• The Constitutional Rights of Students Wearing American Flag Shirts on Cinco de Mayo Were Not Violated When They Were Required to Remove or Turn Their Shirts Inside Out or Leave School for the Day To Prevent Substantial Disruption or Violence at the School
  • March 10, 2014
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • On Cinco de Mayo 2010, when school officials at a California high school became aware of a potential altercation between two groups of students, they asked the students wearing shirts bearing images of the American flag to remove or turn their shirts inside out or leave school for the day as an excused absence. The students later sued alleging violation of their Constitutional freedom of expression, equal protection, and due process rights. A federal district court ruled in favor of the district. On appeal, the Ninth Circuit Court of Appeals upheld the district court decision, finding that the school officials' actions, among other things, did not violate the First Amendment since the officials "anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances.” (Dariano v. Morgan Hill Unified School District (--- F.3d ----, C.A.9 (Cal.), February 27, 2014).


    The High School at issue in this case had a history of violence between students including some gang related and some drawn along racial lines. The prior year on Cinco de Mayo, there had been an altercation between a group of predominately Caucasian students and a group of Mexican students revolving around actions related to the display of an American flag by the Caucasian students. During the Cinco de Mayo celebration in 2010, described as honoring "the pride and community strength of the Mexican people who settled this valley and who continue to work here," a group of Caucasian students wore shirts bearing images of the American flag to school. Facts were brought to school officials' attention that led them to believe a physical altercation between the Caucasian students and a group of Mexican students might occur and students wearing the American flag shirts were targeted for violence.

    As a result, school officials met with the students wearing the American flag shirts to explain their safety concerns. Only those students whom officials determined were wearing shirts bearing more prominent imagery, which made them more likely to be singled out and targeted for retaliation, were directed to remove or turn them inside out, or go home for the day without an unexcused absence. Two of the students chose to go home and none were disciplined.

    Students including those who chose to go home, sued the school district and individual school administrators in federal court, claiming that the school district violated their constitutional rights of free speech, equal protection, and due process. Following the federal district court's ruling against them, the students appealed.


    The Ninth Circuit Court of Appeals upheld the district court decision, finding that the school officials did not violate the students' rights to freedom of expression by asking them 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.

    The Ninth Circuit explained that the Supreme Court case, Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) 393 U.S. 503, allows schools to 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." School officials are not required to wait until actual disruption occurs before they may act. Certainty of disruption is not required. However, there must be facts which might reasonably lead school officials to forecast substantial disruption.

    Given the history of violence and the specific events on May 5, 2010, the court determined it was reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. As part of its determination, the court recognized that the officials' actions were tailored to avert the threatened violence and focused on school safety in at least the following ways: (1) officials restricted the wearing of the American flag shirts but did not punish the students - pointing out that officials have greater latitude to suppress than punish student speech; and (2) officials did not impose a "blanket ban" on American flag apparel - students wearing shirts unlikely to make them a target of violence were allowed to return to class.

    What This Means To You

    School officials are given deference by the courts regarding their decisions involving student safety even when student freedom of expression is involved. However, school officials' actions must be tailored to avert the disruption and focus on student safety. While the law does not require school officials to be certain that substantial disruption or material interference with school activities will occur before actions are taken that impact student speech, facts must exist which reasonably lead school officials to predict the occurrence of such substantial disruption. School officials are also reminded that they have greater latitude to suppress student speech than to punish students for it. Therefore, even if there are facts supporting a reasonable determination that substantial disruption will occur, a student cannot be punished without justification.