Defoe Ex Rel. Defoe v. Spiva ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0358p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
TOM DEFOE, a minor by and through his
Plaintiffs-Appellants, --
parent and guardian Phil Defoe; PHIL DEFOE,
-
No. 09-6080
,
>
-
v.
-
-
SID SPIVA, in his individual and official
-
capacity as Principal of Anderson County
-
-
Career and Technical School; MERL KRULL,
-
in his individual and official capacity as
-
Assistant Principal of Anderson County
-
Vocational and Technical School; GREG
DEAL, in his individual and official capacity -
-
-
as Principal of Anderson County High
-
School; V. L. STONECIPHER, in his official
-
capacity as Director of Schools for Anderson
County; JOHN BURRELL, in his official -
capacity as Chairman of the Anderson County -
-
-
School Board; ANDERSON COUNTY SCHOOL
-
BOARD,
Defendants-Appellees. -
N
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 06-00450—Thomas A. Varlan, District Judge.
Argued: June 16, 2010
Decided and Filed: November 18, 2010
Before: CLAY, ROGERS, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Van R. Irion, LAW OFFICES OF VAN R. IRION, Knoxville, Tennessee,
for Appellants. Jonathan Swann Taylor, TAYLOR, FLEISHMAN & KNIGHT, P.C.,
Knoxville, Tennessee, for Appellees. ON BRIEF: Van R. Irion, LAW OFFICES OF
VAN R. IRION, Knoxville, Tennessee, for Appellants. Arthur F. Knight, III, TAYLOR,
FLEISHMAN & KNIGHT, P.C., Knoxville, Tennessee, for Appellees.
1
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 2
CLAY, J., delivered the judgment of the court and an opinion. ROGERS, J.
(pp. 22–28), delivered a separate concurring opinion, in which COOK, J., joined.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Tom Defoe, a minor by and through his parent
and guardian, Plaintiff Phil Defoe, and Plaintiff Phil Defoe, individually, appeal an order
entered by the district court granting summary judgment for Defendants Sid Spiva, Merl
Krull, Greg Deal, V.L. Stonecipher, John Burrell, and the Anderson County, Tennessee
School Board based upon this Court’s decision in Barr v. Lafon, 538 F.3d 554 (6th Cir.
2008). On appeal, Plaintiffs argue that the district court erroneously granted summary
judgment in favor of Defendants based on the court’s conclusions that the evidence
demonstrated that school officials banned displays of the Confederate flag based on a
reasonable forecast that those displays would substantially disrupt or materially interfere
with the school environment. For the reasons set forth below, we AFFIRM the district
court’s decision.
To the extent that there are any differences between this opinion and the
concurring opinion, the concurring opinion shall govern as stating the panel’s majority
position.
I. BACKGROUND
A. Factual Background
The Anderson County school district encompasses seventeen schools, including
two high schools, Anderson County High School (“ACHS”) and Clinton High School
(“Clinton”), and one vocational school, Anderson County Career and Technical Center
(“ACCTC”). ACCTC, which is located on the ACHS campus, draws students from both
high schools. Plaintiff Tom Defoe attended both ACHS and ACCTC through at least
December 2007. Plaintiff Phil Defoe is Tom Defoe’s father.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 3
All Anderson County schools have a code of student conduct in effect that states
“[a]pparel or appearance, which tends to draw attention to an individual rather than to
a learning situation, must be avoided.” (Appellees’ Br. 11.) The policy further states
that “[c]lothing and accessories such as backpacks, patches, jewelry, and notebooks must
not display (1) racial or ethnic slurs/symbols, (2) gang affiliations, (3) vulgar,
subversive, or sexually suggestive language or images; nor, should they promote
products which students may not legally buy; such as alcohol, tobacco, and illegal
drugs.” (Id.)
According to V.L. Stonecipher, Director of Anderson County schools, a racially
tense environment has existed at Clinton High School since 1956 when the school was
integrated.1 (Trial Tr. Vol. I 96-99.) Stonecipher has been employed by Anderson
County schools since 1965 as a teacher, principal, and administrator. He testified in the
court below that during his tenure with the Anderson County school system, he has dealt
with several instances of racial hatred such as the name-calling experienced by black
students. Stonecipher stated that displays of the Confederate flag would be a distraction
to any student offended by it and could result in some sort of dangerous disagreement
resulting in conflict or violence.
John Burrell, Chairman of the Anderson County School Board, stated that the
Board decided to ban anything it felt would be disruptive to students, and the
Confederate flag fell into that category. Burrell stated that he would not consider lifting
the ban as long as the flag was disruptive to any students in the school system.
Specifically, Burrell said he “would be against removing the ban as long as we have a
racially mixed group with some of those students who I think [the flag] would be
offensive to.” (Trial Tr. Vol. I 49.) Burrell stated that after a student becomes offended,
“the next step is a fight, a riot, that type of situation.” (Trial Tr. Vol. I 63.) Burrell also
1
On August 27, 1956 twelve black students, known as the Clinton 12, integrated Clinton High
School. Because of the backlash that subsequently ensued, the National Guard was brought in to restore
and maintain order. On October 5, 1958, Clinton High School was bombed. The school was rebuilt and
reopened in 1960. The campus of what once was Clinton High School is now the campus of Clinton
Middle School.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 4
testified that if a child was sitting in class and something is offensive to him or her, that
could affect the child’s learning.
Several racial incidents have occurred at both ACHS and ACCTC. Examples of
such happenings are detailed below.
1. Anderson County High School
Greg Deal, the ACHS principal, testified that racial tension has existed in the
community for years. (Trial Tr. Vol. II 117-19.) Deal recalled an incident that occurred
in 2003 where a Hispanic male student had a verbal confrontation with a white female
student in class about a paper on her desk and a white male student told the Hispanic
student to shut up. After class and on the way to lunch, the same white male student
called the Hispanic student a “sand nigger, dirty mexican.” (Id. at 122-23.) The Hispanic
student went to his older brother and told him what happened. The student’s big brother
subsequently got into a physical confrontation with the white male student. Also in
2003, two Hispanic students approached Deal complaining that they were being called
“dirty niggers, sand niggers and dirty mexicans” and told that they need to leave ACHS
when they walked down the “redneck hallway.”2 (Id. at 126.) Deal noted that when he
went to talk to the self-proclaimed “rednecks,” some of them were wearing the
Confederate flag.
In January 2005, there was a basketball game between ACHS and Clinton High
School. Clinton had a biracial basketball player. Prior to the commencement of the
game, ACHS students threw Oreo cookies onto the basketball court as the biracial player
was completing warm-up drills. (Id. at 123.) Deal’s investigation into this incident
2
Deal testified that various groups of students hang out in different areas of the campus. The
“redneck hallway” referred to by the Hispanic students was where “the John Deere gang or the rednecks,
the young men who liked to wear [Carhartts]” hung out with each other. (Trial Tr. Vol. II 125.)
Urbandictionary.com defines the term “redneck” as a “[m]ildly offensive term for a lower class white
person from the southeastern states of the [United States].”
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 5
revealed that the students threw the Oreo cookies at the player because one of his parents
is black and one is white.3 (Id. at 123.)
In August 2005, two black male students, one of whom had been displaced by
Hurricane Katrina, enrolled at ACHS. Deal testified that, according to his recollection,
a black student had not attended ACHS since 1990 or 1991. Two days after the two
black male students enrolled, a large Confederate flag was draped in a school hallway.
Deal testified that he had never seen a Confederate flag hanging in the hallway before,
yet, two days after two black male students enrolled at the school, there was a
Confederate flag hanging in the hallway. When Deal went over to remove the flag from
the wall, he observed the “rednecks” or John Deere gang “laughing and snickering” as
he took the flag down. (Id. at 109.) Deal considered the flag to be a message to the
administration “that, hey, we don’t want these black young men enrolled in our school.”
(Id.)
There was also an incident where a black student from Clinton High School
attending a leadership class at ACHS was called a “nigger” by a group of white students.
(Id. at 131.) In 2008, racially-charged graffiti was discovered in the school auditorium
and in two areas of the high school football stadium. In the auditorium, a Swastika was
found along with the terms “niggers” and “white power.” (Id. at 133.) On the football
bleachers, graffiti included comments like “White 4 Life” and “I Hate Niggas, J/K
AVM.”4 (Id. at 140.) In 2008, graffiti discovered on the track pole vault pit was
determined to be the names of a black male student and a white female student along
with “something about nigger-lover, white girl, black boy, in my school” and a picture
of a hangman’s noose (Id. at 142-43.) The two students whose names were written were
dating at the time. Deal stated that he believed lifting the Confederate flag ban would
disrupt the learning environment.
3
Although often used to describe persons deemed “[b]lack on the outside, [w]hite on the inside,”
Urbandictionary.com, the term “oreo” is sometimes used to refer to a person of black and white heritage.
4
Deal testified that he understood “J/K” to mean “joking” and AVM to stand for “Andersonville
Mafia,” which is a group of students Deal characterized as a “[g]ang[] or gang ‘wannabes’” who think they
are “gangsters.” (Trial Tr. Vol. II 140-41.)
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 6
2. Anderson County Career and Technical Center
Until he retired, Sidney Spiva was the principal at ACCTC. Spiva recalled an
incident at ACCTC when he confiscated a student’s shirt. Spiva testified that the
student’s shirt bore an image of a skeleton in the same kind of robe worn by members
of the Ku Klux Klan (“KKK”) and included an image of the Confederate flag. He stated
that the student’s mother came down to the school and was upset that Spiva even
commented to the student about his shirt.
Spiva testified that he believes the presence of the Confederate flag, even in a
virtually all-white school, would likely disrupt the learning environment. Spiva also
noted that recruiting minorities to ACCTC had been a struggle and that out of 400 or so
students enrolled while he was the principal, only two or three were minorities. Spiva
said that during interviews with potential minority recruits at Clinton, the students stated
they did not want to attend ACCTC for reasons such as they “don’t want to go up there
with those rednecks.” (Trial Tr. Vol. I 139.)
Tim Parrott, the current principal of ACCTC, also testified about several racial
incidents that had occurred at ACCTC. The first incident was a parent complaint about
a black male student being called a “nigger” on the school bus. (Parrott Dep. 67.) The
second incident involved a black student who requested to change classes and return to
Clinton High School because he was afraid of a white student at ACHS. (Id. at 68.) The
third incident involved three white male students who were singing a racial song about
a black student on the school bus, one of whom had an image of the Confederate flag on
his belt buckle. (Id. at 69.) There was also a fight on the bus arising from one student,
in a text message, making a racial joke about a particular female student.
Merl Krull, the Assistant Principal at ACCTC, testified regarding a racial
incident where a biracial female student was subjected to racist name-calling. Krull
noted that the student “was very upset about what had happened in the classroom and
wanted to call home.” (Trial Tr. Vol. II 12.) Krull testified that he believed lifting the
Confederate flag ban might result in more incidents of students arguing about the display
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 7
of the flag. David Landrum, a welding instructor at ACCTC, also stated that lifting the
Confederate flag ban would probably result in disruption to the learning environment.
Prior to becoming principal of ACCTC, Parrott was assistant vice principal at
Clinton High School. Parrott recalled several episodes occurring during his tenure as
vice president at Clinton High School, including multiple incidents of racially-charged
graffiti that had to be painted over. Examples of such graffiti included KKK references,
“I hate niggers,” and “Kill all the niggers.” (Trial Tr. Vol. III 15.) Parrott stated that
he kept a can of spray paint in his office because if such graffiti was not removed from
the walls immediately, there could have been a fight. Clinton High School administration
once discovered graffiti in the girls’ restroom that said “I hate this nigger-hating school.
I’m going to blow it up.” (Id.) There had even been a noose discovered in a student’s
locker along with stickers displaying terms like “White Power” and “KKK.” (Id. at 17.)
On October 30, 2006, Tom Defoe wore a t-shirt to school bearing an image of
the Confederate flag. School officials told Defoe he was in violation of the code of
conduct and he was asked to either turn the shirt inside out or remove it. Defoe refused
to comply so he was sent home. On November 6, 2006, Defoe wore a belt buckle to
school that displayed an image of the Confederate flag. A school official informed
Defoe he was in violation of the code of conduct and when Defoe refused to comply with
the dress code, he was suspended. Prior to these two incidents, Defoe wore clothing
depicting the Confederate battle flag on several occasions but complied when school
officials requested he remove or cover the clothing.
B. Procedural History
On November 20, 2006, Plaintiffs commenced this action, alleging violation of
the First and Fourteenth Amendments. Plaintiffs filed a motion for a preliminary
injunction and a temporary restraining order the same day. On May 16, 2007, the district
court denied Plaintiffs’ motion. Plaintiffs also filed a motion to amend their complaint,
which was denied.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 8
On September 21, 2007, Plaintiffs filed a motion for summary judgment, which
was denied. Although the record does not make clear exactly when, at some point,
Defendants also moved for summary judgment. Defendants’ motion was denied.
Plaintiffs moved for reconsideration of their summary judgment motion. Plaintiffs
subsequently requested the recusal of the district court judge and moved once again to
amend their complaint in order to add two additional parties.
Defendants filed a response to Plaintiffs’ motion to reconsider in which they
argued that summary judgment should be granted in favor of the individual Defendants
based on qualified immunity. The district court denied both Plaintiffs’ and Defendants’
motions for reconsideration of their respective summary judgment motions. On January
7, 2008, the court granted Plaintiffs’ motion to amend. On January 9, 2008, Defendants
filed an interlocutory appeal regarding the district court’s denial of their summary
judgment motion asserting qualified immunity.
Defendants dismissed their appeal on March 26, 2008 and filed a motion for
partial summary judgment on April 28, 2008, arguing that the individual defendants
were entitled to qualified immunity. The court granted Defendants’ motion for partial
summary judgment in part and denied it in part, concluding that Stonecipher and Burrell,
who were added after Defendant’s initial summary judgment motion, were entitled to
qualified immunity in their individual capacities and, as it had previously concluded, the
other Defendants were not entitled to qualified immunity.
From August 11, 2008 through August 15, 2008, a jury trial was held that ended
in a mistrial because the jury was unable to reach an unanimous verdict. The district
court subsequently requested that the parties file post-trial briefs in light of this Court’s
decision in Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008). On August 11, 2009, the district
court granted summary judgment in favor of Defendants and dismissed the action.
Plaintiffs now appeal.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 9
II. DISCUSSION
A. Standard of Review
The Court reviews de novo a motion for summary judgment. Kleiber v. Honda
of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). Summary judgment is appropriate
where “the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). Where the record, viewed as
a whole, “could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). In considering a summary judgment motion, all inferences to be
drawn from the facts must be viewed in the light most favorable to the non-moving
party. Id. A judge’s role is not to weigh the evidence, judge the credibility of witnesses,
or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
255 (1986).
Once a summary judgment motion is properly made and supported, “an opposing
party may not rely merely on allegations or denials in its own pleading; rather its
response must–by affidavits or as otherwise provided in this rule–set out specific facts
showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); accord Matsushita, 475 U.S.
at 587. If the opposing party fails to respond in this manner, summary judgment should
be entered against that party if appropriate. Fed. R. Civ. P. 56(e)(2). The opposing party
must present more than a “mere scintilla” of evidence; the evidence must be such that
a reasonable jury could find for the non-movant. Anderson, 477 U.S. at 252.
B. Analysis
1. Relevant Precedent
In Tinker v. Des Moines Independent Community School District, the Supreme
Court made clear that “First Amendment rights, applied in light of the special
characteristics of the school environment, are available to teachers and students.” 393
U.S. 503, 506 (1969). Indeed, it is well-established that students do not “shed their
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 10
constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id.
Nonetheless, school officials retain some “authority . . . consistent with fundamental
constitutional safeguards to prescribe and control conduct in the schools.” Id. at 507.
“[T]he constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings,” and the Constitution does not
compel “school officials to surrender control of the American public school system to
public school students. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 686
(1986). Students’ First Amendment rights must be “applied in light of the special
characteristics of the school environment.” Tinker, 393 U.S. at 506.
In Tinker, the Court considered whether schools violated students’ First
Amendment rights when they suspended students who wore black armbands to school
as an expression of their opposition to the Vietnam War. The Court determined that “the
wearing of armbands in the circumstances of this case was entirely divorced from
actually or potentially disruptive conduct by those participating in it” and more “akin to
‘pure speech,’” which was entitled to comprehensive protection under the First
Amendment. Id. at 505-06.
The Court noted the absence of any evidence that the suspended students’ protest
interfered with the schools’ work or collided with the rights of other students to be
secure and let alone. Id. at 508. Specifically, the Court noted that the wearing of the
armbands did not “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” Id. at 509 (internal quotation
marks omitted). Instead, concluded the Court, the schools’ actions appeared to have been
motivated by “an urgent wish to avoid controversy which might result from the
expression . . . of opposition to this Nation’s part in the conflagration in Vietnam.” Id.
at 510. Because there was no evidence that “school authorities had reason to anticipate
that the wearing of the armbands would substantially interfere with the work of the
school or impinge upon the rights of other students,” the Court reversed the appellate
court’s affirmance of dismissal. Id. at 509.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 11
In two subsequent cases, the Court clarified that schools did not always need to
justify the regulation of student speech using the Tinker framework. In Bethel School
District No. 403 v. Fraser, a male student, while delivering a speech nominating another
student for an elected student office, referred to the candidate using a graphic, sexually
explicit metaphor. The Court considered whether the student’s public high school
violated his First Amendment rights when it suspended him for violating the school’s
rule prohibiting “the use of obscene, profane language or gestures.” 478 U.S. at 678.
The Court concluded that the First Amendment did not preclude the school from
punishing the student, noting that it is “a highly appropriate function of public school
education to prohibit the use of vulgar and offensive terms in public discourse.” Id. at
683. The Court referenced the “marked distinction between the political ‘message’ of
the armbands in Tinker and the sexual content of [the student’s] speech” and the
“obvious concern . . . to protect children–especially in a captive audience–from exposure
to sexually explicit, indecent, or lewd speech.” Id. at 684. Consequently, stated the
Court, “[s]chools, as instruments of the state, may determine that the essential lessons
of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or
offensive speech and conduct” such as that of the student. Id. at 683.
In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme
Court addressed whether a public high school violated students’ First Amendment rights
by exercising editorial control over the style and content of student speech in a school-
sponsored activity. Staff members of a high school newspaper brought suit against the
school district, alleging that the principal violated their First Amendment rights when
he deleted two pages of the newspaper that contained students’ experiences regarding
pregnancy and the effect of divorce on students. The Court noted that the question
confronted in Tinker differed from the question currently before it, id. at 270-71, and
concluded that “educators do not offend the First Amendment by exercising editorial
control over the style and content of student speech in school-sponsored expressive
activities so long as their actions are reasonably related to legitimate pedagogical
concerns.” Id. at 273.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 12
As this Court noted in Barr v. Lafon:
The above trilogy of cases yields three principles: (1) under Fraser, a
school may categorically prohibit vulgar, lewd, indecent, or plainly
offensive student speech, Fraser, 478 U.S. at 683-85, 106 S. Ct. 3159;
Hazelwood, 484 U.S. at 272 n. 4, 108 S. Ct. 562; (2) under Hazelwood,
a school has limited authority to censor school-sponsored student speech
in a manner consistent with pedagogical concerns, 484 U.S. at 273, 108
S. Ct. 562; and (3) the Tinker standard applies to all other student speech
and allows regulation only when the school reasonably believes that the
speech will substantially and materially interfere with schoolwork or
discipline, 393 U.S. at 513, 89 S. Ct. 733.
538 F.3d at 563-64 (footnote omitted). Accordingly, Tinker governs this case because
by wearing clothing bearing images of the Confederate flag, Tom Defoe engaged in
“pure speech,” which is protected by the First Amendment, and thus Fraser would not
apply; and the speech was not sponsored by the school, which means Hazelwood does
not apply. See id. at 564 (internal quotation marks omitted). Thus, the inquiry in this
case focuses on whether the record demonstrates “any facts which might reasonably
have led school authorities to forecast substantial disruption of or material interference
with school activities.” Tinker, 393 U.S. at 514.
The Supreme Court’s decision in Morse v. Frederick, 551 U.S. 393 (2007), does
not alter our application of the Tinker standard. Indeed, the Court in Morse reiterated
that “schools may regulate some speech ‘even though the government could not censor
similar speech outside the school.’” 551 U.S. at 405-06. The Court also noted that “the
rule of Tinker is not the only basis for restricting student speech.” Id. at 406. As this
Court has already recognized, however, the Morse holding was a narrow one,
determining no more than that a public school may prohibit student expression at school
or at school-sponsored events during school hours that can be “reasonably viewed as
promoting drug use.” Id. at 409-10.5
5
In his concurrence, Justice Alito stated that he joined the Morse majority opinion
on the understanding that (a) it goes no further than to hold that a public school may
restrict speech that a reasonable observer would interpret as advocating illegal drug use
and (b) it provides no support for any restriction of speech that can plausibly be
interpreted as commenting on any political or social issues, including speech on issues
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 13
2. Analysis under Tinker of the School District’s Ban on
Displays of the Confederate Flag
The district court granted summary judgment in favor of Defendants based on
this Court’s decision in Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008). In Barr, racial
tensions at Blount County High School in Blount County, Tennessee prompted the
principal to announce that displays of the Confederate flag were prohibited. Two
students who subsequently wore t-shirts to school displaying the Confederate flag sued
after being told to remove or cover-up the t-shirts or face suspension. The students
alleged that the ban violated their free speech rights.
This Court upheld the district court’s grant of summary judgment in favor of the
school board on the basis that school officials reasonably forecast that displays of the
Confederate flag would disrupt school work and discipline, and thus adhered to the
Tinker standard. In reaching this conclusion, the Court pointed to evidence in the record
regarding racial violence, threats, and tension. Specifically, the Court pointed to the
following evidence: (1) a fight between an a black student and a white student; (2) a
complaint filed with the Office of Civil Rights alleging that the school punished a black
student more harshly than a white student following a racially-motivated altercation;
(3) racist graffiti that included racial slurs and generalized threats against the lives of
blacks; (4) “hit lists” of specific student names; (5) unspecified race-related fights; (6) a
fear of racial violence that resulted in absenteeism among black students; and (7) a
school “lockdown” implemented because of the deterioration of student discipline and
the threat of race-related violence. 538 F.3d at 566-67. The Court concluded that these
occurrences established that school officials reasonably forecast that displays of the
Confederate flag would likely disrupt the school environment. Id. at 567.
Plaintiffs argue that the Confederate flag itself has not caused any disruption in
the past at ACHS or ACCTC that would justify the ban. However, as this Court stated
such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”
551 U.S. at 422 (Alito, J., concurring). Justice Alito also stated that he joined the majority opinion “on
the understanding that the opinion does not hold that the special characteristics of the public schools
necessarily justify . . . speech restrictions” beyond those recognized in Tinker, Fraser, and Hazelwood.
Id. at 423.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 14
in Barr, such an argument “misapplies the Tinker standard” because “Tinker does not
require disruption to have actually occurred.” 538 F.3d at 565 (quoting Lowery v.
Euverard, 497 F.3d 584, 591, 593 (6th Cir. 2007)) (internal quotation marks omitted).
Instead, the Court evaluates the circumstances to determine whether the school’s forecast
of substantial disruption was reasonable. Id.
Under Tinker, “to justify prohibition of a particular expression of
opinion,” a school district must be able to show only “that its action was
caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint,” but
rather, “that the school authorities had reason to anticipate that the
wearing of [the banned imagery] would substantially interfere with the
work of the school or would impinge upon the rights of other students,”
including the right “to be secure and to be let alone.”
Brogdon v. Lafon, 217 F. App’x 518, 525 (6th Cir. 2007) (citations omitted).
Plaintiffs also argue that the district court erred in granting summary judgment
by “erroneously conclud[ing] that ‘ACHS and ACCTC have recently experienced
intense racial conflict’” and that such a conclusion could not have been made without
the court improperly weighing evidence and failing to grant all reasonable inferences in
Plaintiffs’ favor. (Appellant’s Br. 19.) More specifically, Plaintiffs argue that the
evidence demonstrates that racial tension is low at both ACHS and ACCTC. We
disagree.
The record contains uncontested evidence of racial violence, threats, and tensions
at both ACHS and ACCTC. At ACHS, several incidents have occurred: two days after
two black male students enrolled at ACHS, a large Confederate flag appeared draped in
a school hallway; racial slurs such as “dirty niggers, sand niggers and dirty mexicans”
were directed at Hispanic students; racially-charged graffiti including a Swastika and the
words “niggers” and “white power,” and the comments “White 4 Life” and “I Hate
Niggas, J/K AVM”; graffiti including the name of a racially mixed couple along with
“something about nigger-lover, white girl, black boy, in my school” and a picture of a
hangman’s noose; a black Clinton High School student involved in a leadership program
at ACHS being called a “nigger” by a group of white ACHS students; Oreo cookies
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 15
thrown onto the basketball court when a biracial Clinton High School basketball player
attempted to warm-up before a basketball game; and a physical altercation between a
Hispanic student and a white male student stemming from the white student’s reference
to the Hispanic student’s brother as a “sand nigger, dirty mexican.”
There is also uncontested evidence pertaining to incidents and the racial climate
at ACCTC: a complaint from a black student’s parent after the student was called a
“nigger” on the school bus; a black student changing classes and transferring to Clinton
High School based on his fear of a white student; incidents that occurred on ACCTC
school buses stemming from racial epithets such as “nigger” and white students singing
racial songs; a physical altercation resulting from a racial joke; a biracial female student
being subjected to racist name-calling such that she “wanted to call home”; and
difficulty recruiting minorities to ACCTC because potential minority recruits do not
want to attend ACCTC due to racial tensions.
In addition, there is evidence of racial violence, threats, and tension at Clinton
High School such as: racial graffiti including KKK references, and comments such as
“I hate niggers,” “Kill all the niggers,” and “I hate this nigger-hating school. I’m going
to blow it up”; the discovery of a noose in a student’s locker along with stickers like
“White Power,” “KKK,” and other racially-charged statements; and various unspecified
race-related physical altercations.
Although some of the incidents of racial violence, threats, and tension present in
Barr are not present here, uncontested evidence in this case clearly indicates racial
violence, threats, and tension in Anderson County schools. Indeed, unlike in Tinker,
Plaintiffs’ free speech rights “colli[de] with the rights of other students to be secure and
to be let alone,” Tinker, 393 U.S. at 508, and this is not a situation where the prohibited
speech “was entirely divorced from actually or potentially disruptive conduct by those
participating in it.” Id. at 505. In Tinker, the speech at issue communicated negative
feelings about the Vietnam War whereas the speech at issue in this case communicates
a message of hatred toward members of the student body population and, therefore, this
case presents a situation “involv[ing] substantial disorder or invasion of the rights of
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 16
others . . . [which is] not immunized by the constitutional guarantee of freedom of
speech.” Id. at 513.
“Even without evidence that Confederate flag displays had been the direct cause
of past disruptions, school officials reasonably could surmise that such displays posed
a substantial risk of provoking problems in the incendiary atmosphere then existing.”
Brogdon, 217 F. App’x at 523. Accordingly, even if a student’s display of the
Confederate flag has not actually disrupted the learning environment, “the district court
nonetheless could conclude that displays of the confederate flag would be likely to lead
to unrest in the future. Such a determination is not erroneous as either a factual finding
or a legal conclusion.” Id. at 524. Indeed, Tinker does not require that displays of the
Confederate flag in fact cause substantial disruption or interference, but rather that
school officials reasonably forecasted that such displays could cause substantial
disruption or materially interfere with the learning environment. Tinker, 393 U.S. at
514.
Our holding today that school officials in this case reasonably forecast that
permitting displays of the Confederate flag would substantially disrupt or materially
interfere with the school environment accords with precedent not only from our own
circuit, but from our sister circuits as well. See A.M. ex rel McAllum v. Cash, 585 F.3d
214, 223 (5th Cir. 2009) (concluding that the “racially inflammatory meaning associated
with the Confederate flag and the evidence of racial tension at [the high school]
establish[ed] that [school officials] reasonably forecast that [displays of the Confederate
flag] might cause substantial disruption of school activities”); B.W.A. v. Farmington R-7
Sch. Dist., 554 F.3d 734, 741 (2009) (upholding a school district’s ban on clothing
depicting the Confederate flag based on evidence of “likely racially-motivated violence,
racial tension, and other altercations directly related to adverse race relations in the
community and the school”); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358,
1366-67 (10th Cir.), cert. denied, 531 U.S. 825 (2000) (upholding a school district’s
clothing ban based on past racial incidents and a history of racial tension in the school
district); Melton v. Young, 465 F.2d 1332, (6th Cir. 1972), cert. denied, 411 U.S. 951
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 17
(1973) (upholding a school’s code of conduct based on continued racial tension and
physical altercations tied to displays of the Confederate flag).6
Because the evidence establishes that the Tinker standard is met, we conclude
that school officials reasonably forecast that permitting displays of the Confederate flag
would result in substantial disruption of, or material interference with, the school
environment. Such a conclusion is compelled by the racial violence, tension, and threats
occurring in Anderson County schools as well as the fact that the Confederate flag is a
“controversial racial and political symbol.” Castorina v. Madison Cnty. Sch. Bd., 246
F.3d 536, 542 (6th Cir. 2001); see Brogdon, 217 F. App’x at 524 (noting the Castorina
court’s implicit acknowledgment that the Confederate flag is a controversial and political
symbol).
3. Alleged Viewpoint Discrimination
Plaintiffs also argue that the school district’s policy constitutes unconstitutional
viewpoint discrimination. Specifically, Plaintiffs argue that by banning displays of the
Confederate flag, Defendants are suppressing a particular viewpoint they find offensive
and they want to avoid offending others.
“It is true that even where past racial incidents justify a ban, schools may not
impose ‘a view-point specific ban on [some] racially divisive symbols and not others.’”
Brogdon, 217 F. App’x at 523 (quoting Castorina, 246 F.3d at 544). Indeed, “the
prohibition of expression of one particular opinion, at least without evidence that it is
6
The Eleventh Circuit has also upheld school districts’ bans on displays of the Confederate flag,
but have done so under both Tinker and Fraser. See, e.g., Scott v. Sch. Bd. of Alachua County, 324 F.3d
1246, 1249 (11th Cir. 2003), cert. denied, 540 U.S. 824 (2003). We decline, however, to view such cases
as persuasive precedent. We view displays of the Confederate flag by students as protected political
speech that school officials may only regulate by satisfying the Tinker standard. See Barr, 538 F.3d at 569
n.7. In addition, the Third Circuit case cited by Plaintiffs, Sypniewski v. Warren Hills Reg’l Bd. of Educ.,
307 F.3d 243 (3d Cir. 2002), cert. denied, 538 U.S. 1033 (2003), is distinguishable from the case at bar.
In Sypniewski, the item of clothing involved did not depict a Confederate flag, but rather was a Jeff
Foxworthy t-shirt that gave the “Top 10 reasons you might be a Redneck Sports Fan” and the Sypniewski
court distinguished that case from cases like West and Melton on that basis, noting that the record did not
suggest “any part of . . . Confederate flag clothing other than the flag itself was seen as a provocative and
offensive symbol” and thus, “little if any history of the use of the word ‘redneck’ that would support its
ban.” Id. at 249-50, 256.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 18
necessary to avoid material and substantial interference with schoolwork or discipline,
is not constitutionally permissible. Tinker, 393 U.S. at 511.
However, there is no evidence to suggest viewpoint discrimination in this case.
The code of conduct prohibits all “[c]lothing and accessories such as backpacks, patches,
jewelry, and notebooks” that display “(1) racial or ethnic slurs/symbols, (2) gang
affiliations, (3) vulgar, subversive, or sexually suggestive language or images” as well
as any displays promoting “products . . . students may not legally buy; such as alcohol,
tobacco, and illegal drugs.”7 (Appellees’ Br. 11.)
Plaintiffs tie no school officials to their claim of viewpoint discrimination, and
testimony on this point shows that Malcolm X shirts are banned in Anderson County
schools just as Confederate flag shirts are banned. At most, a couple of witnesses
testified that various students “got away” with wearing Confederate flag clothing and
there was limited testimony regarding one student wearing a flag with an image of the
Mexican flag and someone wearing a Malcolm X shirt. There appears to be some
ambiguity regarding whether school officials would act upon seeing a display of the
Mexican flag but, unlike the Confederate flag and Malcolm X shirts, there is no district-
wide ban on the Mexican flag’s display nor is there any indication that it has been
disruptive to the educational process or that school officials have reasonably forecasted
that it would be.
7
“[P]ublic education must prepare pupils for citizenship in the Republic. . . . It must inculcate the
habits and manners of civility as values in themselves conducive to happiness and as indispensable to the
practice of self-government in the community and the nation.” Fraser, 478 U.S. at 681 (quoting C. Beard
& M. Beard, NEW BASIC HISTORY OF THE UNITED STATES 228 (1968)). Of course, the
“fundamental values of ‘habits and manners of civility’ essential to a democratic society must . . . include
tolerance of divergent political and religious views, even when the views expressed may be unpopular.”
Id. However,
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 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.
Id. In light of Supreme Court precedent confirming the unique objective underlying public education and
the fact that public school students do not have free-speech rights coextensive with those of adults, we
believe that the prohibition of displays of racially divisive symbols, under the circumstances present in the
instant case, constitutes a permissible content-based restriction on speech.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 19
With regard to Plaintiffs’ assertion that displays of the Confederate flag are
banned based on their offensiveness rather than a reasonable forecast of disruption, that
school officials “determined the Confederate flag to be offensive to African-American
and other students . . . does not negate [their] reasonable belief that the flag was also
disruptive and would cause substantial and material interference with schoolwork and
school discipline.” Barr, 538 F.3d at 567. Accordingly, we hold that Plaintiffs’
viewpoint discrimination argument to be without merit.
4. Narrow Tailoring Argument
Plaintiffs further argue that the school district’s across-school ban is
unconstitutional because speech restrictions must be narrowly tailored. Plaintiffs
contend that because no principal or teacher can make exceptions to the ban based on
the circumstances within individual schools and classrooms, the ban is unnecessarily
broad and thus, violative of the Constitution.
Because the dress code’s distinction between the display of racially divisive
symbols and racially inclusive symbols involves “expressive conduct within the
protection of the First Amendment,” this provision of the dress code “must be [narrowly]
tailored to serve a substantial governmental interest.” Police Dep’t of City of Chicago
v. Mosley, 408 U.S. 92, 99 (1972). In this case, the government’s interest is the school
district’s objective of “educat[ing] its students in a learning environment conducive to
fostering both knowledge and democratic responsibility,” which is undoubtedly a
substantial interest. Barr, 538 F.3d at 576.
In determining whether the dress code’s ban on displays of racially divisive
symbols is narrowly tailored we inquire as to whether this ban satisfies the Tinker
standard. See id. Plaintiffs point to no authority for the proposition that the school
district is required to apply district policy on a school-by-school or classroom-by-
classroom basis. Not only would the piecemeal approach suggested by Plaintiffs be
unworkable, but this Court appears to have implicitly rejected Plaintiffs’ arguments that
the narrow tailoring requirement prevents school districts from establishing and
enforcing a district-wide dress code. See Barr, 538 F.3d at 556-57 (detailing the district-
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 20
wide dress code); see also Brogdon, 217 F. App’x 518, 526 (6th Cir. 2007) (affirming
the district court’s denial of a preliminary injunction in a case involving a district-wide
dress code prohibiting attire that caused disruption to the educational process). Other
circuits have similarly upheld district-wide bans on displays of the Confederate flag. See
B.W.A., 554 F.3d at 741 (upholding a school district’s ban on clothing depicting the
Confederate flag); West, 206 F.3d at 1366-67 (same).
Tinker does not require an individualized analysis of each student’s clothing each
day, but rather a reasonable forecast by school officials that displays of the Confederate
flag would cause disruptions. See Lowery, 497 F.3d at 591-92 (holding that pursuant to
Tinker school officials need not wait until a disruption actually occurs before regulating
student speech). As we have previously stated, Anderson County school officials
enforce the ban in a viewpoint-neutral manner and only banned those symbols they have
reasonably forecasted will substantially disrupt or materially interfere with schoolwork
and school discipline. Accordingly, we hold that the dress code’s provision banning
displays of racially divisive symbols, and its application to the Confederate flag, is
narrowly tailored to the state and school district’s substantial interest in educating
students in the public school system.8
8
Plaintiffs also assert that the Court’s decision in Barr should be overturned because it is
inconsistent with Supreme Court precedent and case law from our sister circuits. In support of this
argument, Plaintiffs filed a motion for initial hearing en banc, which was denied. As this Court has
previously stated, it is well-established that one panel cannot overrule a decision of another panel of this
Court. Salmi v. Sec’y of Health & Human Servs., 774 F.32d 685, 689 (6th Cir. 1985). Moreover, as the
analysis above indicates, Barr is consistent with Supreme Court precedent and cases from other circuits.
Plaintiffs argue in the alternative that the district court misapplied Barr, an argument that also fails for the
reasons stated above.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 21
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district court
granting summary judgment in favor of Defendants.9
9
In view of our holdings regarding Plaintiffs’ claims, we decline to address Defendants’ qualified
immunity argument.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 22
_____________________
CONCURRENCE
_____________________
ROGERS, Circuit Judge, concurring.1 A public high school that can put
reasonable limits on drug-related speech by students can put reasonable and even-handed
limits on racially hostile or contemptuous speech, without having to show that such
speech will result in disturbances. Expressions of racial hostility can be controlled in the
public schools even if students in the attacked racial group happen to be mature, good-
natured, and slow to react. Schools are places of learning and not cauldrons for racial
conflict. Moreover, expression of racial hostility can be controlled in the public schools
even though such expressions are constitutionally permitted in newspapers, public parks,
and on the street. Public school students cannot simply decide not to go to school.
What amounts to racially hostile speech has to be determined in the first instance
by school administrators. Students cannot attack such limits on the ground that their
racially hostile speech was not intended to be hostile if the speech will clearly be taken
as racially hostile, and schools must be able to draw some reasonably clear and
understandable lines. Such limits are subject to attack in court only if a school’s limits
are not even-handed or if the school’s limits are akin to the ban on anti-war armbands
during the Vietnam War—expressions of dissent that are banned in essence because the
administration disagrees with them.
Because these principles are firmly grounded in a fair reading of the key Supreme
Court precedents dealing with school speech, it is not necessary in this case for the
defendant schools to show that altercations or disruptions will occur if students are not
allowed to wear clothes with Confederate flags on them.
The Supreme Court’s recent decision in Morse v. Frederick, 551 U.S. 393
(2007), provides strong support for these conclusions. The Court in that case upheld
discipline of a student for displaying—at a school activity—a banner that, albeit
1
COOK, J., joins this opinion.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 23
ambiguous, could easily be read to support drug use. The Court did not base this holding
on any showing or reasonable forecast that allowing students to advocate drug use might
cause “material or substantial disruption” in the parties’ school. Rather, the Court
deferred to the policy judgment of the school board that “deterring drug use by
schoolchildren is an important—indeed, perhaps compelling interest.” Id. at 407.
Instead of reviewing the school’s history (assuming there even was one) of disruptive
events brought about by drug advocacy, the Court gave the school administrators
discretion to combat the serious national problem of drug abuse in the way they
chose—by banning its advocacy: “The special characteristics of the school environment
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.” Id. at 408.
If we substitute “racial conflict” or “racial hostility” for “drug abuse,” the analysis in
Morse is practically on all fours with this case. The inescapable conclusion is that a
school may restrict racially hostile or contemptuous speech in school, when school
administrators reasonably view the speech as racially hostile or promoting racial conflict.
A dress code that bans such displays—including displays of symbols to the same
effect—could thus permissibly ban displays of the Confederate flag. The Confederate
battle flag, it is true, may convey a noble message, for instance to signify honor for one’s
ancestors who fought bravely with their state compatriots for independence from the
industrial North. But the Confederate flag on a T-shirt is doubtless perceived by many,
if not most, student viewers in today’s high schools in the United States as a statement
of racial hostility—comparable to a slogan that says “Blacks should be slaves” or
“Blacks are inferior.” See Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1248-49
(11th Cir. 2003). The reader who somehow doubts this must at least concede that
reasonable school administrators could reasonably so conclude. The Supreme Court
reasoned similarly in Morse, which involved a banner stating “BONG HiTS 4 JESUS.”
The Court recognized that the banner could be read as advocating drug use, or as
“celebrating” drug use, or as silly nonsense. Morse, 551 U.S. at 402. Nonetheless,
because the school principal could read the banner as advocating drug use, the principal
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 24
could suspend the student where the principal’s interpretation was “plainly a reasonable
one.” Id. at 401. A plainly reasonable interpretation of a Confederate flag T-shirt or
jacket is one of racial hostility or contempt, regardless of the subjective intent of the
wearer. And even if the individual student meant no such hostility or contempt, a school
administrator cannot practically administer a rule that permits such clothing sometimes
and prohibits it other times, depending on the intent of each individual wearer.
Morse furthermore distilled two basic principles—applicable to school speech
cases in general—from the Court’s earlier decisions in Tinker v. Des Moines
Independent School District, 393 U.S. 503 (1969), and Bethel School District No. 403
v. Fraser, 478 U.S. 675 (1986). First, “the constitutional rights of students in public
school are not automatically coextensive with the rights of adults in other settings.”
Morse, 551 U.S. at 404-05 (quoting Fraser, 478 U.S. at 682). Thus drug use may be
advocated on the streets and in the public square, but not in the public schools.
Similarly, racial contempt can be advocated on the streets and in the public square, but
not necessarily in the public schools. The Supreme Court in Morse reiterated the special
nature of the school setting: “the nature of [constitutional] rights is what is appropriate
for children in school” and constitutional rights “are different in public schools than
elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and
tutelary responsibility for children.” Id. at 406 (quoting Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 656 (1995)).
Just as the Supreme Court went on to recognize an “important, perhaps
compelling” interest in deterring drug use in the schools, there is of course a comparably
“important, perhaps compelling” interest in reducing racial tension in the public schools.
Racial tension obviously interferes with learning in ways that even strongly-held
political views do not. Anger, hostility, and contempt are not elements of a sound
learning strategy, or school administrators could at least so conclude. In addition,
students do not generally attend public schools by choice—they have to be there. They
cannot avoid racially demeaning slogans and symbols by staying elsewhere; they can
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 25
only rely on school administrators to create a learning environment clear of racial
hostility or contempt.
The second basic principle derived by the Morse Court from Tinker and Fraser
is that “the mode of analysis set forth in Tinker is not absolute.” Morse, 551 U.S. at 405.
In other words, although the Tinker Court held unconstitutional a school ban on anti-
Vietnam War armbands where the school had not shown that “substantial disruption”
would occur at the school, a “substantial disruption” requirement does not always apply
to school speech cases. Just as in Morse, Tinker is distinguishable from this case.
Tinker involved a school administration that disagreed with the anti-war message of the
armband, and sought to justify a ban based on the mere possibility of disruption. Just
as the danger of drug use is “far more serious and palpable” than the flimsy rationale put
forward in Tinker, Morse, 551 U.S. at 408, the danger of racial hostility and mutual
student contempt is also “far more serious and palpable” than the pretext in Tinker. To
keep students from wearing racially hostile slogans or symbols obviously reflects a
“particular concern . . . [that] extends well beyond an abstract desire to avoid
controversy.” Id. at 408-09.
A fair reading of Morse, then, in connection with a recognition that racial tension
in today’s public schools is a concern on the order of the problem of drug abuse, leads
to the conclusion that a dress code that forbids racially hostile slogans and symbols—if
fairly applied—comports with the First Amendment even without a so-called Tinker
showing of a reasonable forecast of substantial disruption. For this reason, affirmance
is required in this case. It is clear that no Tinker showing was required in Morse, and
such a showing is not required in this case.
It might be possible for us to uphold the school’s policy in this case by finding
a sufficient threat of the “substantial disruption” required in Tinker, as we did in Barr
v. LaFon, 538 F.3d 554 (6th Cir. 2008). Two concerns counsel against such a course.
First, the evidence of potential disruption in Barr was more consistent and compelling
than in this case. While there have been troublesome racial incidents in the Anderson
County schools in the past, there was also some testimony to the effect that the wearing
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 26
of a Confederate flag would not cause disruption.2 For us to uphold a summary
judgment in favor of the school board, there must be no genuine issue of material fact.
If the school must after all show a reasonable forecast of “substantial disruption,” then
it is at least questionable whether summary judgment for the school was appropriate.
Second, because the law does not require a Tinker showing of a reasonable forecast of
“substantial disruption” in the context of this case, it would be a waste to have a trial to
determine whether there is such a threat. In general, moreover, it would be a waste for
school boards to have to find instances of racial altercations in order to justify a dress-
code ban on racially hostile slogans and symbols. On the other hand, it would be
illogical to require school administrators to allow racially hostile or contemptuous
slogans and symbols just because those who are demeaned or insulted are responsible,
mature, or slow to anger.
It is true that in Barr we stated that, while a school may categorically prohibit
vulgar or lewd speech under Fraser, and censor school-sponsored student speech under
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), “the Tinker standard
applies to all other student speech.” Barr, 538 F.3d at 564. Because in Barr we found
that the Tinker standard was met, this statement was not necessary to our decision in
Barr. Moreover, the sweeping statement is not consistent with the Supreme Court’s
then-recent decision in Morse, since the speech in Morse fell in neither exception and
Tinker was not applied.3
2
See, e.g., R. 50-5, Depo. Landrum at 22 (Q: “But you said that last year, it wouldn’t have been
likely to cause a disruption in your class?” A: “Probably not.”); R. 50-6, Depo. Anderson at 11 (Q: “Would
you say that Tom’s display of the confederate flag would be likely to cause a disruption in your class?”
A: “In my class, no.”); id. at 12 (Q: “Knowing what you know about the school, is Tom’s display of the
confederate flag in that school likely to cause a disruption?” A: “Not in that school.”); R. 50-12, Depo.
Deal at 32-33 (Q: “[W]ould you expect a disruption to occur in the school because of the confederate flag’s
presence?” . . . A: “Probably not.”); R. 50-13, Depo. Stonecipher at 25-26 (Q: “Would you say that if the
confederate flag was allowed in the school tomorrow, in Clinton High School, do you think it would be
likely to cause a disruption?” . . . A: “More than likely.” Q: “Okay. Would you say that’s true of every
school in the District?” . . . A: “No, sir.” Q: “What schools do you think it wouldn’t cause a problem in?”
. . . A: “It wouldn’t cause a problem in those schools that have zero minority population.”).
3
Castorina v. Madison County School Board, 246 F.3d 536, 541-44 (6th Cir. 2001), contains
some similar reasoning to the statement in Barr, but Castorina preceded the Supreme Court’s decision in
Morse.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 27
The Barr opinion does refer to Morse, but reads Morse as categorically limited
to speech promoting illegal drug use. Barr, 538 F.3d at 564. But it is not at all clear that
Tinker must be read as providing the general rule for all student speech, limited only by
subsequent categorical “exceptions” to that general rule. Morse actually suggests the
opposite: “the mode of analysis set forth in Tinker is not absolute.” Morse, 551 U.S. at
405.
Morse thus makes clear that Fraser is not just an exception narrowly limited to
lewd speech, but has more general applicability. Fraser explained that public schools
have the duty to promote the “fundamental values necessary to the maintenance of a
democratic political system,” and explicitly recognized that such values “must also take
into account consideration of the sensibilities of others, and, in the case of a school, the
sensibilities of fellow students.” Fraser, 478 U.S. at 681 (emphasis added). Given the
widespread perception of the Confederate flag as a symbol of white superiority, schools
could easily view wearing one to be at least as damaging to student sensibilities as
Matthew Fraser’s speech “glorifying male sexuality.” Id. at 683. In upholding Fraser’s
suspension, the Court made the schools’ supervisory role very clear: “The schools, as
instruments of the state, may determine that the essential lessons of civil, mature conduct
cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech or
conduct such as that indulged in by this confused boy.” Id. Morse confirmed that such
determinations do not require Tinker-style “substantial disruption” showings. The Court
in Morse explicitly stated that “[w]hatever approach Fraser employed, it certainly did
not conduct the ‘substantial disruption’ analysis prescribed by Tinker.” 551 U.S. at 405.
A fair look at Tinker, Fraser, Hazelwood, and Morse thus suggests that the
general rule is that school administrators can limit speech in a reasonable fashion to
further important policies at the heart of public education. Tinker provides the
exception—schools cannot go so far as to limit nondisruptive discussion of political or
social issues that the administration finds distasteful or wrong. Drawing such a line may
be difficult, but it must be left as a practical matter first to school administrators, with
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 28
resort to the courts always available for cases like Tinker where the school goes too far.
The present case is clearly different from Tinker.
These reasons warrant our affirmance of the judgment of the district court.