                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOHN DARIANO; DIANNA DARIANO,              No. 11-17858
on behalf of their minor child, M.D.;
KURT FAGERSTROM; JULIE ANN                    D.C. No.
FAGERSTROM, on behalf of their             5:10-cv-02745-
minor child, D.M.; KENDALL JONES;                JW
JOY JONES, on behalf of their minor
child, D.G.,
                Plaintiffs-Appellants,       OPINION

                  v.

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


      Appeal from the United States District Court
        for the Northern District of California
        James Ware, District Judge, Presiding

                Argued and Submitted
      October 17, 2013—San Francisco, California

                 Filed February 27, 2014
2       DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

    Before: Sidney R. Thomas and M. Margaret McKeown,
    Circuit Judges, and Virginia M. Kendall, District Judge.*

                  Opinion by Judge McKeown


                           SUMMARY**


                            Civil Rights

    The panel affirmed the district court’s summary judgment
in a civil rights suit brought by high school students who
were asked to remove clothing bearing images of the
American flag after school officials learned of threats of race-
related violence during a school-sanctioned celebration of
Cinco de Mayo.

    The panel held that school officials did not violate the
students’ rights to freedom of expression, due process, or
equal protection. The panel held given the history of prior
events at the school, including an altercation on campus, it
was reasonable for school officials to proceed as though the
threat of a potentially violent disturbance was real. The
panel held that school officials anticipated violence or
substantial disruption of or material interference with school
activities, and their response was tailored to the
circumstances.


 *
  The Honorable Virginia M. Kendall, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
       DARIANO V. MORGAN HILL UNIFIED SCH. DIST.                        3

                             COUNSEL

Robert J. Muise (argued), American Freedom Law Center,
Ann Arbor, Michigan; William J. Becker, Jr., The Becker
Law Firm, Los Angeles, California; Erin Mersino, Thomas
More Law Center, Ann Arbor, Michigan, for Plaintiffs-
Appellants.

Don Willenburg (argued), Mark S. Posard, and Alyson S.
Cabrera, Gordon & Rees LLP, San Francisco, California, for
Defendants-Appellees.


                              OPINION

McKEOWN, Circuit Judge:

    We are asked again to consider the delicate relationship
between students’ First Amendment rights and the
operational and safety needs of schools. As we noted in
Wynar v. Douglas County School District, 728 F.3d 1062,
1064 (9th Cir. 2013), “school administrators face the daunting
task of evaluating potential threats of violence and keeping
their students safe without impinging on their constitutional
rights.” In this case, after school officials learned of threats of
race-related violence during a school-sanctioned celebration
of Cinco de Mayo, the school asked a group of students to
remove clothing bearing images of the American flag.1

    The students brought a civil rights suit against the school
district and two school officials, alleging violations of their

   1
     Because the students’ names are confidential, we refer to them
collectively as “the students,” or by their initials, M.D., D.G., and D.M.
4     DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

federal and state constitutional rights to freedom of
expression, equal protection, and due process. We affirm the
district court’s grant of summary judgment as to the only
defendant party to this appeal, Assistant Principal Miguel
Rodriguez, and its denial of the students’ motion for summary
judgment, on all claims. School officials anticipated violence
or substantial disruption of or material interference with
school activities, and their response was tailored to the
circumstances. As a consequence, we conclude that school
officials did not violate the students’ rights to freedom of
expression, due process, or equal protection.

                       BACKGROUND

    This case arose out of the events of May 5, 2010, Cinco
de Mayo, at Live Oak High School (“Live Oak” or “the
School”), part of the Morgan Hill Unified School District in
Northern California. The Cinco de Mayo celebration was
presented in the “spirit of cultural appreciation.” It was
described as honoring “the pride and community strength of
the Mexican people who settled this valley and who continue
to work here.” The school likened it to St. Patrick’s Day or
Oktoberfest. The material facts are not in dispute.

    Live Oak had a history of violence among students, some
gang-related and some drawn along racial lines. In the six
years that Nick Boden served as principal, he observed at
least thirty fights on campus, both between gangs and
between Caucasian and Hispanic students. A police officer is
stationed on campus every day to ensure safety on school
grounds.

    On Cinco de Mayo in 2009, a year before the events
relevant to this appeal, there was an altercation on campus
       DARIANO V. MORGAN HILL UNIFIED SCH. DIST.                        5

between a group of predominantly Caucasian students and a
group of Mexican students.2 The groups exchanged
profanities and threats. Some students hung a makeshift
American flag on one of the trees on campus, and as they did,
the group of Caucasian students began clapping and chanting
“USA.” A group of Mexican students had been walking
around with the Mexican flag, and in response to the white
students’ flag-raising, one Mexican student shouted “f***
them white boys, f*** them white boys.” When Assistant
Principal Miguel Rodriguez told the student to stop using
profane language, the student said, “But Rodriguez, they are
racist. They are being racist. F*** them white boys. Let’s
f*** them up.” Rodriguez removed the student from the area.

    At least one party to this appeal, student M.D., wore
American flag clothing to school on Cinco de Mayo 2009.
M.D. was approached by a male student who, in the words of
the district court, “shoved a Mexican flag at him and said
something in Spanish expressing anger at [M.D.’s] clothing.”

    A year later, on Cinco de Mayo 2010, a group of
Caucasian students, including the students bringing this
appeal, wore American flag shirts to school. A female student
approached M.D. that morning, motioned to his shirt, and
asked, “Why are you wearing that? Do you not like
Mexicans[?]” D.G. and D.M. were also confronted about their
clothing before “brunch break.”



  2
    We use the ethnic and racial terminology employed by the district
court (Caucasian, Hispanic, Mexican). For example, the district court at
times referred to students of Mexican origin born in the United States and
students born in Mexico collectively as “Mexican.” We adopt the same
practice here, for the limited purpose of clarifying the narrative.
6       DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

    As Rodriguez was leaving his office before brunch break,
a Caucasian student approached him, and said, “You may
want to go out to the quad area. There might be some—there
might be some issues.” During the break, another student
called Rodriguez over to a group of Mexican students, said
that she was concerned about a group of students wearing the
American flag, and said that “there might be problems.”
Rodriguez understood her to mean that there might be a
physical altercation. A group of Mexican students asked
Rodriguez why the Caucasian students “get to wear their flag
out when we [sic] don’t get to wear our [sic] flag?”

    Boden directed Rodriguez to have the students either turn
their shirts inside out or take them off. The students refused
to do so.

     Rodriguez met with the students and explained that he
was concerned for their safety. The students did not dispute
that their attire put them at risk of violence. Plaintiff D.M.
said that he was “willing to take on that responsibility” in
order to continue wearing his shirt. Two of the students, M.D.
and D.G., said they would have worn the flag clothing even
if they had known violence would be directed toward them.

    School officials permitted M.D. and another student not
a party to this action to return to class, because Boden
considered their shirts, whose imagery was less “prominent,”
to be “less likely [to get them] singled out, targeted for any
possible recrimination,” and “significant[ly] differen[t] in
[terms of] what [he] saw as being potential for targeting.”3


    3
   The students permitted to return to class were wearing “Tap Out” (or
“TapouT”) shirts, which bear the logo of a popular martial arts company,
sometimes (as here) with flag iconography.
      DARIANO V. MORGAN HILL UNIFIED SCH. DIST.               7

    The officials offered the remaining students the choice
either to turn their shirts inside out or to go home for the day
with excused absences that would not count against their
attendance records. Students D.M. and D.G. chose to go
home. Neither was disciplined.

    In the aftermath of the students’ departure from school,
they received numerous threats from other students. D.G. was
threatened by text message on May 6, and the same
afternoon, received a threatening phone call from a caller
saying he was outside of D.G.’s home. D.M. and M.D. were
likewise threatened with violence, and a student at Live Oak
overheard a group of classmates saying that some gang
members would come down from San Jose to “take care of”
the students. Because of these threats, the students did not go
to school on May 7.

    The students and their parents, acting as guardians,
brought suit under 42 U.S.C. § 1983 and the California
Constitution against Morgan Hill Unified School District
(“the District”); and Boden and Rodriguez, in their official
and individual capacities, alleging violations of their federal
and California constitutional rights to freedom of expression
and their federal constitutional rights to equal protection and
due process.

    On cross-motions for summary judgment, the district
court granted Rodriguez’s motion on all claims and denied
the students’ motion on all claims, holding that school
officials did not violate the students’ federal or state
constitutional rights. The district court did not address claims
against Boden, because he was granted an automatic stay in
bankruptcy. The district court dismissed all claims against the
District on grounds of sovereign immunity, a ruling not
8       DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

challenged on appeal. The question on appeal is thus whether
Rodriguez, in his official or individual capacity, violated the
students’ constitutional rights.

                               ANALYSIS

I. FIRST AMENDMENT CLAIMS

    We analyze the students’ claims4 under the well-
recognized framework of Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969).5 Under
Tinker, students may “express [their] opinions, even on
controversial subjects . . . if [they] do[] so without materially
and substantially interfer[ing] with the requirements of
appropriate discipline in the operation of the school and
without colliding with the rights of others.” Id. at 513 (final
alteration in original) (internal quotation marks omitted). To
“justify prohibition of a particular expression of opinion,”
school officials “must be able to show that [their] action was
caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an
unpopular viewpoint.” Id. at 509.


    4
     Because California follows federal law for free expression claims
arising in the school setting, the students’ federal and state claims stand
or fall together. Cal. Teachers Ass’n v. Governing Bd. of San Diego
Unified Sch. Dist., 45 Cal. App. 4th 1383, 1391–92 (1996).
    5
     As we noted in Wynar, 728 F.3d at 1067, student speech that is
“vulgar, lewd, obscene [or] plainly offensive” is governed by Bethel
School District Number 403 v. Fraser, 478 U.S. 675 (1986); speech that
is “school-sponsored” is governed by Hazelwood School District v.
Kuhlmeier, 484 U.S. 260 (1988); and speech that “falls into neither of
these categories” is governed by Tinker. See Chandler v. McMinnville Sch.
Dist., 978 F.2d 524, 529 (9th Cir. 1992) (listing standards).
      DARIANO V. MORGAN HILL UNIFIED SCH. DIST.                9

    That said, “conduct by the student, in class or out of it,
which for any reason— whether it stems from time, place, or
type of behavior—materially disrupts classwork or involves
substantial disorder or invasion of the rights of others is, of
course, not immunized by the constitutional guarantee of
freedom of speech.” Id. at 513. Under Tinker, schools may
prohibit speech that “might reasonably [lead] school
authorities to forecast substantial disruption of or material
interference with school activities,” or that constitutes an
“actual or nascent [interference] with the schools’ work or . . .
collision with the rights of other students to be secure and to
be let alone.” Id. at 508, 514; see also Wynar, 728 F.3d at
1067 (quoting Tinker, 393 U.S. at 508, 514.). As we have
explained, “the First Amendment does not require school
officials to wait until 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) (footnote omitted). Indeed, in the school context, “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.

    Although Tinker guides our analysis, the facts of this case
distinguish it sharply from Tinker, in which students’ “pure
speech” was held to be constitutionally protected. 393 U.S. at
508. In contrast to Tinker, in which there was “no evidence
whatever of petitioners’ interference, actual or nascent, with
the schools’ work or of collision with the rights of other
students to be secure and to be let alone,” id., there was
evidence of nascent and escalating violence at Live Oak. On
the morning of May 5, 2010, each of the three students was
confronted about their clothing by other students, one of
whom approached student M.D. and asked, “Why are you
wearing that? Do you not like Mexicans[?]” Before the
10    DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

brunch break, Rodriguez learned of the threat of a physical
altercation. During the break, Rodriguez was warned about
impending violence by a second student. The warnings of
violence came, as the district court noted, “in [the] context of
ongoing racial tension and gang violence within the school,
and after a near-violent altercation had erupted during the
prior Cinco de Mayo over the display of an American flag.”
Threats issued in the aftermath of the incident were so real
that the parents of the students involved in this suit kept them
home from school two days later.

    The minimal restrictions on the students were not
conceived of as an “urgent wish to avoid the controversy,” as
in Tinker, id. at 510, or as a trumped-up excuse to tamp down
student expression. The controversy and tension remained,
but the school’s actions presciently avoided an altercation.
Unlike in Tinker, where “[e]ven an official memorandum
prepared after the [students’] suspension that listed the
reasons for the ban on wearing the armbands made no
reference to the anticipation of such disruption,” id. at 509,
school officials here explicitly referenced anticipated
disruption, violence, and concerns about student safety in
conversations with students at the time of the events, in
conversations the same day with the students and their
parents, and in a memorandum and press release circulated
the next day.

    In keeping with our precedent, school officials’ actions
were tailored to avert violence and focused on student safety,
in at least two ways. For one, officials restricted the wearing
of certain clothing, but did not punish the students. School
officials have greater constitutional latitude to suppress
student speech than to punish it. In Karp, we held that school
officials could “curtail the exercise of First Amendment
      DARIANO V. MORGAN HILL UNIFIED SCH. DIST.                11

rights when they c[ould] reasonably forecast material
interference or substantial disruption,” but could not
discipline the student without “show[ing] justification for
their action.” 477 F.2d at 176; cf. Wynar, 728 F.3d at 1072
(upholding expulsion, despite its “more punitive character,”
as a justified response to threats); LaVine v. Blaine Sch. Dist.,
257 F.3d 981, 992 (9th Cir. 2001).

    For another, officials did not enforce a blanket ban on
American flag apparel, but instead allowed two students to
return to class when it became clear that their shirts were
unlikely to make them targets of violence. The school
distinguished among the students based on the perceived
threat level, and did not embargo all flag-related clothing. See
Background, supra.

     Finally, whereas the conduct in Tinker expressly did “not
concern aggressive, disruptive action or even group
demonstrations,” 393 U.S. at 508, school officials at Live
Oak reasonably could have understood the students’ actions
as falling into any of those three categories, particularly in the
context of the 2009 altercation. The events of 2010 took
place in the shadow of similar disruptions a year earlier, and
pitted racial or ethnic groups against each other. Moreover,
students warned officials that there might be physical fighting
at the break.

    Our role is not to second-guess the decision to have a
Cinco de Mayo celebration or the precautions put in place to
avoid violence. “We review . . . with deference[] schools’
decisions in connection with the safety of their students even
when freedom of expression is involved,” keeping in mind
that “deference does not mean abdication.” LaVine, 257 F.3d
at 988, 992. As in Wynar, the question here is not whether the
12    DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

threat of violence was real, but only whether it was
“reasonable for [the school] to proceed as though [it were].”
728 F.3d at 1071; Karp, 477 F.2d at 175 (noting that “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”). Here,
both the specific events of May 5, 2010, and the pattern of
which those events were a part made it reasonable for school
officials to proceed as though the threat of a potentially
violent disturbance was real. We hold that school officials,
namely Rodriguez, did not act unconstitutionally, under either
the First Amendment or Article I, § 2(a) of the California
Constitution, in asking students to turn their shirts inside out,
remove them, or leave school for the day with an excused
absence in order to prevent substantial disruption or violence
at school.

II. EQUAL PROTECTION CLAIM

    The students’ equal protection claim is a variation of their
First Amendment challenge. Cf. U.S. CONST. amend. XIV,
§ 1 (stating that “[n]o State shall . . . deny to any person
within its jurisdiction the equal protection of the laws”). They
allege that they were treated differently than students wearing
the colors of the Mexican flag, and that their speech was
suppressed because their viewpoint was disfavored. We note
that the students had no response when asked why they chose
to wear flag clothing on the day in question. The school
responds that it had a viewpoint-neutral reason—student
safety—for suppressing the speech in question, and that they
treated “all students for whose safety they feared in the same
manner.”
      DARIANO V. MORGAN HILL UNIFIED SCH. DIST.             13

    Government action that suppresses protected speech in a
discriminatory manner may violate both the First Amendment
and the Equal Protection Clause. R.A.V. v. City of St. Paul,
505 U.S. 377, 384 n.4 (1992) (noting that the Supreme Court
“has occasionally fused the First Amendment into the Equal
Protection Clause in this fashion, but . . . with the
acknowledgment . . . that the First Amendment underlies its
analysis”). Where plaintiffs allege violations of the Equal
Protection Clause relating to expressive conduct, we employ
“essentially the same” analysis as we would in a case alleging
only content or viewpoint discrimination under the First
Amendment. Barr v. Lafon, 538 F.3d 554, 575 (6th Cir.
2008).

    In the school context, we look again to Tinker. 393 U.S.
at 510; see also Barr, 538 F.3d at 576–77; Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir. 2004)
(stating that Tinker “applies to school regulations directed at
specific student viewpoints”). According to Tinker, schools
are not forced to “prohibit the wearing of all symbols of
political or controversial significance” in order to justify a
prohibition against the wearing of a certain symbol, if such a
prohibition is “necessary to avoid material and substantial
interference with schoolwork or discipline.” 393 U.S. at
510–11. Schools may, under Tinker, ban certain images, for
example images of the Confederate flag on clothing, even
though such bans might constitute viewpoint discrimination.
See, e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166,
1184–85 (9th Cir. 2006) (noting that “[w]hile the Confederate
flag may express a particular viewpoint, ‘[i]t is not only
constitutionally allowable for school officials’ to limit the
expression of racially explosive views, ‘it is their duty to do
so’” (alteration in original) (quoting Scott v. Sch. Bd. of
Alachua Cnty., 324 F.3d 1246, 1249 (11th Cir. 2003) (per
14     DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

curiam)), judgment vacated on other grounds sub nom.
Harper ex rel. Harper v. Poway Unified Sch. Dist., 549 U.S.
1262 (2007); Scott, 324 F.3d at 1248 (upholding district court
order barring Confederate symbols based on “the potential
disruption that the displaying of Confederate symbols would
likely create”); West v. Derby Unified Sch. Dist. No. 260,
206 F.3d 1358, 1366–67 (10th Cir. 2000) (upholding ban on
Confederate symbols based on a “series of racial incidents or
confrontations,” including “hostile confrontations between a
group of white and black students”).

    As the district court noted, the students offered no
evidence “demonstrating that students wearing the colors of
the Mexican flag were targeted for violence.” The students
offered no evidence that students at a similar risk of danger
were treated differently, and therefore no evidence of
impermissible viewpoint discrimination.

    Because the record demonstrates that the students’ shirts
“might reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities,” Tinker, 393 U.S. at 514, the authorities’ actions
were permissible under Tinker. We reject the students’ equal
protection claim.

III.    DUE PROCESS AND INJUNCTIVE RELIEF CLAIMS

    The students further challenge the District’s dress code,
which prohibits clothing that “indicate[s] gang affiliation,
create[s] a safety hazard, or disrupt[s] school activities.” They
seek to permanently enjoin the use of the dress code, claiming
that it fails to provide objective standards by which to referee
       DARIANO V. MORGAN HILL UNIFIED SCH. DIST.                      15

student attire, in violation of the Due Process Clause.6 We
reject the students’ due process claims.

     The Supreme Court has “recognized that maintaining
security and order in the schools requires a certain degree of
flexibility in school disciplinary procedures,” and has thus
specified that, “[g]iven 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
. . . . ” Bethel Sch. Dist., 478 U.S. at 686 (holding that a
school had not violated a student’s due process rights by
disciplining him for lewd speech under a policy prohibiting
“obscene” speech).

    The District’s dress code is in line with others that the
federal courts have held to be permissible. See, e.g.,
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 441,
444 (4th Cir. 2013) (upholding code prohibiting
“disrupt[ive]” or “offensive” clothing, including clothing that
“distract[s]” or “interfere[s]”), cert. denied, 134 S. Ct. 201
(2013); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224 (5th
Cir. 2009) (upholding code prohibiting clothing with
“inappropriate symbolism”).

    Significantly, the dress code challenged here incorporates
the standards sanctioned in Tinker: safety and disruption. See
B.W.A. v. Farmington R-7 Sch. Dist., 508 F. Supp. 2d 740,
750–51 (E.D. Mo. 2007) (holding that a dress code that
contains language that “tracks Tinker” poses “no real danger”


  6
     Although the District is not a party to this appeal, we consider the
students’ dress code claims because they brought suit against Rodriguez
in his official capacity.
16    DARIANO V. MORGAN HILL UNIFIED SCH. DIST.

of compromising the First Amendment rights of students),
aff'd 554 F.3d 734 (8th Cir. 2009); see also Hardwick,
711 F.3d at 441. It would be unreasonable to require a dress
code to anticipate every scenario that might pose a safety risk
to students or that might substantially disrupt school
activities. Dress codes are not, nor should they be, a school
version of the Code of Federal Regulations. It would be
equally unreasonable to hold that school officials could not,
at a minimum, rely upon the language Tinker gives them.

    We affirm the district court’s holding that the policy is
not unconstitutionally vague and does not violate the
students’ right to due process.

     AFFIRMED.
