553 F.3d 463 (6th Cir. 2009), 07-5743, Barr v. Lafon

Docket Nº:07-5743.
Citation:553 F.3d 463
Party Name: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.
Case Date:January 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 463

553 F.3d 463 (6th Cir. 2009)

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.

No. 07-5743.

United States Court of Appeals, Sixth Circuit.

January 23, 2009

Van R. Irion, Attorney, Law Offices of Van R. Irion, Knoxville, TN, for Plaintiffs-Appellants.

Lajuana G. Atkins, Crawford, Crawford & Newton, Robert N. Goddard, Goddard & Gamble, Norman H. Newton, Jr., Maryville, TN, Gary M. Prince, O'Neil, Parker & Williamson, for Defendants-Appellees.

Page 464

Before MOORE and CLAY, Circuit Judges; and SCHWARZER, District Judge.[*]

ORDER

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...

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