Dariano v. Morgan Hill Unified School District

767 F.3d 764 (9th Cir. 2014)

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Nature of the Case

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Facts

A Cinco de Mayo celebration was presented at a high school in the 'spirit of cultural appreciation.' It was described as honoring 'the pride and community strength of the Mexican people who settled this valley and who continue to work here.' The school likened it to St. Patrick's Day or Oktoberfest. Live Oak had a history of violence both gang-related and also racial. In the six years that Nick Boden served as principal, he observed at least thirty fights on campus, both between gangs and between Caucasian and Hispanic students. A police officer is stationed on campus every day to ensure safety on school grounds. On Cinco de Mayo in 2009, a year before the events there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. They exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting 'USA.' A group of Mexican students had been walking around with the Mexican flag, and in response to the white students' flag-raising, one Mexican student shouted 'f*** them white boys, f*** them white boys.' At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who 'shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.'s] clothing.' A year later, during the present issue, a group of Caucasian students, including the students bringing this appeal, wore American flag shirts to school. A female student approached M.D. that morning, motioned to his shirt, and asked, 'Why are you wearing that? Do you not like Mexicans[?]' D.G. and D.M. were also confronted about their clothing before 'brunch break.' Students alerted school authorities about a pending altercation. The students were directed to either turn their shirts inside out or take them off. The students refused to do so. Eventually, some of the students were allowed to go to class and two chose to go home as they refused to hide their flags. Neither was disciplined. The two students, D.G. and M.D. were threatened in the following days. They did not go to school on May 7. Ps, the students, and their parents, acting as guardians, brought suit under 42 U.S.C. § 1983 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 court ruled for D on summary judgment. Ps appealed.