## Facts

- Live Oak High School (Morgan Hill, California) held a Cinco de Mayo celebration on May 5, 2010.
- Several white students wore shirts displaying the American flag.
- The school had a documented history of student violence and racial tension, including an altercation during the prior year’s Cinco de Mayo event.
- On the day of the celebration, students (including some of Mexican descent) told an assistant principal that the American-flag shirts could trigger a physical altercation and questioned why the American flag was permitted while other flags were not.
- Citing safety concerns and the school’s prior incidents, the assistant principal directed the students wearing American-flag shirts to turn the shirts inside out, remove them, or leave campus.
- The students refused to change their clothing and left campus with excused absences; they later reported threats and stayed home for two additional days.
- The students (through their parents) sued the district and administrators, alleging violations of the First Amendment, due process (vagueness), and equal protection under federal and state law.
- The district court granted summary judgment to defendants; the students appealed.

## Issues

1. Whether school officials violated the First Amendment by requiring students to remove or cover American-flag shirts, or leave campus, during a Cinco de Mayo event.
2. Whether the school’s governing standard for restricting student expression was unconstitutionally vague in violation of due process.
3. Whether the restriction constituted impermissible viewpoint/content discrimination or otherwise violated equal protection.

## Decision

- The Ninth Circuit affirmed summary judgment for the school district and officials.
- Applying *Tinker*, the court held officials could reasonably forecast substantial disruption or violence based on the school’s history and the specific contemporaneous warnings received that day.
- The court concluded the response was tailored to the circumstances because officials offered limited options and did not impose a general ban on patriotic or American-flag expression.
- The court rejected the vagueness challenge, holding the standard guiding officials’ actions was constitutionally sufficient.
- The court rejected the equal protection/viewpoint discrimination claim, finding the restriction was motivated by safety and disruption concerns rather than hostility to the message of patriotism.

## Legal Principles

- Public school officials may restrict student expression when they can reasonably forecast that the expression will cause substantial disruption of or material interference with school activities (*Tinker* standard).
- Reasonableness is assessed under the totality of the circumstances, including prior incidents and concrete, contemporaneous indications of potential disruption or violence.
- A restriction aimed at preventing anticipated disruption may be permissible even if the expression is political, provided the action is not imposed to suppress a disfavored viewpoint and is limited to the circumstances presented.
- Due process is not violated where the governing standard gives adequate notice and constrains discretion through an established disruption-based test rather than unguided, standardless enforcement.

## Conclusion

The Ninth Circuit held that school officials did not violate students’ First Amendment, due process, or equal protection rights by requiring removal or covering of American-flag shirts (or permitting the students to leave with excused absences) during a Cinco de Mayo celebration, because officials reasonably forecasted a substantial disruption or violence and acted with a limited, safety-based response under *Tinker*.


Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764 (9th Cir. 2014)