Boroff v. Van Wert City Bd of Educ.

• Decision Date: 10 March 2000
• Docket Number: No. 98-3869,98-3869
• Citation: 220 F.3d 465
• Parties: (6th Cir. 2000) Nicholas J. Boroff, Plaintiff-Appellant, v. Van Wert City Board of Education; John Basinger; William Clifton; and David Froelich, Defendants-Appellees. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 465

220 F.3d 465 (6th Cir. 2000)

Nicholas J. Boroff, Plaintiff-Appellant, v. Van Wert City Board of Education; John Basinger; William Clifton; and David Froelich, Defendants-Appellees.

No. 98-3869

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: March 10, 2000

Decided and Filed: July 26, 2000

Appeal from the United States District Court for the Northern District of Ohio at Toledo; No. 97-07622--David A. Katz, District Judge.

Chris K. Starkey, STARKEY LAW OFFICES, Fort Wayne, Indiana, for Appellant.

Gregory Bradford Scott, Scott, Scriven, & Wahoff, Columbus, OH, Paul R. Bonfiglio, LAW OFFICE OF PAUL R. BONFIGLIO, Toledo, Ohio, for Appellees.

WELLFORD, J., delivered the opinion of the court, in which SILER, J., joined. GILMAN, J. (pp. __-__), delivered a separate dissenting opinion.

Before: WELLFORD, SILER, and GILMAN, Circuit Judges.

OPINION

HARRY W. WELLFORD, Circuit Judge.

After Van Wert (Ohio) High School administrators told Nicholas Boroff that he was not allowed to wear "Marilyn Manson" T-shirts to school, Boroff's mother initiated this action on his behalf pursuant to 42 U.S.C. § 1983, alleging that the administrators' refusal to let him wear the T-shirts violated his rights under the First and Fourteenth Amendments. The district court entered summary judgment in favor of the Van Wert City Board of Education and each of the school administrators who were named as defendants. We AFFIRM the decision of the district court.

I. BACKGROUND

This dispute arises out of a high school student's desire to wear "Marilyn Manson" T-shirts to school, and the school's opposing desire to prohibit those T-shirts. Marilyn Manson is the stage name of "goth" rock performer Brian Warner, and also the name of the band in which he is the lead singer. See Encarta World English Dictionary (2000) http://dictionary.msn.com/find/entry.asp?search=goth> (defining "goth" as "a style of popular music that combines elements of heavy metal with punk" and also "a style of fashion . . . characterized by black clothes, heavy silver jewelry, black eye make-up and lipstick, and often pale face make-up"). Band members take the first part of their stage names from a famous model or celebrity, such as Marilyn Monroe, Madonna, or Twiggy, and the second part from a notorious serial killer, such as Charles Manson, John Wayne Gacy, or Richard Ramirez. Marilyn Manson (the individual) is popularly regarded as a worshiper of Satan, which he has denied. See Neil Strauss, Stage Fright, Rolling Stone, June 26 1997, at 20. He is also widely regarded as a user of illegal drugs, which he has not denied. In fact, one of his songs is titled "I Don't Like the Drugs (But the Drugs Like Me)." See David Brown, 1998: The Best and Worst/Music, Entertainment Weekly, Dec. 25, 1998, at 140; see also Gina Vivinetto, Marilyn Manson, Not Kinder, Not Gentler, St. Petersburg Times, Mar. 26 1999, at 23 (reporting that Manson no longer stores his drugs and drug paraphernalia in lunch boxes because "everyone . . . is carrying their paraphernalia that way. Too trendy").

On August 29, 1997, Boroff, then a senior at Van Wert High School, went to school wearing a "Marilyn Manson" T-shirt. The front of the T-shirt depicted a three-faced Jesus, accompanied by the words "See No Truth. Hear No Truth. Speak No Truth." On the back of the shirt, the word "BELIEVE" was spelled out in capital letters, with the letters "LIE" highlighted. Marilyn Manson's name (although not his picture) was displayed prominently on the front of the shirt¹. At the time, Van Wert High School had in effect a "Dress and Grooming" policy that provided that "clothing with offensive illustrations, drug, alcohol, or tobacco slogans . . . are not acceptable." Chief Principal's Aide David Froelich told Boroff that his shirt was offensive and gave him the choice of turning the shirt inside-out, going home and changing, or leaving and being considered truant. Boroff left school.

On September 4, 1997, which was the next school day, Boroff wore another Marilyn Manson T-shirt to school. Boroff and his mother met that day with Froelich, Principal William Clifton, and Superintendent John Basinger. Basinger told the Boroffs that students would not be permitted to wear Marilyn Manson T-shirts on school grounds. Undaunted, Boroff wore different Marilyn Manson T-shirts on each of the next three school days, September 5, 8, and 9, 1997. The shirts featured pictures of Marilyn Manson, whose appearance can fairly be described as ghoulish and creepy. Each day, Boroff was told that he would not be permitted to attend school while wearing the T-shirts.

Boroff did not attend school for the next four days following September 9, 1997. On the fifth day, September 16, 1997, his mother initiated the present suit in the United States District Court for the Northern District of Ohio, alleging that the administrators' refusal to allow her son to wear Marilyn Manson T-shirts in school violated his First Amendment right to free expression and his Fourteenth Amendment right to due process. (After his eighteenth birthday, Boroff was substituted for his mother as the plaintiff.) The complaint named as defendants the Van Wert City Board of Education, Chief Principal's Aide Froelich, Principal Clifton, and Superintendent Basinger (collectively, the School). Boroff requested a temporary restraining order and moved for a preliminary injunction. The district court, following a hearing on September 16, 1997, denied both. Following discovery, both Boroff and the School moved for summary judgment. In a memorandum and order dated July 6, 1998, the district court entered summary judgment in favor of the School. This appeal followed.

II. ANALYSIS

A. Standard of Review

We review de novo a district court's decision to grant or deny summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The judge is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists when there is sufficient "evidence on which the jury could reasonably find for the non-moving party." Id. at 252.

B. First Amendment Claim

"It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse." Bethel School District No. 403 v. Fraser, 478 U.S. 675, 683 (1986). While students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), the First Amendment rights of students in the public schools must be "applied in light of the special characteristics of the school environment." Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker, 393 U.S. at 506). With those precepts in mind, we apply the Tinker-Fraser-Kuhlmeier trilogy to the facts of this case.

In Tinker, a few students wore black armbands to school "to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them." Tinker, 393 U.S. at 514. The school prohibited the armbands and suspended any student who was found wearing them. The Supreme Court held that the school's actions violated the students' freedom of speech. The Court noted that "[t]he problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment. . . . Our problem involves direct, primary First Amendment rights akin to 'pure speech.'" Id. at 507-08. The Court concluded that to justify the prohibition of a particular expression of opinion, the school must "show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id. at 509. The prohibition of the armbands, the Court held, could not be sustained without showing that engaging in the prohibited conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).

Several years later, in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), the Court "cast some doubt on the extent to which students retain free speech rights in the school setting." Baxter v. Vigo County School Corp., 26 F.3d 728, 737 (7th Cir. 1994). In Fraser, the Court held that a school district acted within its permissible authority in disciplining a student who gave an offensively lewd and indecent speech at a school assembly. In reaching its conclusion, the Court noted "[t]he marked distinction between the political 'message' of the armbands in Tinker and the sexual content of respondent's speech in this case." Fraser, 478 U.S. at 680. The Court recognized "that the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings." Id. at 682. It distinguished Tinker because the vulgar and offensive speech at issue was "unrelated to any political viewpoint." Id. at 685. The Court ultimately held that the school district had the authority to determine that the vulgar and lewd speech at issue would undermine the school's basic educational mission. Id.

In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Court echoed its...