Defoe Ex Rel. Defoe v. Spiva
2010 WL 4643256, 625 F.3d 324, 2010 U.S. App. LEXIS 23714 (2010)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A public school may prohibit students from displaying the Confederate flag on their clothing when there is a documented history of racial tension and incidents sufficient for school officials to reasonably forecast that such displays would cause substantial disruption or material interference with the school environment.
Facts:
- The Anderson County school district had a dress code prohibiting apparel with 'racial or ethnic slurs/symbols' that could be disruptive.
- The school district had a long history of racial tension, with school officials testifying about numerous racially-charged incidents over many years.
- Specific incidents at the schools attended by Tom Defoe included the use of racial slurs ('nigger,' 'sand nigger'), racially-charged graffiti (swastikas, 'white power,' a hangman's noose), and physical altercations stemming from racial animosity.
- Shortly after two Black students enrolled at the predominantly white Anderson County High School, a large Confederate flag was draped in a school hallway.
- In a separate incident, students threw Oreo cookies at a biracial basketball player from a rival high school.
- On October 30, 2006, student Tom Defoe wore a t-shirt displaying the Confederate flag; he refused a request to remove or cover it and was sent home.
- On November 6, 2006, Defoe wore a belt buckle with a Confederate flag image, again refused to comply with the dress code, and was suspended.
Procedural Posture:
- Tom and Phil Defoe (Plaintiffs) sued school officials and the Anderson County School Board (Defendants) in U.S. District Court, alleging First Amendment violations.
- The district court denied Plaintiffs' motion for a preliminary injunction.
- Cross-motions for summary judgment filed by both parties were initially denied by the district court.
- A jury trial was held but ended in a mistrial when the jury was unable to reach a unanimous verdict.
- Following the mistrial, the district court requested new briefs from the parties in light of the recent Sixth Circuit decision in Barr v. Lafon.
- The district court then granted summary judgment in favor of the Defendants, dismissing the case.
- The Defoes (Plaintiffs-Appellants) appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Sixth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a public school's ban on displaying the Confederate flag on student clothing violate the First Amendment's free speech protections when the school district has a history of racial tension and racially-motivated incidents?
Opinions:
Majority - Clay, J.
No, the school's ban on displaying the Confederate flag does not violate the First Amendment. Under the standard established in Tinker v. Des Moines, schools may restrict student speech if officials can reasonably forecast that the speech will substantially disrupt or materially interfere with school activities. Here, the extensive and uncontested evidence of racial tension, threats, and violence—including racial slurs, hostile graffiti, and altercations—provided school officials with a sufficient basis to reasonably forecast that displays of the Confederate flag would disrupt the educational environment. The Tinker standard does not require a disruption to have actually occurred; a reasonable forecast is sufficient. The school's policy was not unconstitutional viewpoint discrimination, as it was applied to all racially divisive symbols, and it was narrowly tailored to the substantial government interest in maintaining a safe and effective learning environment.
Concurring - Rogers, J.
No, the school's ban is constitutional, and a forecast of substantial disruption is not even required. Drawing from Morse v. Frederick, which allowed schools to ban pro-drug speech, and Bethel School District v. Fraser, which allowed bans on lewd speech, schools have a compelling interest in deterring racial hostility to maintain a civil and safe learning environment. The Confederate flag can be reasonably interpreted by school administrators as a symbol of racial hostility, regardless of the wearer's intent. Therefore, schools can regulate such racially hostile speech directly, just as they regulate lewd or pro-drug speech, without needing to satisfy the Tinker test's requirement of showing a reasonable forecast of disruption. Public schools have a tutelary responsibility to protect students, who are a captive audience, from racially contemptuous expression.
Analysis:
This case affirms the use of the Tinker 'reasonable forecast of substantial disruption' standard to uphold school bans on the Confederate flag in the Sixth Circuit, grounding the forecast in a documented history of racial tension. Critically, the majority opinion states that where the concurrence differs, the concurrence's reasoning governs. This elevates the concurrence to the controlling rationale, suggesting a significant new pathway for schools to restrict student speech. Judge Rogers' concurrence argues that racially hostile speech, like pro-drug speech in Morse v. Frederick, can be categorically regulated without a Tinker analysis, giving schools greater deference to prohibit symbols they deem racially divisive to protect student sensibilities and the educational mission.
