School Administrators May Ask Students to Remove Clothing Bearing American Flag to Avoid Threat of Violence or Disruption

In Dariano v. Morgan Hill Unified School Dist. , published February 27, 2014, the Ninth Circuit Court of Appeals affirmed summary judgment in favor of an assistant principal in a lawsuit under 42 U.S.C. section 1983 alleging that he had violated the plaintiff high school students' First Amendment, Equal Protection, and Due Process rights.  On the day of a Cinco de Mayo celebration at the school, a group of students wore American flag shirts to the school. There was a history of violence at the school, some gang-related and some along racial lines. At the previous year's Cinco de Mayo celebration, there had been confrontations between students flying a makeshift American flag and students celebrating the holiday.  School officials were concerned about the safety of the flag-wearing students.  The principal asked them to turn their shirts inside-out or take them off.  Some of the students declined.  The vice-principal told the students of his safety concerns.  School officials offered to allow the students who declined to change their shirts to go home, without the absence counting against their attendance records.  None of the students were disciplined.

The Ninth Circuit rejected the students' argument that the school officials had violated the students' First Amendment right of free expression.  To justify prohibition of a certain kind of expression, school officials must be able to show that their action was caused by something more than avoiding an unpopular viewpoint.  Officials may prohibit forms of expression that they reasonably forecast would cause disruption of school activities or collide with the rights of other students.  Here, the officials acted reasonably in response to their concerns that the shirts might trigger violence or disruption of school activities, based on past experiences.  The officials did not punish the students for wearing the shirts.  The officials did not violate the students' equal protection rights, because there was no showing that students wearing other types of flags on their shirts were at risk for violence.  The court also rejected the students' argument that the school district's dress code, which prohibits clothing that creates a safety hazard or disrupts school activities, violated due process by lacking objective standards.