# Nicholas J. Boroff v. Van Wert City Board of Education John Basinger William Clifton and David Froelich

> Court of Appeals for the Sixth Circuit · July 26, 2000 · 220 F.3d 465

URL: https://www.frixlaw.com/law-library/cases/9493259

## Case

- **Full name:** Nicholas J. BOROFF, Plaintiff-Appellant, v. VAN WERT CITY BOARD OF EDUCATION; John Basinger; William Clifton; And David Froelich, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 26, 2000
- **Citations:** 220 F.3d 465; 2000 U.S. App. LEXIS 18023; 2000 WL 1028957
- **Precedential status:** Published
- **Opinion:** Dissent by Gilman
- **Judges:** Wellford, Siler, Gilman
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Guiles ex rel. Guiles v. Marineau, 461 F.3d 320 (2006).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9493259

## How later opinions describe it (automated extraction)

- holding, under the Fraser analysis, that Marilyn Manson T-shirts “contain symbols and words that promote values that are so patently contrary to the school’s éducational mission [that] the School has the authority ... to prohibit those T-shirts”
- stating that, “[c]onsistent with the Supreme Court’s First Amendment jurisprudence, taking sides in that manner would be considered viewpoint discrimination, which is accompanied by an all-but-irre-buttable presumption of unconstitutionality.”
- holding that the standard by which the school administrators’ decision to suppress student speech is measured is whether those administrators acted in a “manifestly unreasonable” manner, under the circumstances
- holding that a school could ban the wearing of Marilyn Manson t-shirts because a school district need not tolerate student speech that is inconsistent with its basic educational mission
- noting that a student could not use substantive due process “as a fallback constitutional provision” for a free-speech claim directly addressed by the First Amendment

## Opinion text

GILMAN, Circuit Judge,
dissenting.
Summary judgment is unquestionably a valuable means for avoiding unnecessary trials, Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.1987), but it is usually inappropriate in civil rights cases when there are disputed and material questions about the reasonableness of an official’s actions or about an official’s intent. See, e.g., Perry v. Sindermann, 408 U.S. 593, 598 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972) (concluding that state university regents were not entitled to summary judgment on the First Amendment claim of an unten-ured professor who had raised a genuine issue of material fact as to whether retaliation was the reason that his contract was not renewed); Honore v. Douglas, 833 F.2d 565, 569 (5th Cir.1987) (observing that summary judgment is “an inadequate procedure for sorting out nebulous questions of motivation” in a First Amendment retaliation case); 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2732.2, pp. 153-54 & n.5, 176-77 & n.19 (3d ed.1998) (noting that questions regarding the reasonableness of officials’ actions in First Amendment cases may preclude the entry of summary judgment). Unlike the majority, I believe that a jury could reasonably find that the reason why School officials declared Boroff s Marilyn Manson T-shirts “offensive” was because the first Marilyn Manson T-shirt he wore contained a message about religion that they considered obnoxious. Accordingly, I believe that summary judgment in favor of the Board on Boroffs First Amendment claim was inappropriate, and therefore respectfully dissent.
I.
I have little doubt that school administrators may reasonably decide that certain rock performers are so closely identified with illegal drug use or other unlawful activities that T-shirts bearing their images are unacceptable for high school students to wear in school. See, e.g., Williams v. Spencer, 622 F.2d 1200, 1206 (4th Cir.1980) (concluding that school officials could halt the distribution of an independent underground school newspaper that contained an advertisement for a store that sold drug paraphernalia). In fact, after the Supreme Court’s decisions in Bethel School District No. 403 v. Fraser, 478 U.S. 675 , 106 S.Ct. 3159 , 92 L.Ed.2d 549 (1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562 , 98 L.Ed.2d 592 (1988), I suspect that forbidding a student from wearing a T-shirt simply because it makes a statement with which school administrators disagree is one of a very few decisions about student dress that school administrators are not allowed to make. Nevertheless, from the record presented, a reasonable jury could easily conclude that this was exactly what the School did.
I believe that the School in this case came perilously close to admitting that its decision to prohibit Boroff from wearing the three-headed Jesus T-shirt was made precisely because the School found the T-shirt’s viewpoint repugnant. Principal Clifton explained in an affidavit that
I have found the t-shirt which contains the three-faced Jesus to be offensive .... This t-shirt is offensive because it mocks a major religious figure. Mocking any religious figure is contrary to our educational missions which is to be respectful of others and others’ beliefs. Second, mocking this particular religious figure is particularly offensive to a significant portion of our school community, including students, teachers, staff members and parents.
*473 In view of this explanation, I am at a loss to understand how the majority can say. that “[t]he record is devoid of any evidence that the T-shirts, the ‘three-headed Jesus’ T-shirt particularly, were perceived to express any particular political or religious viewpoint.” Of course the three-headed Jesus T-shirt was perceived to express a political or religious viewpoint. Principal Clifton said so himself. It appears unmistakable that the reason why the three-headed Jesus T-shirt was deemed “offensive” was because it said something about a venerated religious figure, and because many people in Van Wert (presumably including Principal Clifton) happen to disagree vehemently with what they perceived the T-shirt as saying. Indeed, from Principal Clifton’s explanation, it would not be unreasonable to presume that if the T-shirt had depicted Jesus in a positive light, it would not have been considered “offensive.”
Consistent with the Supreme Court’s First Amendment jurisprudence, taking sides in that manner would be considered viewpoint discrimination, which is accompanied by an all-but-irrebuttable presumption of unconstitutionality. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828-29 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995) (describing viewpoint discrimination as “an egregious form of content discrimination” and observing that “[w]hen the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.... ”); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 61 , 103 S.Ct. 948 , 74 L.Ed.2d 794 (1983) (Brennan, J., dissenting) (“Once the government permits discussion of certain subject matter, it may not impose restrictions that discriminate among viewpoints on those subjects whether a nonpublic forum is involved or not.”); Bullfrog Films, Inc. v. Wick, 646 F.Supp. 492, 505-06 (C.D.Cal.1986) (observing that “regulations that discriminate on the basis of the content of speech” are generally not tolerated under the First Amendment, but that even when content-based regulation is permitted, “discrimination on the basis of political or other views is never tolerated.”), aff'd, 847 F.2d 502 (9th Cir.1988).
II.
I also believe that the majority misapprehends the meaning of the terms “vulgar” and “offensive.” In First Amend-, ment cases, those terms refer to words and phrases that are themselves coarse and crude, regardless of whether one disagrees with the overall message that the speaker is trying to convey. Roughly speaking, they are the words and phrases that might have appeared on comedian George Carlin’s list of words that one cannot say on the radio. See generally FCC v. Pacifica Foundation, 438 U.S. 726, 751-55 , 98 S.Ct. 3026 , 57 L.Ed.2d 1073 (1978) (reprinting Carlin’s “Filthy Words” monologue). That is why the high school administrators in Pyle v. South Hadley School Committee, 861 F.Supp. 157, 159 (D.Mass.1994), were allowed to prohibit a student from wearing a T-shirt proclaiming “See Dick Drink. See' Dick die. Don’t Be a Dick.” See id. at 167-68 & nn. 8-9 (distinguishing Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969), because “[u]nlike Tinker , this is not a case about whether a particular viewpoint may be expressed.”). The school administrators in Pyle were obviously not objecting to the message that drunk driving is bad and should be discouraged.
If Boroff had worn a T-shirt featuring Marilyn Manson’s name and the song lyrics contained in the majority’s opinion, this would be a very easy case. A number of *474 those words are vulgar, regardless of whether one likes or dislikes Marilyn Manson’s music or agrees or disagrees with whatever message Boroff would be trying to convey by wearing the shirt. But that sort of vulgarity is absent from the three-headed Jesus T-shirt that Boroff wore. This particular T-shirt was found “offensive” because it expresses a viewpoint that many people personally find repellent, not because it is vulgar.
Censorship on that basis is simply not permitted in the absence of a reasonable prediction by school officials of substantial disruption of, or material interference with, school activities. Indeed, that was the holding of Tinker. See Tinker, 393 U.S. at 511 , 89 S.Ct. 733 (“[SJchool officials cannot suppress expressions of feelings with which they do not wish to contend.”) (citation and internal quotation marks omitted); Dambrot v. Central Michigan Univ., 839 F.Supp. 477, 484 (E.D.Mich.1993) (concluding that a public university’s “discriminatory harassment policy” that prohibited “symbols, [epithets,] or slogans that infer negative connotations about an individual’s racial or ethnic affiliation,” but permitted those that inferred positive or neutral connotations, was “as remarkable as it is illegal”), aff'd, 55 F.3d 1177 (6th Cir.1994).
The majority asserts that “the School prohibited the Marilyn Manson T-shirts,” including the three-headed Jesus T-shirt that precipitated this case, “because this particular rock group promotes disruptive and demoralizing values which are inconsistent with and counter-productive to education.” It is not clear, however, what “disruptive and demoralizing values” the majority is referring to. If the majority is suggesting that the School could have concluded that Marilyn Manson’s apparent endorsement of, say, illegal drug use, makes his picture an unacceptable image for students to wear in high school, I would agree. A fair reading of the record, however, suggests that the “disruptive and demoralizing values” that the School was really concerned about was disrespect for a specific venerated religious figure.
Or so a reasonable jury could have found. As noted above, however, school officials are not free to decide that only one side of a topic is open for discussion because the other side is too repugnant or demoralizing to listen to. See Tinker, 393 U.S. at 508 , 89 S.Ct. 733 (“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.... ”).
I also believe that the majority dropped its guard much too quickly at the School’s conclusory invocation of “disruptive and demoralizing values.” I am quite confident that the school officials in Tinker thought it would be highly disruptive and demoralizing — not to mention downright unpatriotic — for students to wear black armbands in order to protest a war in which thousands of American soldiers were fighting and dying. The Supreme Court nevertheless concluded that the officials could not prohibit the students from wearing the armbands in the absence of evidence that a ban would be necessary to prevent “material and substantial interference with schoolwork or discipline.” Id.
III.
This brings me to the last, but certainly not least important, matter on which I disagree with the majority. The majority apparently reads the Supreme Court’s opinions in Fraser and Kuhlmeier as essentially overruling Tinker , concluding that after Fraser and Kuhlmeier, school officials can forbid whatever student speech they consider “offensive” (in the sense of promoting “disruptive and demoralizing values”), as long as their decision does not appear “manifestly unreasonable.”
*475 That, however, is not what the Supreme Court held in either Fraser or Kuhlmeier. Fraser concluded that school officials could temporarily suspend a high school student who persisted in giving a speech permeated with obvious sexual metaphors during a school assembly, despite being warned that the speech was “inappropriate” and that delivering it might result in “severe consequences.” Kuhlmeier concluded that high school administrators do not offend the First Amendment by exercising editorial control over the style and content of school-sponsored publications as long as their actions are reasonably related to legitimate pedagogical concerns.
Because nothing in either Fraser or Kuhlmeier purports to overrule Tinker (indeed, Tinker was recently cited with approval by the Supreme Court in United States v. Playboy Entertainment Group, Inc., — U.S. —, —, 120 S.Ct. 1878, 1888 , 146 L.Ed.2d 865 (2000)), I believe that it should be left to the Supreme Court to determine whether and when Tinker should be cast by the wayside. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997) (cautioning the lower courts to accord the Supreme Court “the prerogative of overruling its own decisions.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 486 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989) (Stevens, J., dissenting) (describing as “an indefensible brand of judicial activism” the refusal of lower courts to apply controlling Supreme Court precedent based upon a prediction that the Supreme Court would abandon its prior holding).
Instead, in both Fraser and Kuhlmeier, the Supreme Court distinguished Tinker by noting that the school officials in the latter cases might reasonably have been thought to be endorsing or condoning the student expression at issue had they taken no action. In Fraser , the student campaign speech at issue occurred at an assembly during school hours that students were expected to attend. See Fraser, 478 U.S. at 677 , 106 S.Ct. 3159 (noting that the students were required to attend the assembly or report to study hall). (Fraser’s speech was also vulgar.) Kuhlmeier involved a student newspaper that was funded and sponsored by the school itself. See Kuhlmeier, 484 U.S. at 271 , 108 S.Ct. 562 (“[A] school may in its capacity as publisher of a school newspaper or producer of a school play ‘disassociate itself not only from speech that would ‘substantially interfere with [its] work ... or impinge upon the rights of other students,’ but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.”) (second alteration in original) (quoting Fraser, 478 U.S. at 685 , 106 S.Ct. 3159 ; Tinker, 393 U.S. at 509 , 89 S.Ct. 733 ). This distinction was critical to both the Fraser and Kuhlmeier decisions.
In contrast, I do not believe that school officials can reasonably be thought to endorse or condone a message worn on a student’s T-shirt simply because they do not prohibit the student from wearing the T-shirt to school. See Bd. of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 250 , 110 S.Ct. 2356 , 110 L.Ed.2d 191 (1990) (plurality) (“We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support speech that it merely permits on a nondiscriminatory basis.... The proposition that schools do not endorse everything they fail to censor is not complicated.”) (citations omitted).
IV.
In sum, the Supreme Court’s First Amendment jurisprudence prohibits school officials from telling a student that he cannot wear a particular T-shirt simply because they perceive that the T-shirt is communicating a message with which they disagree. Because I believe that a reasonable jury could conclude that this is exactly what the School did in the present case, I *476 respectfully dissent from the majority’s decision to affirm the grant of summary judgment in favor of the School on Boroff s First Amendment claim. I would therefore reverse the judgment of the district court to the extent that it entered summary judgment for the School on this claim, and remand the case for trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9493259. Public record. Not legal advice.