Academic journal article Harvard Law Review

First Amendment - Student Speech - Ninth Circuit Denies Motion to Rehear En Banc Decision Permitting School Suppression of Potentially Violence-Provoking Speech

Academic journal article Harvard Law Review

First Amendment - Student Speech - Ninth Circuit Denies Motion to Rehear En Banc Decision Permitting School Suppression of Potentially Violence-Provoking Speech

Article excerpt

FIRST AMENDMENT--STUDENT SPEECH--NINTH CIRCUIT DENIES MOTION TO REHEAR EN BANC DECISION PERMITTING SCHOOL SUPPRESSION OF POTENTIALLY VIOLENCE-PROVOKING SPEECH.--Dariano v. Morgan Hill Unified School District, 767 F.3d 764 (9th Cir. 2014), cert. denied, 2015 WL 1400871.

The First Amendment right to freedom of speech is a guarantee that audiences will be confronted with messages they oppose. As a consequence, the protection of this individual freedom is often pitted against society's interest in keeping the peace. This conflict is heightened in the public school context. Recently, in Dariano v. Morgan Hill Unified School District, (1) the Ninth circuit refused to reconsider en banc a ruling that high school administrators did not violate students' First Amendment rights by prohibiting them from wearing American flag emblems during a Cinco de Mayo celebration in order to prevent violence against those students. The court did so over the dissent of Judge o'Scannlain, (2) who criticized the ruling as enacting a "heckler's veto" in the school speech context and thereby allowing students to use the government to suppress speech they disagree with. (3) Yet importing the heckler's veto doctrine (4) as it presently exists into the school context would provide little guidance for school administrators attempting to respond to disruptive student speech. The precise dictates of the doctrine are unsettled and the unique circumstances of the school setting introduce distinct concerns not present in the police context.

on May 5, 2010, Live oak High School in Morgan Hill, California, held its annual cinco de Mayo celebration, honoring "the pride and community strength of the Mexican people." (5) When a group of Caucasian students arrived wearing shirts bearing American flag emblems, several students, including some of Mexican descent, (6) expressed concerns to Assistant Principal Rodriguez that the shirts would lead to a physical altercation. (7) The school had a "history of violence among students, some gang-related and some drawn along racial lines." (8)

Rodriguez directed the students to either turn their shirts inside out or take them off, explaining that he was concerned for their safety. (9) When the students refused to do either, he required they return home for the day with an excused absence. (10) The students subsequently received numerous threats, causing their parents to keep them home from school the following two days. (11)

These students, through their parents acting as guardians, brought suit against the school district as well as Principal Boden and Assistant Principal Rodriguez in their official and individual capacities. (12) They alleged that the school had violated their "federal and California constitutional rights to freedom of expression and their federal constitutional rights to equal protection and due process." (13) The district court disposed of all claims, holding that the school officials "did not violate the students' federal or state constitutional rights." (14)

The Ninth Circuit affirmed. Writing for the panel, Judge McKeown (15) analyzed the students' claims under Tinker v. Des Moines Independent Community School District, (16) which famously established that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (17) Tinker held that schools may suppress student speech only when it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." (18) In order "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.'" (19)

Judge McKeown distinguished the facts of Dariano from those of Tinker, finding that it was reasonable for Live Oak officials to determine that the students' shirts constituted a threat of substantial disturbance. …

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