D.B. v. Lafon

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0145n.06
Filed: February 21, 2007
No. 06-5982
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
D.B., A MINOR, BY AND THROUGH )
HIS PARENT AND GUARDIAN, )
SHARON BROGDON; )
R.W. AND C.W., BOTH MINORS, BY )
AND THROUGH THEIR PARENT )
AND GUARDIAN, ROGER WHITE, )
)
Plaintiffs-Appellants, )
) On Appeal from the United States
v. ) District Court for the Eastern
) District of Tennessee
STEVE LAFON, IN HIS INDIVIDUAL AND )
OFFICIAL CAPACITY AS )
PRINCIPAL OF WILLIAM BLOUNT )
HIGH SCHOOL; )
ALVIN HORD, IN HIS OFFICIAL CAPACITY )
AS DIRECTOR OF SCHOOLS; )
BLOUNT COUNTY SCHOOL BOARD, )
)
Defendants-Appellees. )
Before: DAUGHTREY and COOK, Circuit Judges; and WEBER, District Judge.1
PER CURIAM.
Plaintiffs/Appellants Sharon Brogdon and Roger White bring this appeal on behalf of their
respective minor children, identified as “D.B.,” “C.W.” and “R.W.,” from a district court order
denying their motion for preliminary injunction. For the reasons stated below, we AFFIRM.
1
The H onorable Herm an J. W eber, Senior U nited States D istrict Judge for the Southern D istrict of O hio, sitting by designation.
I.
On March 2, 2006, the plaintiffs brought suit under 42 U.S.C. § 1983 against the director and
school board of Blount County Schools and the principal of William Blount High School, alleging
that the defendants violated the First and Fourteenth Amendment rights of the plaintiffs’ minor
children by prohibiting students from wearing clothing that depicts the Confederate battle flag. In
addition to the complaint’s prayer for relief, the plaintiffs filed a separate motion for preliminary
injunction and temporary restraining order.
On May 4, 2006, the district court held a hearing on the preliminary injunction motion. The
parties presented no witnesses, the plaintiffs instead relying upon affidavits submitted as attachments
to their complaint, and the defendants upon affidavits submitted in opposition to the motion. In its
subsequent order denying the plaintiffs’ motion, the court made findings of fact, set forth as follows
in pertinent part:
The Blount County Board of Education has adopted a dress code that
applies to all high school students. That dress code prohibits students
from wearing certain items, including the following:
f. clothing which exhibits written, pictorial, or
implied references to illegal substances, drugs or
alcohol, negative slogans, vulgarities, or causes
disruption to the educational process; wearing apparel
that is sexually suggestive or that features crude or
vulgar commercial lettering or printing and/or pictures
that depict drugs, tobacco, alcohol beverages,
racial/ethnic slurs or gang affiliation . . .
The ban at issue in this case was imposed pursuant to the provision
prohibiting clothing that “causes disruption to the educational
process.”
. . . [P]laintiffs allege that on May 30, 2005, during the 2004-05
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school year, they, along with the other students at William Blount
High School, were informed that depictions of the confederate battle
flag on students’ clothing would be considered a violation of the
school’s dress code, even though such depictions were not previously
considered violations. On September 1, 2005, during the 2005-06
school year, despite the prohibition and “to express pride in his
southern heritage,” plaintiff D.B. wore a shirt depicting the
confederate battle flag, two dogs, and the words “Guarding our
Southern Heritage.” He was allegedly confronted by defendant
LaFon [sic], the school’s principal, who reminded D.B. about the ban,
told him to turn his shirt inside out or take it off, and threatened him
with suspension if he refused. A similar incident involving plaintiff
C.W. allegedly occurred on January 13, 2006. There is no evidence
whether plaintiff R.W. had a similar experience.
Plaintiffs allege that William Blount High School permits other
expressions “of political or controversial significance,” and [that]
there have been no disruptions resulting from the depiction of the
confederate battle flag . . . Plaintiffs D.B. and C.W. also explain in
their [affidavits] that they have seen other students wearing foreign
flags, Malcolm X symbols, and political slogans.
Defendants have responded in opposition . . . and have included two
affidavits. In the first affidavit, defendant LaFon [sic] explains that
defendant Hord [the director of Blount County Schools] directed him
to apply the dress code without viewpoint discrimination and that
during the 2005-06 school year there were “over 452 documented
violations of the dress code policy . . . 23 of which involved the
wearing of the ‘Confederate flag’ by students.” Defendant LaFon
[sic] goes on to explain that while “there have been no reported
incidents of students wearing clothing emblazoned with Malcolm X
words or caricatures[ ] or international flags[,] [t]here have been
numerous non-documented incidents of violations . . . beyond those
documented.”
In the second affidavit, defendant Hord . . . describes racial tensions
at William Blount High School. According to the affidavit, on
February 22, 2005, there was a “physical altercation between a white
student and an African-American student,” which resulted in a civil
rights complaint against the school system. On April 7, 2005,
defendant Hord requested that the school be locked down with the
presence of sheriff’s deputies “due to threats of violence against
African-American students.”
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For the remainder of the 2004-05 school year, defendant Hord
explains that sheriff’s deputies remained at the school, and there were
“multiple racially motivated threats and physical altercations” that
resulted in suspensions and civil rights complaints and a civil lawsuit
that alleges the school system is “a racially hostile educational
environment.” During the 2005-06 school year, two more racial
harassment complaints were made to the board of education. Based
upon those events, defendant Hord concluded that “the wearing of the
‘Confederate flag’ by students during school hours has a significant
disruptive effect on the proper education environment of the students
at the Blount County high school.”
(R.22-24, citations omitted).
Applying the balancing test for injunctive relief set forth in Nightclubs, Inc. v. City of
Paducah, 202 F.3d 884, 888 (6th Cir. 2000), to the facts before it, the district court concluded that
the plaintiffs could not demonstrate a substantial likelihood of success on the merits. On June 30,
2006, the court entered an order denying the motion for preliminary injunction. The plaintiffs filed
this timely appeal.
II.
A district court’s decision to grant or to deny a motion for preliminary injunction is reviewed
for abuse of discretion. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003). The lower
court’s determination will be disturbed only if that court relied upon clearly erroneous findings of
fact, improperly applied the governing law, or used an erroneous legal standard. City of Paducah,
202 F.3d at 888. Under that standard, the district court’s legal conclusions are reviewed de novo and
its factual findings for clear error. Taubman v. Webfeats, 319 F.3d 770, 774 (6th Cir. 2003). A
factual finding is clearly erroneous “when the reviewing court is left with the definite and firm
conviction that a mistake has been made.” United States v. Smith, 263 F.3d 571, 581 (6th Cir. 2001).
In determining the appropriateness of the requested injunctive relief, the district court applied
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the correct four factor balancing test: 1) whether the plaintiff has established a substantial likelihood
or probability of success on the merits; 2) whether there is a threat of irreparable harm to the
plaintiff; 3) whether issuance of the injunction would cause substantial harm to others; and 4)
whether the public interest would be served by granting injunctive relief. City of Paducah, 202 F.3d
at 888. In the context of First Amendment violations, the “likelihood of success” factor frequently
is determinative. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), cert. denied,
526 U.S. 1087 (1999).
Under case law applicable to free speech claims, “the loss of First Amendment freedoms, for
even minimal periods of time,” is presumed to constitute irreparable harm. Elrod v. Burns, 427 U.S.
347, 373 (1976). Such protection extends to public school students, who do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Nevertheless, “the First Amendment
rights of students in public schools are not automatically coextensive with the rights of adults in
other settings, and must be applied in light of the special characteristics of the school environment.”
West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th Cir.), cert. denied, 531 U.S. 825
(2000). Schools need not tolerate student speech deemed inconsistent with the educational mission
even if similar speech would not be subject to censor outside the school setting. Hazelwood Sch.
Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988). Still, schools may not punish “silent, passive
expression of opinion, unaccompanied by any disorder or disturbance” attributable to such
expression, and “undifferentiated fear or apprehension of disturbance is not enough to overcome the
right to freedom of expression.” Tinker, 393 U.S. at 508.
The wearing of clothing depicting the Confederate flag as an expression of pride in one’s
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southern heritage constitutes speech governed by the First Amendment. Castorina v. Madison
County Sch. Bd., 246 F.3d 536, 540 (6th Cir. 2001). Nevertheless, school officials may ban what
otherwise would be protected speech where “engaging in the forbidden conduct would ‘materially
and substantially interfere with the requirements of appropriate discipline in the operation of the
school’.” Tinker, 393 U.S. at 509. On the other hand, 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.” Castorina, 246 F.3d at 544. A school’s refusal to bar the wearing of apparel depicting
Malcolm X symbols along with clothing depicting the Confederate flag “gives the appearance of a
targeted ban.” Id. at 541.
III.
The plaintiffs assert that the district court erroneously found that the defendants “had reason
to believe that a student’s display of the Confederate flag might cause disruption.” (R.31, emphasis
in original). Given Blount High School’s recent history of racial tensions as recited in the record,
however, the court’s finding to that effect was not clearly erroneous. 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. “In this case, the district had a reasonable basis for forecasting disruption
from display of such items at school.” See Derby Unified Sch. Dist., 206 F.3d at 1366; see also
Castorina, 246 F.3d at 542 [suggesting that undisputed evidence of past racially-motivated violence
or threats in a particular school district could justify a conclusion that “display of the Confederate
flag” in such schools might have a “significant disruptive effect”], 543-44 [“a school board may ban
racially divisive symbols when there has been actual racially motivated violence and when the policy
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is enforced without viewpoint discrimination”].
The plaintiffs’ assertion that the district court’s ruling “requires a presumption that the
Confederate flag is per se ‘racially divisive’” and in essence rises “to the level of judicially noticed
fact” does not alter this result. While the district court here did not comment explicitly on the
Confederate flag’s inherent racial divisiveness, other federal appellate courts have. According to the
Eleventh Circuit, for example, “[i]t is . . . clear that the primary effect of the [Confederate] flag . .
. is to remind citizens, albeit offensively to some, of a controversial era in American history.”
NAACP v. Hunt, 891 F.2d 1555, 1564 (11th Cir. 1990). Another circuit court has observed that “[i]t
is common knowledge that public reaction to and the debate over . . . the Confederate [b]attle flag
. . . has been virtually exclusively in relation to . . . whether or to what extent this symbolism extols
or excuses slavery, racial oppression or resistance to racial equality.” Briggs v. State of Mississippi,
331 F.3d 499, 506 (5th Cir. 2003), cert. denied, 540 U.S. 1108 (2004). Indeed, this Circuit also has
implicitly acknowledged that the Confederate flag qualifies as a “controversial racial and political
symbol[ ].” Castorina, 246 F.3d at 542. Accordingly, even if some recognition of the flag’s racially
divisive nature is implicit in the district court’s finding, that finding is not rendered clearly erroneous
thereby.
The plaintiffs’ assertion that they proved an “[a]bsence of [d]isorder [a]ssociated with the
Confederate [f]lag” is not dispositive of that factual issue. Even assuming that no students’ wearing
of that symbol had caused a disruptive incident in the past, the district court nonetheless reasonably
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.
The plaintiffs also argue that the district court erroneously failed to find that the defendants
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enforced the dress code in a viewpoint-specific manner. Plaintiffs cite three examples said to impel
this conclusion. First, relying on their affidavits as establishing that the school district regularly
failed to discipline students wearing Malcolm X symbols or other national flags, the plaintiffs urge
that the evidence compels a factual conclusion that the Confederate battle flag was the only political
symbol targeted by the defendants for dress code enforcement. The district court’s finding that this
evidence did not prove viewpoint discrimination, however, was not clearly erroneous. The evidence
indicates that wearing of the Confederate flag accounted for only 23 of 452 instances of dress code
violations documented since August of 2005. The plaintiffs presented no evidence showing how
frequently or conspicuously other political symbols were worn by students, or even that school
officials were aware of the presence of clothing depicting those other political symbols. Evidence
presented by the defendants tends to suggest that they were not. In light of evidence of numerous
other dress code violations that had not been documented, the district court’s speculation that “other
instances of dress code violations . . . involv[ing] a variety of symbols[ ]” may have been “resolved
informally” also does not constitute clear error.
The plaintiffs also contend that the district court’s analysis is internally inconsistent and
therefore clearly erroneous. Specifically, the plaintiffs argue that the district court cannot logically
conclude that school officials detected and eliminated visible depictions of Confederate flags so
quickly as to avert any possible disruptions caused thereby, yet failed to notice clothing depicting
Malcolm X symbols and international flags. Because no such inconsistency seems inherent, however
– both absent proof of how frequently and conspicuously such other symbols appeared relative to
the frequency and conspicuousness of depictions of the Confederate battle flag, and in light of
possible justification for differentiating among certain symbols – no clear error finding is warranted
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on that basis.
Finally, the plaintiffs point to uncontroverted evidence that the Confederate flag was the only
symbol specifically mentioned by the defendants when announcing the ban. This presents a closer
call, as the fact that the Confederate flag apparently was singled out in this way does bolster the
plaintiffs’ position. Given the clear error standard of review, however, the appellate court has no
basis for disrupting the district court’s conclusion that, without more, school officials’ citing of that
sole example does not prove they intended to ban only the Confederate battle flag, and not other
symbols. The district court’s conclusion that the plaintiffs “have not produced sufficient evidence
to show that the school’s policy probably imposes ‘a viewpoint-specific ban on [some] racially
divisive symbols but not others” thus is not clearly erroneous.
The plaintiffs also contend that the district court erred in analyzing their motion under the
premise that “[s]chool officials may ban racially divisive symbols when there has been actual racially
motivated violence and when the policy is enforced without viewpoint discrimination.” (R. 25).
They urge that such standard is inconsistent with the one set out in Tinker and utilized by this Court
in Castorina. They further argue that as a result of applying an incorrect standard, the district court
drew erroneous legal conclusions about the school district’s authority to ban the wearing of the
Confederate battle flag.
Ironically, the language thus singled out by Plaintiffs appears almost verbatim in Castorina,
246 F.3d at 543-44. Neither is that language inconsistent with Tinker. 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
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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,” 393 U.S.
at 509, including the right “to be secure and to be let alone.” Id. at 508.
Recognizing that the Tinker decision does not require that the banned form of expression
itself actually have been the source of past disruptions, subsequent appellate court decisions
considering school bans on expression have focused on whether the banned conduct would likely
trigger disturbances such as those experienced in the past. See, e.g., Castorina, 246 F.3d at 542;
Melton v. Young, 465 F.2d 1332 (6th Cir. 1972), cert. denied, 411 U.S. 951 (1973). Although Melton
differs in that the record there contained evidence that the Confederate flag in fact had been a factor
in past unrest, see 465 F.2d at 1333, 1335, nothing in Melton or Tinker requires evidence of a
preexisting incident of the banned symbol evoking disruption. To the contrary, “[t]he fact that a full-
fledged brawl ha[s] not yet broken out over the Confederate flag does not mean that [a school]
district [i]s required to sit and wait for one.” West, 206 F.3d at 1366 (quoting with favor West v.
Derby Unified Sch. Dist. No. 260, 23 F. Supp. 2d 1223, 1233 (D. Kan. 1998)).
Unlike the record in Tinker, the record in this case evidences ample reason for school
officials to anticipate disruption resulting from the wearing of the banned symbol. During the prior
academic year, Blount High School had been the scene of racial tension, intimidation and violence
to such an extent that law enforcement officials were brought in to maintain order, and the school
was defending against lawsuits depicting it as a racially hostile educational environment. As
discussed above, the district court had a sound factual basis for finding that defendants “had reason
to believe that a student’s display of the Confederate flag might cause disruption.” Reviewing the
district court’s analysis de novo, we conclude that neither the legal standard applied nor the legal
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conclusions drawn were erroneous.
The plaintiffs further argue that the district court erred by assigning them the burden of proof
with respect to the four-part balancing test for acquiring preliminary injunctive relief. Although the
plaintiffs correctly observe that the defendants would bear the burden at trial of establishing that the
Confederate flag ban does not violate the Constitution, it remains the plaintiffs who bear the burden
of establishing the need for a preliminary injunction. Connection Distrib., 154 F.3d at 288. The
district court appears properly to have required the defendants to show that the ban was justified in
light of past racial disturbances at the school, and properly to have found that the defendants
sustained that burden. Having failed to respond with evidence sufficient to prove that such ban was
enforced in a viewpoint-specific manner, however, the plaintiffs did not sustain their burden of
proving that they were likely to succeed on the merits. We therefore AFFIRM the district court’s
denial of the motion for preliminary injunction.