Sypniewski v. Warren Hills Regional Bd. of Educ.
| Citation | 307 F.3d 243 |
| Decision Date | 03 October 2002 |
| Docket Number | No. 01-3542.,01-3542. |
| Parties | Thomas SYPNIEWSKI, Jr.; Matthew Sypniewski; Brian Sypniewski v. WARREN HILLS REGIONAL BOARD OF EDUCATION; Peter Merluzzi, in his personal and official capacity as Superintendent of the Warren Hills Regional Board of Education; Beth Godett, in her personal and official capacity as Principal of the Warren Hills Regional High School; Ronald Griffith; Phillip Chalupa, in their personal and official capacity as Vice Principals of Warren Hills Regional High School; Elizabeth Ames; Marcy Matlosz; Ray Busch; Suyling Heurich; James T. Momary; Nancy Fallen; William Miller; Bradley Breslin; Scott Schantzenbach, in their official capacity as members of the Warren Hills Regional Board of Education Matthew Sypniewski; Brian Sypniewski, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Gerald Walpin, Esquire (Argued), Katten, Muchin, Zavis & Rosenman, New York, NY, for Appellants.
James W. Broscious, Esquire (Argued), Broscious, Glynn & Fischer, Washington, NJ, for Appellees.
Before: SCIRICA and ROSENN, Circuit Judges, and WARD, District Judge.*
At issue is the constitutionality, both facially and as applied, of a public school's racial harassment policy against a background of demonstrated racial hostility. The specific issue is whether the public school's policy violates the First Amendment protection of students' rights to free expression.
The Warren Hills School District's racial harassment policy was enacted in response to a pattern of disturbing racial incidents. Shortly thereafter, Thomas Sypniewski was suspended from school for wearing a "Jeff Foxworthy" T-shirt inscribed with "redneck" jokes. Thomas Sypniewski filed this lawsuit (together with his brothers Matthew and Brian) mounting a facial and as applied challenge to the constitutionality of the harassment policy and dress code.1
The Sypniewski brothers named as defendants: the Warren Hills Regional Board of Education; Peter Merluzzi, the superintendent of the board of education; Beth Godett, the principal of the high school; Ronald Griffith and Philip Chalupa vice principals of the high school; and Elizabeth Ames, Bradley Breslin, Ray Busch, Nancy Fallen, Suyling Heurich, Marcy Matlosz, William Miller, James T. Momary, and Scott Schantzenbach, all members of the board of education.
Plaintiffs moved for a preliminary injunction against further enforcement of the racial harassment policy. The District Court denied the request for injunctive relief. Plaintiffs have appealed.
The first racial incident cited by the District Court occurred in October 1999 at the high school.2 A white student dressed for Halloween "costume day" by wearing overall jeans and a straw hat and appearing in black face. He also wore a thick rope around his neck tied in a noose. The student was sent home and suspended. Also during that year, a high school student submitted a racial harassment complaint based on several students' wearing shirts bearing the Confederate flag.
The number of incidents grew during the 2000-2001 school year. Several students continued the practice of wearing clothing displaying the Confederate flag. Some formed a "gang-like" group known as "the Hicks," and observed "White Power Wednesdays" by wearing Confederate flag clothing. On Wednesday, September 20, 2000, a student walked down a main hallway in the high school waving a large Confederate flag. The flag was confiscated, but the student was not disciplined.
Several students complained about the flag waving incident to Ronald Griffith, a vice principal of the Warren Hills Regional High School. They also reported that some students were telling racially offensive jokes and disseminating racially offensive material downloaded from the Internet. Griffith spoke to two students involved in the events of September 20, who confirmed the existence of the Hicks and White Power Wednesdays. One of these students was suspended for possessing racially offensive materials.
Thomas Sypniewski acknowledges that he wore shirts displaying Confederate flags to school. In an October 4, 2000 local newspaper article about the Confederate flag at the high school, Thomas Sypniewski is pictured wearing a T-shirt displaying the text, "Not only am I perfect, I'm a Redneck too!" The word "redneck" is printed in such a way that a Confederate flag shows through the letters. Whether he was a member of the Hicks, however, is unclear. He denies it. The District Court expressly declined to make a finding on this issue. In any event, the record suggests he was at least friendly with members of the Hicks, a group that does not appear to have been formally organized. There is no evidence that the other two Sypniewskis were affiliated with the Hicks.
Vice Principal Griffith's investigation of these incidents revealed that the level of racial tension in the high school was significant. Many students were deeply offended by the actions of the Hicks and their friends. At least one student reported he "felt like" responding violently. The District Court also found the racial tension spilled over into the classroom, displacing class lessons with discussions about racial relations. But neither Thomas Sypniewski nor the word "redneck" was specifically mentioned by the students Griffith interviewed.
On December 1, 2000, a white student recently enrolled at the high school was harassed at home. Apparently in response to this student's association with several African-American students, a large group of teenagers drove to his house where they physically threatened the student and called him a "nigger lover," among other expletives.
White Power Wednesdays continued. Some high school students wore clothing bearing the Confederate flag throughout the fall and winter. A student came to school with a large Confederate flag draped over the back of his truck. Numerous instances of racist graffiti were found on school walls, some of which inspired hostile graffiti responses. On one occasion, some students played a dehumanizing, racist song from their trucks in the parking lot. Near the end of the school year, a fight occurred between a black student and a white student that resulted in one student sustaining a concussion and requiring stitches. And according to Superintendent Merluzzi, several students continued to engage in other "racially harassing behavior."
In short, the record clearly supports the District Court's finding that the Warren Hills public schools — particularly the high school — were afflicted with pervasive racial disturbances throughout the 2000-2001 school year.
The racial difficulties at the high school began to attract the attention of the community early on. The school board responded by placing the issue of Confederate flag clothing on the agenda of its regularly scheduled meeting on October 3, 2000. Several parents spoke on both sides of the issue, including both Sypniewski parents, who spoke against a proposed Confederate flag ban.
Superintendent Merluzzi also spoke at the meeting. Expressing concern for the students' free speech rights, he stated his view that the problem was limited to a sufficiently small number of students that it could be dealt with without adopting policy changes such as banning the Confederate flag. In particular, Merluzzi noted the existence of a peer mediation program, which he thought adequate to deal with many of the racial problems. The board of education shared Merluzzi's reluctance to implement a formal policy at that time, and instead resolved to investigate its options.
On October 20, 2000, Timothy Downs, the school district's Peer Mediation Coordinator, issued an internal report containing several findings concerning the racial strife at the high school during the preceding month.3 Based in part on these findings, Downs reached a conclusion different from that expressed by Superintendent Merluzzi at the October 3, 2000 board meeting. The report stated, "At this time this issue is too complex, involves too many people, and is too controversial for Peer Mediation Services." The report recommended that "[t]he wearing of the Confederate flag for non instructional purposes should be disallowed in the Warren Hills Regional School District."
By February 2001, after several months of continued racial problems, including regular wearing of clothing decorated with the Confederate flag and the off campus incident of December 1, the school district changed its view on the necessity of implementing a formal policy. According to Superintendent Merluzzi, "It was the consensus of the Board of Education and myself that there had been significant disruption in the school and that the minority population was at significant risk from, not only verbal and intimidating harassment but also, increasingly, the risk of physical violence."
The school board researched racial harassment policies that had been adopted by other school districts and selected a policy that had passed constitutional muster before the Court of Appeals for the Tenth Circuit. West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir.2000). The adopted policy reads, in part:
District employees and student(s) shall not racially harass or intimidate other student(s) or employee(s) by name calling, using racial or derogatory slurs, wearing or possession of items depicting or implying racial hatred or prejudice. District employees and students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred. ...
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