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Gordon & Rees San Francisco Team Wins Major Appeal Balancing Student Safety and Free Speech

Gordon & Rees partners Don Willenburg, Alyson Cabrera and Mark Posard recently won a Ninth U.S. Circuit Court of Appeals decision balancing student safety and free speech rights.

In Dariano v. Morgan Hill Unified School District, school officials learned that the student-plaintiffs could be targeted for violence on May 5, 2010, due to their apparel (shirts with an American flag motif). Officials asked these students to remove the apparel or leave for the day with excused absences. The plaintiffs framed the case as involving a “ban” on the American flag on Cinco de Mayo. In contrast, as Gordon & Rees argued and the court agreed, the school administrators made a reasonable decision given the circumstances of pre-existing tensions and specific threats, and did not violate the students’ right to free speech.

In a unanimous decision, the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of the school. The Ninth Circuit found that under the circumstances, “the school’s actions presciently avoided an altercation.” The court rejected the students’ First Amendment challenge, in part because those rights are not unlimited and are secondary to student safety. “In keeping with our precedent, school officials’ actions were tailored to avert violence and focused on student safety, in at least two ways. For one, officials restricted the wearing of certain clothing, but did not punish the students.” They were given excused absences. “For another, officials did not enforce a blanket ban on American flag apparel, but instead allowed two students to return to class when it became clear that their shirts were unlikely to make them targets of violence. The school distinguished among the students based on the perceived threat level, and did not embargo all flag-related clothing.”

Willenburg briefed and argued the case at the Ninth Circuit. Cabrera wrote and argued the successful summary judgment motion at the district court. Posard elicited critical deposition testimony from the student-plaintiffs, including that one student was willing to “take that chance” and risk violence for the sake of wearing that shirt that day – precisely what Gordon & Rees successfully convinced the courts school administrators are not constitutionally required to do.

To read the Feb. 27 opinion, click here.

Alyson S. Cabrera
Mark S. Posard
Don Willenburg