Public Entity Client Advisory: School Administrators Did the Right Things for the Right Reasons

I.    Decision

In a decision filed February 27, 2014, the Ninth Circuit Court of Appeals continued a moderate trend of deference to school administrators’ decisions. In Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that school officials did not violate the students’ right to freedom of expression, due process, or equal protection by asking students to remove clothing bearing images of the American flag at a school-sanctioned celebration of Cinco de Mayo. Although the decision has been derided by advocates on both sides of the political spectrum, the decision should be recognized as a realistic assessment of our twenty-first century school environment, and as a testament to well-trained and cool-headed administrators who did the right thing for the right reasons. The decision holds lessons for us all.

II.    Factual Circumstances

On May 5, 2010, the school held a Cinco de Mayo celebration presented in the “spirit of cultural appreciation.” The school likened it to St. Patrick’s Day or Oktoberfest. However, this particular school had a history of gang-related and racial violence. The school principal had observed at least 30 fights between Caucasian and Hispanic gangs in the previous 6 years. There was a resource officer stationed on campus every day to ensure student safety. On Cinco de Mayo in 2009 there was an altercation between Caucasian and Mexican students. A year later a group of Caucasian students wore American flag shirts to school. Some of these students were confronted by Mexican students at brunch. Students warned the Vice Principal that there “might be problems.” Mexican students asked the Vice Principal why the Caucasian students “get to where [sic] their flag out when we don’t get to where [sic] our flag?”

The Principal then directed the Vice Principal to have the students either turn their shirts inside out or take them off. The students refused. Staff met with the students and explained that they were concerned for their safety. The administrators offered the remaining students a choice to either turn their shirts inside out or go home for the day with excused absences that would not count against their attendance record. School officials permitted another student with less prominent flag iconography to return to class because they considered the imagery less “prominent,” and less likely to elicit possible recrimination. In the aftermath of the event the students who displayed American flags received numerous threats from other students including telephone calls, text messages and rumors that gang members would come down to “take care of” the students. The students did not return to school the following day because of the threats.

The students and their parents, acting as guardians, brought suit under 42 U.S.C. §1983 and the California Constitution against the District and the administrators alleging violations of federal and California constitutional rights of freedom of expression, equal protection and due process.

III.    First Amendment Analysis

The First Amendment claims were analyzed within the famous framework of Tinker v. Des Moines Independent Community School Dist., 193 U.S. 503 (1969). Tinker held students may express their opinions, even on controversial subjects…“If they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of school and without colliding with the rights of others.” School officials must demonstrate that their action was justified by something more than a mere desire to avoid discomfort and unpleasantness. 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 rights of other students to be secure and to be let alone.” The Ninth Circuit 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.” 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.” (Karp v. Becken, 477 F 2d. 171, 175 (9th Cir. 1973).

Although this language may read like unequivocal deference to administrative prognostications of schoolhouse disruption, the Dariano court closely adhered to Tinker which warned against student restrictions based on an “urgent wish to avoid controversy” or a trumped-up excuse to tamp down student expression. Quoting Dariano, “[O]ur role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence. We review…with deference schools’ decisions in connection with safety of their students even when freedom of expression is involved, keeping in mind that ‘deference’ does not mean abdication.” LaVine v. Blaine School District 257 F2d. 981, 982 (9th Cir. 2001). It is important to understand why the court did not abdicate its responsibility to protect speech, and instead deferred to the administrator’s decisions.

IV.    Crucial Administrative Decisions

A.    The Actions Were Reasonable Based on the Facts Presented

The court considered staff’s decisions reasonable because there was evidence of growing and escalating violence. Free speech is sacrosanct. Consequently, courts reject unjustified restrictions based on speculation. Here, staff knew that there were racial tensions between Caucasians and Hispanics. The principal had witnessed approximately 30 altercations. There were racially motivated tensions on Cinco de Mayo in 2009. On Cinco de Mayo 2010, Hispanic and Caucasian students alike warned the administration of pending problems. Staff met with the students who did not dispute that their attire put them at risk of violence. One plaintiff stated he was, “willing to take on that responsibility” in order to continue wearing his shirt. The following day there were threatening telephone calls, text messages and conversations. The students did not return to school on May 7, 2010. Clearly there were documentable, objective reasons to believe wearing the shirts created a safety risk.

B.    The Actions Were Narrowly Tailored to Avoid Disruption

School officials’ actions focused on safety, not speech. Courts generally reject generalized prohibitions on speech and attire. However, here, the school’s decisions were specific to student safety and avoided protected speech. Specifically, officials restricted the wearing of certain clothing, but did not punish students. In spite of the explosive circumstances, students were offered the choice of turning their shirts inside out or going home with an excused absence. Consequently, there was no student discipline whatsoever. Furthermore, the conduct was focused on students who posed a safety hazard. Two students were allowed to return to class when it became clear their shirts were unlikely to make them the target of violence. The focus was not on the American flag, but instead the students’ safety. As such, administrative actions were narrowly tailored to avoid violence.

C.    All Students Were Treated in the Same Manner

Government action that suppresses protected speech in the discriminatory manner violates both the First Amendment and the Equal Protection Clause. RAV V. City of St. Paul 505 U.S. 377, 384 n.4 (1992). Plaintiffs also raised an equal protection claim alleging they were treated differently than the students wearing the colors of the Mexican flag and their speech was suppressed because their viewpoint was disfavored. The school responded that their actions were based on safety not the content of the speech. Although the administrative actions were directed only at students wearing American flag shirts, the plaintiffs offered no evidence “demonstrating the students wearing colors of the Mexican flag were targeted for violence.” Furthermore, there was no evidence that students at a similar danger risk were treated differently. Therefore the court found no evidence of content-based discrimination.

V.    Lessons Learned

The Dariano decision is replete with teachable moments. It is very encouraging that the court understands that administrators are faced with difficult decisions every day. It is even more encouraging that they realize that school violence is an unfortunate reality, and school employees’ greatest responsibility is to protect those in their charge. However, that encouragement must be tempered by the subtlety in the court’s language; “[D]eference does not mean abdication.” If there had not been either objective evidence of racial tensions or disruptive potential the court may not have viewed staff’s action as “reasonable.” If the staff either administered heavy-handed discipline, or sent home all students wearing any semblance of an American flag, the actions may not have been sufficiently tailored to promote safety. Fortunately, the Morgan Hill administrators were well-trained and deliberative. That may be the greatest lesson of all.

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March 4, 2014