# Thomas v. Varnado

> District Court, E.D. Louisiana · October 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10186011

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** October 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA
THOMAS ET AL. CIVIL ACTION
VERSUS NO. 20-2425
FRANCES VARNADO (IN HER OFFICIAL CAPACITY) SECTION "L" (4)
AND WASHINGTON PARISH SCHOOL BOARD
ORDER & REASONS
Before the Court is a Motion for a Preliminary Injunction by Plaintiffs, N.T., Alexander
Thomas and Stacey Thomas (collectively, “Plaintiffs”). R. Doc. 5. Having considered the

applicable law, the parties’ arguments, and the evidence addressed during a noticed hearing, the
Court now rules as follows.
I. BACKGROUND
This case arises from a school board’s decision to remove a painting of President Donald
Trump on a student’s parking spot at Pine Jr/Sr High School in Franklinton, Louisiana. Plaintiffs
Alexander and Stacey Thomas seek a preliminary injunction against the Washington Parish School
Board and Superintendent Vernado (“Defendants”) on behalf of their son N.T., a 17-year old senior
student at Pine Jr/Sr High, allowing him to repaint his senior parking spot. R. Doc. 5. Plaintiffs
maintain that painting over the Trump portrait violated N.T.’s right to freedom of speech and
freedom of expression under the First Amendment.

Washington Parish School System has a tradition of allowing high school seniors to paint
their parking spaces for a $25 fee in an effort to foster “school pride and comradery.” R. Doc. 5-1
at 2. Under the “Senior Paint Your Parking Space” policy, students must obtain administrative
approval of their painting, which cannot contain offensive language, pictures, or symbols, negative
or rude language, or the use of another student’s name, such as a boyfriend or a girlfriend. Id. The
painting on N.T.’s parking space portrayed President Trump wearing a stars-and-striped bandana
and sunglasses. Id. Plaintiffs allege that the Pine Sr. High School principal approved the contents
of N.T.’s painted over the summer, but shortly after it was painted, the Superintendent informed

the student that the Trump portrait it was “too political” and painted over it with grey paint. Id.
II. PENDING MOTIONS
Plaintiffs seek a preliminary injunction ordering the Defendants to allow N.T. to re-paint
his parking spot because the removal of the painting of President Trump violated N.T.’s First
Amendment right to “core political speech.” Id. at 3. Plaintiffs argue that this case should be
analyzed under the pure student expression test set forth in Tinker v. Des Moines Independent
Community School District. 393 U.S. 503 (1969), which provides that school officials may not
restrict student speech solely on the basis of viewpoint, absent a showing that it would be
materially disruptive or interfere with school activities. Doc. 5-1 at 4, 5. In support of a preliminary
injunction, Plaintiffs argue that they are likely to succeed on the merits of their First Amendment

claim under Tinker, a substantial threat of harm exists because this school year is N.T.’s only
opportunity to have a painted parking spot, and the issuance of an injunction will promote the
public interest in free speech. Id. at 7.
In response, Defendants counter that Plaintiffs have not met the heavy burden required for
the issuance of a preliminary injunction. R. Doc. 11 at 2. Defendants argue that the restriction on
N.T.’s speech was viewpoint neutral and permissible in light of the threat of “material and
substantial disruption.” Defendants assert that their decision was based on concerns about the
“particularly contentious” upcoming election that has “resulted in significant divisions not only
through the country, but also within the Washington Parish Community.” Id. at 7, 9. Defendants
express concern that the painting would be offensive to African American students and give rise
to an increased risk of vandalism, destruction of property, and fighting in an area of the school
where it would be more difficult to control. Id. at 9-10. Defendants refer to incidents at other
schools across the country, including pro-Trump parking spots being vandalized by “BLM,”

“FREE THE FAMILIES,” and other phrases, to validate these concerns. Id. at 8.
In reply, Plaintiffs contend that they are “unaware of any special tumult in Washington
Parish” or of any history of division at the school. Id. at 2.
III. LAW & ANALYSIS
a. Standard for a Preliminary Injunction
Rule 65(a) of the Federal Rules of Civil Procedure provides for the issuance of preliminary
injunctions and allows the court to “advance the trial on the merits and consolidate it with the
hearing.” Fed.R.Civ.P. 65(a)(2). “A preliminary injunction is an extraordinary remedy that is
issued only when a party does not have an adequate remedy at law.” Dennis Melancon, Inc. v.
City of New Orleans, 889 F. Supp. 2d 808, 815 (E.D. La. 2012) To be eligible for a preliminary

injunction, the movant must demonstrate the following: (1) a substantial likelihood of success on
the merits; (2) a substantial threat of irreparable injury; (3) the threatened injury to the movant
outweighs the threatened harm to the party sought to be enjoined; and (4) granting the injunctive
relief will not disserve the public interest.” City of Dallas v. Delta Air Lines, Inc., 847 F.3d 279,
285 (5th Cir. 2017). Courts should issue a preliminary injunction only when the movant “clearly
carried the burden of persuasion on all four requirements.” Courts view the preliminary injunction
as an extraordinary remedy, available only after the movant “by a clear showing, carries a burden
of persuasion.” O'Neill v. Louisiana, 61 F. Supp. 2d 485, 491 (E.D. La. 1998), aff'd sub
nom. O'Neill v. State of La., 197 F.3d 1169 (5th Cir. 1999) (citing Black Fire Fighters Ass'n of
Dallas v. City of Dallas, Tex., 905 F.2d 63, 65 (5th Cir.1990)). The trial on the merits has been
consolidated with the hearing for the preliminary injunction in this case; therefore, the foregoing
also defines the standard for Plaintiffs’ to obtain permanent injunctive relief.
Rule 65(c) of the Federal Rules of Civil Procedure provides that the issuance of a

preliminary injunction shall take place only “if the movant gives security in an amount that the
court considers proper to pay the costs and damages sustained by any party found to have been
wrongfully enjoined or restrained.” Fed. R. Civ. P. 65. However, Fifth Circuit precedent makes
clear that in determining the proper amount of security, a court “may elect to require no security
at all.” Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300, 303 (5th Cir. 1978) (per
curium); see also Humana, Inc. v. Avram A. Jacobson, MD, PA, 804 F.2d 1390, 1394 & n. 23 (5th
Cir.1986) (“[t]he amount of security required is a matter for the discretion of the trial court”); EOG
Res. Inc. v. Beach, 54 F. App'x 592 (5th Cir. 2002) (“In this circuit, however, courts have the
discretion to issue injunctions without security.”)1 In this case, neither the Washington School
Board nor the Superintendent is likely to incur any significant monetary damages as a result of the

preliminary injunction. Further, the Plaintiffs is a minor student. For these reasons, the Court will
exercise its discretion to issue an injunction without security.
b. First Amendment and Student Speech

It is well-established that public school students do not “shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 506 (1969). However, courts do consider the “special

1 Courts often waive the security requirement when “the plaintiff was vindicating constitutional rights and the court
determined that the defendant would not suffer any ‘material’ damages due to the injunction.” Erin Connors Morton,
Security for Interlocutory Injunctions Under Rule 65(c): Exceptions to the Rule Gone Awry, 46 Hastings L.J. 1863
(Aug. 1995); See also Note, Recovery for Wrongful Interlocutory Injunctions, 99 Harvard L.Rev. 828, 831 (Feb.
1986) (noting that courts waive the bond requirement when “the restrained defendant would suffer not harm, or the
plaintiff was suiting to protect some public interest”).
characteristics of the school environment” when applying constitutional principles to high school
students. Id. Supreme Court case law has revealed four categories of student speech: (1) vulgar,
lewd, obscene, or plainly offensive speech under Bethel School District No. 403 v. Fraser, 478
U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); (2) school-sponsored speech under Hazelwood

School District v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988); (3)
government speech; and (4) pure student expression under Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The parties do
not dispute that Tinker governs this case. The painting of President Trump cannot reasonably be
described as obscene or plainly offensive on its face, nor can it be construed as school-sponsored
speech. The Court concludes that N.T.’s portrait constitutes pure political speech under the fourth
category. Accordingly, the school’s actions will be analyzed under the framework that student
speech cannot be restricted on the basis of viewpoint “unless there is a showing of material and
substantial disruption.” Morgan v. Swason, 659 F.3d 359, 402 (5th Cir. 2011), cert denied, 567
U.S. 905 (2012) (citing Tinker v. Des Moines Independent Community School District, 393 U.S.

503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)).
c. Discussion

The seminal case Tinker v. Des Moines Independent Community School District, 393 U.S.
503 (1969) and its progeny control this case. In Tinker, the school district prohibited students from
wearing black armbands to signify their protest of the Vietnam War and punished seven students
who chose to defy the policy. Id. at 504, 516. The Supreme Court found this to be an
unconstitutional denial of students’ right to expression. Id. Students cannot be punished “for
expressing their personal views on the school premises—whether ‘in the cafeteria, or on the
playing field, or on the campus during the authorized hours,’—unless school authorities have
reason to believe that such expression will ‘substantially interfere with the work of the school or
impinge upon the rights of other students.’ Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260
(1988) (citing Tinker, 393 U.S. at 509, 512-513).
In order to meet its burden, a school board must prove that its decision was “caused by

something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany a certain viewpoint.” Tinker, 393 F.3d at 509; see also Shanley v. Ne. Indep. Sch. Dist.,
Bexar Cty., Tex., 462 F.2d 960, 971 (5th Cir. 1972) (“[I]t should be axiomatic at this point in our
nation's history that in a democracy ‘controversy’ is, as a matter of constitutional law, never
sufficient in and of itself to stifle the views of any citizen.”) The Tinker standard will be met by
showing a disruption has actually occurred or by showing “demonstrable factors that would give
rise to any reasonable forecast by the school administration of ‘substantial and material’
disruption.” Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 390–91 (5th Cir. 2015) (internal
citations omitted). In other words, the School Board does not have to wait for a disruption to
actually occur to take action. West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th

Cir. 2000) (“The fact that a full-fledged brawl had not yet broken out over the Confederate flag
does not mean that the district was required to sit and wait for one.”) Administrators can satisfy
their burden by “establishing that they had a reasonable expectation, grounded in fact, that the
proscribed speech would probably result in disruption.” A.M. ex rel. McAllum v. Cash, 585 F.3d
214, 224 (5th Cir. 2009). School officials must provide factual support for their decision to stifle
speech; however, this is not “a difficult burden.” Shanley, 462 F.2d at 970. The decision of the
school board will govern if “they are within the range where reasonable minds will differ.” Butts
v. Dallas Indep. Sch. Dist., 436 F.2d 728, 732 (5th Cir. 1971).
Therefore, the issue is whether the Superintendent reasonably forecasted that a substantial
and material disruption would likely result from the student’s painting of President Trump. In
support of the decision to paint over the image, Defendants cite to the “fact that the upcoming
election is particularly contentious.” R. Doc. 11 at 7. Specifically, the Superintendent was
“concerned that the painting would cause further division and disruption among students—similar

to that experienced within the school, Parish, community and on social media” Id. at 8. Defendants
also expressed concern that the painting would give rise to an increased risk of vandalism,
destruction of property, and fighting in an area of the school where it would be more difficult to
control. Id. at 9-10.
As evidence of the disruption that would arise if the painting remained on campus,
Defendants discussed a prior incident involving a Confederate flag, stoking tensions at another
school in the district. Defendants also referenced a number of conflicts on social media over the
summer, in which students who were typically friends were fighting against one another about
race and politics. In addition, Defendants pointed to the murder of a black student perpetrated by
a white individual during the previous school year that caused significant controversy in the

community. Lastly, after the decision was made to paint over the parking spot, the Superintendent
received a barrage of messages criticizing the removal of the painting. Defendants maintain that
their decision to paint over N.T.’s parking spot stemmed from a desire to avoid controversy and to
prevent the student from receiving any negative attention himself.
While the Court acknowledges that school officials are seeking to protect their students,
without additional facts describing racial or political tensions at the school connected with the
upcoming election, there is no evidence to support that the painting of President Trump would, on
its own, cause disruption of school activities, given that it is limited to N.T.’s parking spot and
painted in accordance with school rules. (“he may express his opinion, even on controversial
subjects if he does so without ‘materially and substantially interfering with the requirements of the
appropriate discipline in operation of the school’ and without colliding with the rights of others.
Ultimately, it is clear that school officials in this case acted based upon “an urgent wish to
avoid controversy which might result from the expression.” Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 5 (1969).
“But, in our system, undifferentiated fear or apprehension of disturbance is not enough to
overcome the right to freedom of expression. Any departure from absolute regimentation
may cause trouble. Any variation from the majority's opinion may inspire fear. Any word
spoken, in class, in the lunchroom, or on the campus, that deviates from the views of
another person may start an argument or cause a disturbance. But our Constitution says we
must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949);
and our history says that it is this sort of hazardous freedom—this kind of openness—that
is the basis of our national strength and of the independence and vigor of Americans who
grow up and live in this relatively permissive, often disputatious, society.”

Id. at 508, 509. Based on these facts, the Court finds that Defendants failed to demonstrate
that a substantial and material disruption was reasonably foreseeable under the circumstances if
the Trump painting were to remain. Thus, the school’s removal of the painting restricting N.T.’s
political speech cannot be justified.
N.T.’s painting, while it is certainly a stylized and colorful image, depicts the sitting
President of the United States. This is not a case involving a symbol such as a Confederate flag,
which has an established meaning as a “symbol of racism and intolerance, regardless of whatever
other meanings may be associated with it.” A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224 (5th
Cir. 2009). Moreover, the painting conforms with all Pine Sr. High School rules regarding senior
parking spots. In fact, the student obtained the Principal’s approval before the parking spot was
ever painted. Because the Washington Parish School Board opened its schools for student speech
by enacting its “Senior Paint Your Parking Space” policy, the First Amendment requires that
students be allowed to express their political views freely, absent any conflict with school
guidelines. N.T. stated that he intended the painting to reflect his support for the President’s re-
election campaign. Had N.T. worn a Trump lapel pin or displayed a Trump bumper sticker on his
car, surely this would have amounted to political speech protected under the First Amendment.
The Court sees no difference between those acts of expression and N.T.’s painting at issue here.

In summary, the Court finds that Defendants have not met the Tinker standard. Based on
the record of the preliminary injunction hearing, Defendants have not provided sufficient evidence
that a painting of the current President in the school parking lot is likely to cause a material or
substantial disruption. Thus, the Superintendent’s action of painting over N.T.’s parking spot
constitutes an impermissible violation of N.T.’s right to freedom of expression.
As previously stated, to be entitled for a preliminary injunction, the movant must satisfy
the following criteria: 1) irreparable injury; 2) substantial likelihood of success on the merits; 3)
favorable balance of hardships; and 4) no adverse effect on the public interest. The Court now
considers each factor in turn.
Plaintiffs have met the first and second requirement based on the First Amendment analysis

detailed above. First, any constitutional violation constitutes an irreparable injury. See, e.g., Arnold
v. Barbers Hill Indep. Sch. Dist., No. 4:20-CV-1802, 2020 WL 4805038, at *12 (S.D. Tex. Aug.
17, 2020) (internal citation omitted) (“It has repeatedly been recognized by the federal courts at all
levels that violation of constitutional rights constitutes irreparable harm as a matter of law.”)
Further, money damages would be inadequate to address Plaintiffs’ injury resulting from the loss
of his painted parking spot during his senior year and the censoring of his political viewpoint.
Second, a finding of unconstitutionality guarantees that the plaintiffs would succeed on the merits.
The balance of hardships also supports the issuance of an injunction in his case. While the Court
is generally reluctant to interfere with the school board’s internal affairs and management and
acknowledges Defendants’ significant interest in regulating its students to maintain a safe
environment, the burden on Plaintiffs’ First Amendment right to free speech and expression
outweighs the school’s burden of dealing with controversy related to the painting. Lastly, granting
a preliminary injunction would promote the general public interest in free speech.
Plaintiffs have successfully met the requirements for the issuance of a preliminary
injunction. Accordingly based on the preliminary injunction record, Court will grant Plaintiff's
motion.
IV. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motion of Plaintiffs N.T., Alexander Thomas and Stacey
Thomas is GRANTED.
IT IS HEREBY ORDERED that an injunction be issued ordering the Defendants, the
Washington Parish School Board and Superintendent Frances Varnado, to allow the student to
re-paint his parking spot.

New Orleans, Louisiana this 9th day of October, 2020.
Wy Cor
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186011. Public record. Not legal advice.