Timothy Castorina, by and through his parent and guardian, Patsy Rewt, Plaintiff-Appellant, Tiffany Dargavell, by and through her parents and guardians, Greg and Sandra Dargavell, Plaintiff,
v.
Madison County School Board; Shannon Johnson; William Fultz; Shannon Johnson, as Superintendent of the Madison County School District; William Fultz, as Principal of Madison Central High School, Defendants-Appellees.
No. 99-6309
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: December 7, 2000
Decided and Filed: March 8, 2001
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington: No. 98-00068, Henry R. Wilhoit, Jr., District Judge.[Copyrighted Material Omitted]
Kirk D. Lyons, SOUTHERN LEGAL RESOURCE CENTER, INC., Black Mountain, North Carolina, Chadwick Kyle Sayre, Portsmouth, Ohio, for Appellant.
William H. Fogle, Mt. Sterling, Kentucky, for Appellees.
Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.
MERRITT, J., delivered the opinion of the court, in which GILMAN, J., joined. KENNEDY, J. (pp. 544-48), delivered a separate concurring opinion.
MERRITT, Circuit Judge.
OPINION
Principal William Fultz of Madison County High School twice suspended students Timothy Castorina and Tiffany Dargavell for wearing T-shirts displaying the Confederate flag; the rationale for the suspensions was that the T-shirts violated the school dress code, which bans clothing containing any "illegal, immoral or racist implications." Following their suspensions, the students brought suit challenging the constitutionality of the disciplinary actions and the district court granted summary judgment for the school board. After reviewing that decision, we find that we are unable to resolve the constitutionality of the school board's actions without knowing the manner in which the school board enforced its dress code and whether Madison County High School had actually experienced any racially based violence prior to the suspensions. As a result, material questions of fact remain which render this case inappropriate for summary judgment and we therefore remand this case to the district court for trial. Once the district court has made the necessary findings of fact, it should apply the legal framework set forth in this opinion.
I. Facts
In the fall of 1997, when all of the events in question took place, Timothy Castorina and Tiffany Dargavell were students at Madison Central High School, located in Madison County, Kentucky. Castorina was a junior and Dargavell a freshman. At the time, Castorina and Dargavell were dating. Neither had previously experienced any significant disciplinary problems.
On the morning of September 17, both plaintiffs arrived at school wearing matching Hank Williams, Jr. concert T-shirts given to them by Dargavell's father. Country music star Hank Williams, Jr. was pictured on the front of the T-shirts and two Confederate flags were displayed on the back, along with the phrase "Southern Thunder." The plaintiffs said that they were wearing the T-shirts in commemoration of Hank Williams, Sr.'s birthday and to express their southern heritage. When the two students went to the principal's office to change Dargavell's class schedule, the principal, William Fultz, informed them that the Confederate flag emblem violated the school's dress code. He gave the students the choice of either turning the shirts inside out for the rest of the day or returning home to change. Fultz based this instruction on his interpretation of the school's dress code, which prohibits students from wearing any clothing or emblem "that is obscene, sexually suggestive, disrespectful, or which contains slogans, words or in any way depicts alcohol, drugs, tobacco or any illegal, immoral, or racist implication." The dress code specified that if the violation could not be corrected at school, thenthe principal had the authority to send the offender home to change and to assign appropriate punishment. When Castorina and Dargavell refused to comply with his directives, Fultz called their parents. He explained to the parents that the clothing was a violation of the dress code, but that if the parents convinced the students to go home and change there would be no disciplinary action. If the students refused to change, they would be suspended for three days. The parents strongly supported their children's decision, and Fultz suspended each student. At the end of the three days, Castorina and Dargavell returned to school wearing the same shirts. Fultz again explained that the flag was offensive to other students and a violation of the dress code. When the parents reiterated their support for the students' desire to wear the T-shirts, Fultz suspended them for a second three-day period. Castorina and Dargavell never returned to Madison Central and were subsequently given home-schooling by their parents.
In ruling on the students' suit challenging their suspensions, the district court found that wearing the T-shirts did not qualify as "speech"and that even if it were "speech," the plaintiffs failed to show a First Amendment violation. In addition, the court rejected the plaintiffs' contention that the school dress code was vague and overbroad. The Court then dismissed all supplemental state claims without prejudice.
II. Analysis
This case raises two main questions: (1) does wearing the Confederate flag T-shirts qualify as the type of speech covered by the First Amendment, and (2) if so, is that speech protected given the special rules governing schools' authority to regulate student speech? The district court's answer to the first question -- that wearing the Hank Williams, Jr. T-shirts did not qualify as "speech" -- was incorrect. The plaintiffs wore the shirts to express a certain viewpoint and that viewpoint was easily ascertainable by an observer. On the second question, viewing all of the facts in the light most favorable to the plaintiffs, it appears that the school board enforced the dress code in an uneven and viewpoint-specific manner, thereby violating core values of the First Amendment. In addition, the school has not shown that the plaintiffs' conduct creates a likelihood of violence or other disruption that warrants this kind of regulation.
1. The Plaintiffs' Conduct was Speech Governed by the First Amendment. - In Texas v. Johnson,
2. The School Board's Authority To Regulate the Plaintiffs' Speech. - This case is governed by the Supreme Court's landmark decision concerning student speech, Tinker v. Des Moines Independent School District,
In contrast, Fraser concerned a school's decision to discipline a student after he used "offensively lewd and indecent speech" during a speech nominating a classmate for a position in the student assembly. The Court found that this was not protected speech and that the school had an interest in teaching students the boundaries of socially appropriate behavior that provided some room for a school to regulate speech which would otherwise be protected. Fraser,
The facts, when viewed in the light most favorable to the plaintiffs, distinguish the Madison County ban on Confederate flags from the bans upheld in all four of these cases. First, the plaintiffs testified that other members of the student body wore clothing venerating Malcolm X and were not disciplined. Second, the plaintiffs were wearing the disputed clothing in a manner that did not disrupt school activity or cause unrest during the school day. Third, Castorina and Dargavell were clearly making a personal statement in deciding to wear the Hank Williams, Jr. T-shirts; in other words, there is no way that their speech could be considered to be "school-sponsored," nor did the students use any school resources to express their views.
Taking these facts into consideration, the Madison County case is more analogous to Tinker than to either Fraser orHazelwood. In Tinker, the Des Moines school board had adopted a policy specifically banning the wearing of black armbands. The policy stated that any students found in violation would be asked to remove the offending article; if the student refused, suspension would follow until the student returned without the armband. The plaintiffs intentionally violated the policy and were sent home. Following their legal challenge to the suspension, the Supreme Court struck down the school policy as unconstitutional. As a preliminary matter, the Court formally recognized the fact that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker,
Viewing the facts in the light most favorable to the students, the school has banned only certain racial viewpoints without any showing of disruption. As a result, without any formal factual findings to guide us, we see no obvious differences between the Tinkerand Madison County situations other than the fact that the Des Moines School Board adopted a formal policy banning black armbands before the students ever wore them, whereas the Madison County School Board banned Confederate flags in a more "ad hoc" manner. This means that in Tinker there was a formally targeted ban from the very beginning, whereas the Madison County dress code is a facially neutral policy that is enforced, according to the students, in a content-specific manner. If the students' claim is true, only certain ideological positions are barred from expression on school property. Based on the Supreme Court rulings in Tinker, Mosley and Rosenberger, the school board cannot single out Confederate flags for special treatment while allowing other controversial racial and political symbols to be displayed.
The more recent Supreme Court decisions discussing schools' authority to regulate student speech are not applicable to this situation. Both Fraser and Hazelwood -- the two cases often cited for public schools' power to regulate their students' speech -- contain important factual differences that distinguish them from the instant controversy. Fraser upheld the disciplining of the student's profane nominating speech based on the school's need to teach students about appropriate societal behavior; furthermore, the Court found that the school had wide latitude in determining the "manner of speech" that was permissible on school grounds. Fraser,
Hazelwood concerned a public school's decision to censor two articles slated for appearance in the school newspaper: one concerned pregnant students at the school, the other discussed the impact of divorce on students. The pregnancy story was rejected because the principal feared that in spite of the pseudonyms used in the article, the subjects might still be identified by the school community. The divorce story was rejected because it contained negative information about school parents and there was insufficient time to permit them to respond to the facts set outin the article. The Supreme Court rejected the newspaper staff members' suit on a number of bases: the school paper was not a public forum, publishing the paper was a school-sponsored activity that was part of an advanced journalism class, and readers would perceive articles appearing in the school paper as being "school-approved" publications. Hazelwood,
The Madison County School Board's actions cannot be judged using the more lenient Hazelwood standard because the special circumstances present in Hazelwood are so clearly absent in Madison County. Castorina and Dargavell's actions were not school sponsored, nor did the school supply any of the resources involved in their wearing the T-shirts. Most importantly, no reasonable observer could conclude that the school had somehow endorsed the students' display of the Confederate flag. As a result, Tinker is the most relevant of the three Supreme Court cases concerning school speech and sets forth the legal framework that the district court should apply to its factual findings. Using the Tinker standard that "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners" is not subject to regulation, Tinker,
In addition, the two Court of Appeals decisions upholding suspensions for Confederate flag displays, Melton v. Young,
Similarly, this court's decision in Melton concerned a Chattanooga public school's1970 suspension of a student for wearing a jacket with a Confederate flag patch. The school in question, which had previously been an all-white school, was integrated in 1966, only four years before the suspension. In that four year period, the high school in question experienced significant racial tension, much of which sprung from the school's symbol (the Confederate flag), the school's athletic nickname (the "Rebels") and the school's fight song ("Dixie"). Following these problems, a special committee convened to address these racial problems made a specific finding that the Confederate flag was a cause of unrest. Relying on that finding, the school board banned the display of the Confederate flag. Having been informed of the ban, plaintiff Melton then wore a jacket with a Confederate flag patch to school and was suspended. In reviewing his suspension, this court applied Tinker to the regulation, finding that the history of unrest amounted to a material disruption at the school and that the committee's specific findings showed that there was more than "an undifferentiated fear or apprehension of disturbance." Melton,
The foregoing discussion of the three Supreme Court and two Court of Appeals cases demonstrates the importance of the factual circumstances in school speech cases and why a remand is necessary in this case so that the district court can resolve the plaintiffs' factual assertions. If the students' claims regarding the Malcolm X-inspired clothing (i.e. that other students wore this type of clothing and were not disciplined) and their claims that there were no prior disruptive altercations as a result of Confederate flags are found credible, the court below would be required to strike down the students' suspension as a violation of their rights of free speech as set forth in Tinker. In addition, even if there has been racial violence that necessitates a ban on racially divisive symbols, the school does not have the authority to enforce a viewpoint-specific ban on racially sensitive symbols and not others. Conversely, if the students cannot establish their factual claims, then the principal and school board may have acted within their constitutional authority to control student activity and behavior. In either circumstance, the facts are essential to the application of the legal framework discussed herein. Accordingly, the summary judgment is reversed and the case remanded to the district court for trial.
KENNEDY, Circuit Judge, concurring.
I concur with the majority in remanding this case to the district court to resolve the factual issues, and I concur with Part II.1 of the majority opinion holding that the conduct in question constitutes First Amendment protected speech. I write separately, however, because I disagree with the analysis in Part II.2 of the majority opinion. Contrary to the majority's argument, I find that individual speech not sponsored by the school may be regulated in a school setting if and only if there is specific evidence to support a belief that the conduct will result in disruption to the school's educational environment.
The majority accepts the argument that this case is factually similar to Tinkerand is therefore governed by the SupremeCourt's holding there, invalidating a school's ban on black armbands worn to protest the Vietnam war. The majority apparently fails to recognize, however, that in Tinker, the Court explicitly relied on the fact that "there were no threats or acts of violence on school premises," id. at 508, while in the present case, there is evidence to support a likelihood of disruption. Despite the majority's summary statement that the school banned the confederate flag shirts "without any showing of disruption," the record shows that a fight broke out involving students wearing confederate flag T-shirts the day before Fultz prohibited plaintiffs from wearing their shirts, and Fultz stated that students told him that the confederate flag was the cause of that prior fight. (J.A. 173.) Although it is clear that even in a school setting "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression," id. at 508, the Supreme Court has recognized a compelling government interest in protecting a school's educational environment. Tinker rejected a school's ability to regulate based on the content of the views expressed where there was no evidence of disruption to justify the regulation. But Tinker acknowledged that actual disruption may justify regulation of speech, explaining that "the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible." Id. at 511 (emphasis added).
The Sixth Circuit has previously recognized that a showing of likely disruption is the central tenet to permissible regulation of First Amendment speech in a school setting. In Melton v. Young,
In the present case, a physical fight between students, one day earlier, caused by an image of the confederate flag, would give the principal a concrete basis to think additional disruption would ensue if plaintiffs were permitted to wear the flag shirts. The prior fight distinguishes this case from Tinker and places it in the category of cases in which factual evidence demonstrates that disruption will likely result. The majority claims that the evidence of the fight is not dispositive because other students testified that the fight was not about the confederate flag. The critical issue, however, is whether the principal acted on what he reasonably believed to be actual evidence that the shirts would be disruptive. So long as he was told by a student that a confederate flag was the subject of the prior fight and he was not unreasonable for believing that student, he had a reasonable basis to infer that plaintiffs' shirts would spark more disruption.
In addition, I cannot agree with the majority's statement that the school's "rationale for the suspensions was that the T-shirts violated the school dress code, which bans clothing containing any 'illegal, immoral or racist implications.'" While I agree that principal Fultz banned the shirts because they violated the school's dress code, he did not rely on the "racist implications" portion of the policy. Contraryto the majority's description of the facts, Fultz's deposition testimony clearly indicates that he explicitly refused to say that he thought the flag was racist:
Q: Now, isn't it true that you told my clients, and the parents of my clients that the Confederate Flag was a racist symbol on that day?
A: I don't know if I said it in that terms. I said that the Confederate Flag is offensive to certain students.
Q: So to the best of your recollection you never related to them that it was your opinion that the Confederate Battle Flag is a racist symbol, is that your testimony?
A: That is my opinion. I think in my opinion the Confederate Flag is offensive to black students.
(J.A. 170-71.) Later in the deposition, plaintiffs' attorney and Fultz had the following exchange:
Q: Well, let me just cut right to the chase then. Do you think the Confederate Flag is a racist symbol?
A: That's, you know, as far as I'm concerned the Confederate Flag or any of the other kinds of shirts is not all that offensive to me personally, but I do know that it causes conflict between the students and that my job is to try to help maintain a safe and orderly environment for students to learn and teachers to teach.
(Fultz Dep. 32.) Thus, when he banned plaintiffs' shirts, the record permits the finding that Fultz acted under the portion of the school's dress code policy which prohibits any attire that "cause[s] disruption of the educational process." (J.A. 81.)
The majority subsequently concludes, however, that prohibiting the confederate flag shirts while other students were allowed to wear Malcolm X shirts was not permissible as it amounted to viewpoint discrimination. I would note that while there is a factual dispute, principal Fultz testified that he had on several occasions asked students to take off a Malcolm X shirt, but that he had not seen one recently1. Under relevant Supreme Court caselaw, including Tinker, I believe that the presence of Malcolm X shirts is irrelevant to the analysis in this case. Although the Tinker Court did say that "[i]t is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance," the Court then immediately acknowledged that the case would be different were there evidence of disruption.Id. at 510. The Court stated that, "conduct by the student, . . . which for any reason . . . materially disrupts classwork or involves substantial disorder . . . is, of course, not immunized by the constitutional guarantee of freedom of speech." Id. at 513. The Supreme Court has itself reviewed Tinker in Grayned v. City of Rockford,
[W]e nowhere suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for his unlimited expressive purposes. Expressive activity couldcertainly be restricted, but only if the forbidden conduct "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."
Grayned,
[The ordinance] goes no further than Tinker says a municipality may go to prevent interference with its schools. It is narrowly tailored to further [the town's] compelling interest in having an undisrupted school session conducive to the students' learning, and does not unnecessarily interfere with First Amendment rights. Far from having an impermissibly broad prophylactic ordinance, [the town] punishes only conduct which disrupts or is about to disrupt normal school activities. That decision is made, as it should be, on an individualized basis, given the particular facts of the situation.
Id. at 119. Thus, the only conduct that can be regulated in order to achieve the compelling interest of a stable educational environment is activity which will disrupt that environment. No other regulation of protected speech can be considered narrowly tailored to meet this compelling interest. In short, evidence of likely disruption is both sufficient and necessary to justify regulation of protected speech in a school setting. Therefore, I would not only conclude that the school would not necessarily be required to prohibit Malcolm X shirts if it prohibits confederate flag shirts, but in fact, I question whether the school could be permitted to prohibit displaying a symbol of either Malcolm X or the confederate flag unless it could show evidence that such a display would result in disruption. First Amendment protected conduct may only be regulated if it disrupts or is about to disrupt normal school activities. See Tinker,
The Fifth Circuit's recent evaluation of First Amendment protection in a school setting is applicable here. See Canady v. Bossier Parish School Board,
Because (1) choice of clothing is personal expression that happens to occur on the school premises and (2) the School Board's uniform policy is unrelated to any viewpoint, a level of scrutiny should apply in this case that is higher than the standard in Kuhlmeier, but less stringent than the school official's burden in Tinker.
Canady,
[T]he school board's uniform policy will pass constitutional scrutiny if it furthers an important or substantial government interest; if the interest is unrelated to the suppression of student expression; and if the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest.
Id. (citing United States v. O'Brien,
I concur in remanding this case to the district court for necessary findings of fact. I would conclude, however, that if the district court finds evidence to support defendants' contention that principal Fultz reasonably believed that a prior fight occurred as a result of the presence of a confederate flag and that prior fight gave Fultz reason to anticipate additional disruption, then defendants' regulation of plaintiffs' conduct was no more than that necessary to achieve a compelling government interest and did not violate the First Amendment.
Notes:
Notes
Fultz's deposition testimony was as follows:
Q: How many times have you asked somebody to take a Malcolm X shirt off in your school?
A: I've asked them on--I can't count, but I've asked them on several occasions.
Q: When was the last time you asked them?
A: I don't recall. I haven't seen one this year.
(J.A. 177.)
I certainly agree with the principle put forth by the majority that regulation of First Amendment speech must be content neutral. Because the implicated portion of the school's dress code policy prohibiting any dress which would cause disruption is content neutral, however, I simply do not find a discussion of content neutrality dispositive in this case.