Threats of Violence Justify School’s Decision to Prohibit American Flag Shirts

February 2014

School officials did not violate students’ constitutional rights to freedom of expression, equal protection or due process by requesting them to remove clothing bearing images of the American flag after learning of threats of race-related violence during a school-sanctioned celebration of Cinco de Mayo.  Dariano v. Morgan Hill Unified School Dist. (9th Cir., Feb 27, 2014, No. 11-17858).

A three-judge panel of the 9th Circuit found that given the history of prior events at the school, including an altercation on campus, it was reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.  The panel held that the officials anticipated a substantial disruption of, or material interference with, school activities, and their response was tailored to the circumstances.

The case arose out of the events of May 5, 2010, Cinco de Mayo, at Live Oak High School, part of the Morgan Hill Unified School District (“District”).  Live Oak’s planned celebration was presented in the “spirit of cultural appreciation.”  However, at the prior year’s celebration, an altercation arose “between a group of predominantly Caucasian students and a group of Mexican students.  The groups exchanged profanities and threats.” 

A year later, several students wore American flag shirts to school.  Alerted to potential trouble, Live Oak’s principal directed an assistant principal to address the issue.  The assistant principal met with the students and explained that he was concerned for their safety.  The students did not dispute that their attire put them at risk of violence.  They were offered the choice either to turn their shirts inside out or to go home for the day with excused absences that would not count against their attendance records.  Two students chose to go home.  In the aftermath of their departure from school, they received numerous threats from other students.

The two students and their parents sued the District and its officials, alleging violations of their federal and California constitutional rights to freedom of expression and their federal constitutional rights to equal protection and due process.  The District Court dismissed all claims and, on appeal, the 9th Circuit affirmed the dismissal.

In finding that the actions of the school officials did not violate the students’ rights to freedom of expression, the 9th Circuit first acknowledged that under the standards established by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District, students may “express [their] opinions, even on controversial subjects . . . if [they] do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”  (Tinker involved a school’s attempt to ban students from wearing armbands to protest the war in Vietnam.)

However, in contrast to Tinker, in which there was no indication of “interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone,” the court found that there was evidence of “nascent and escalating violence” at Live Oak.  On the morning of May 5, the students were confronted about their clothing by other students.  Additionally, threats issued in the aftermath of the incident were “so real that the parents of the students involved in this suit kept them home from school two days later.”

Additionally, the court noted that the school officials at Live Oak explicitly referenced anticipated disruption, violence and concerns about student safety in making their decision, which, the court stated, was narrowly tailored to avert violence and focused on student safety. 

The court pointed out that officials restricted the wearing of certain clothing, but did not punish the students.  Further, they did not enforce a blanket ban on American flag apparel, but instead allowed two of the students to return to class when it became clear that their shirts were unlikely to make them targets of violence because the flag imagery was not “prominent.”

According to the court, “both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”  As a result, the officials did not act unconstitutionally in asking students 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 9th Circuit also upheld the dismissal of a related constitutional equal protection claim alleging that the students were treated differently than students who wore the Mexican flag, and that their speech was suppressed because their viewpoint was disfavored.  It observed that the students offered no evidence “demonstrating that students wearing the colors of the Mexican flag were targeted for violence.”  Because the students could not show that students at a similar risk of danger were treated differently, there was no evidence of impermissible viewpoint discrimination.

Finally, the 9th Circuit affirmed the lower court’s holding that the District’s dress code, which prohibited clothing that “indicate[s] gang affiliation, create[s] a safety hazard, or disrupt[s] school activities,” was not unconstitutionally vague and did not violate the students’ right to due process.

This case is an excellent illustration of the delicate balance between students’ First Amendment rights to freedom of speech and expression and school officials’ ability to curb the exercise of those rights when they can reasonably forecast violence or substantial disruption at school.



F3 NewsFlash prepared by Christopher J. Fernandes and John W. Norlin.
Chris is a partner in the F3 San Diego office.
John is Special Counsel in the F3 San Diego office.




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