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3 Judges Dissent From 9th Cir. En Banc Denial in School Speech Case

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By Mark Wilson, Esq. on September 17, 2014 2:23 PM

In an amended opinion and order, the Ninth Circuit has declined a request for a rehearing en banc in Dariano v. Morgan Hill Unified School District. Judge Diarmuid O'Scannlain and two other judges wrote a dissent to the denial for an en banc rehearing.

What Happened

Here's a refresher: On May 5, 2010 (Cinco de Mayo), a group of students wore T-shirts with American flags on them to Live Oak High School in Morgan Hill, California. The shirts appeared to be designed to inflame Mexican-American students at the school; there was a history of tension between white and Hispanic students. The students wearing T-shirts went home that day rather than turn their shirts inside-out as instructed by school officials; after they left, they received threats from other students.

Applying doctrinal school speech cases, the Ninth Circuit held in its earlier opinion that the school was justified in restricting the students' speech because of the reasonable inference of violence, given the racial tension at the school and the fact that, on Cinco de Mayo the previous year, the same act of wearing American flag shirts did start an altercation.

'Dissental' From En Banc Rehearing

In his dissent from a denial of rehearing en banc (which Judge Alex Kozinski has suggested should be called a "dissental" opinion), O'Scannlain, joined by fellow conservatives Richard C. Tallman and Carlos Bea, characterized this not as a school speech case but a "heckler's veto" case. The heckler's veto, of course, is the notion that a critic of speech can silence the speaker by threatening violence if the speaker is allowed to speak. The government must protect the speaker's right to speak rather than suppress his speech in light of a potentially angry crowd.

Allowing the panel opinion to stand, said O'Scannlain, "creates a split with the Seventh and Eleventh Circuits and permits the will of the mob to rule our schools." The dissental takes issue with invoking Tinker v. Des Moines, which emphasized that "the government cannot silence messages simply because they cause discomfort, fear, or even anger."

Tinker, however, is pretty different from this case, and the considerations attending speech in schools make a "heckler's veto" actually more permissible there. Tinker involved students wearing black armbands to protest the Vietnam War. There was no suggestion in that case that pro-war students would become violent against students' anti-war sentiment.

Cases following Tinker emphasized that schools can take steps to guard against reasonable disruptions to the school environment, which is not an unlimited public forum. The disruptions in this case weren't speculative: There were threats after the fact, there was racial tension in the school, and there had been an incident the previous year.

Despite the dissental's emphasis on the "heckler's veto" as the controlling element of this case, the panel's decision was largely in line with post-Tinker decisions of the Supreme Court like Hazelwood v. Kuhlmeier and Bethel v. Fraser.

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