Defoe Ex Rel. Defoe v. Spiva

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0358p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TOM DEFOE, a minor by and through his

Plaintiffs-Appellants, --

parent and guardian Phil Defoe; PHIL DEFOE,

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No. 09-6080

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v.

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SID SPIVA, in his individual and official

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capacity as Principal of Anderson County

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Career and Technical School; MERL KRULL,

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in his individual and official capacity as

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Assistant Principal of Anderson County

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Vocational and Technical School; GREG

DEAL, in his individual and official capacity -

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as Principal of Anderson County High

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School; V. L. STONECIPHER, in his official

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capacity as Director of Schools for Anderson

County; JOHN BURRELL, in his official -

capacity as Chairman of the Anderson County -

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School Board; ANDERSON COUNTY SCHOOL

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BOARD,

Defendants-Appellees. -

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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.

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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

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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.

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OPINION

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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].”

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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.

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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.

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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.