March 2011
Number 12

The United States District Court of the Northern District of California recently ruled that three students who were prohibited by high school administrators from wearing American flag t-shirts to school on Cinco de Mayo, the Mexican holiday, may proceed with their lawsuit against the administrators in their individual capacities for damages based on the alleged violation of the students’ free speech, due process, and equal protection rights.

In the unpublished decision Dariano v. Morgan Hill Unified School District (Feb. 17, 2011, 10-02745), the three plaintiff students were wearing t-shirts depicting the American flag at school on Cinco de Mayo. Their high school assistant principal required them to remove the t-shirts or turn them insideout. The students refused both options and were ordered to the assistant principal’s office. Shortly thereafter, the students’ parents arrived and school administrators told the parents and students that the American flag t-shirts were prohibited because it was Cinco de Mayo.

After the meeting between the administrators, parents and students, one student was allowed to return to class because his t-shirt did not contain an entirely “pro-U.S.” message. The other two students were told that they could be suspended if they did not remove the shirts or turn them insideout. The students again refused both options and were sent home by the school administrators for the day.

At the time of the incident, the administrators reasoned that their actions were supported by a district policy stating that, “Clothing . . . or actions which . . . disrupt school activities will not be tolerated. Such actions or the wearing and/or possession of these items may be cause for suspension.” Following the incident and resulting controversy, the principal and assistant principal resigned and the district’s superintendent publicly stated that the district had no policy prohibiting students from wearing patriotic clothing to school. The students’ parents filed suit against the district and the two high school administrators on behalf of themselves and the students. The suit claimed violations of the federal constitutional rights to free speech, due process and equal protection, and the right to free speech under the California constitution.

In response, the defendants argued that there was no longer a controversy because the administrators had resigned and because the administrators’ actions were not actually sanctioned by district policy. Moreover, they argued that the district policy did not, in fact, bar patriotic clothing. The court, however, concluded that neither the administrators’ resignation nor the superintendent’s renunciation was enough to end the controversy. Neither action made it “absolutely clear” to the court that the wrongful behavior at issue in the case would not recur.

The defendants also argued that the students’ claim for damages against the district and its administrators was barred by the Eleventh Amendment, which protects public officials acting in their official capacity from suits for damages. The court again ruled against the defendants on this point, finding that since the students had sued the administrators in their individual – not official – capacities, the Eleventh Amendment did not apply to bar the plaintiffs’ claims for damages. 

Finally, the defendants argued that the plaintiff parents could not bring a constitutional challenge on their own behalf because they were not students at the high school. The court sided with the defendants, ruling that while the parents could bring a suit on behalf of their minor children, the parents were not able to show that the defendants had violated the parents’ First Amendment free speech rights.

At this stage of the litigation in Dariano, the court has only addressed certain procedural defenses raised by the defendants. Generally, damage claims for violations of federal constitutional rights are not barred by the Eleventh Amendment and may proceed against  dministrators in their individual (as opposed to official) capacities. Such administrators are entitled to assert the defense of qualified immunity, which bars a damage claim if the point of law at issue in the litigation was not clearly established. As Dariano moves forward, the two school administrator defendants may assert the qualified immunity defense.

Dariano serves as a reminder that over the past decade there has been a significant increase in student lawsuits relating to alleged violations of student free speech rights when students have not been allowed to wear apparel containing some form of expressive message, such as the American flag shirts in this case. Whether a school can prohibit a student from wearing apparel that contains an expressive message usually depends on whether the message has caused or foreseeably will cause a substantial disruption to the educational environment.

If you have any questions relating to Dariano, rights of students associated with shirts and other clothing, or student free speech rights in general, please do not hesitate to contact one of our eight offices located statewide or consult our website.

Sloan Simmons
Shareholder and Student Practice Group Co-Chair
Sacramento Office

Jonathan Dale
Monterey Office

© 2011 Lozano Smith


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