed Rodrig uez that she was concerned “there mig ht be problems” due to the American fla g s hirts. Id. Another a sked Rodrig uez why Caucasian students “g et to wear their f lag out when we don’t
g et t o we a r o ur flag ? ” Id. (alterations omitted). Principal Nick B o den instructed Rodrig uez to have the students wearing the American flag shirts turn their shirts inside out o r take them off. Id.

Rodrig uez met with the students wearing the shirts, who did not dispute that they were at risk of v iolence due to their

a p p a r e l

. Id. The school officials allowed two students to return to class with the i r Am e r ican flag shirts on becauseD A R I A N O V

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their shirts had l e s s p r ominent imag ery and were less likely
to cause a

n incident. Id. at 23. Two other students w e r e g iven the choice to turn their shirts inside out or to g o h ome. Id

. They chose to g o home. Id. All plaintiffs in this appeal received threatening messag es in the day s after the incident. Id.

The students, throug h their g uardians, broug ht this § 1983 action al l e g ing violations of their F irst and F ourteenth Amendment rig hts. I

d . at 23–24.

I I

I n Tinker v. Des Moines Independent Community School District
, a g roup of h ig h school students was suspende d f o r wearing black armbands as a way of p r o testing the Vietnam W a r

. 393 U .S. 503, 504 (1969). I n w h a t h as become a classic statement of F irst Amendment law, the S u preme Court declared, “I t c an hardly b e arg u ed that e i t h er students o r teachers shed their constitutional rig hts to freedom of speech

or e x pression at the schoolhouse g ate.” Id. at 506. Of course,

as the Court has subsequently made c lear, “the constitutional rig hts of students in public school are no t a u t o matically

coex tensive w ith the r ig hts of adults in o ther setting s.” Bethel Sch. Dist. No. 40 3 v. F raser , 478 U .S. 675, 682 (1986). Nonetheless, T

inker established that, “where students in the

ex e r cis e of F irst Amendment r ig hts collide with the rules o f the school authorities,” Tinker

, 393 U.S. at 507, students’ free speech rig hts “may not be suppressed unless school officials reasonably conclude that it w ill ‘materially and substantially disrupt the work and discipline of the school.’” Morse v

. F r e derick

, 551 U.S. 393, 403 (2007) (quoting Tinke r , 393 U.S. at 513).D A R I A N O V

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I nvoking Tinker

, the panel ho l d s that the school acted properly to prevent a substantial a nd material disruption o f school activities. Dariano
, amended slip op. at 26–28, 33. I n the panel’s view, school officials acted reasonably g iven the history of ethnic violenc e a t the school, the 2009 Cinco de May o incident, and the indications of possible violence on the day in question. Id. at 28. B ecause the officials tailored their actions to a ddress the threat, the panel held that there was no violation of the students’ f ree speech r ig hts. Id. at 31. T h e panel also g ranted summary judg ment wi t h reg ard to the students’ e qual protection a nd due process clai m s

. I d. at 32–35.

I I I

W ith respect, I sug g est that the panel’s opinion misinterprets Tinker ’ s own lang uag e, our precedent, and the law of our sister circuits. The panel claims that the source o f the threatened violence at L ive Oak is irrelevant: a pp a r ently requiring school officials to stop the source of a threat is too burdensome when a more “readily -availabl e ” s o lution is at hand, id. at 28, namely

, silencing the targ et of the threat. Thus the panel finds it of no c o n sequence that the students

ex e r cising their free speech rig h ts did so peacefully

, that their

ex p ression took the passive form of w earing shirts, or that there is no alleg ation that they threatened other students with violence. 2 The panel con d o n e s the suppression of the

2 T h e d i strict co u rt stated t h at t h e f o llo w in g f

acts are “ u n d isp u ted ”: “ n o classes w ere delay ed o r in terru p ted b y P lain t if f s’ attire, n o in cid en ts of

v io len ce o ccu rred o n cam p u s th at d ay , an d p rio r to ask in g P lain tif f s to ch an g e Def

en d an t Ro d rig u ez h ad h eard n o rep o rts o f actu al d i stu rb an ces b ein g cau sed in relatio n to P lain tif f s’ ap p arel.” Da ria n o , 8 2 2 F. Su p p

. 2 d at 1 0 4 5

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s tudents’ speech for one reason: o ther students mig ht hav e reacted violently ag ainst them. Such a r ationale contravenes fundamental F irst Amendment principles.

A

The panel claims to b e g uided by the lang uag e of Tinker

, Dariano
, amended slip op. at 28, but in fact the panel ig nores such lang uag e. I ndeed Tinker counseled directly ag a inst the
outcome he r e : relying on the earlier heckler’s v e to case o f Terminiello v. Chicago

, 337 U.S. 1 (1949), the Court

ex p lained that students’ speech, whether made “in class, in the lunchroom, or on the campus,” cannot be silenced merely because those who disag ree with it “may start an arg ument o r

cause a d isturbance.” 3 93 U.S. at 508 (citing Terminiello ). Tinker made clear that the “Constitution s a y s we must take th[ e] r isk” that speech may eng ender a violent response. Id

. Y et, rather than heed Tinker ’s g uidance, the panel undermines its holding

, and, in the process, erodes t h e “haz ardous freedom” and “openness” that “is the b a s i s o f our n ational streng th and of the independence and vig or of Americ ans who g row up and live in this relatively p ermissive, often disputatious, society

. ” Tinker

, 393 U.S. at 508–09.

W h at the panel fails to recog niz e, and what we hav e previously held, is that Tinker went out of its way to reaffirm the heckler’s veto doctrine; the principle that “ t h e g o v e r n ment c annot silence messag e s simply because they

cause discomfort, fear, or even a ng e r.” Ctr. for Bio-Ethical Reform, Inc. v. Los A n geles Cnty.
, 5 33 F .3d 780, 788 (9th Cir. 2008) ( c i ting Tinker

, 393 U.S. at 5 08). Quoting Tinker

, we have ex plained:D A R I A N O V

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[ I ] n our sy stem, undifferent i a t e d fear o r appr e h ension of disturbance is not enoug h to

overcome the rig h t to freedom of ex p ression. Any departure fro m absolute reg imentation
may c ause trouble. Any variation from the

m aj ority ’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates f rom the views of another person may start an arg ument or cause

a disturbance. B ut our Constitution say s we must take this risk . . . .

Bio-Ethical Reform

, 533 F .3d at 788 (quoting Tink e r , 393 U.S. at 5 08). 3 O ur p recedents take the position, then, that far from abandoning the heckler’s v et o doctrine in public schools, Tinker stands as a dramatic reaffirmation of it. 4

3 Bio -Eth ica l Refo r

m w as n o t a sch o o l case, bu t th is is irrelev an t. W h at i s relev an t i s th at in Bio -Eth ica l Refo rm w e co rrectly h eld th at Tin ker

, w h ich i s a sch o o l case, ap p lied th e h eck ler’ s veto d o ctrin e. Bio -Eth ica l Refo rm , in o th er w o rd s, m ak es clear th at th e h eck ler’ s v eto d o ctrin e ap p lies in p u b lic sch o o l s, as it d id in Tin ker

.

4 W e also reco g n ized th e im p ortan ce o f th e h ec k l e r ’s v e to d o ctrin e to T i n k e r ’ s an aly sis in Jo n es v. Bo a rd o f Reg en ts o

f Un iversity of Arizo n a , 4 3 6 F.2 d 6 1 8 (9 th Cir. 1 9 7 0 ). T h e p lain tif f h ad b een o rd ered b y cam p u s p o lice to cease d istrib u tin g h an d b i lls o n u n i v ersity g ro u n d s, in p art d u e to

“ t h e f act t h at tw o m em

b ers o f t h e cro w d w ere m o v ed to tear th e san d w ich b o ar d s f ro m J o n es’ b o d y ” an d t

h at “ certain u n id en tif

ied m em b ers o f th e

co m m u n ity h ad th reaten ed

to rem o v e h im

f ro m th e cam p u s.” Id

. at 6 2 1

. Citin g Tin ker

f o r th e h eck ler’ s v eto d o ctrin e, w e said :

J o n es w as la w fu lly an d n o n v io len tly ex ercisin g rig h ts g u aran teed to h im b y th e Co n stitu t i o n o f th e Un i ted States

. . . . [I]n th i s case, th e actio n o f th e p o l i ce

w as m isd irected

. It sh o u ld h av e b een e x e r t ed so as toD A R I A N O V

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Given the central importance o f the doctrine to F ir st Amendment jurisprudence, that should c ome as no surprise. 5

B

The heckler’s veto doctrine is o ne of the oldest and most venerable in F irst Amendment jurisprudence. See Terminiello v. City of Chicago

, 337 U.S. 1, 5 (1949). I ndeed, the Court has g one far to protect speech where it mig ht incur

a hostile and even v iolent r eaction from an audience. I n Street v. New Y

ork

, for ex ample, a man was convicted for “publicly d efy [ ing ]

. . . or ca s t [ ing ] c ontempt upon (any American flag ) by words.” 394 U

. S

. 576, 590 (1969). The Court invalidated the conviction, rejecting the state’s justifi c a t i o n that the man’s speech had a “tendency

. . . to

p re v e nt th e in f

rin g em en t o f J o n es’ co n stitu tio n al rig h t b y th o se b en t o n stif

lin g , ev en b y v i o len ce, th e p eacef u l

ex p ressio n o f id eas o r v iew s w ith w h ich th ey d isag reed

.

Id

. T h o se w ise p rin cip les are j u st as ap plicab l e in th e co n tex t o f th is case.

5 No n e o f th e preced en ts cited b y th e p an el are to th e co n trary

. In W yn a r

v. Do u gla s Co u n t

y S ch o o l District
, it w as th e sp ea ker w h o “ th reaten ed th e stu d en t b o d y as a w

h o le an d targ eted sp ecif

ic stu d en ts b y n am e,” an d w e h eld th at th e sch o o l w as j u stif ied in p u n ish in g th e stu d en t f o r en g ag in g in
sp eech o f th at n atu re. 7 2 8 F.3 d 1 0 6 2
, 1 07 0

– 7 2 (9 th Cir. 2 0 1 3 ). T h e sam e

w as tru e in La Vin e v. B l a i n e S c h o o l D istrict
, w h ere w e stated th at th e sp eech in q u estio n in d icated th at th e stu d en t “ w as in ten d i ng t o in f lict in j u ry u p o n h i m self o r o t

h ers,” 2 57 F.3 d 9 8 1
, 9 90 (9 th Cir

. 2 0 0 1 ). A lth o u g h K

a rp v. Becken m en tio n s co n cern s ab o u t “ th e p ro v o catio n of an in cid en t, in clu d i n g p o ssib le v io len ce,” th e co n d u ct a n d sp eech o f th e sp ea ker w as i tself d isru

p tiv e. S ee 47 7 F.2 d 1 7 1
, 1 7 3
, 1 7 6 (9 t h Cir. 19 7 3) (d escrib in g th e sp eak er as attem ptin g to lead a “ ch an t” an d w alk

- o u t w h i le also brin g in g n ew s m ed ia to cam p u s “ to p u

blicize [h is] d em o n stratio n ”). No n e o f th ese cases sta n d f o r th e p ro p ositio n th at p eacef u l, p assiv e

ex p ressio n

can b e su p pressed b ased o n

th e reactio n s o f o th er stu d en ts

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provoke violent r etaliation.” Id. at 5 9 2

. The heckler’s v eto doctrine also protected a civil rig hts leader’s peaceful speech d uring a lunch counter sit-in protest, despite the stat e ’s alleg ed fear that “ ‘violence was a bout to erupt’ because o f the demonstration.” Cox v. Louisiana
, 379 U .S. 536, 550 (1965). As the Court said in C o x , “[ T] he compelling answer

. . . is that constitutional r i g hts may not be denied simply because of hostility to their assertion or ex ercise.” Id. at 5 51 (internal quotation marks omitted).

Of course, this doctrine d o es not apply to all categ ories o f speech. The Court has recog niz e d t h at there are “certain well-defined a

nd narr o w l y limited classes o f speech, the prevention and punishment of which have never been thoug ht
to raise any Constitutional p r o b lem.” Chaplinsky v. New Hampshire

, 315 U.S. 5 68, 57 1

– 7 2 (1942); see also United States v. Alvarez

, 132 S. Ct. 2537, 2544 (2012) (listing ty pes of speech that are not p art of “the f re e dom of speech”). W h ere, for instance, sp e ec h c o n s t i t u t e s “‘fig hting ’ words—those which by their very utterance inflict injury o r tend to incite a

n immediate breach of the peace,” Chaplinsky

, 315 U.S. a t 57 2 ; i s “directed to inciting or producing imminent lawless action and is like l y t o incite or produce such action,” Brandenburg v. Ohio

, 395 U.S. 444, 447 (1969); or is a “true threat,” V irginia v. Black

, 538 U.S. 343, 358– 6 0 ( 2 0 0 3), 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). B ut a p art from these w ell- r ecog niz ed categ orie s , “ t h e g overnment may not g ive weig ht to the audience’s neg at ive reaction” as a basis for suppressing speech. Ctr. for Bio-Ethical Reform, Inc.
, 533 F .3d at 789;

see also Texas v. Johnson

, 4 91 U.S. 397, 408–09 (1989) (“[ A] principal function of f

r e e speech under our sy stem o fD A R I A N O V

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g overnment is to i n v ite 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 ig nores these foundation al p r ecepts o f F irst A mendment jurisprud e n c e and condones using the heckler’s veto as a basis for suppressingstudent speech.

The e stablished F irst Amendment p r i n c i p l e s t h at the panel disreg ards ex ist for g ood reason. Rather than a cting to protect the students who were pea c e f u l ly ex pressing their views, L ive Oak d ecide d t o s uppress the speech of those students because other students migh t d o them harm. L ive Oak’s reaction to the possible violence ag ainst t he student speakers, and the panel’s b lessing o f that reaction, sends a clear messag e to public school students: b y threatening violence ag ainst those with whom y ou disag r ee, y ou can enlist the p ower of the State to silence t h em. This perverse incentive created by the panel’s o pinion is precisely what the heckler’s veto doctrine seeks to avoid.

I n this case, the d isfavored speech was the d i s play of an American flag

. B u t let no one be fooled: by interpreting Tinker to permit the heckler’s veto, the panel opens the door
to the suppression o f any viewpoint opposed by a v ocal a nd violent band o f students. The nex t case mig h t be a student wearing a shirt bearing the imag e o f Che Guevara, or Martin L uther King

, J r., or Pope F rancis. I t mig ht be a s t u d e n t wearing a President Obama “Hope” s h irt, o r a shirt

e x c l aiming “Stand with Rand!” I t mig ht be a sh i r t proclaiming the shahada

, or a shirt a nnouncing “Chris t isD A R I A N O V

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risen!” I t mig h t be any viewpoint im a gi n a b le, but whatever it is, it will be vul n e r a b l e to the rule of the mob. The demands of bullies will become school policy

.

That is not the law.

I V

The Seventh and E leventh Circuits a g ree that a student’s speech cannot be suppressed based o n the violent reaction o f its audience. Thus the panel is simply wrong tha t o u r sister circuits’ cases “d o n o t disting uish between ‘substantial disruption’ caused by the speaker and ‘substantial disruption’ caused b y the reaction o f onlookers.” Dariano
, amended slip
op. at 2 9. I n Zamecnik v. Indian Prairie School District No. 204 , a student wore a t-shirt to school on the Day of Silence bearing the slog an, “B e Happy
, Not Gay

. ” 636 F .3d 874, 875 (7th Cir. 2011). The school soug ht to prohibit the student from wearing the shirt based, in part, on “ incidents o f harassment of plaintiff Z amecnik.” Id. at 879. The Seventh Circuit squarely rejected that ration al e as “barred by the doctrine

. . . of the ‘heckler’s veto.’” Id. Zamecnik made clear that Tinker “ e n dorse[ s] t h e doctrine of the heckler’s veto” and described the rationale behind that doctrine:

Statements t h at while n ot fig hting words

are met by violence or threats or other unprivileg ed retaliat o r y conduct by persons offended by t h e m cannot lawfully be

s u p p r e s s e d b e c a u s e o f t h a t c o n d u c t

. Otherwise free speech could be stifled by the speaker’s opponents’ mounting a riot, even thoug h, because the speech h ad contai n e d no fig hting words, n o r e as onable person wouldD A R I A N O V

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. 15

have b een moved to a r iotous r esponse. So the fact that homosex u al students and their
sy mpathiz e r s harassed Z amecnik because o f their disapproval of h er messag e is not a permissible g round for banning it.

Id. T h e court affirmed the g rant of summary judg ment to Z a mecnik. Id. at 882.

The Eleventh Circuit is of the same opinion. I n Holloman

ex rel. H olloman v. Harland

, a school punished a student for silently h olding up a f

ist r ather than rec i t i n g the Pledg e o f Alleg iance. 370 F .3d 1252, 1259 (11th Cir. 2 0 0 4 ). S chool officials justified their actions, in p a r t, by citing “concern that [ the student’s] behavior would lead to further disruptions b y other students.” Id. a t 1274. The Eleventh Circuit acknowledg ed that Tinker g overned it s analy sis, and in an impassioned parag raph, the court invoked the heckler’s veto doctrine:

Allowing a school to curtail a studen t ’s freedom of ex pressi o n based on such f actors turns r eason on its head. I f certain bullies a re likely to act violently wh e n a student w ears long hair, it is unquestionably easy for a principal to preclude the o utburst b y preventing the student f

r om wearing long hair. To d o s o, however, is to sacrifice f reedom
upon the alter [ sic ] of order

, a n d allow the
scope of our liberty to be dictated by the inclinations of the unlawful mob.D A R I A N O V

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. D I S T

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Id. at 1275. Particularly relevant her e , t h e Eleventh Circuit squarely rej e c t e d the c laim that the heckler’s v e to doctrine does not apply

in public schools:

W h ile the same constitutional standards do
not alway s a p p l y in public schools as on p u b l ic streets, we cannot afford students les s constitutional protection simply because their
p e ers mig ht illeg ally ex press d isag reement throug h violence instead of reas o n

. I f the people, acting throug h a leg islative assembly

, may n ot proscribe certain speech, neither may they do so acting individually as cri m i n als. Principals h ave the duty to maintain order i n pub l i c schools, but they may not do so while
tu rn i n g a blind ey e to basic notions of rig ht and wrong

.

I d

. a t 1276. T he court reversed the district court’s g rant o f
summary judg ment 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 o u r s ister circuits. 6 Yet, one would never

6 Un ab le to d istin g u i sh Za mecn i k o r Ho llo ma n co n v in cin g ly

, th e p an el lo o k s f o r su p po rt f ro m Ta y lo r v. Ro swell In d

ep en d en t S ch o o l District
, 7 1 3 F.3 d 2 5 (1 0 th

Cir. 2 0 1 3 ). B u t Ta

ylo r o f f ers n o su p p o rt f o r its v iew

. Ta ylo r d i d n o t in v o lv e a h eck ler’ s v eto , an d

, in f act, th e T en t

h Circu i t im p lied th at th e h eck ler’ s v eto d o ctrin e w ou ld h av e ap p lied if th e f acts h ad im p licat e d i t

. T hi s is rev ealed in a f o o tn o te, q u o ted o n ly in p art b y th e p an el. D a ria n o , am en d ed slip o p . at 2 9 (q u o tin g Ta ylo r , 7 13 F.3 d at 3 8

n .1 1 ). In th e f

oo tn o te’ s o m itted co n clu sio n , th e T en th Circu it o b s erv es:D A R I A N O V

. M O R

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know it from reading the panel’s opinion, since the contrary decisions of those c ircuits are b a rely mentioned a nd completely mis-characteriz ed.

V

F inally

, the panel attempts to analog iz e this case to those involv i n g school r estrictions on Confederate flag s. See Dariano
, amended slip op. at 30–31. B ut these cases, dealing solely with a sy

mbol that is “ widely reg arded as racist a nd in c e ndiary ,” Zamecnik

, 636 F .3d at 877, c annot o verride Tinker here. 7

The panel takes the Confederate flag cases to be a sing le “illustrat[ ion] ” of the much broader “principle” that the he ck l e r’s veto doctrine does not apply to schools. Dariano
, amended slip op. a t 30. B ut as that b r o a d “principle” is incorrect, the Confederate flag cases cannot illustrate it.

Mo reo v er, th ere is n o in d icatio n i n th is c a se th at th e p ro b l em atic stu d en t d isru

ptio n s w ere a i med a t sto

p p i n g p la i n tiff s ’ exp ressio n , an d plain tif f s d id n o t o th erw ise d ev elo p su ch an arg u m en t.

7 1 3 F.3 d at 3 8 n .1 1

. (em

p h asis ad d ed ). T h u s, co n trary to w h at th e p an el im p lies, th e sp eech restrictio n in Ta ylo r w as p erm issib le n o t

b ecau se th e h eck ler’ s v eto d o ctrin e w as in a p p licab le to Ro sw ell p u b lic sch o o ls, b u t b ecau se Ta

ylo r ’ s f acts sim p ly d id n o t in v o l v e a h eck ler’ s v eto

.

7 In f act th e Elev e n t h C i r c u i t h as s u g g ested t h at d isp lay s of th e Co n f ed erate f lag m ay n ot ev en b e d eserv in g o f th e fu l l p r otectio n of Tin ker

, b u t rath er are o f f en siv e u n der th e stan d ard o f Beth el S ch oo l District v. Fra ser , 4 7 8 U.S. 6 75 (1 9 8 6 ). S ee S co tt v. S ch oo l Bd

. O

f Ala ch ua Cty.
, 3 2 4 F.3 d 1 24 6
, 1 2 4 8 (1 1 th Cir. 20 0 3 ) (p er cu riam ); D en n o

v. S ch

. Bd

. Of Vo lu sia C t

y

. , F l a

. , 2 1 8 F.3 d 1 2 6 7
, 1 2 7 3

– 7 4 (1 1 th Cir. 2 0 0 0 ).D A R I A N O V

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I n d e ed, what the cases actually illustrate is a p ermissiv e attitude towards reg ulation of the C o n federate flag that is based o n t h e flag ’s unique and racially divisive history

. 8 W h ether or not this history provides a principled basis for the
reg ulation of Confederat e icons, it certainly provides no support for banning display s of the American flag

.

8 T h e Co n f

ed erate f lag cases cited b y t

h e p an el all em

ph asize th at, acro ss A m erica, C o n f

ed erate sy m b o ls carry an in h eren tly d iv isiv e m essag e. S ee, e.g

. , Ha r d w ick ex rel. Ha rd

wick v. Heywa rd , 7 11 F.3 d 4 2 6
, 4 3 6 (4 th Cir 2 0 1 3 ) (d escrib in g th e f lag as a “ sy

m b o l o f racial sep aratio n an d

o p p ressio n ”); A.M. ex rel. McAllu m v. Ca sh

, 5 8 5 F.3 d 2 1 4
, 2 2 3 (5 th Cir. 2 0 0 9 ) (j u stif

y i n g reg u latio n in p art o n “ t h e racially in f

lam m ato ry m ean in g

asso ciated w ith th e Co n f

ed erate f lag ”); Ba rr v. La

fo n , 53 8 F.3 d 5 5 4
, 5 7 0 (6 th Cir. 2 0 0 8) (d escrib in g th e p ercep tio n t h at C o n f ed erate ico n s celeb rate

“ w h ite su p rem acy ”); B.W

.A. v. Fa r min gto n R-7 S

ch

. D ist.
, 5 5 4 F.3 d 7 3 4
, 7 4 2 (9 th C ir. 2 00 9 ) (ex p l ain in g th at so m e v iew th e Co n f ed erate f lag “ as

a statem en t o f racism ”); We s t v

. Derb y Un ified S

ch

. Dist. No

. 2 6 0
, 2 3 F.Su pp .2 d 1 22 3
, 12 3 3 (D. Kan

. 19 9 8 ) (d escrib in g th e Co n f ed erate f l ag as rep resen tin g “ [t]o m an y ” an “e x p ressio n o f co n tin

u in g co n t em

p t f or th e rig h ts o f A f

rican

- Am erican s”), a

f f’d

, 2 0 6 F.3 d 1 3 58 (1 0 th Cir. 20 0 0) (ad o p tin g t

h e reaso n in g o f th e d istrict co u rt); S co tt v. S ch

. Bd o f Ala ch u a Cn ty. , 3 2 4 F.3 d 1 2 4 6
, 1 24 9 (1 1 th C ir. 2 0 0 3) (p er cu riam ) (f in d in g i t

“ co rrect” to assert th at th e C o n f ed erate f l ag rep resen ts “ ap p ro v al o f w h i te

su p rem acy ” an d “ h a s acq u i red n u m ero u s racist asso ciatio n s t o t h e p o i n t t h a t t h e f lag i tself h as u n d erstan d ab ly co m e to b e p erceiv ed as a racist
sy m b o l”).

In d eed

, in an o th er case u p h old in g a b an o n Co n f ed erate f lag s in sch o o ls, th e Six th Circu it su p p o rted its d ecisio n w ith th e o b serv atio n th at

sev eral f ed eral ap p el l a t e c o u rts h av e co m m en t ed “ o n th e Co n f

ed erate fl ag ’ s in h eren t racial div i siv en ess.” D.B. ex rel. Bro gd o n v. L a fo n , 2 1 7 Fed .A p p x

. 5 1 8
, 5 2 3

– 2 4 (6 th Cir. 2 0 0 7 ) (em p h asis ad d ed ) (citin g NAACP

v. H u n t , 89 1 F.2 d 1 5 5 5, 1 5 6 4 (1 1 th Cir. 19 9 0 ); Brig g s v

. S ta te o

f Mississip p i
, 3 31 F.3 d 4 9 9
, 5 06 (5 th Cir. 2 00 3 ), cert. d en ied

, 5 4 0 U.S. 1 1 0 8 (2 0 0 4); Ca sto rin a ex rel. Rewt v. Ma d iso n Co un ty S ch

. Bd

. , 2 46 F.3 d 5 3 6
, 5 4 0 (6 t h Cir. 2 0 0 1 )).D A R I A N O V

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VI

The p anel’s o pinion contravenes foundational F i r st Amendment p rinciples, c reates a split with the Seventh a n d Eleventh Circuits, and imperils minority viewpoints o f all kinds. L ike o u r sister circuits, I would h old that the reaction of other students to the student speaker is n ot a leg itimate basis f or suppressing student speech absent a showing that the
sp eech in question constitutes fig h ting words, a true threat, incitement to imminent lawless a ction, or o ther speech outside the F irst Amendment’s protection. See Zamecnik

, 636 F .3d at 879 (rejecting the h eckler’s veto “ b ecause the speech h ad c ontained no fig hting words”); Holloman

, 3 7 0 F .3d a t 1275–76 (citing Street for the proposition th at “the possible tende n cy of appellant’s words to provoke violent r etaliation is not a basis for ban n i n g t h ose words unless they are ‘fig hting words’” (internal quotation marks omitted)).

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

OP INION

McKEOW

N, Circuit J udg e:

W e are asked a g a in to consid er the d elicate relationship between s tudents’ F irst Amendment rig hts and the operati o n a l and safety needs o f schools. As we n o ted in W ynar v. Dou glas County S chool D istrict
, 728 F .3d 1062, 1064 (9th Cir. 2 0 1 3 ), “school administrators face the daunting task of e valuating potential threats of violenc e a n d keepingD A R I A N O V

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their students safe without imping ing on their constitutio n al rig hts.” I n this case, after school officials learned of threats o f race-related violence during a school-sanctioned celebration of Cinco de May o, the s c hool asked a g roup of students to remove clothing bearing

imag es of the American flag

. 1

The students broug ht a civil rig hts suit ag ainst the school distri c t and two school officials, a lleg ing violations o f their federal and state constitutional rig hts to freedom o f

ex p ression, e qual p r otection, and d ue process. W e affirm the district court’s g rant of summ a r y judg ment as to the only defendant party to this a ppeal, Assistant Prin cipal Mig uel Rodrig uez , and its d enial of the students’ motion for summary judg ment, on all claims. School o fficials anticipated violence

or substantial disruption of or material in terference with school activities, a

nd their r e spon se was tailored to the circumstances. As a consequence, w e conclude that school officials did not violate the students’ rig hts to freedom o f

ex p ression, due process, or equal protection.

B A C K G R O U N D

This ca s e a

rose out of the e v ents of May 5, 2010, Cinco de May o, at L i v e O a k Hig h School (“L ive Oak” or “the School”), part of the Morg an Hill Unified School District in Northern California. The Cinco de May o celebration was presented in the “spirit o f c ul t u r a l appreciation.” I t was described as h onoring “the pride and community streng th of the Mex ican people who settled this valley and who continue
to work here.” The school likened it to St. Patrick’ s D ay o r Oktoberfest. The material facts are not in dispute.

1 B ecau se th e stu den ts’ n a m e s a r e co n f i d en tial, w e ref

er to th em

co llectiv ely

as “ th e stu den ts,” o r b y

th eir in itials, M.D., D.G., an d D.M.D A R I A N O V

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L ive Oak had a history of violence among students, some ga n g- r e lated and some drawn along racial lines. I n the s i x y ears that Nick B o den s e r v e d as principal, he observed at least thirty fig hts on c a m p u s , b oth between g a ng s a nd between Caucasian and Hispanic students. A police officer is

s t a t i o n ed on campus e very day to ensure safety on school
g rounds.

On Cinco de May o in 2009, a y ear befo r e t h e e vents relevant to this appeal, there was an a ltercation on campus between a g r oup of predominantly Caucasian students and a g roup of Mex ican students. 2 Th e g roups ex chang ed profanities a n d threats. Some students hung a makeshift American flag on one of the trees on campus, and a s they did, the g roup of Caucasian students beg an clapping and chanting “USA.” A g roup of Mex ican students had been walking around with the Mex ican flag

, and in resp onse to the white students’ flag -raising

, one Mex ican s tudent shouted “f*** them white boy s, f*** them w hite boy s.” W hen As s i s t ant Principal Mig uel Rodrig uez told the stu d e nt to stop using profane lang

uag e, the student said, “B ut Rodrig uez , they are racist. They a

re being racist. F *** them white boy s. L e t’s f*** them up.” Rodrig uez 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 May o 2009. M.D. was approached by a male student who, in the words o f

2 W e u se t h e eth n ic an d racial term in o l o g y em p l o y ed b y th e d istrict

co u rt (Cau casian

, Hisp an ic, Mex ican ). Fo r ex a m p l e , th e d istrict co u rt at tim es ref erred t o stu d en ts o f Mex ican o rig in b orn in th e Un ited States an d
stu d en t s b o rn in Mex ico c o l l e ctiv ely as “ Mex ican .” We ad o pt t h e sam e p ractice h ere, f

o r th e lim i ted p u rp o se o f

clarif y in g th e n arrativ e.D A R I A N O V

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t he district court, “shoved a Mex ican flag at him and sai d something in Spanish ex pressing ang er at [ M.D.’s] clothing

. ”

A y ear late r, on Cinco de May o 2010, a g r oup o f C aucasian students, including the students bring ing t h i s appeal, wore American flag shirts to school. A female student
app roached M.D. that morning

, motioned to his shirt, a nd asked, “W hy a r e y ou wearing that? Do y ou not like Mex icans[ ? ] ” D

. G

. a

n d D.M. were also confronted a bout their clothing before “brunch break.”

As Rodrig u ez was leaving his o ffice before brunch break,

a Cau c a s i a n student approached him, and said, “You may want to g o out to the quad area. T here mig ht be some—there mig ht be some issues.” Duri n g the break, another student called Rodrig uez over to a g roup of Mex ica n s t u d ents, said that she was concerned about a g roup of students wearing the American flag

, and said that “ there m i g ht be problems.” Rodrig uez understood her to mean that there migh t b e a phy sical altercation. A g roup of Mex ican studen t s asked Rodrig uez why the Caucasian students “g et to wear their flag out when we [ sic] don’t g et to wear our [ sic] flag ? ”

B o den directed Rodrig u ez to have the students either turn their shi r t s i n side out or take them off. The students refused to do so.

Rodrig uez met with the studen t s a n d ex plained that he

w a s concerned for their safety

. The students did not disp u t e that their attire p ut them a t r i sk of violence. Plaintiff D.M. said that he was “willing to take on that respo n s i b ility ” in order to continue wearing his shirt. Two of the students, M.D. and D.G., said they would h ave worn the flag clothing even if they had known violence would be directed toward them.D A R I A N O V

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School o fficials permitted M.D. and another student not

a party to this action to return to class, b e c a u s e Boden considered their shirts, whose imag e ry was less “prominent,”
to be “less l i k ely [ to g et them] sing led o ut, targ eted for any p ossible r ecrimination,” and “sig nificant[ ly ] differen[ t] i n [ terms of] what [ he] saw as being potential for targ eting .” 3

The officials offered the remaining students the choice either to turn their shirts inside out or to g o home for the day with ex cused a bsences that would not count ag ainst their attendance r ecords. Students D.M. and D.G. ch o s e t o g o home. Neither was disciplined.

I n the a ftermath of the s t udents’ d eparture from school, they received numerous threats from other students. D.G. was th r e a t e n ed by tex t messag e o n May 6, and the same afternoon, received a threatening phone c a l l from a caller
say ing he was outside of D.G.’s home. D.M. and M.D. were likewise threatened with violence, and a student at L ive Oak overheard a g r o up of classmates say ing that some g ang members would come down from San J ose to “take care of” the students. B ecause of these threats, the students d id not g o to school on May

7.

The students and their pa r e n ts, a cting as g uardians, broug ht suit under 42 U.S.C. § 1983 and th e C alifornia Constit u t i on ag ainst Morg an Hill Unified School District (“ t he District”); and B oden and Rodrig uez , in their official and individual capacities, alleg ing violations of their federal and California constitutional rig h ts to freedom of ex pression

3 T h e stu d en ts p erm itted to retu rn to class w ere w earin g “ T ap Ou t” (o r

“ T ap o u T ”) sh irts, w

h ich b ear th e lo g o of a p o p u lar m artial arts co m p an y , so m etim es (as h ere) w ith

f lag ico n o g rap h y

.D A R I A N O V

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and their federal constitutional rig hts to equal protection a nd due process.

On cross-motions for summary jud gm e n t, the district
court g ranted Rodrig uez ’ s m o t ion on all claims and denied the students’ motion on all clai m s , h o lding that school officials did not violate the students’ federal or state constitutional r ig hts. The district court did not address c laims
ag ainst B oden, because he was g r anted an automati c s tay in bankruptcy

. T he district court dismissed all claims a g ainst the Di s t r ict on g rounds of sovereig n immunity

, a ruling not challeng ed on appeal. The question on appeal is thus whether Rodrig uez , in his official or individual capacity

, violated the students’ constitutional rig hts.

A N A L Y S I S

I. F I R S T A M E N D M E N T C L A I M S

W e a n a ly

z e the students’ c laims 4 under the wellrecog niz ed framework of Tinker v. D es Moines Independent Community School District
, 393 U.S. 503 (1969). 5 Under

4 B ecau se Calif

o rn i a f o llo w s f ed era l l a w fo r f

ree ex p ressio n claim s

a r i s i n g in th e sch o o l settin g , th e stu d en ts’ f ed eral an d state claim s sta n d

o r fa l l to g eth er. Ca l. T

ea ch ers Ass’n v. Go vern in g Bd

. o f S a n Die g o Un ified S ch . Dist. , 4 5 Cal. A p p . 4 th 1 3 8 3 , 1 3 91

– 9 2 (1 9 9 6 ).

5 A s w e n o ted in W

yn a r , 7 2 8 F.3 d at 1 06 7
, stu d en t sp eech th at is

“ v u lg ar, l ew d

, o bscen e [o r] p lain ly of f en s iv e” is g o v ern ed b y Beth el S ch o o l District Nu mb er 4 0 3 v. Fra ser , 4 7 8 U.S. 6 7 5 (1 9 8 6 ); s p eech th at is “ sch o o l

- sp o n so red ” is g o v ern ed b y Ha zelwo o d S ch o o l District v. Ku h l meier
, 4 84 U.S. 26 0 (1 9 8 8); an d sp eech th at “ f alls in to n e i t h e r o f th ese categ o ries” is g o v e r

n ed by T in ker

. S ee Ch a n d ler v. McMin n ville S ch

. Dist. , 9 7 8 F.2 d 5 2 4 , 5 2 9 (9 th Cir. 1 9 9 2) (listin g stan d ard s ).D A R I A N O V

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Tinker

, students may “ex press [ their] opinions, even on controversial subjects

. . . if [ they ] do[ ] so without materially and substantially interfer[ ing ] w ith the requir ements o f appropriate discipline i n the operation of the school a nd without colliding w ith the rig hts of o thers.” Id. at 513 (final alteration in orig inal) (internal quotation marks omitted). T o “justify prohibition of a particular ex pression o f opinion,” school officials “must b e able to show that [ their] action was caused b y s o m e thing more than a mere desire to avoid the discomfort and unpleasantness that a lw a y s accompany an unpopular viewpoint.” Id. at 509.

That said, “conduct by the student, in class or out o f it, which for any reason— whether it stems from time, place, o r ty pe o f b ehavior—materially disrupts classw o r k o r involves substantial disorder or invasion of the rig h t s o f o t h ers is, o f
course, not immuniz ed by the cons t itutional g uarantee o f freedom of speech.” Id. at 5 1 3. Under T i n k e r , schools may prohibit sp e e c h that “ mig ht reasonably [lead] school authorities to forecast substantial disruption o f o r material interference with school activities,” or that constitutes an “actual or nascent [ interference] w ith the schools’ work or

. . . collision with the rig hts of other students to be secure and to be let alone.” Id. at 508, 5 1 4 ; s ee also W ynar , 728 F .3d at 1 0 6 7 (quoting Tinker

, 393 U.S. at 508, 514.). As we have

ex p lained, “the F irst A mendment does not require school officials to wait until d isruption actually occurs b ef o r e they
may act. I n fact, they have a d uty to prevent the occurrence o f disturbances.” Karp v. Becken

, 4 7 7 F .2d 171, 175 (9th Cir. 1973) ( footnote omitted). I ndeed, in the school contex t, “the level of disturbance required to justify official intervention is relatively lower in a p ublic school than it mig ht be on a street corner.” I d. As the Seventh Circuit ex plained, “[ s] c h o o l authorities are entitled to ex e rcise discretion in d e terminingD A R I A N O V

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when student speech crosses the line between h urt feeling s and substant i al disruption of the educational mission.” Zamecnik v. I

ndian Pra i r i e Sch. Dist. # 204
, 6 36 F .3d 874, 877–78 (7th Cir. 2011).

Althoug h Tinker g uides o ur analy sis, the f acts of this case disting uish it sharply from Tinker

, in which st u d e n t s’ “pure speech” was held to be constitutionally protected. 393 U.S. at 508. I n 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 rig h t s of other students to be secure and to be let alone,” id

. , there was evidence of nascent and escalating violence at L ive Oak. On the morning o f May 5, 2010, each of the three students was confronted a

bout their c lothing by other students, o ne o f whom approached student M.D. an d asked, “W hy are y ou wearing that? Do y ou not like Mex ica n s [ ? ] ” B efore the brunch break, Rodrig uez learned of the threat of a phy sical altercation. During the break, Rodrig u ez was warned about impending violence by a second student. The war n i n g s o f violence came, as the district court noted, “in [ the] contex t o f
ong oing racial tension and g ang v i olence within the school, and after a near-violent alter c a t i o n had erupted during the prior Cinco de May o over the displ a y o f an American f lag

. ” 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 day s later.

The minimal r estrictions on t h e students were not conceived of as an “urg ent wish to avoid the controversy ,” a s in Tinker

, id. at 510, o r as a trumped-up ex cuse to tamp down student ex pression. The controversy a nd tension rem a ined, but the school’s actions presciently a v o i ded an altercation. Unlike in Tinker

, where “ [ e] ven an official m e m orandumD A R I A N O V

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prepared after the [ s t u d e nts’] suspension that listed the

reason s f o r the ban o n w earing the armbands made no reference to the anti ci p a t i on of such disruption,” id. at 509, school officials here e x plicitly referenced anticipated disruption, violence, and c o ncerns about student safe t y in conversations with studen t s at the time of the events, in conversations the s ame d ay with the students and their parents, and in a memorandum and press release circulated the nex t day

.

I n k eeping with o ur precedent, school officials’ actions

were tailored to avert violence and focused on student safety

, in at least two way s. F or one, officials restricted the wearing of certain c l othing

, but d id not punish the students. School officials have g reater constitutional latit ude to suppress student speech than to p unish it. I n Karp
, we held that school officials could “curtail the ex ercise of F irst A mendment rig hts w hen they c[ o uld] reasonably forecast material interference o r substantial disruption,” but co u l d not discipline the student without “show[ in g] justification for their action.” 477 F .2d at 176; cf. W y n a r , 728 F

. 3d at 1072 (upholding ex pulsion, despite it s “more punitive character,”

as a justified response to threats); LaVine v. Blaine Sch. Dist.
, 257 F .3d 981, 992 (9th Cir. 2001).

F or another, officials did not enforce a blanket ban on American flag apparel, but inst e a d allowed two students to return to class w h e n i t became clear that their shirts were unlikely to make them targ ets of v iole n c e

. The school disting uished among the students based on t he p erceived threat level, a

nd did n o t embarg o all flag

- related c lothing

. See B ackg round, supra.D A R I A N O V

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F inally

, whereas the conduct in Tinker ex pressly did “ not

concer n ag g ressive, disruptive a ction or even g roup demonstrations,” 393 U.S. at 508, school officials at L ive Oak reasonably could have u nderstood the students’ act i o ns

as f alling into any of those three categ ories, particularly in the
contex t of the 2009 alter c a tion. The events of 2010 took place in the shadow of similar disruptions a y ear earlier, a nd pitted racial or ethnic g roups ag a inst eac h other. Moreover, students warned o fficials that there mig ht be phy sical fig hting at the break. 6

W e reco g niz e that, in certain contex ts, limiting speech because of reactions to the speech may g ive rise to concerns about a “heckler’s veto.” 7 B ut the lang u ag e of Tinker and the school setting g uides u s here. W here speech “for any reason

. . . materially d isrupts classwork or involves sub s t a n tial disorder or invasion of the rig h t s of others,” school officials
may limit the speech. Tinker

, 393 U.S

. a t 5 1 3

. To require

s c h ool officials to precisely identify the source of a violent threat before taking readily -available steps to quell the threat would burden o fficials’ a

bility to p rotect the students in their charg e—a particularly salient concern in an e ra of rampant school violence, much of it involving g uns, other weapons, o r

6 Ou r recen t case of Fru d den v. Pillin g , 7 4 2 F.3 d 1 1 9 9 (9 th Cir. 2 0 1 4 ), is n o t in stru ctiv e h ere, s in ce th at case, u n lik e th is o n e, in v o lv ed co m p elled
sp eech in t

h e f o rm o f a m an d ato ry u n if

o rm po l icy an d d id n o t in v o l v e th e in tersectio n o f th e First A m en d m en t an d v i o len ce o r a th reat o f v io len ce in th e sch o o l settin g

. Id . a t 1 2 0 4

.

7 T h e term “ h eck ler’ s v eto ” is u s ed t o d e s c r i b e situ atio n s in w h ich th e g o v ern m en t stif

les sp eech b ecau se it is “ o f f en siv e to so m e o f [its] h earers,

o r s im p ly b ecau se b y stan d ers o bj ect to p eacef u l an d o r d e rly d em on stratio n s.” Ba ch ella r v. Ma ryla n d

, 39 7 U.S. 5 6 4
, 5 6 7 (1 9 7 0) (in t ern al citatio n s an d q u otatio n m ark s o m i tted ).D A R I A N O V

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threats on the internet—and run counter to the long standing directive that there is a distinction b etween “threats or acts o f violence o n school pre m ises” and speech that e ng enders no “substantial d isruption of or material interference with school activities.” Id. at 508, 514; see also id. at 509, 513.

I n the school contex t, the crucial distinction is the nature of the s p e e c h

, not the source o f it. The cases do not disting uish between “substantial d isruption” caus ed by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. S ee, e.g. , Taylor v. Roswell Indep. Sch. Dist.
, 713 F .3d 25, 38, 38 n

. 11 ( 1 0 th Cir. 2 013) (observing that “Plaintiffs note that most disruptions occurred only because o f w rong ful behavior o f third parties and that no Plaintiffs partic i p a t e d in these activities

. . . . This arg ument mig ht be ef f ective outside the school contex t, but it ig n ores the ‘special characteristics o f the school environment,’” a n d that th e c o u rt “ ha[ d] not found[ ] case law holding that school officials’ ability to limit disruptive e x pression depends o n the b lameworthiness of the speaker. To the contrary , the Tinker rule is gu i d e d by a school’s need to protect its learning env i r o n m e nt and its student s , a n d courts g enerally inquire only whether the potential f

or substantial disrupti o n i s g enuine.” (quoting Tinker

, 393 U.S. a t 506)); Zamecnik

, 636 F .3d a t 879–80 (looking to the react i o n s of onlookers to determine whether the speech could be reg ulated); Holloman ex rel. Holloman v

. Harland

, 370 F .3d 1252, 1272 ( 11th Cir. 2004) ( l o o k i n g to the reaction s o f onlookers to determine whether a student’s

ex p ression “ cause[ d] (or [ was] likely to cause) a material a nd substantial d isruption”) (alterations and inter n a l quotation marks omitted).D A R I A N O V

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Perhaps n o cases illustrate this p rinciple more c learly than those involving display s o f the Confederate flag in the school
contex t. W e respect the American flag

, and know t hat its meaning and its histor y d i ffer g r e a tly from that of the Confederate flag

. N evertheless, the leg al p rinciple t h at emerg es from the Confederate flag cases is that what matters is substantial disruption or a reasonable forecast of substantial disrup t i o n , taking into account either the behavior of a speaker— e.g. , causing substantial disruption along side the silent or passive wearing of an emblem—or the re a c t i ons o f onlookers. Not s urprising ly

, these cases also arose from efforts to stem ra c i a l tension that was disruptive. L ike D a riano
, the reasoning in these cases is founded on Tinker

. See, e.g. , Hardwick

, 7 1 1 F .3d a t 4 3 7 ( Fourth Circuit case upholding school officials’ ban o n shirts with labels like “Southern Chicks,” “Dix ie A n gels,” and “Daddy ’s L ittle Redneck,” a

nd the Confederate f

la g icon, even thoug h the bearer contended that h ers was a “silent, peaceable d i splay ” that “ even drew positive remarks from s o m e students” a nd “never caused a disruption” because “sc h o o l officials could reasonably f

o recast a disruption because of h er 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, apply ing Tin k

e r , have held that administrators may prohibit t h e d isplay o f the Confederate flag in lig h t of racial hostility and tension at their schools”); Barr v. Lafon

, 538 F .3d 554, 567–68 (6th Cir. 2008) (noting the “ disruptive potential o f the flag in a school where racial tension is hig h,” and that “[ o ] ur holding that the school in the circumstances o f this case reasonably f

orecas t the disruptive effect of theD A R I A N O V

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Confederate flag accords with precedent in our circuit as w ell as our sister circuits”). 8

Our role is not to second-g uess the decision to h ave a Cinco de May o c elebration or the precautions put in place to avoid v i olence where the school r easonably forecast substantial disruption or v i o l e n c e. “W e review

. . . with deference[ ] schools’ decisions in connecti on with the safety of th ei r students even when freedom of ex pression is involved,” k e e ping in mind that “deference d oes not mean abdication.” LaVine , 257 F .3d at 988, 992. As in W ynar , the question h ere is not whether the threat o f v i o lence was real, but only whether it was “reasonable for [ the school] to proceed a s thoug h [ it w ere] .” 7 28 F .3d at 1071; Karp
, 477 F .2d at 175 (no t i n g that “ Tinker does not demand a certainty that disruption will occur, but rather the ex istence o f facts which mig ht reasonably lead school officials to forecast substantial disruption ” ). H ere, both the specific events of May 5, 2010, a

nd the pattern of which those e v e n t s were a part made it r easonable for school officials to proceed a s thoug h the threat o f a potentially violent d i s t u r bance w as r e al. W e hold that school o fficials, namely Rodrigu e z , did not act unconst itutionally

, under either the F irst Amendment o r Article I
, § 2(a) of t h e C a l i fornia Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with a n ex cused absence i n o rder to prevent substantial disruption or violence at school.

8 Oth er circu its th at h av e co n sid ered th e q u estio n h av e ad o p ted th e sam e lo g ic. S ee, e.g

. , B.W

.A. v. Fa rmin g t o n R-7 S ch

. Dist.
, 5 54 F.3 d 7 3 4
, 7 3 9

– 4 0 (8 th Cir. 2 0 0 9 ) ; W est v. Derb

y Un ified S

ch

. Dist. No

. 2 6 0
, 2 0 6 F.3 d 1 35 8
, 1 3 6 5

– 6 6 (1 0 th Cir. 2 0 0 0 ); S co t t v. S ch

. Bd

. o f Ala ch u a Cn ty. , 3 2 4 F.3 d 1 2 4 6 , 1 2 48 (1 1 th Cir. 2 0 0 3) (p er cu riam ).D A R I A N O V

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II. E Q U A L P R O T E C T I O N C L A I M

The students’ equal protection claim is a variation of their F irst A mendment challeng e. Cf. U.S. C O N S T

. amend. XI V
, § 1 (stating that “[ n] o State shall

. . . deny to a ny per s o n within its jurisdiction the equal protection of the laws”). They alleg e that they were treated differently than students wearing the colors of the Mex ican f l a g, a nd that their speech was suppressed because their viewpoint was disfavored. W e n ote that the students h a d no response when asked why they chose
to wear flag c l o t h i n g on the day in question. The school respond s t hat it h ad 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 discriminatory manner may violate both t h e F irst A mendment and the E qual Protection Clause. R.A.V. v. City o f St. Paul

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

fused the F irst Amendment into the Equal Protection Clause in this fa s hion, but

. . . with the acknowledg ment

. . . that the F irst Amendment underlies its analy sis”). W here plaintiff s alleg e violations of the E q ual Protection Clause r elating to ex pressive conduct, we employ “essentially the same” a

naly sis as w e would in a case alleg ing only c o n tent or viewpoint discrimination under the F irst Amendment. Barr v. Lafon

, 5 38 F. 3 d 5 54, 575 (6th Cir. 2008).

I n the school conte x t , we look ag a in to Tinker

. 393 U.S.
at 510; see a lso Barr
, 538 F .3d a t 576–77; Porter v. Ascension Parish Sch. B d.

, 393 F .3d 608, 615 (5th Cir. 2 004) (stating that Tinker “applies to school reg ulations directed atD A R I A N O V

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specific student viewpoints”). Accord i ng to Tinker

, schools

are not forced to “pr o h i b i t t h e wearing of all sy mbols o f political or controversial sig nificance” in order to justify a prohibition ag ainst the wearing o f a certain sy mbol, if such a prohibition is “necessary to avoid material and substantial i n t erference with schoolwork or discipline.” 393 U.S. a t 510–11. Schools may , under Tinker

, ban certain image s , for

ex a mpl e i m ag es of the Confederate flag on clothing

, even thoug h such bans mig ht c onstitute viewpoint discrimination. See, e.g. , Harper v. Poway Unified Sch. Dist.
, 445 F

. 3 d 1166, 1184–85 (9th Cir. 2 006) ( n oting that “[ w] hile the Confederate flag may ex press a particular v iewpoint, ‘[ i] t i s not only constitutionally allowable for scho o l o f ficials’ to limit the

ex p ression of racially e x plosive views, ‘ it is their duty to do

s o ’ ” (alteration in orig inal) (quoting Scott v. Sch. B d

. o f Alachua Cnty.
, 324 F

. 3d 1246, 1249 (11th Cir. 2003) (per curiam)), judgment vacated on other groun d s sub nom. Harper ex rel. Harper v. Poway Unified Sch. Dist.
, 549 U.S. 1262 (2007); S

cott , 324 F .3d at 1248 (upholding district court order barring Confederate sy mbols based o n “the potential disruption that the display ing of Confederate sy mbols would likely c reate”); W

est v. Derby Unifi e d Sch. Dist. No. 260
, 206 F

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

mbols based on a “series of racial incidents o r confrontations,” including “hostile confrontations between a g roup of white and black students”).

As the district court noted, the students offered no evidence “de m onstrating that students wearing the colors o f the Mex ican flag were targ et e d f o r violence.” The students offered no evidence that studen t s at a similar risk of d a ng er

were treated differently

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B e cause the record demonstrates that the students’ shirts “mig ht 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

. W e reject the students’ equal protection claim.

III. D U E P R O C E S S A N D I N J U N C T I V E R E L I E F C L A I M S

The students further challeng e the D istrict’s dress code, which prohibits clothing th at “ indicate[ s] g ang affiliation, create[ s] a safety haz ard, or disrupt[ s] school activities.” They seek to permanently e njoin the use of the dress code, claiming that it fails to provide objective standards by which to referee student attire, in vi o l a t i o n of the Due Process Clause. 9 W e reject the students’ due process claims.

The Supreme Court has “recog niz ed that maintaining security and order in the schools requires a certain deg ree of flex ibility in school disciplinary procedu r e s ,” and has thus specified that, “[ g ] iven the school’s need to be a ble to impose disciplinary sanctions for a wide rang e of unanticipated conduct disruptive of the educational proc e s s , the school disciplinary rules need not be as detailed as a criminal code

. . . . ” Bethel Sch. Dist.
, 4 7 8 U .S. a t 686 (holding that a school had not violated a student’s due proce s s rig hts b y disciplining him f

o r l ewd speech under a policy p rohibiting “obscene” speech).

9 Al t h o u gh th e District is n o t a p arty to th is ap p eal, w e co n sid er th e stu d en t s’ dress co d e claim s b ecau se t h ey b ro u g h t su it ag ain st Ro d rig u ez in h is o f f i cial cap acity

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The D istrict’s dress code is in line with others that the federal courts h ave held to be permi s sible. See, e.g. , Hardwick ex rel. Hardwick v. Heyward

, 711 F .3d 4 2 6
, 441, 444 (4th Ci r

. 2 0 1 3 ) (u p h o l d i n g c o d e p r o h i b i ting “disrupt[ ive] ” or “offensive” clothing

, including clothing that “distract[ s] ” o r “interfere[ s] ” ), cert. denied

, 134 S. C t

. 201 (2013); A.M. ex rel. McAllum v. Cash

, 5 85 F .3d 214, 224 (5th Cir. 2009) (upholding code prohibiting clothin g with “inappropriate sy

mbolism”).

Sig nificantly

, the dress code c h a lleng ed here incorporates the standards sanctioned in Tinker : safety and disruption. See B.W .A. v. F armington R

- 7 Sch. Di s t

. , 5 0 8 F

. Supp. 2d 740, 750–51 ( E.D. M o

. 2 007) (holding that a dress c ode that contains lang u ag e that “ tracks Tinker ” poses “no real dang e r” of compromising the F irst Amendment rig hts of students), aff' d 554 F .3d 734 (8th Cir. 2009 ) ; see also Hardwick

, 711 F .3d at 441. I t w ould be unreasonable to r equire a dress code to anticipate every scenario that mig ht pose a safety risk
t o students or that mig ht substantially disrupt school activities. Dress codes are not, n or sho u l d they b e, a school

ve rs i o n o f the Code o f F ederal Reg ulations. I t would be equally unreasonable to ho l d t h at school officials could not, at a minimum, rely upon the lang uag e Tinker g ives them.

W e affirm the district court’s holding that t h e p o licy is
not unconstitutional l y vag ue and does not violate the students’ rig ht to due process.

AF F IRMED.