Docstoc

schoolbrief

Document Sample
schoolbrief Powered By Docstoc
					 Case: 11-17858    04/02/2012      ID: 8124414   DktEntry: 19   Page: 1 of 58



                             Case No. 11-17858

                              IN THE
                  UNITED STATES COURT OF APPEALS
                       FOR THE NINTH CIRCUIT

JOHN DARIANO and DIANNA DARIANO, on behalf of their minor child, M.D.;
 KURT FAGERSTROM, JULIE ANN FAGERSTROM, on behalf of their minor
 child, D.M.; KENDAL JONES, and JOY JONES, on behalf of their minor child,
                                 D.G.,

                           Plaintiffs and Appellants,
                                      vs.
MORGAN HILL UNIFIED SCHOOL DISTRICT; NICK BODEN, in his official
capacity as Principal, Live Oak High School; and MIGUEL RODRIGUEZ, in his
  individual and official capacity as Assistant Principal, Live Oak High School,
                          Defendants and Appellees.


              On Appeal from the United States District Court
                  for the Northern District of California
                          Honorable James Ware
                       Case No. 5:10-CV-02745 JW


                   APPELLEES’ ANSWERING BRIEF

                   Don Willenburg, Cal. Bar No. 116377
                   Mark S. Posard, Cal. Bar No. 208790
                 Alyson S. Cabrera, Cal. Bar No. 222717
                        GORDON & REES LLP
                      275 Battery Street, Suite 2000
                        San Francisco, CA 94111
            Telephone: (415) 986-5900 Fax:: (415) 986-8054
         dwillenburg@gordonrees.com; mposard@gordonrees.com;
                       acabrera@gordonrees.com
                         Attorneys for Appellees
      Case: 11-17858         04/02/2012               ID: 8124414           DktEntry: 19          Page: 2 of 58



                                        TABLE OF CONTENTS
                                                                                                             Page No.

I       JURISDICTIONAL STATEMENT................................................................1

II      STATEMENT OF ISSUES FOR REVIEW....................................................1
III     STATEMENT OF THE CASE .......................................................................1
IV      STATEMENT OF FACTS..............................................................................2

V       SUMMARY OF ARGUMENT.......................................................................8

VI      ARGUMENT.................................................................................................12
        A.      Standards of review.............................................................................12

        B.      Not all parties and claims at issue below are involved in this
                appeal...................................................................................................12

        C.      Rodriguez’s actions were a constitutional exercise of school
                responsibility to prevent disruption or violence, and did not
                violate the First Amendment ...............................................................13
                1.       Supreme Court precedent supports the actions of school
                         officials in this case to suppress possible violence or
                         disruption. .................................................................................15

                2.       Ninth Circuit precedent supports the actions of school
                         officials in this case to suppress possible violence or
                         disruption. .................................................................................21
                3.       Grounds for caution about Tinker should lead this Court
                         away from extending its authorization for student speech
                         beyond the circumstances of that case......................................29

                4.       School regulations regarding clothing are generally
                         upheld as constitutional.............................................................31
        D.      Appellants’ First Amendment arguments to the contrary are
                without precedent, misrepresent the record and are misdirected
                to the wrong political institution. ........................................................33



                                                           i
   Case: 11-17858         04/02/2012               ID: 8124414           DktEntry: 19          Page: 3 of 58




              1.       That the clothing involved U.S. flag or flag-motif designs
                       does not make it immune from Constitutional review
                       accorded any other design.........................................................33
              2.       There is no evidence in the record that any “viewpoint”
                       or “message” was at issue; in fact, the students
                       disavowed any message. ...........................................................35

              3.       Cinco de Mayo 2010 was not a “normal” day, and that is
                       not the issue...............................................................................37
      E.      Appellants’ other arguments fail.........................................................38

              1.       California constitutional arguments fall with the First
                       Amendment claims. ..................................................................38

              2.       The equal protection claim is meritless because no other
                       group was treated preferentially. ..............................................38
              3.       The due process, declaratory and injunctive relief claims
                       are precluded by sovereign immunity and otherwise
                       meritless. ...................................................................................39
      F.      If the Court decides that Rodriguez’s acts were
              unconstitutional, it should bar Appellants’ claims on the basis
              of qualified immunity..........................................................................41

VII   CONCLUSION..............................................................................................45
STATEMENT OF RELATED CASES – NINTH CIRCUIT RULE 28-2.6 ..........48

CERTIFICATE OF TYPE-VOLUME COMPLIANCE .........................................49




                                                       ii
    Case: 11-17858           04/02/2012             ID: 8124414         DktEntry: 19         Page: 4 of 58



                                     TABLE OF AUTHORITIES
                                                                                                      Page No.

                                                     Cases
A M v. Cash
  585 F.3d 214 (5th Cir. 2009)............................................................................... 41
Ashcroft v. al-Kidd
  U.S. -, 131 S. Ct. 2074, 2085 (2011)............................................................ 42, 45

Barr v. Lafon
  538 F.3d 554 (6th Cir. 2008)............................................................................... 22
Belanger v. Madera Unified School District
  963 F.2d 248 (9th Cir. 1992).............................................................................. 40

Bethel School Dist. No. 403 v. Fraser 478
  U.S. 675 (1986))...................................................................................... 10, 20, 21

Brewster v. Bd. Of Educ.
  149 F.3d 971 (9th Cir. 1998)............................................................................... 43

C.F. v. Capistrano Unified Sch. Dist.
  654 F.3d 975 (9th Cir. 2011)............................................................................... 45

Harlow v. Fitzgerald
 457 U.S. 800, 102 S. Ct. 2727 (1988) ................................................................. 43

Jacobs v. Clark County Sch. Dist.
  526 F.3d 419 (9th Cir. 2008)......................................................................... 10, 32

Karp v. Becken
  477 F.2d 171 (9th Cir. 1973)................................. 9, 14, 21, 22, 23, 24, 28, 38, 41

Klein v. San Diego County
  463 F.3d 1029 (9th Cir. 2006)............................................................................. 13
Knox v. Southwest Airlines
  124 F.3d 1103 (9th Cir. 1997)............................................................................. 43

LaVine v. Blaine School Dist.
  257 F.3d 981 (9th Cir. 2001)................................. 8, 12, 13, 14, 25, 26, 27, 28, 41


                                                        iii
    Case: 11-17858            04/02/2012             ID: 8124414         DktEntry: 19         Page: 5 of 58




Malley v. Briggs
 475 U.S. 335, 106 S. Ct. 1092 (1986) ................................................................. 43
Morse v. Frederick
 551 U.S. 393 (2007) .................................................................... 10, 18, 19, 20, 30

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist., No. 1
  426 F.3d 1162 (9th Cir. 2005), rev’d on other grounds, 551 U.S. 701, 127 S. Ct.
  2738, 168 L. Ed. 2d 508 (2008) .......................................................................... 35
Pearson v. Callahan
  555 U.S.  , 129 S.Ct. 808 (2009) ..................................................................... 44

Samuels v. Holland Am. Line-USA, Inc.
  656 F.3d 948 (9th Cir. 2011)............................................................................... 12
Saucier v. Katz
  533 U.S. 194, 121 S. Ct. 2151 (2001) ..................................................... 42, 43, 44

Texas v. Johnson
  491 U.S. 397 (1989) ............................................................................................ 33
Tinker v. Des Moines Indep. Cmty. Sch. Dist.
   393 U.S. 503 (1969) ........................................... 13, 16, 17, 21, 23, 29, 30, 31, 41
U.S. v. Masciandaro
  638 F.3d 458 (4th Cir. 2010), cert. denied 132 S. Ct. 756 (2011) ..................... 46

Watec Co., Ltd. v. Liu
 403 F.3d 645 (9th Cir. 2005)............................................................................... 12

West Virginia State Bd. of Educ. v. Barnette
  319 U.S. 624, 63 S. Ct. 1178 (1943) .................................................................. 33

                                       Constitutional Provisions
California Constitution........................................................................................ 2, 38
Eleventh Amendment to United States Constitution .............................................. 40




                                                         iv
    Case: 11-17858              04/02/2012               ID: 8124414           DktEntry: 19          Page: 6 of 58




First Amendment to the United States Constitution .. 2, 8, 10, 11, 13, 14, 16, 22, 25,
  29, 30, 33, 35, 38, 45
Second Amendment to the United States Constitution........................................... 46
United States Constitution ............................................ 11, 13, 15, 21, 22, 25, 33, 36

                                                        Statutes
Naturalization Act
 1 Stat. 103 (1790) (1st Cong., 2nd Sess.)............................................................ 36

                                                          Rules
Federal Rules of Appelate Procedure
  Rule 32 ................................................................................................................ 49
Federal Rules of Civil Procedure
  Rule 25(d)...............................................................................................................2

Federal Rules of Civil Procedure
  Rule 52(a). ........................................................................................................... 12

Ninth Circuit Rules
  Rule 28-2.6 .......................................................................................................... 48

                                           Other Authorities Cited
Alexander Bickel
  THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS
  12, 93-97 (1962) .................................................................................................. 29
Brady Center to Prevent Gun Violence
  Major School Shootings in the United States Since 1997
  (2012) http://www.bradycampaign.org/xshare/pdf/school-shootings.pdf. ......... 15
Centers for Disease Control and Prevention
  Understanding School Violence – Fact Sheet
  (2010) http://www.cdc.gov/ViolencePrevention/youthviolence/schoolviolence/
  SAVD.html.......................................................................................................... 15



                                                             v
    Case: 11-17858              04/02/2012               ID: 8124414           DktEntry: 19          Page: 7 of 58




Declaration of Independence .................................................................................. 36

Everette E. Dennis et al., eds.
  JUSTICE HUGO BLACK AND THE FIRST AMENDMENT: “‘NO LAW’ MEANS NO
  LAW”
  (1978) .................................................................................................................. 29

Gerhardt
 A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia
 47 B.U.L. Rev. 25 (Jan. 1994) ............................................................................ 29
Hugo L. Black
 The Bill of Rights
 35 N.Y.U. L. Rev. 865, 874, 879 (1960)............................................................. 29

National Archives and Record Administration
 Signers Fact Sheet
 http://www.archives.gov/exhibits/charters/declaration_signers_
 gallery_facts.pdf .................................................................................................. 36

National Archives and Record Administration
 The Founding Fathers: A Brief Overview, America’s Founding Fathers:
 Delegates to the Constitutional Convention
 http://www.archives.gov/exhibits/charters/constitution_founding_fathers_
 overview.html...................................................................................................... 36
National Center for Education Statistics, Institute for Education Sciences, and
 Bureau of Justice Statistics
 Indicators of School Crime and Safety: 2011
 (2012), p. 10, http://bjs.ojp.usdoj.gov/content/pub/pdf/iscs11.pdf..................... 15

U.S. Dept. of Education, Office of Elementary and Secondary Education
  Programs/Initiatives, Office of Safe and Healthy Students
  http://www2.ed.gov/about/offices/list/oese/oshs/aboutus.html .......................... 19

U.S. Dept. of Justice
  Community Oriented Policing Services (COPS) - Secure Our Schools Program
  http://www.cops.usdoj.gov/Default.asp?Item=2368........................................... 19



                                                             vi
   Case: 11-17858      04/02/2012        ID: 8124414     DktEntry: 19    Page: 8 of 58




U.S. Dept. of Justice
  Office of Justice Programs, PeaceBuilders program
  http://www.crimesolutions.gov/ProgramDetails.aspx?ID=76 ............................ 19
United States Secret Service and United States Dept. of Education
 Threat Assessment in Schools: A Guide to Managing Threatening Situations and
 to Creating Safe School Climates
 (2002), p. 25, http://www.secretservice.gov/ntac/ssi_guide.pdf......................... 15




                                            vii
   Case: 11-17858     04/02/2012         ID: 8124414   DktEntry: 19   Page: 9 of 58



                                           I

                       JURISDICTIONAL STATEMENT
      Appellees agree with Appellants that: both this Court and the district court

have jurisdiction over this matter; the district court’s grant of summary judgment is

appealable; and this appeal is timely.

                                           II

                    STATEMENT OF ISSUES FOR REVIEW
      Did Assistant Principal Rodriguez violate students’ constitutional rights

when he acted to prevent violence and disruption on campus by giving the students

the option to turn their shirts inside out or go home the rest of the day with excused

absences?

                                           III

                          STATEMENT OF THE CASE
      This case involves constitutional challenges to a public high school’s efforts

to protect student safety and prevent violence on campus. Both sides brought

motions for summary judgment, which were considered simultaneously. The

district court granted Appellees’ motion and denied Appellants’.

      The district court dismissed all claims against defendant and appellee

Morgan Hill Unified School District on the basis of sovereign immunity.

Appellants’ opening brief does not challenge this ruling, so any challenge is

waived. The district court did not rule with respect to defendant Boden because he

                                           1
  Case: 11-17858      04/02/2012       ID: 8124414     DktEntry: 19   Page: 10 of 58




was in bankruptcy proceedings. Thus, neither the District nor Boden are parties to

this appeal.

      The appeal is a constitutional challenge, based on the First Amendment,

equal protection, due process and the California constitution, to the actions of

defendant Assistant Principal Rodriguez. Rodriguez has since left the District’s

employ, and his successor in office was automatically named as defendant in the

suit for his official capacity. Fed. R. Civ. Proc. 25(d).

                                          IV

                             STATEMENT OF FACTS
      Appellants’ brief would have this Court believe that this case is about

selected events that happened on one day, Cinco de Mayo 2010. In fact, however,

school administrators acted on that day against a backdrop and history of events

that are as significant to this Court’s determination as they are absent from

Appellants’ brief.

      On cross-motions for summary judgment brought by each side, the district

court found as follows:

               (1)   In the six years that Defendant Boden was principal at Live
      Oak, he personally observed at least thirty fights on campus. [3 ER 308,
      ¶ 5.] Some of these fights involved gangs, and others were between
      Caucasian and Hispanic students. (Id.) A police officer is present on
      campus every day to ensure safety on school grounds. [2 ER 171:18-24,



                                           2
Case: 11-17858    04/02/2012      ID: 8124414   DktEntry: 19    Page: 11 of 58




   201:11-16.]
          (2)    On Cinco de Mayo in 2009, a verbal exchange and altercation
   arose between a group of predominantly white and a group of Mexican
   students. [2 ER 61-66.] This altercation involved an exchange of
   profanities and threats were made. (Id.) A makeshift American flag was put
   on one of the trees on campus. (Id.) A group of Caucasian students began
   clapping and chanting “USA” as this flag went up. (Id.) This was in
   response to a group of Mexican students walking around with the Mexican
   flag. One Mexican student shouted “fuck them white boys, fuck them white
   boys.” (Id.) [Assistant] Principal Rodriguez directed the minor to stop
   using such profanity. (Id.) The minor responded by saying “But Rodriguez,
   they are racist. They are being racist. Fuck them white boys. Let’s fuck
   them up.” (Id.) [Assistant] Principal Rodriguez removed the minor from the
   area. (Id.)
          (3)    When Plaintiff M.D. wore an American flag shirt to school on
   Cinco de Mayo 2009, he was approached by a male student who shoved a
   Mexican flag at him and said something in Spanish expressing anger at
   Plaintiffs’ clothing. [2 ER 129:15-20.]
          (4)    Many of the students involved in the May 2009 altercation were
   still students at Live Oak in May of 2010. [2 ER 76:8-12.]
          (5)    On the morning of Cinco de Mayo 2010, a female student
   approached Plaintiff M.D., motioned to his shirt, and said “why are you
   wearing that, do you not like Mexicans?” [2 ER 125:25-126:7.] Plaintiffs
   D.G. and D.M. were also confronted about their clothing by female students
   before brunch break. [2 ER 188:22-189:7, 215:18-216:5.]
          (6)    As Defendant Rodriguez was leaving his office before brunch
   break on May 5, 2010, a Caucasian student approached him and said, “You

                                      3
Case: 11-17858    04/02/2012        ID: 8124414     DktEntry: 19    Page: 12 of 58




   may want to go out to the quad area. There might be some—there might be
   some issues.” [2 ER 53:20-25.]
         (7)     During brunch break on May 5, 2010, another student called
   [Assistant] Principal Rodriguez over to a group of Mexican students and said
   that she was concerned about a group of students wearing the American flag
   and said that “there might be problems.” [2 ER 58:3-7.] [Assistant]
   Principal Rodriguez took her statement to mean that there might be some
   sort of physical altercation. [2 ER 60:13-15.] A group of Mexican students
   also asked Defendant Rodriguez “why do they get to wear their flag when
   we don’t get to wear our flag?” [2 ER 56:1-3.]
         (8)     Defendant Rodriguez was directed by Defendant Boden to have
   the students either turn their shirts inside out or take them off. [2 ER 68:23-
   69:5.] Plaintiffs refused to do so. [2 ER 71:1-4.]
         (9)     While meeting with Plaintiffs about their attire, Defendant
   Rodriguez explained that he was concerned for their safety. [2 ER 77.]
   Plaintiffs did not dispute that their attire put them at risk of violence. (Id.)
   Plaintiff D.M. stated that he was “willing to take on that responsibility” in
   order to continue wearing his shirt. (Id.)
         (10) Following Plaintiffs’ departure from school they received
   numerous threats from other students. Plaintiff D.G. received a threat of
   violence via text message on May 6th. [3 ER 237:11-240:1.] He received
   another threatening call from a male saying he was outside of D.G.’s home
   that same night. (Id.) Plaintiffs D.M. and M.D. also were threatened with
   violence. [3 ER 241:15-242:3.] A student at Live Oak overheard a group of
   male students saying that some gang members would come down from San
   Jose to “take care of” Plaintiffs. [3 ER 239:2-5.] Based on these threats,
   Plaintiffs did not go to school on May 7. [3 ER 240:1.]

                                        4
  Case: 11-17858      04/02/2012       ID: 8124414    DktEntry: 19    Page: 13 of 58




1 ER 11-12 [the district court’s record citations have been replaced with excerpts

of record (“ER”) citations].

      On Cinco de Mayo 2010, during his ordinary morning rounds, Assistant

Principal Rodriguez received comments from some students who were worried

about other students who were wearing shirts with American flag logos or designs

in the school quad. 2 ER 53-58, 66:24-67:2. Student-appellants and two other

students wearing flag-motif clothes sat in the middle of the quad, with Norteno-

affiliated students at one end of the quad, and Sureno-affiliated students at the

other end. 2 ER 144:9-145:1.

      Based on the history and threats recounted in paragraphs 1-9 of the district

court’s opinion quoted above, Principal Boden directed Assistant Principal

Rodriguez to ask these five students to either turn their shirts inside out or take

them off. 2 ER 68:23-70:17, 72:20-73:1. When the students declined to do so,

Rodriguez called them into his office for further conversation. 2 ER 70:20-71:15.

They moved to a conference room, where they were joined by parents and

Principal Boden, who took charge of the meeting. 2 ER 33-35. Assistant Principal

Rodriguez said that other students had indicated to him that “the shirts either were

or were going to cause a disruption.” 2 ER 138:16-25. He said he was concerned

for their safety (2 ER 148:12-14, 214:19-22) and was trying to prevent a conflict.

2 ER 148:22-25. Principal Boden also told the students that it was his


                                           5
  Case: 11-17858      04/02/2012        ID: 8124414    DktEntry: 19    Page: 14 of 58




responsibility to keep “all 1300 students” safe. 2 ER 45:7-46:3, 77:11-25, 191:9-

11, 217:1-3.

      Eventually three students (student-appellants D.M. and D.G and another

student not a party to this suit) were asked to either turn their shirts inside out or go

home for the day with excused absences. The other two students (student-

appellant M.D. and another student not a party to this suit) were allowed to return

to class. Principal Boden permitted student-appellant M.D. to return to class

because the imagery on M.D.’s shirt was less blatant and prominent than the

imagery on the shirts worn by student-appellants D.M. and D.G., which Principal

Boden considered a “significant difference in terms of what [he] saw as being

potential for targeting.” 2 ER 37:5-7. He had a “sense that it was not as prominent

a display, and therefore, less likely for [M.D.] to be singled out, targeted for any

possible recrimination.” 2 ER 37:15-18.

      Neither Boden nor Rodriguez cited reliance upon any District policy about

the flag. 2 ER 190:17-25, 213:8-10, 228:22-229:10; 3 ER 236:23-25. To the

contrary, when questioned what policy prohibited the wearing of an American flag,

they (correctly) denied that such a policy existed. 2 ER 155:15-16, 229:5-14.

      Student-appellants D.M. and D.G chose to go home. They were given

excused absences, and were not disciplined for their choice. 2 ER 40:20-24,

157:14-19, 175:24-176:5, 219:12-16. Student-appellant M.D., who had been


                                            6
  Case: 11-17858     04/02/2012       ID: 8124414   DktEntry: 19   Page: 15 of 58




allowed to return to class, was removed from school for the rest of the day by his

mother because he “was not in a good mood.” 2 ER 156:6-7. He considers

himself “somewhat of a hot head.” 2 ER 156:19-21. The students who left school

and their parents contacted the media that very afternoon. 2 ER 98-100, 107-118,

152:18-25, 181:20-182:1, 218:5-24.

      The next day, May 6, saw considerable disruption on campus. As a result of

the media attention, media crews, protestors and police all came to the school

campus. 2 ER 104:3-11. The District’s superintendent received about 5,000

emails in an eight-hour period, which shut down the District’s school server

multiple times. 2 ER 83:14-16; 90:1-4. “There were many anti-immigration

themed messages.” 2 ER 90:7-8.

      In response to the tumult outside, about 70 to 80 predominantly Latino

students walked out of class. 2 ER 91:6-23. According to a parent of one of the

student-appellants: “There was a man in a wheelchair with an American flag and a

bunch of the male students went up to him, got in his face and ripped that flag out

of his hands.” 3 ER 244:1-4. Another parent heard a Hispanic student and the

man in the wheelchair shouting “Viva Mexico” and “F-U, F-U” back and forth, as

they had a “tug of war over the flag.” 2 ER 104:16-105:4. The three student-

appellants received threats. 2 ER 124:22-125:10, 178:21-179:18; 3 ER 237:11-

240:1, 241:15-242:3.


                                         7
  Case: 11-17858     04/02/2012       ID: 8124414     DktEntry: 19   Page: 16 of 58




      Events were sufficiently tumultuous that none of the three student-appellants

went to school even the next day, May 7. 2 ER 178:21-25 (“afraid to go to school”

because of “[a]ll the threats I had been receiving”), 192:16-18, 197:5-7 (“My

parents didn’t think it would have been safe for me.”), 230:4-9 (“after talking to

the police”).

      Based on these facts, the district court held that “the school officials

reasonably forecast[ed] that Plaintiffs’ clothing could cause a substantial disruption

with school activities” (1 ER 13), and that Appellants therefore had no First

Amendment claim. The district court dismissed all claims against defendant and

appellee Morgan Hill Unified School District on the basis of sovereign immunity.

1 ER 8-9. The district court order also granted judgment on Appellants’ equal

protection, due process, and California constitutional claims. 1 ER 14-18. The

district court’s order did not address defendant and appellee Boden because of the

automatic stay in bankruptcy. 1 ER 3, n.2.

                                          V

                          SUMMARY OF ARGUMENT
      “[W]e live in a time when school violence is an unfortunate reality that

educators must confront on an all too frequent basis.” LaVine v. Blaine School

Dist., 257 F.3d 981, 987 (9th Cir. 2001). “Schools must be safe.” Id. at 983.

      “[T]he First Amendment does not require school officials to wait until



                                          8
  Case: 11-17858      04/02/2012        ID: 8124414    DktEntry: 19    Page: 17 of 58




disruption actually occurs before they may act. In fact, they have a duty to prevent

the occurrence of disturbances.” Karp v. Becken, 477 F.2d 171, 175 (9th Cir.

1973), fn. omitted. Courts allow school officials to regulate speech that would be

perfectly permissible outside the school, particularly (though not exclusively)

when the record shows “the existence of facts which might reasonably lead school

officials to forecast substantial disruption.” 477 F.2d at 175. “[B]ecause of the

state’s interest in education, the level of disturbance required to justify official

intervention is relatively lower in a public school than it might be on a street

corner.” Id.

      In this case, there were abundant facts in existence that could, and did,

“reasonably lead school officials to forecast substantial disruption” on Cinco de

Mayo 2010. The high school campus had been the scene of numerous fights.

Some, though not all, took place between groups of Caucasian and Hispanic

students. The prior year there was campus disruption on Cinco de Mayo, some

involving display of the American flag, involving an American flag shirt, and

involving some of the same students. On Cinco de Mayo 2010 there were specific

concerns about violence communicated by students to school administrators.

Other threats were made later to the student-appellants, causing one to stay home

from school yet another day. Parents and police were so concerned two days later,

on May 7, that the students’ clothing choices on Cinco de Mayo posed such a


                                            9
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19   Page: 18 of 58




threat to their safety that two student-appellants stayed home. Given this, the same

concern by Rodriguez and Boden the day the students wore the clothing to school

seems unassailably reasonable.

      The facts in this case thus present an even more compelling case for

allowing school officials to act pro-actively, even at the cost of purported

“speech,” than in prior cases. For example, the U.S. Supreme Court has allowed

suppression of student speech where it might obliquely suggest disagreement with

school policy about drugs (Morse v. Frederick, 551 U.S. 393, 406 (2007)), or

where the speech might violate listener sensibilities (Bethel School Dist. No. 403 v.

Fraser 478 U.S. 675, 681 (1986)). This and other courts regularly enforce school

restrictions on clothing, including those that are designed in whole or in part to

prevent factionalism or violence. E.g., Jacobs v. Clark County Sch. Dist., 526 F.3d

419 (9th Cir. 2008). Regulation of “speech” rights has an even more potent

justification in matters directly implicating student safety. The First Amendment

does not require that students get bloodied or shot before school officials step in.

      In contrast to this abundant reason for concern and latitude given school

officials, the actions taken with respect to student-appellants were minimal. Two

were sent home from school for half a day, with excused absences. One was

removed from school for half a day by a parent. No discipline. No demerits in the

record.


                                          10
  Case: 11-17858      04/02/2012       ID: 8124414     DktEntry: 19   Page: 19 of 58




      This case is not about a school “suppressing the American flag,” or about

preferring “Mexicans” over “Americans” (a distinction made throughout

Appellants’ brief and emphasized by its repeated italicization of “Mexican”).

Other students wore flag-themed clothes the same day. Student-appellants and

other students wore flag-themed clothes on other days. Although this is not express

in the record, presumably the American flag flew over the schoolhouse that and

every other school day. This is not a case about the flag, or the First Amendment

rights of adults in a public forum. This is a case about whether we allow school

administrators, familiar with the circumstances in their schools, to take reasonable

steps to protect student safety in the face of threats and a history of violence.

      The question is not whether this Court, or some other school official, might

have responded differently, might have given a different kind of civics lesson that

day. The question is whether this response under these circumstances was

unconstitutional. If there is any problem with the officials’ actions, that may be a

matter for Appellants to take up with their school board, but it is not a matter

requiring intervention by this or any other court acting under the Constitution as

interpreted by the Supreme Court and this Circuit.




                                          11
  Case: 11-17858     04/02/2012         ID: 8124414   DktEntry: 19   Page: 20 of 58




                                          VI

                                   ARGUMENT

      A.     Standards of review.
      Review of a summary judgment is de novo. Samuels v. Holland Am. Line-

USA, Inc., 656 F.3d 948, 951-952 (9th Cir. 2011). “We review, however, with

deference, schools’ decisions in connection with the safety of their students even

when freedom of expression is involved.” LaVine v. Blaine School Dist., 257 F.3d

981, 992 (9th Cir. 2001).

      Issues not addressed in appellants’ opening brief are waived, and are not

reviewed. Watec Co., Ltd. v. Liu, 403 F.3d 645, 649-650 (9th Cir. 2005); Kim v.

Kang, 154 F.3d 996, 1000 (9th Cir. 1998).

      The district court’s findings of fact may be set aside only if “clearly

erroneous.” Fed. R. Civ. Proc. 52(a).

      B.     Not all parties and claims at issue below are involved in this
             appeal.
      The district court dismissed all claims against defendant and appellee

Morgan Hill Unified School District on the basis of sovereign immunity.

Appellants’ opening brief does not challenge that ruling, so any challenge is

waived, and the District is no longer a party to this case. The district court’s order

did not address defendant Boden because of the automatic stay in bankruptcy.

      Appellants concede that California follows “federal law … for free speech


                                          12
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19     Page: 21 of 58




claims arising in a school setting” (Appellants’ Br. 38), so their California

constitutional claims rise or fall with their First Amendment claim.

      Thus, this case is about whether Assistant Principal Rodriguez, acting in his

official capacity, violated the United States Constitution when he acted to protect

student safety by sending two of the student-appellants home from school, for a

half-day with excused absences, under all the circumstances of this case.

      C.     Rodriguez’s actions were a constitutional exercise of school
             responsibility to prevent disruption or violence, and did not
             violate the First Amendment
      The First Amendment, while hallowed and sweeping, is not absolute. It is a

commonplace that First Amendment rights are subject to “reasonable time, place,

and manner” restrictions. See, e.g., Klein v. San Diego County, 463 F.3d 1029,

1033-34 (9th Cir. 2006).

      What constitutes a “reasonable time, place, and manner” for purposes of this

case is determined by “the special characteristics of the school environment.”

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). For this

reason, courts “review … with deference … schools’ decisions in connection with

the safety of their students even when freedom of expression is involved.” LaVine

v. Blaine School Dist., 257 F.3d 981, 992 (9th Cir. 2001) (upholding school action

taken for legitimate security concerns in the face of a First Amendment challenge).

“[T]he First Amendment does not require school officials to wait until disruption



                                          13
  Case: 11-17858      04/02/2012       ID: 8124414    DktEntry: 19    Page: 22 of 58




actually occurs before they may act. In fact, they have a duty to prevent the

occurrence of disturbances.” Karp v. Becken, 477 F.2d 171, 175 (9th Cir. 1973)

(also upholding school action taken for legitimate security concerns in the face of a

First Amendment challenge). Here, Rodriguez and other school officials acted to

fulfill their “duty to prevent the occurrence of disturbances” involving the physical

safety of students.

             Given the knowledge the shootings at Columbine,
             Thurston and Santee high schools, among others, have
             imparted about the potential for school violence (as rare
             as these incidents may be when taken in context), we
             must take care when evaluating a student’s First
             Amendment right of free expression against school
             officials’ need to provide a safe school environment not
             to overreact in favor of either. Schools must be safe….

LaVine, 257 F.3d at 983.

      In fact, education is second to safety. Parents who entrust their children to

school want students to be in class learning. But parents also expect classes to

break for fire drills, and of course for “real” fire alarms. Tests are important, but

we do not hold them outside during tornadoes. These examples are clearer than a

school administrator’s perceptions of potential violence or other disruption at

school. But that is another reason why the law properly gives deference to the

decisions of school administrators to prevent school violence.

      School violence is all too unfortunately a fact of life. There have been at




                                          14
    Case: 11-17858    04/02/2012      ID: 8124414    DktEntry: 19   Page: 23 of 58




least 192 school shootings in the U.S. since 1997.1 From 2003 to 2010, 116

students were killed in 109 separate incidents – an average of 16.5 homicides each

year.2 “In 2010… more [non-fatal] victimizations were committed against students

ages 12-18 at school than away from school.” 3 “The short duration of most

incidents of targeted school violence argues [along with other factors] for the

importance of developing preventive measures,” not just emergency planning.4

       To protect student safety and minimize disruption of the educational process,

the law grants school officials greater latitude than other government officials have

over even the exact same acts outside of school. No pedagogical goal is served,

much less mandated by the Constitution, by putting students in harm’s way, or by

letting them get there on their own. Summary judgment was proper and this Court

should affirm.

             1.      Supreme Court precedent supports the actions of school
                     officials in this case to suppress possible violence or
                     disruption.
       Even the case on which Appellants most rely supports the constitutionality

1
       Brady Center to Prevent Gun Violence, Major School Shootings in the
United States Since 1997 (2012), available at
http://www.bradycampaign.org/xshare/pdf/school-shootings.pdf.
2
       Centers for Disease Control and Prevention, Understanding School Violence
– Fact Sheet (2010), available at
http://www.cdc.gov/ViolencePrevention/youthviolence/schoolviolence/SAVD.html.
3
       National Center for Education Statistics, Institute for Education Sciences,
and Bureau of Justice Statistics, Indicators of School Crime and Safety: 2011
(2012), p. 10, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/iscs11.pdf.
4
       United States Secret Service and United States Dept. of Education, Threat
Assessment in Schools: A Guide to Managing Threatening Situations and to
Creating Safe School Climates (2002), p. 25, available at
http://www.secretservice.gov/ntac/ssi_guide.pdf.

                                         15
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19    Page: 24 of 58




of the actions of school officials in the circumstances of this case. Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). Tinker held unconstitutional

the disciplining of students for passively wearing a black armband. Appellants

argue that the student-appellants were merely “passively wearing” their flag shirts,

but any resemblance to the present case ends there. Tinker did not stand for a

broad right of student expression at school. Indeed, it recognized that student First

Amendment rights are construed “in light of the special characteristics of the

school environment.” 393 U.S. at 506.

      Tinker found the censorship of armbands in that case was not sufficiently

justified to counterbalance First Amendment concerns:

             In order for the State in the person of school officials to
             justify prohibition of a particular expression of opinion, it
             must be able to show that its action was caused by
             something more than a mere desire to avoid the
             discomfort and unpleasantness that always accompany an
             unpopular viewpoint. Certainly where there is no finding
             and no showing that engaging in the forbidden conduct
             would “materially and substantially interfere with the
             requirements of appropriate discipline in the operation of
             the school,” the prohibition cannot be sustained. 393 U.S.
             at 509, cite omitted.

      In the present case, the record shows far more than “discomfort and

unpleasantness.” The record shows multiple reasons to believe violence would

occur involving students. Appellants do not challenge any of these factual

findings. The school had a history of student fighting and ongoing racial tension.



                                          16
  Case: 11-17858     04/02/2012        ID: 8124414     DktEntry: 19    Page: 25 of 58




A near-violent disruption had occurred the prior Cinco de Mayo, involving some of

the same students and also over the display of an American flag. On the Cinco de

Mayo at issue in this case, two students warned Rodriguez on this day that student-

appellants’ clothing could incite violence. These concerns were borne out:

student-appellants received threats at home, and one stayed home from school in

response. In contrast, the Tinker Court specifically noted that no threats of

violence had been made in that case. 393 U.S. at 508. If student fighting and non-

attendance are not contrary to “the requirements of appropriate discipline,” nothing

is. Under Tinker, the actions of Rodriguez in this case pass constitutional muster.

      The law has developed further since Tinker, and even more in favor of the

constitutionality of Rodriguez’s actions in this case. Subsequent cases have further

articulated the special responsibility of schools to students, and why that

responsibility empowers schools to regulate speech that would be perfectly

permissible at another time and place.

             “[W]hile children assuredly do not ‘shed their
             constitutional rights . . . at the schoolhouse gate,’ . . . the
             nature of those rights is what is appropriate for children
             in school.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
             646, 655-656, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995)
             (quoting Tinker, supra, at 506, 89 S. Ct. 733, 21 L. Ed.
             2d 731). In particular, “the school setting requires some
             easing of the restrictions to which searches by public
             authorities are ordinarily subject.” New Jersey v. T. L.
             O., 469 U.S. 325, 340, 105 S. Ct. 733, 83 L. Ed. 2d 720
             (1985). See Vernonia, supra, at 656, 115 S. Ct. 2386,
             132 L. Ed. 2d 564 (“Fourth Amendment rights, no less

                                           17
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 26 of 58




             than First and Fourteenth Amendment rights, are
             different in public schools than elsewhere . . .”); Bd. of
             Educ. v. Earls, 536 U.S. 822, 829-830, 122 S. Ct. 2559,
             153 L. Ed. 2d 735 (2002) (“‘special needs’ inhere in the
             public school context”; “[w]hile schoolchildren do not
             shed their constitutional rights when they enter the
             schoolhouse, Fourth Amendment rights . . . are different
             in public schools than elsewhere; the ‘reasonableness’
             inquiry cannot disregard the schools’ custodial and
             tutelary responsibility for children” (quoting Vernonia,
             515 U.S., at 656, 115 S. Ct. 2386, 132 L. Ed. 2d 564;
             citation and some internal quotation marks omitted)).
Morse v. Frederick, 551 U.S. 393, 406 (2007). Morse allowed suppression of

student speech – a placard reading “Bong Hits for Jesus” – even where there was

no fear of disruption or violence, because the speech in question was perceived as

contrary to reasonable, established school policy.

             The “special characteristics of the school environment,”
             Tinker, 393 U.S., at 506, 89 S. Ct. 733, 21 L. Ed. 2d 731,
             and the governmental interest in stopping student drug
             abuse--reflected in the policies of Congress and myriad
             school boards, including JDHS--allow schools to restrict
             student expression that they reasonably regard as
             promoting illegal drug use. ….Tinker warned that
             schools may not prohibit student speech because of
             “undifferentiated fear or apprehension of disturbance” or
             “a mere desire to avoid the discomfort and
             unpleasantness that always accompany an unpopular
             viewpoint.” Id., at 508, 509, 89 S. Ct. 733, 21 L. Ed. 2d
             731. The danger here is far more serious and palpable.
             The particular concern to prevent student drug abuse at
             issue here, embodied in established school policy
             …[*409] extends well beyond an abstract desire to avoid
             controversy.
Morse, 551 U.S. at 408-409. In the present case, the “particular concern [is] to


                                         18
    Case: 11-17858   04/02/2012        ID: 8124414      DktEntry: 19   Page: 27 of 58




prevent” violence at school, surely no less important a goal than preventing drug

abuse. Preventing violence at school is, like preventing drug abuse, “embodied in

established school policy” and in multiple governmental programs.5

       Furthermore, the message suppressed in Morse was, if an oblique reference

to drugs, surely non-committal as to any reasoned perspective or contribution to

the conversation about drug-related issues: “this is plainly not a case about political

debate over the criminalization of drug use or possession.” 551 U.S. at 406. The

same is true here. What was suppressed in the present case (Appellees contest that

any “message” was being suppressed) was similarly divorced from any

recognizable political debate. But what was suppressed in the present case posed a

far more direct “threat” than anything in Morse v. Frederick, 551 U.S. 393 (2007),

including anticipated and actual threats of violence.

             School principals have a difficult job, and a vitally
             important one.        When Frederick suddenly and
             unexpectedly unfurled [*410] his banner, Morse had to
             decide to act--or not act--on the spot. It was reasonable
             for her to conclude that the banner promoted illegal drug
             use--in violation of established school policy--and that
             failing to act would send a powerful message to the

5
       See, e.g., U.S. Dept. of Education, Office of Elementary and Secondary
Education, Programs/Initiatives, Office of Safe and Healthy Students,
http://www2.ed.gov/about/offices/list/oese/oshs/aboutus.html; U.S. Dept. of
Justice, Community Oriented Policing Services (COPS) - Secure Our Schools
Program, http://www.cops.usdoj.gov/Default.asp?Item=2368; U.S. Dept. of
Justice, Office of Justice Programs, PeaceBuilders program,
http://www.crimesolutions.gov/ProgramDetails.aspx?ID=76.


                                          19
  Case: 11-17858      04/02/2012       ID: 8124414    DktEntry: 19    Page: 28 of 58




             students in her charge, including Frederick, about how
             serious the school was about the dangers of illegal drug
             use.
Morse, 551 U.S. at 409-10.

      So too here. When student-appellants wore these shirts on this day,

Rodriguez “had to decide to act--or not act--on the spot.” As in Morse, “[i]t was

reasonable for [him] to conclude that” there was danger of violence, in violation of

his responsibilities to keep students safe.

      Appellants decry the “heckler’s veto” as allowing the reactions of parties

other than the speaker to dictate appropriate speech. Once again, however,

Appellants ignore the special responsibilities of, and treatment accorded to, public

schools. The Supreme Court has upheld actual disciplining of students –

something that did not happen here – based on the reactions of other students, even

where not further justified by the threat to physical safety present in this case. In

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), the Court approved

disciplining a student for a coarse and suggestive speech at a school assembly.

             These fundamental values of “habits and manners of
             civility” essential to a democratic society must, of course,
             include tolerance of divergent political and religious
             views, even when the views expressed may be unpopular.
             But these “fundamental values” must also take into
             account consideration of the sensibilities of others, and,
             in the case of a school, the sensibilities of fellow
             students. The undoubted freedom to advocate unpopular
             and controversial views in schools and classrooms must
             be balanced against the society’s countervailing interest


                                          20
  Case: 11-17858      04/02/2012       ID: 8124414     DktEntry: 19    Page: 29 of 58




             in teaching students the boundaries of socially
             appropriate behavior. Even the most heated political
             discourse in a democratic society requires consideration
             for the personal sensibilities of the other participants and
             audiences.

478 U.S. at 681 (1986). If “the personal sensibilities” of students can justify

punishing sexually suggestive speech, then “the personal sensibilities” of students

on the Cinco de Mayo holiday who might respond violently (and did respond with

threats) can justify the less intrusive, non-punitive actions taken in this case.

             2.     Ninth Circuit precedent supports the actions of school
                    officials in this case to suppress possible violence or
                    disruption.
      Two decisions by this Court involving school violence further demonstrate

the latitude the Constitution extends to school administrators in protecting students

from violence, even if it means suppressing speech that is perfectly acceptable in a

non-school context.

      Karp v. Becken, 477 F.2d 171 (9th Cir. 1973) held that a school’s censoring

of signs on school grounds was constitutional under Tinker where the facts

suggested the possibility of disruption.

              [T]he daily administration of public education is
             committed to school officials. Epperson v. Arkansas,
             393 U.S. 97, 104, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968)
             …. the courts have recognized that the interest of a state
             in the maintenance of its educational system is a
             compelling one, provoking a balancing of First
             Amendment rights with a state’s efforts to preserve and
             protect its educational process.


                                           21
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19    Page: 30 of 58




477 F.2d 174, citations omitted.

      This Court identified three principles guiding First Amendment analysis in a

school safety setting.

             First, the First Amendment does not require school
             officials to wait until disruption actually occurs before
             they may act. [fn omitted] In fact, they have a duty to
             prevent the occurrence of disturbances.

477 F.2d at 175.

             Second, Tinker does not demand a certainty that
             disruption will occur, but rather the existence of facts
             which might reasonably lead school officials to forecast
             substantial disruption.
477 F.2d at 175 (citation omitted). The Constitution does not require prescience.

If school officials were required to wait for the speech to cause disruption before

acting, it “would place school officials . . . between the proverbial rock and a hard

place: either they allow the disruption to occur, or they are guilty of a

constitutional violation.” Barr v. Lafon, 538 F.3d 554, 565 (6th Cir. 2008). And it

is notable that this “might reasonably lead” formulation came many years before

the Supreme Court held in Moore that other reasons, short or even independent of,

actual disruption could suffice to justify a restriction on student speech.

             And finally, because of the state’s interest in education,
             the level of disturbance required to justify official
             intervention is relatively lower in a public school than it
             might be on a street corner.

477 F.2d at 175. This disproves any Appellant argument that the potential


                                          22
  Case: 11-17858      04/02/2012      ID: 8124414    DktEntry: 19   Page: 31 of 58




disturbance is not “substantial” enough to justify intervention. Fighting between

individuals or groups is enough of a potential disruption. There does not have to

be fear of a campus-wide lockdown or a need for police helicopters and SWAT

teams for school officials to act.

             It should also be obvious that the actions of one claiming
             free speech abridgment on a school campus cannot be
             dissected from reality and observed in a vacuum. The
             same false cry of “fire” may be permissible in an empty
             theater, but certainly not when there is a capacity crowd.
             Schenck v. United States, 249 U.S. 47, 52, 63 L. Ed. 470,
             39 S. Ct. 247 (1919) (Holmes, J.). The striking of a
             match may have no effect in an open field, but be lethal
             in a closed room filled with gases. Similarly, in making a
             determination in this case, in addition to consideration of
             the acts of appellant, all other circumstances confronting
             the school administrators which might reasonably
             portend disruption must be evaluated.
477 F.2d at 175 (emphasis added).

      Karp held that “federal courts should treat the Tinker rule as a flexible one

dependent upon the totality of relevant facts in each case.” Because the facts in

Karp were different than the facts in Tinker, a different result was mandated.

             The court in Tinker emphasized that there was no
             evidence documenting the school officials’ forecast of
             disruption of the educational processes. 393 U.S. at 508-
             09, 514. [fn omitted] In contrast, the record here reflects
             … facts … justifying a reasonable forecast of material
             interference with the school’s work.

477 F.2d at 175. The Karp facts included the following: Students planned to

demonstrate by walking out of a school assembly. They invited news media on


                                         23
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19   Page: 32 of 58




campus to cover the demonstration. Other students had threatened to physically

prevent the walkout. Large groups of students were milling about discussing the

demonstration and conversing with the media. School officials cancelled the

assembly for fear a walkout might provoke violence, but students were walking out

of classes nevertheless. Student LaVine brought signs from his car and distributed

them on school grounds. 477 F.2d at 175-176. The vice-principal ordered students

to surrender the signs: all students did immediately except LaVine, who was then

taken to the office. “While appellant was in the administrative office, students

began chanting, and pushing and shoving developed between the demonstrators

and some Lettermen. Shortly after intervention by school officials, the

demonstration broke up.” 477 F.2d at 173.

             In view of these facts, the sole question is whether this
             evidence is substantial enough to support the school
             officials’ forecast of a reasonable likelihood of
             substantial disruption. The temptation to be a “Monday
             morning quarterback” should be resisted -- focus should
             be upon whether the apprehension of the school officials
             was unreasonable under the circumstances. The officials
             in Tinker anticipated a level of disruption which did not
             justify curtailment of free speech. The officials in this
             case testified, and the trier of fact apparently believed,
             that they feared the provocation of an incident, including
             possible violence, and that they took the signs from the
             appellant in an effort to prevent such an incident.
             Considering all the facts, we do not find that such an
             anticipation, or forecast, was unreasonable.
477 F.2d at 176. So too in this case. “The officials in this case testified, and the



                                          24
  Case: 11-17858      04/02/2012       ID: 8124414    DktEntry: 19   Page: 33 of 58




trier of fact apparently believed, that they feared the provocation of an incident,

including possible violence, and that they [asked the appellants to turn their shirts

inside out or go home that afternoon] in an effort to prevent such an incident.”

This Court should eschew Appellants’ invitation to be a “Monday morning

quarterback” and should instead focus on “whether the apprehension of the school

officials was unreasonable under the circumstances.” The Court must affirm

judgment, unless the Court is prepared to say that “such an anticipation, or

forecast, was unreasonable” under the circumstances of this case – in other words,

that no reasonable school administrator faced with the set of facts as found by the

district court and presented in this record could possibly conclude that there was a

threat of violence.

      A more recent decision by this Court further demonstrates that the

Constitution permits school officials to act to protect students, even where there is

a First Amendment overlay. In LaVine v. Blaine School Dist., 257 F.3d 981 (9th

Cir. 2001), cert. denied 536 U.S. 959, 122 S. Ct. 2663, 153 L. Ed. 2d 837, this

Court approved a temporary “emergency expulsion” of a student who, among other

things, had submitted an extremely disturbing poem about mass murder at a school

from the murderer’s perspective. The emergency expulsion was for the avowed

purpose of having the student undergo a mental health examination. “The school

allowed James to return to class as soon as a mental health professional determined


                                          25
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 34 of 58




he was not a threat to himself or his classmates.” 257 F.3d at 990, fn. 9.

             Given the knowledge the shootings at Columbine,
             Thurston and Santee high schools, among others, have
             imparted about the potential for school violence (as rare
             as these incidents may be when taken in context), we
             must take care when evaluating a student’s First
             Amendment right of free expression against school
             officials’ need to provide a safe school environment not
             to overreact in favor of either. Schools must be safe, but
             they are educational institutions after all, and speech --
             including creative writing and poetry -- is an essential
             part of the educational fabric. Although this is a close
             case in retrospect, we conclude that when the school
             officials expelled James LaVine they acted with
             sufficient justification and within constitutional limits,
             not to punish James for the content of his poem, but to
             avert perceived potential harm. 257 F.3d at 983.
      Similarly, in the present case, there is no evidence that student-appellants

were being “punished” for wearing shirts with American flag designs. Instead,

Rodriguez “acted with sufficient justification and within constitutional limits … to

avert perceived potential harm.”

             [W]e live in a time when school violence is an
             unfortunate reality that educators must confront on an all
             too frequent basis. The recent spate of school shootings
             have put our nation on edge and have focused attention
             on what school officials, law enforcement and others can
             do or could have done to prevent these kinds of tragedies.
             After Columbine, Thurston, Santee and other school
             shootings, questions have been asked about how teachers
             or administrators could have missed telltale “warning
             signs,” why something was not done earlier and what
             should be done to prevent such tragedies from happening
             again. 257 F.3d at 987.



                                         26
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19    Page: 35 of 58




      In the present case, as in LaVine, administrators had some “telltale ‘warning

signs’” and acted to prevent potential violence – in this case, conflict, disruption,

likely fights and perhaps an even more serious tragedy.

             Tinker does not require school officials to wait until
             disruption actually occurs before they may act. Chandler
             [v. McMinnville School Dist., 978 F.2d 524 (9th Cir.
             1992], 978 F.2d at 529; Karp, 477 F.2d at 175. “In fact,
             they have a duty to prevent the occurrence of
             disturbances.” Id. (quoting Karp, 477 F.2d at 175).
             Forecasting disruption is unmistakably difficult to do.
             Tinker does not require certainty that disruption will
             occur, “but rather the existence of facts which might
             reasonably lead school officials to forecast substantial
             disruption.” Karp, 477 F.2d at 175.

             In applying Tinker, we look to the totality of the relevant
             facts. Id. at 174. We look not only to James’ actions, but
             to all of the circumstances confronting the school
             officials that might reasonably portend disruption. Id. at
             175. When we look to all of the relevant facts here, we
             conclude that the school did not violate the First
             Amendment when it emergency expelled James.

             The school had a duty to prevent any potential violence
             on campus to James or to other students. When the
             school officials made their decision not to allow James to
             attend class on Monday morning, they were aware of a
             substantial number of facts that in isolation would
             probably not have warranted their response, but in
             combination gave them a reasonable basis for their
             actions.

257 F.3d at 989 (emphasis added).

      So too in the present case, “the totality of the relevant facts” as found by the

district court and present throughout this record “might reasonably lead school


                                          27
  Case: 11-17858      04/02/2012       ID: 8124414    DktEntry: 19   Page: 36 of 58




officials to forecast substantial disruption.” Some of these facts “in isolation

[might] not have warranted their response, but in combination gave them a

reasonable basis for their actions.”

      LaVine addressed, and dispensed with, another argument that Appellants

advance here, if not in so many words.

             In retrospect, it may appear that, as James’ mother
             predicted, the school overreacted. ….. We review,
             however, with deference, schools’ decisions in
             connection with the safety of their students even when
             freedom of expression is involved. At the time the school
             officials made their determination to emergency expel
             James, they had facts which might reasonably have led
             them to forecast a substantial disruption of or material
             interference with school activities.
257 F.3d at 991-92.

      So too here, Appellants and their counsel may say, with the comfort and

confidence of a Monday morning quarterback (Karp, 477 F.2d at 176), that

Rodriguez and other school officials “overreacted.” It may even, in retrospect, be

true. But under LaVine, that does not make the “overreaction” unconstitutional. At

the time Rodriguez asked student-appellants to adjust their clothes or go home, he

“had facts which might reasonably have led [him] to forecast a substantial

disruption of or material interference with school activities.”

      All these Supreme Court and Ninth Circuit cases point in the same direction:

School officials have considerably more leeway in restricting student speech and



                                          28
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19   Page: 37 of 58




expression than do government officials in other contexts, particularly for purposes

related to student safety and order.

             3.     Grounds for caution about Tinker should lead this Court
                    away from extending its authorization for student speech
                    beyond the circumstances of that case.
      This Court should affirm under Tinker and the other precedent cited above.

Tinker itself gives grounds to not extend the holding there to situations as different

as those presented in this case.

      Supreme Court Justice Hugo Black was noted for his zealous, absolutist

advocacy of the First Amendment against government interference. “The phrase

‘Congress shall make no law’ is composed of plain words, easily understood....

Neither as offered nor as adopted is the language of this amendment anything less

that absolute.” Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 874, 879

(1960); see Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME

COURT AT THE BAR OF POLITICS 12, 93-97 (1962) (discussing Justice Black’s

absolutist constitutional interpretations); Gerhardt, A Tale of Two Textualists: A

Critical Comparison of Justices Black and Scalia, 47 B.U.L. Rev. 25 (Jan. 1994)

(same); Everette E. Dennis et al., eds., JUSTICE HUGO BLACK AND THE FIRST

AMENDMENT: “‘NO LAW’ MEANS NO LAW” (1978).

      Yet even First Amendment absolutist Justice Black dissented in Tinker,

finding that the First Amendment did not protect the speech there, for reasons that



                                          29
  Case: 11-17858     04/02/2012       ID: 8124414     DktEntry: 19   Page: 38 of 58




resonate in this case as well. “While I have always believed that under the First

and Fourteenth Amendments neither the State nor the Federal Government has any

authority to regulate or censor the content of speech, I have never believed that any

person has a right to give speeches or engage in demonstrations where he pleases

and when he pleases.” 393 U.S. at 517 (Black, J., dissenting). By holding the

Tinker defendants’ actions unconstitutional, “the Court arrogates to itself, rather

than to the State’s elected officials charged with running the schools, the decision

as to which school disciplinary regulations are ‘reasonable.’” Id. Tinker was

wrongly decided, wrote Justice Black, because

             wholly without constitutional reasons in my judgment,
             [Tinker] subjects all the public schools in the country to
             the whims and caprices of their loudest-mouthed, but
             maybe not their brightest, students. I, for one, am not
             fully persuaded that school pupils are wise enough, even
             with this Court’s expert help from Washington, to run the
             23,390 public school systems in our 50 States. I wish,
             therefore, wholly to disclaim any purpose on my part to
             hold that the Federal Constitution compels the teachers,
             parents, and elected school officials to surrender control
             of the American public school system to public school
             students.

393 U.S. at 525-526. Cf. Morse, 551 U.S. at 410-11 (Tinker “is without basis in

the Constitution” because “the history of public education suggests that the First

Amendment, as originally understood, does not protect student speech in public

schools”) (Thomas, J., concurring).

      So too in the present case, there is no Constitutional reason for this Court to


                                          30
  Case: 11-17858      04/02/2012       ID: 8124414    DktEntry: 19    Page: 39 of 58




order school administrators “to surrender control” to students over appropriate

clothing and matters of school discipline. Student-appellants M.D. and D.G.

testified that they would have worn the same clothes on May 5, 2010 even if they

knew beforehand that they would be shot as a result. (2 ER 149:11-17; 2 ER

193:3-9.) While these students may have been willing to take such a risk, school

officials were neither willing, nor Constitutionally obligated, to allow them to do

so, or to thereby imperil other students. However noble the students’ sentiment

may be for a soldier on a battlefield (and at least one indicated a desire to go into

the military), it is misplaced in a school setting. Student-appellants’ choice to wear

these shirts, on this day, did not trump the reasoned, considered decision of school

administrators who acted to prevent provocation, violence and disruption.

             4.     School regulations regarding clothing are generally upheld
                    as constitutional.
      The actions of school officials in this case should also be upheld because

they relate to an area of student supervision as to which courts regularly uphold

restrictions – clothing.

      “The problem posed by the present case does not relate to regulation of the

length of skirts or the type of clothing, to hair style, or deportment.” Tinker, 393

U.S. at 507-508 (emphasis added and citations omitted). At issue in the present

case is precisely what was excepted from Tinker: student clothing choices.

      This Court has upheld the constitutionality of far more pervasive dress


                                          31
  Case: 11-17858      04/02/2012       ID: 8124414    DktEntry: 19    Page: 40 of 58




regulations than the one-day restriction at issue here in the fact of constitutional

challenges. For example, this Court refused to recognize a religious exemption to

a school dress code. Jacobs v. Clark County Sch. Dist., 526 F.3d 419 (9th Cir.

2008. Jacobs upheld a school dress code that banned all messages on clothing

unrelated to the school itself (e.g., the school logo), even where the student’s

noncomplying clothes bore religious messages.

             [T]he District’s interests are not pretexts for an
             underlying desire to limit free speech but, rather, are
             directed only at creating an educational environment free
             from the distractions, dangers, and disagreements that
             result when student clothing choices are left unrestricted.
             Cf. City of Renton v. Playtime Theatres, Inc., 475 U.S.
             41, 48, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986)
             (expressing less First Amendment concern regarding
             policies “aimed not at the content” of the forbidden
             speech, but rather at the “secondary effects” of that
             speech).

526 F.3d at 436-37 The dress code in Jacobs was upheld because it advanced

“legitimate regulatory goals,” and did not “seek to ‘suppress unpopular ideas or

information or to manipulate the public debate through coercion rather than

persuasion.’” 526 F.3d at 433 (citation omitted).

      So too here, there is no evidence that Rodriguez had “an underlying desire to

limit free speech:” instead his actions were “directed only at creating an

educational environment free from … distractions, dangers, and disagreements”

that had manifested in the past and manifested again on Cinco de Mayo 2010. So



                                          32
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19   Page: 41 of 58




too here, Rodriguez’s actions were aimed not at the content of any “speech” (e.g.,

he did not take down the U.S. flag flying over the school), they were aimed at the

“secondary effects” of wearing these shirts on this day. Rodriguez’s actions

advanced the “legitimate … goal” of student safety, and cannot imaginably be

called an attempt “to manipulate the public debate through coercion.”

      D.     Appellants’ First Amendment arguments to the contrary are
             without precedent, misrepresent the record and are misdirected
             to the wrong political institution.

             1.     That the clothing involved U.S. flag or flag-motif designs
                    does not make it immune from Constitutional review
                    accorded any other design.
      Much of Appellants’ opening brief is devoted to a proposition that no court

has ever embraced – that display of the U.S. flag, in any form, is always patriotic,

and is immune from First Amendment “time, place and manner” restrictions.

“American public schools cannot logically ban the American flag for any duration

or reason.” Appellants’ Br. 3. While the flag may well be a “symbol of

nationhood and national unity,” Texas v. Johnson, 491 U.S. 397, 413 (1989)

(quoted at Appellants’ Br. 3), that neither makes it harmless in all situations (as

demonstrated by the facts here) nor enshrines it in some extra-Constitutional

pantheon. No mention of the flag appears in the Constitution. The flag represents

the nation under the Constitution. The flag does not trump the Constitution. Cf.

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943)



                                          33
  Case: 11-17858     04/02/2012          ID: 8124414   DktEntry: 19   Page: 42 of 58




(state may not force children to salute the flag when the children’s religious beliefs

forbade such behavior).

      Appellants argue that “the public school systems’ role as a unifying force”

(Appellants’ Br. 5) requires that “the American flag should not have to be stowed

away in students’ lockers on days designated to celebrate the nationalistic pride of

any other nation or culture” (Appellants’ Br. 4). That is a statement of educational

policy, not of Constitutional dimension. If there is a wrong, the remedy is at the

local school level, not Federal court.

             The Supreme Court repeatedly has shown deference to
             school officials at the intersection between constitutional
             protections and educational policy…. The theme of local
             control over public education has animated Supreme
             Court jurisprudence. See, e.g., Brown v. Board of Educ.,
             349 U.S. 294, 299, 99 L. Ed. 1083, 75 S. Ct. 753, 71
             Ohio Law Abs. 584 (directing local school officials, with
             court oversight, to devise remedies for segregation in the
             light of "varied local school problems"); Milliken v.
             Bradley, 418 U.S. 717, 741-42, 41 L. Ed. 2d 1069, 94 S.
             Ct. 3112 (1974) ("No single tradition in public education
             is more deeply rooted than local control over the
             operation of schools; local autonomy has long been
             thought essential both to the maintenance of community
             concern and support for public schools and to quality of
             the educational process."); Freeman v. Pitts, 503 U.S.
             467, 490, 118 L. Ed. 2d 108, 112 S. Ct. 1430 ("As we
             have long observed, 'local autonomy of school districts is
             a vital national tradition.'" (quoting Dayton Bd. of Educ.
             v. Brinkman, 433 U.S. 406, 410, 53 L. Ed. 2d 851, 97 S.
             Ct. 2766 (1977)); see also Bethel Sch. Dist. v. Fraser,
             478 U.S. 675, 683, 92 L. Ed. 2d 549, 106 S. Ct. 3159
             (1986) ("The determination of what manner of speech in
             the classroom or in the school assembly is inappropriate

                                           34
  Case: 11-17858      04/02/2012      ID: 8124414    DktEntry: 19   Page: 43 of 58




             properly rests with the school board."); LaVine v. Blaine
             School District, 257 F.3d 981, 988 (9th Cir. 2001) ("In
             the school context, we have granted educators substantial
             deference as to what speech is appropriate.") (citing and
             quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
             260, 267, 98 L. Ed. 2d 592, 108 S. Ct. 562 (1988)). These
             Supreme Court decisions suggest that secondary schools
             occupy a unique position in our constitutional tradition.

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist., No. 1, 426 F.3d 1162, 1188

n.3 (9th Cir. 2005), rev’d on other grounds, 551 U.S. 701, 127 S. Ct. 2738, 168 L.

Ed. 2d 508 (2008).

             2.      There is no evidence in the record that any “viewpoint” or
                     “message” was at issue; in fact, the students disavowed any
                     message.
      Closely related is Appellants’ frequent assertion that the flag and flag-motif

shirts in this case reflected a “pro-American message” or “viewpoint,” in contrast

to some other message or viewpoint. This is simply made up, and not part of the

record. While the above First Amendment analysis applies even assuming that

there was a “message” being conveyed, this Court could reach the same result by

finding no discernible message or “viewpoint.”

      The flag means many things, to many different people, at different times.

According to Appellants, all flag displays are always patriotic, representing the

highest ideals of our nation. It is hard bordering on impossible to reconcile

Appellants’ argument with advertisements that come out every Fourth of July

featuring models wearing flag-bunting bikinis. Or with displays of the flag at anti-


                                         35
    Case: 11-17858   04/02/2012       ID: 8124414    DktEntry: 19    Page: 44 of 58




immigrant rallies. It is hard bordering on impossible to believe that the Founding

Fathers of our heavily immigrant-peopled republic thought that xenophobia was

patriotic.6 That someone waves or wears a flag does not mean that their intentions

are peaceful, or that the message (intended or otherwise) is to celebrate national

unity and inclusiveness. A flag is a symbol, not a magic wand that ensures the

good citizenry of its wielders, or the good behavior of its beholders.

       Appellants argue “that Defendants wanted to avoid the ‘discomfort and

unpleasantness’ that might accompany, for example, a discussion amongst students

regarding issues such as illegal immigration.” (Appellants’ Br. 36.) There is no

evidence in the record that student-appellants engaged other students on this or any

other issue, or that they wore the shirts intending to engage in dialogue. When

asked by Rodriguez why they wore these clothes on this particular day, student-


6
       Eight of the 56 signers of the Declaration of Independence were foreign-
born. National Archives and Record Administration, Signers Fact Sheet,
http://www.archives.gov/exhibits/charters/declaration signers_
gallery_facts.pdf [last visited March 28, 2012]. So was an even higher percentage
– seven of 39 – of the signers of the Constitution. National Archives and Record
Administration, The Founding Fathers: A Brief Overview, America’s Founding
Fathers: Delegates to the Constitutional Convention,
http://www.archives.gov/exhibits/charters/constitution_founding_fathers_
overview.html [last visited March 28, 2012].
       Among the complaints against King George III in the Declaration of
Independence: “He has endeavored to prevent the population of these States; for
that purpose obstructing the Laws for naturalization of Foreigners; [and] refusing
to pass others to encourage their migration hither.”
       Our nation’s first immigration and naturalization law, the Naturalization Act
of 1790, 1 Stat. 103 (1790) (1st Cong., 2nd Sess.), had no restrictions on
immigration, and allowed an “alien” who had been resident for two years or more
to become a citizen by applying to any court. Thus, the first immigration law
passed in the United States, by the Founders themselves, supported open
immigration.


                                         36
  Case: 11-17858      04/02/2012         ID: 8124414   DktEntry: 19   Page: 45 of 58




appellants had no response. 2 ER 146:15-20. And there is no evidence in the

record that any school officials punished or prohibited any discussion of any

issues, including illegal immigration.

             3.     Cinco de Mayo 2010 was not a “normal” day, and that is
                    not the issue.
      Appellants argue that “aside from the violation of [Appellants’] rights, May

5, 2010 was a relatively normal day at Live Oak High School.” (Appellants’ Br.

35.) The statement begs rebuttal.

      a.     The day was “normal” only if by “normal” Appellants mean a day

with two threats communicated to school officials, and other threats directed to

students involved. There was a history of problems at the school, but this day was

certainly not “just like any other.”

      b.     The issue is not just what happened on this day. The issue is whether,

given a history including some of the same students on Cinco de Mayo the

preceding year, school officials acted within the latitude given them by Supreme

Court and Ninth Circuit precedent.

      c.     That the day ended up being “normal” in the sense of “no violence or

other disruption on campus” is entirely likely because of Rodriguez’s actions, and

not a reason his actions were unnecessary or unconstitutional. The law “does not

demand a certainty that disruption will occur, but rather the existence of facts

which might reasonably lead school officials to forecast substantial disruption.”


                                           37
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 46 of 58




Karp, 477 F.2d at 175 (citation omitted).

      d.     The days after May 5, 2010 displayed further disruption on campus

over the clothing issue. Student-appellants received threats. 2 ER 124:22-125:10,

178:21-179:18; 3 ER 237:11-240:1, 241:15-16.

      May 6 saw a media circus on campus, and a walkout by 60-70 students. 2

ER 91:2-7, 104:4-11; 3 ER 243:25-244:4 (estimating 200 students in walkout).

May 7 saw student-appellants stay home from school. 2 ER 178:21-24, 197:5-7,

230:4-9; 3 ER 239:23-240:1. If parents and police, were concerned two days later

that the students’ clothing choices on Cinco de Mayo posed a threat to their safety,

then the same concern by Rodriguez and Boden the day the students wore the

clothing to school seems unassailably reasonable.

      E.     Appellants’ other arguments fail.

             1.    California constitutional arguments fall with the First
                   Amendment claims.
      Appellants concede that California follows “federal law … for free speech

claims arising in a school setting.” Appellants’ Br. 8. Thus, their California

constitutional claims fall with their First Amendment claim.

             2.    The equal protection claim is meritless because no other
                   group was treated preferentially.
      As the district court recognized, Appellees had a non-discriminatory purpose

in acting as they did: protecting student safety. Appellants complain that other



                                         38
  Case: 11-17858      04/02/2012       ID: 8124414     DktEntry: 19   Page: 47 of 58




symbols did not result in the same treatment. But Appellants have no evidence that

anyone wearing any other symbol was targeted for violence. Further, school

officials did not treat students wearing American flag-themed clothing differently

than those wearing clothing depicting the Mexican flag, for reasons including that

there were no students wearing clothing depicting the Mexican flag on campus that

day. 3 ER 274:17-25. Thus, there was no evidence that school officials treated

students differently based on the “content of their message” (to the extent there is

any “message” involved, see pp. 35-37) or for any reason other than concerns for

safety and preserving order.

      As Principal Boden attested, his decisions on May 5, 2010 had nothing to do

with opposing a “pro-American” viewpoint, or favoring a “pro-Mexican”

viewpoint. 3 ER 310-311, ¶ 9. To the contrary, if he had reason to believe, on

any date, that an image depicted on a student’s clothing was likely to place that

student or other students at risk, he would have taken the same action no matter

what the viewpoint. Id. Absent differential treatment, based on a protected

classification or not, there is no basis for an equal protection claim.

             3.     The due process, declaratory and injunctive relief claims
                    are precluded by sovereign immunity and otherwise
                    meritless.
      Appellants argue that “the school district’s speech guidelines violate due

process” because they are supposedly too vague. Appellants’ Br. 39-42.



                                          39
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19    Page: 48 of 58




Appellants also argue for declaratory and injunctive relief against the school

district. Appellants’ Br. 42-46.

      California school districts are arms of the state and thus immune from suit

under the Eleventh Amendment. Belanger v. Madera Unified School District, 963

F.2d 248 (9th Cir. 1992). Appellants do not challenge the district court’s ruling

that claims against the District are barred by sovereign immunity under the

Eleventh Amendment. 1 ER 8-9. There is thus no basis for addressing Appellants’

claims against the District.

      Although the claims may still be “live” against Assistant Principal

Rodriguez’s successor in his or her “official capacity,” the claims are substantively

meritless as well.

      The dress code guidelines prohibit clothing that may “disrupt school

activities.” Appellants’ Br. 20; 3 ER 419:9-19, 447, 451. This passes

constitutional muster in the present case for at least two reasons.

      First, there is no evidence that school officials used or enforced these

guidelines against student-appellants. Principal Boden, the sole decision-maker on

May 5, 2010, attested that he did not have any District policy in mind on May 5th.

3 ER 310, ¶ 7. Further, his intent was to protect the students due to his knowledge

of past events, including those of May 5, 2009, and due to an inherent duty he

understood he had as principal. Id. It is undisputed that neither he nor Assistant


                                          40
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 49 of 58




Principal Rodriguez cited reliance upon any District policy at any time in

connection with the challenged acts on Cinco de Mayo 2010. 2 ER 190:17-25,

213:8-10, 228:22-229:10; 3 ER 236:23-25 (no “school policy or rule referenced by

either Mr. Boden or Mr. Rodriguez”).

      Second, the Supreme Court has granted school administrators latitude in

crafting regulations that will withstand “vagueness’ challenges.

             We have recognized that ‘maintaining security and order
             in the schools requires a certain degree of flexibility in
             school disciplinary procedures, and we have respected
             the value of preserving the informality of the student-
             teacher relationship.’ Given the school’s need to be able
             to impose disciplinary sanctions for a wide range of
             unanticipated conduct disruptive of the educational
             process, the school disciplinary rules need not be as
             detailed as a criminal code which imposes criminal
             sanctions.
A M v. Cash, 585 F.3d 214, 225 (5th Cir. 2009) (citations omitted). Here, the

policy’s prohibition against clothing that may “disrupt school activities” simply

restates the test in Tinker, Karp and LaVine regarding potential for “disruption.” A

policy that tracks governing law cannot, as a matter of law, be too “vague” to be

constitutional.

      F.     If the Court decides that Rodriguez’s acts were unconstitutional,
             it should bar Appellants’ claims on the basis of qualified
             immunity.
      Appellees’ motion for summary judgment included an alternative ground of

qualified immunity. The district court did not need to reach the issue, and


                                         41
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19    Page: 50 of 58




Appellants’ opening brief does not address it. Because this Court may affirm a

judgment based on any grounds before the district court, and because the resolution

of the qualified immunity question involves the application of law to undisputed

facts, if the Court decides that Rodriguez’s action was unconstitutional, it should

nevertheless find that qualified immunity bars Appellants’ claims.

      Qualified immunity is “an entitlement not to stand trial or face the other

burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151 (2001).

“The privilege is an immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is erroneously permitted to

go to trial.” Id. at 200-01. Accordingly, the Supreme Court has instructed lower

courts to “resolv[e] immunity questions at the earliest possible stage in litigation.”

Id. at 201.

      The purpose of the qualified immunity doctrine is “to acknowledge that

reasonable mistakes can be made as to the legal constraints on particular …

conduct” and to ensure that state actors are clearly on notice that their conduct is

unconstitutional before subjecting them to suit. Saucier, 533 U.S. at 205.

“Qualified immunity gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-

Kidd, - U.S. -, 131 S. Ct. 2074, 2085 (2011). As the Supreme Court has explained:

              [The law] does not always give a clear answer as to
              whether a particular application of force will be deemed

                                          42
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19   Page: 51 of 58




             excessive by the courts. This is the nature of a test which
             must accommodate limitless factual circumstances. . . .
             Qualified immunity operates . . . to protect officers from
             the sometimes hazy borders between [constitutional and
             unconstitutional actions], and to ensure that before they
             are subjected to suit, officers are on notice their
             conduct is unlawful.
Saucier, 533 U.S. at 205-06 (emphasis added). Qualified immunity thus shields

state actors “from liability for civil damages insofar as their conduct does not

violate clearly established . . . constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727

(1988) (emphasis added). “If officers of reasonable competence could disagree

on” whether a particular use of force is constitutional, “immunity should be

recognized.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092 (1986). The

protection afforded by qualified immunity is “far reaching,” and safeguards “all

but the plainly incompetent or those who knowingly violate the law.” Brewster v.

Bd. Of Educ., 149 F.3d 971, 977 (9th Cir. 1998). The test also “allows ample room

for reasonable error” by the government actor. Knox v. Southwest Airlines, 124

F.3d 1103, 1107 (9th Cir. 1997).

      In Saucier v. Katz, the Supreme Court established a two-part test for

determining whether qualified immunity is appropriate. The first part asks whether

the facts taken in the light most favorable to the plaintiff show that the government

actor violated a constitutional right. Saucier, supra, 533 U.S. at 201. If the



                                          43
  Case: 11-17858     04/02/2012       ID: 8124414     DktEntry: 19   Page: 52 of 58




answer is no, the inquiry ends and the official is entitled to qualified immunity. Id.

If the answer is yes, however, the court proceeds to the second part of the test,

which asks whether the constitutional right that was violated was clearly

established at the time the plaintiff was injured. Id. In this case, that would mean

asking whether it would have been clear to a reasonable school administrator that it

was constitutionally impermissible to send home from school one afternoon

students wearing clothing with designs that appeared likely to incite renewed

violence. If the answer to this second question is no, the officer is immune from

suit. Id.

       More recently, the Supreme Court has relaxed Saucier’s rigid two-step

process, and has held that courts may instead jump immediately to the second

question, and may grant summary judgment without reaching the issue of whether

the plaintiff’s constitutional rights were actually violated. Pearson v. Callahan,

555 U.S. 223, , 129 S.Ct. 808, 820, 822-23 (2009).

       Should this Court hold Rodriguez’s actions to violate the Constitution, it will

be treading new ground. No prior decision of this Court or the United States

Supreme Court held school actions like those here, in factual circumstances at all

like those here, are unconstitutional. No decision “clearly established” any right of

student-appellants to wear these shirts to school on this day, regardless of any fears

of violence. Appellants cite no case holding that flag displays on clothing are per


                                          44
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 53 of 58




se immune from First Amendment time, place and manner restrictions, much less

those imposed by a school. Appellants cite no case holding that students must be

allowed to wear flag motifs, or any other clothing, where school administrators

reasonably perceive a threat of violence. Thus, the question before this Court is an

open one, and qualified immunity is appropriate. See C.F. v. Capistrano Unified

Sch. Dist., 654 F.3d 975, 987 (9th Cir. 2011) (where no prior case held that a

teacher violated the Establishment Clause by appearing critical of religion during

class lectures during European history class, she did not have “fair warning” that

such conduct was unlawful, and was entitled to qualified immunity); Ashcroft, 131

S. Ct. at 2083 (granting qualified immunity where “not a single judicial opinion

had held that pretext could render an objectively reasonable arrest pursuant to a

material-witness warrant unconstitutional”). Even if the decisions cited in section

VI.C of this brief, above at pp. 13-33, do not compel a holding that Rodriguez’s

actions were constitutional, they definitely do not compel the opposite conclusion,

and it is beyond question that the decisions could at least allow a reasonable

administrator to conclude that they were constitutional.

                                        VII

                                  CONCLUSION
      A decision from a different context nonetheless describes the problem

presented to the Court here. “This is serious business. We do not wish to be even



                                         45
  Case: 11-17858     04/02/2012        ID: 8124414    DktEntry: 19    Page: 54 of 58




minutely responsible for some unspeakably tragic act of mayhem because in the

peace of our judicial chambers we miscalculated as to Second Amendment rights.”

U.S. v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2010), cert. denied 132 S. Ct.

756 (2011) (refusing to extend Second Amendment right to gun possession in the

home to invalidate National Park Service prohibition of loaded weapons in

vehicles). So too is the case before this Court “serious business.” So too should

this Court avoid being “even minutely responsible for some unspeakably tragic act

of mayhem because in the peace of our judicial chambers we miscalculated as to

[First] Amendment rights.”

      The question people ask after each Chardon, Columbine, Littleton or other

school shooting is “why didn’t school officials read the tea leaves and pro-actively

prevent this from happening?” In many of these cases, sadly, the “tea leaves” were

not apparent or appreciated until after the fact. Here, school administrators acted

on the basis of a history of violence and disruption, specific threats, and the

involvement of some of these same students in earlier similar activities. If this

Court declares the minimal intrusion on student rights in this case in the face of

these circumstances to be unconstitutional, then the way is paved for school




                                          46
    Case: 11-17858     04/02/2012     ID: 8124414    DktEntry: 19   Page: 55 of 58




administrators to shy away from protecting students, their first responsibility. The

Court should affirm.


                                       Respectfully submitted,

Dated: April 2, 2012                   GORDON & REES LLP


                                       By: s/ Don Willenburg___________
                                               Don Willenburg
                                               Mark S. Posard
                                               Alyson Cabrera
                                            Attorneys for Appellees



12037500wp




                                         47
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 56 of 58




  STATEMENT OF RELATED CASES – NINTH CIRCUIT RULE 28-2.6
      Appellees filing this brief are not aware of any other cases pending in this

Court related to this appeal.



April 2, 2012                          s/ Don Willenburg
                                       DON WILLENBURG




                                         48
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 57 of 58




            CERTIFICATE OF TYPE-VOLUME COMPLIANCE
      I, Don Willenburg, certify pursuant to Fed. R. App. P. 32(a)(7)(C) that the

attached appellees’ brief has a typeface of 14 points or more and, including tables

and certificates, contains 12,477 words according to the word count of the word

processing program used to prepare it.



April 2, 2012                            s/ Don Willenburg
                                         DON WILLENBURG




                                          49
  Case: 11-17858     04/02/2012       ID: 8124414    DktEntry: 19   Page: 58 of 58




                           CERTIFICATE OF SERVICE

      I hereby certify that I electronically filed the foregoing document entitled
APPELLEE’S ANSWERING BRIEF with the Clerk of the Court for the United
States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system on April 2, 2011.
      I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.


                                       s/Andrea Bean
                                       Andrea Bean




                                         50

				
DOCUMENT INFO
Categories:
Tags:
Stats:
views:0
posted:10/16/2013
language:Unknown
pages:58