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Dariano v. Morgan Hill Unified School Dist.

United States Court of Appeals, Ninth Circuit

February 27, 2014

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,
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

Argued and Submitted October 17, 2013, San Francisco, California

Page 355

Appeal from the United States District Court for the Northern District of California. D.C. No. 5:10-cv-02745-JW. James Ware, District Judge, Presiding.

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 Plaintiffs-Appellants.

Don Willenburg (argued), Mark S. Posard, and Alyson S. Cabrera, Gordon & Rees LLP, San Francisco, California, for Defendants-Appellees.

Before: Sidney R. Thomas and M. Margaret McKeown, Circuit Judges, and Virginia M. Kendall, District Judge.[*] Opinion by Judge McKeown.


Page 356

McKEOWN, Circuit Judge.

We are asked again to consider the delicate relationship between students' First Amendment rights and the operational and safety needs of schools. As we noted in Wynar v. Douglas County School District, 728 F.3d 1062, 1064 (9th Cir. 2013), " school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights." In this case, after school officials learned of threats of race-related violence during a school-sanctioned celebration of Cinco de Mayo, the school asked a group of students to remove clothing bearing images of the American flag.[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.


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.

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,

Page 357

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 the district court, " shoved a Mexican flag at him and said ...

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