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Introduction:
Dariano v. Morgan Hill Unified School District ruled that two students at Live Oak High School,
in California, violated the Tinker ruling by wearing t-shirts with American flags on them on Cinco de
Mayo of 2010. It was decided as a reasonable disruption of school activity because the previous two
Cinco de Mayos had resulted in serious conflict between students, and this time, personal threats against
students. Previously, White students hung an American flag on a tree on campus, chanting USA. A
group of primarily Hispanic students then began parading with a Mexican flag, shouting, f*** them
white boys, f*** them white boys. A year later, on Cinco de Mayo of 2010, two students came to school
wearing American flag t-shirts. They were asked to turn them inside out or leave, and subsequently got
threats of gang violence via text message. The one thing that was in contention was that the Students
threatening the students with the t-shirts were employing something called a hecklers veto, where
threats are made to make constitutional free speech appear dangerous to students. Hecklers vetoes are
usually dealt with by punishing the threatening party and maintaining the speakers rights in the adult
world, and California educational law rewards normal free speech more under Tinker than for the
hecklers. This case calls into question what free speech rights students are afforded as compared to adults
in the case of heckler vetoes.

Part II:
The overall Supreme Court ruling applying to this case is, of course, Tinker v. Des Moines, which
rules that schools can regulate students speech if they can forecast a reasonable disruption of school
activities. The principal clearly was within his rights to force the students to change, as in previous years
it had resulted in verbal and physical conflict. However, the state rule, which appears to contradict the
principals actions under Tinker, grants all off campus credit to normal first amendment rights, but does
not protect the rights of students to harass or intimidate others (FindLaw). Under normal California law
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enforcement procedures, the harassers would be punished while maintaining the first amendment rights of
the harassed. These two laws appear to contradict each other in this case, but both apply (Volokh).
The school board policies in Morgan Hill Unified School District represent facets of both Tinker
and California Education Code 48907, which entails Californias take on the Tinker ruling. It states, The
Board prohibits, at any district school or school activity, unlawful discrimination, harassment,
intimidation, and bullying of any student based on the student's national origin, ethnic group
identification ..; the perception of one or more of such characteristics; or association with a person or
group with one or more of these actual or perceived characteristics. This is an addition as per California
state law. It also says, Students shall have the right to exercise freedom of speech and of the press in
official school publications, except for expression that is obscene, libelous, slanderous, or so incites
students as to create a clear and present danger of the commission of unlawful acts on school premises,
the violation of lawful school regulations, or the substantial disruption of the orderly operation of the
school (Gamut Online). This part of California law is directly drawn from Tinker, and is the policy that
the principal appears to be acting upon. The controversy arises between these two things, and an
additional part of county policy that states, The Board respects students' rights to express ideas and
opinions, take stands on issues, and support causes, even when such speech is controversial or unpopular
(Gamut Online). The prosecutors in the case believe that the defendants should not be able to limit their
free speech through threats, as their opinions are protected by the board, however unpopular and that
threatening students should be punished instead to protect the t-shirt students rights (Elias). The
defendants, the county, shows significant evidence on the other hand that there was reasonably
foreseeable disruption, as in the previous year, students exchanged obscenities and threats over the
draping of flags over trees on Cinco de Mayo. Indeed, after the 2010 incident, the students received
threats of gang violence via text message (Volokh).

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Maryland probably would have operated in a similar fashion, given previous altercations. The
foreseeable disruption seems to be pretty clear, although Maryland schools have had cases where a
student who claims to have been provoked makes threats. One such case was when a student threatened to
kill three girls and leave them hanging by a tree after he claimed they bullied him for months on end.
He was suspended and the girls were not reprimanded for bullying (a lack of evidence)(Maryland Public
Schools). Marylands Hispanic population is much lower than that of California, (35.9 %vs 9%,) which
would probably lead to much less conflict between groups (Department of Legislative Services). The fact
that the Circuit court of appeals ruled again in favor of the defendants probably shows that the reasonable
disruption was more powerful than the first amendment right to symbolic speech for students.
The case takes into account the value of student safety versus the value of free speech, and
whether students are defended from heckler vetoes. The decision represents a value of short term safety
of students over the ability of students to threaten others and some pretty basic symbolic speech rights.
Overall, safety of children seems to be the number one priority in most court cases on student rights.