Barr v. Lafon

• Decision Date: 20 August 2008
• Docket Number: No. 07-5743.,07-5743.
• Citation: 538 F.3d 554
• 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

538 F.3d 554

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.

Argued: April 22, 2008.

Decided and Filed: August 20, 2008.

ARGUED:

Van R. Irion, Law Offices of Van R. Irion, Knoxville, Tennessee, for Appellants. LaJuana G. Atkins, Crawford, Crawford & Newton, Maryville, Tennessee, for Appellees.

ON BRIEF:

Van R. Irion, Law Offices of Van R. Irion, Knoxville, Tennessee, for Appellants. LaJuana G. Atkins, Norman H. Newton, Jr., Crawford, Crawford & Newton, Maryville, Tennessee, Robert N. Goddard, Goddard & Gamble, Maryville, Tennessee, Gary M. Prince, O'Neil, Parker & Williamson, Knoxville, Tennessee, for Appellees.

Before: MOORE and CLAY, Circuit Judges; SCHWARZER, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Derek Barr, Roger Craig White, and Chris Nicole White ("Plaintiffs-Appellants"), students at William Blount High School ("the school") in Blount County, Tennessee, would like to express their southern heritage by wearing clothing depicting the Confederate flag at school. They appeal the district court's grant of summary judgment to the principal of their school, Steven Lafon ("Lafon"), the director of the Blount County schools, Alvin Hord ("Hord"), and the Blount County School Board¹ on their First Amendment, Equal Protection Clause, and Due Process Clause claims.

I. FACTS AND PROCEDURE

A. Factual Background

1. Written Dress Code

The Blount County Board of Education issued a dress code on December 4, 2003 in recognition of "the effect that student dress and grooming have upon student behavior and learning." Joint Appendix ("J.A.") at 155 (Hord Aff. Ex. 1 at 1). Among other prohibitions, the dress code bars middle-and high-school students from wearing during the school day:

clothing which exhibits written, pictorial, or implied references to illegal substances, drugs or alcohol, negative slogans, vulgarities, or causes disruption to the educational process; wearing apparel that is sexually suggestive or that features crude or vulgar commercial lettering or printing and/or pictures that depict drugs, tobacco, alcohol beverages, racial/ethnic slurs or gang affiliation....

J.A. at 156 (Hord Aff. Ex. 1 at ¶ 4(f)) (emphasis added). On the first day of the 2005-2006 school year, in keeping with school policy, students attended a meeting at which they received a "[p]lanner" containing an agenda and school rules. Students' home-room teachers reviewed the planner with them, and the school asked both parents and students to sign a page of the planner indicating that they had read the policy. J.A. at 102 (Lafon Dep. at 26:19-27:7).

2. Announcement of the Ban on Clothing Displaying the Confederate Flag

At an assembly for the freshman class in August 2005, Principal Lafon told the class that "they would not be allowed to have Rebel flags or symbols of [the] Rebel flag on their clothing, or anything else that was a disruption to the school." J.A. at 102 (Lafon Dep. at 28:10-12). Lafon testified at his deposition that he did not mention any other flags as similarly banned because there were not "any other flags at that point that were causing disruption or that we knew had caused a disruption in the previous year." J.A. at 102 (Lafon Dep. at 28:17-23). Lafon told the students that "in general ... anything that is a disruption to the school learning environment would not be tolerated." J.A. at 103 (Lafon Dep. at 29:5-9).

3. Rationale for the Ban on the Confederate Flag and Racially Divisive Symbols

According to Hord, racial tensions at the school comprised the context for the clothing ban. Relevant incidents included racist graffiti that made general threats against the lives of African-Americans, graffiti containing "hit lists" of specific students' names, physical altercations between African-American and white students, and a police lockdown at the school. J.A. at 53-54 (Hord Aff. 3/10/06 at ¶¶ 3-4); J.A. at 111, 113-14, 115-16 (Hord Dep. at 17-18, 25-31, 36-39). Hord attests that "[b]ased upon the aforementioned incidents, the wearing of the `Confederate flag' by students during school hours has a significant disruptive effect on the proper educational environment of the students at the Blount County high school." J.A. at 54 (Hord Aff. 3/10/06 at ¶ 5). Of the approximately 1,750 students attending the school, less than ten percent are African-American. J.A. at 153 (Hord Aff. 4/3/07 at ¶ 10).

a. February 22, 2005 Altercation and other Altercations

Both sides in the instant case cite an incident that occurred on February 22, 2005 as the catalyst of heightened racial tension in the school. Barr recounted his observation of the incident. According to Barr, the incident involved a physical altercation at a basketball game in the gym, between an African-American student (whose name Barr did not know) and a Caucasian student named J.H. J.A. at 235 (Barr Dep. at 8:12-20). Barr did not remember exactly what the argument was about. J.A. at 235 (Barr Dep. at 8:21-23). Barr indicated that a third "racist" white student named C.P. "didn't like what the African-American kid was saying, and they got into it." J.A. at 235-36 (Barr Dep. at 8:24-9:3). The African-American student rounded up a group of friends, and Barr joined a "couple of other kids ... because [J.H.] was our friend and we didn't want to see him getting jumped by anybody." J.A. at 236 (Barr Dep. at 9:3-9). Before a physical altercation began, "the teachers and everybody got down there and split them up and everything like that and told them to go to class. And from then on there was a tight racist thing going on in the school." J.A. at 236 (Barr Dep. at 9:10-13). Barr testified that by "tight racist thing," he meant that the African-American students "tried to find anything they could to get" Caucasian students "in trouble." J.A. at 236 (Barr Dep. at 9:15-20).

The incident resulted in the parent of the African-American student involved in the February 22 altercation, whom the school suspended, filing a complaint with the Office of Civil Rights ("OCR") at the Department of Education alleging that the complainant's son received harsher discipline than a white student who did not receive a suspension. J.A. at 111 (Hord Dep. at 17-18); J.A. at 289 (OCR Letter at 1). OCR investigated the incident and concluded "that the witnesses did not substantiate the allegations that Student # 2 [a Caucasian student] engaged in fighting. All witnesses stated that Student #2 had not pulled back when Student # 1 pushed him into the bleachers." J.A. at 291 (OCR Letter at 3).² Furthermore, OCR concluded although "[t]he complainant reported that the two [Caucasian] HHS students threatened, used racial slurs or intimidating conduct (noose gestures) against [her son, African-American] Student # 1 [,] ... that allegation was not corroborated by witnesses." Id.

In addition to the February 22 incident, Hord attests that the school experienced "multiple racially motivated threats and physical altercations," but Hord does not specifically describe other physical altercations. J.A. at 53 (Hord Aff. 3/10/06 at ¶ 3(b)). Hord mentioned at his deposition an incident in January 2005 involving a mixed-race step team that he believed contributed to racial tensions at the school. J.A. at 111 (17:7-16).

b. Racist Graffiti and "Hit Lists"

In the spring of 2005, the school experienced multiple incidents of racist graffiti and graffiti containing "hit lists" with students' names. On March 23, 2005, School Resource Officer and Deputy Sheriff Joe Crisp investigated graffiti in the girls' restroom after an Assistant Principal at the school contacted him. J.A. at 183 (Crisp Aff. at ¶ 2). He did not take pictures because the custodians had painted over the graffiti before he arrived; however, he filed an incident report with the Sheriff's Office. J.A. at 183 (Crisp Aff. at ¶ 2). According to his report, the Assistant Principal told him that the phrase "all niggers must die" was accompanied by a list with future victims' names. J.A. at 188 (Incident Report).

Another incident involving racist graffiti occurred on April 1, 2005; the principal of the school contacted Crisp to ask him to investigate racial remarks on a restroom stall. J.A. at 183 (Crisp Aff. at ¶ 3). Crisp took pictures, J.A. at 377-384 (Photographs), and filed an incident report. J.A. at 183 (Crisp Aff. at ¶ 3); J.A. at 191 (Incident Report). Four days later, on April 5, 2005, Crisp took photographs of graffiti in a boys' restroom, J.A. at 202; the graffiti stated: "All niggers will still die on 4-13-05[.] It's time for a new revolution[.] KKK." J.A. at 184 (Crisp Aff. at ¶ 4); J.A. at 386 (Crisp Aff. Ex. 4). Deputy Sheriff Andy Waters took photographs of the graffiti in a boys restroom in the vocational wing of the school. J.A. at 392-411 (Photographs); J.A. at 206 (Investigative Report). The graffiti included the scrawled statements: "The South Will Rise Again," J.A. at 398-99 (Waters Aff. Ex. 2), and "Niggers `Hang em,'" written above a drawing of a noose next to the Confederate flag. J.A. at 404-09 (Waters Aff. Ex. 2).

The graffiti included a "hit list" with students' names. J.A. at 113-14 (Hord Dep. at 25-31); J.A. at 367 (Crisp Aff. at ¶ 2); J.A. at 369-72 (Crisp Aff. Ex. 1). Hord testified that he was not certain whether all the names on the list were those of minority students. J.A. at 114 (Hord Dep. at 29). Deputy Sheriff David Henderson stated in his report that the graffiti threatened "rednecks" as well as African-Americans. J.A. at 231 (Henderson Report). Plaintiff-Appellant Barr testified that the list was on paper and was shown to various students. J....