Ninth Circuit Rules on Free Speech Issue in Schools
Late last month, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that the Principal of Live Oak High School properly exercised the school’s rights when he offered students wearing T-shirts bearing the American Flag on Cinco de Mayo the choice to either turn their shirts inside out or go home for the day. The Principal’s action came on the heels of threats of violence from Mexican-American students earlier in the day and the occurrence of a slight physical altercation on Cinco de Mayo 2009. The students were not disciplined in any way for their decisions to go home rather than turn their shirts inside out.
The court rested its decision on the First Amendment challenge made by the students on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503. In Dariano, the Ninth Circuit applied Tinker to find that the school could restrict student speech based upon officials’ reasonable belief that the T-shirts would cause a “material and substantial” disruption in school activities. The Ninth Circuit distinguished the facts of Dariano from those of Tinker by finding that in Tinker, there was no threat of disruption from the wearing of the armbands, whereas there were actual threats of violence throughout the day at Live Oak High School.