Barr v. Lafon
| Decision Date | 23 January 2009 |
| Docket Number | No. 07-5743.,07-5743. |
| Parties | Derek BARR; Roger Craig White and Chris White, by and through their parent and guardian Roger White, Plaintiffs-Appellants, v. Steve LAFON, in his individual and official capacity as Principal of William Blount High School; Alvin Hord, in his official capacity as Director of Schools; and the Blount County School Board, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before MOORE and CLAY, Circuit Judges; and SCHWARZER, District Judge.*
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
BOGGS, Chief Judge, dissenting from the denial of rehearing en banc.
Prior to 1969, the ability of public school administrators to enforce their views of reasonable decorum with respect to political symbols was relatively uncontested. In that year, however, the Supreme Court's decision in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) established that students did not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 506, 89 S.Ct. 733. In the case of a student wearing a black armband, apparently as an antiwar protest, the court held that such a display of ideas (however open to interpretation) was constitutionally protected, so long as disruption of school activities could not reasonably be forecast. Absent evidence that certain expression "would substantially interfere with the work of the school or impinge upon the rights of other students," school authorities cannot prohibit it. Id. at 509, 89 S.Ct. 733.
While this new policy certainly had costs and benefits, and purported to apply evenhandedly to all symbols and ideas, it carried within itself the seeds of two possible difficulties. The first was whether schools and courts would export their degree of approbation of symbols into the degree to which they could "reasonably forecast" disruption. The second was the extent to which the policy would sanction a "heckler's veto," in the sense that it appeared to make no distinction as to whether the forecast disruption was by supporters or opponents of the symbols. Thus, in the Tinker case, the pacific response by any pro-war militants (even though, perhaps, angered by the symbol in the face of the recent deaths in combat of local military personnel) upheld Ms. Tinker's rights, while it was unclear whether an aggressive response by pacifists to military paraphernalia would justify the suppression of such items.
These seeds have come to some fruition in a number of recent cases such as Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir.2006), cert. granted and vacated as moot, 549 U.S. 1262, 127 S.Ct. 1484, 167 L.Ed.2d 225 (2007) and Guiles v. Marineau, 461 F.3d 320 (2d Cir.2006), cert. denied, ___ U.S. ____, 127 S.Ct. 3054, 168 L.Ed.2d 757 (2007).
Our case arises in a somewhat novel posture. In most cases under Tinker, court opinions have focused on what appeared to be an agreed-upon set of facts. In our case, however, the key issue is the extent to which disputes over facts are being treated by conventional summary judgment standards. In my view, as set forth below, were this an employment discrimination case or a tort dispute, let alone a case with the solicitude for careful examination of disputes of fact normally accorded First Amendment cases, this case would have gone to trial. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 567-68, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (). The key issue is whether the school administrators, in the circumstances of this case, reasonably forecast disruption based on permitting students to display symbols associated with the Confederate States of America.
Instead, in my view, of looking at the facts in the light most favorable to the students, and drawing all reasonable inferences in favor of the students, the court rather uncritically accepts the school administrators' point of view. I will outline a number of ways in which a reasonable jury could find, under that standard, that the administrators' explanation was not based on a reasonable forecast of disruption, rather than, for example, a desire to avoid political and public controversy—a reason not sanctioned by Tinker.
1. The precipitating incident for the policy was a tussle between two students, one black and one white, which led to a parental complaint and an investigation by the Department of Education Office of Civil Rights. The tussle had nothing to do with any symbolism, and the investigation found that the school had not discriminated by punishing the black student as the instigator and not the white student, who was found not to have responded.
Nonetheless, public controversy was aroused.
2. Depositions by the administrators indicated their belief that the mere offensiveness of the Confederate flag to some students provided a sufficient basis for concluding it was disruptive and could be suppressed, or to use the words of one school representative, something that is offensive "will sooner or later" result in a disturbance. JA 115, 122-23. At times, these administrators went still further, suggesting any historic basis for being offended could justify the censorship of expression in general and the Confederate flag in particular. The Blount County Director of Schools, Alvin Lee Hord, answered in the affirmative when asked whether he would continue to support...
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Defoe v. Spiva
...as to a reasonable forecast of substantial disruption is even weaker than in the questionable case of Barr v. Lafon. See 553 F.3d 463, 464–67 (6th Cir.2009) (Boggs, J., dissenting from denial of rehearing en banc). ...
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