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November 2011

Gordon & Rees Team Wins Summary Judgment in High Profile First Amendment Case

On November 8, 2011, Chief Judge James Ware of the U.S. District Court, Northern District of California, granted summary judgment in the Dariano v. Morgan Hill Unified School District case. San Francisco Partners Alyson Cabrera and Mark Posard represented the defendants.  
The case involved a small group of students at Live Oak High School in Morgan Hill, California, who wore American themed clothing to school on Cinco de Mayo 2010. Believing the students' safety was jeopardized by their clothing, school administrators directed the students to remove or turn inside out, their shirts which depicted the American flag, or risk suspension. Two of the students voluntarily left school and a third was removed by his parents. Immediately following this incident, the students and their parents involved the media and the case went viral, with significant local, and even national, media attention.
The student plaintiffs brought suit against the District and school administrators claiming various constitutional violations, including violation of the First Amendment, Equal Protection Clause and Due Process Clause. The parties both filed motions for summary judgment. Critical to the Court's decision on the First Amendment claim was the interpretation of Tinker v. Des Moines, the controlling case in the context of student speech. The specific question before the Court, and which was an issue of first impression in the Ninth Circuit, was whether school administrators are constitutionally permitted to suppress student speech when they reasonably perceive a threat of violence by other students against a student speaker. Plaintiffs argued that Tinker requires an "actual disruption " before a school may suppress student speech while the District argued that Tinker adopted a "reasonable forecast" standard. The Court embraced the defendants' argument of a reasonable forecast standard in deciding for the District on the First Amendment claim.
This decision was of paramount importance to this school district, and likely, many others throughout the country.

To read the Court's decision, please click here.

Alyson S. Cabrera
Mark S. Posard