Castorina v. Madison County School BD

• Decision Date: 07 December 2000
• Docket Number: No. 99-6309,99-6309
• Citation: 246 F.3d 536
• Parties: (6th Cir. 2001) Timothy Castorina, by and through his parent and guardian, Patsy Rewt, Plaintiff-Appellant, Tiffany Dargavell, by and through her parents and guardians, Greg and Sandra Dargavell, Plaintiff, v. Madison County School Board; Shannon Johnson; William Fultz; Shannon Johnson, as Superintendent of the Madison County School District; William Fultz, as Principal of Madison Central High School, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 536

246 F.3d 536 (6th Cir. 2001)

Timothy Castorina, by and through his parent and guardian, Patsy Rewt, Plaintiff-Appellant, Tiffany Dargavell, by and through her parents and guardians, Greg and Sandra Dargavell, Plaintiff, v. Madison County School Board; Shannon Johnson; William Fultz; Shannon Johnson, as Superintendent of the Madison County School District; William Fultz, as Principal of Madison Central High School, Defendants-Appellees.

No. 99-6309

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 7, 2000

Decided and Filed: March 8, 2001

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington: No. 98-00068, Henry R. Wilhoit, Jr., District Judge. [Copyrighted Material Omitted] Kirk D. Lyons, SOUTHERN LEGAL RESOURCE CENTER, INC., Black Mountain, North Carolina, Chadwick Kyle Sayre, Portsmouth, Ohio, for Appellant.

William H. Fogle, Mt. Sterling, Kentucky, for Appellees.

Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which GILMAN, J., joined. KENNEDY, J. (pp. 544-48), delivered a separate concurring opinion.

MERRITT, Circuit Judge.

OPINION

Principal William Fultz of Madison County High School twice suspended students Timothy Castorina and Tiffany Dargavell for wearing T-shirts displaying the Confederate flag; the rationale for the suspensions was that the T-shirts violated the school dress code, which bans clothing containing any "illegal, immoral or racist implications." Following their suspensions, the students brought suit challenging the constitutionality of the disciplinary actions and the district court granted summary judgment for the school board. After reviewing that decision, we find that we are unable to resolve the constitutionality of the school board's actions without knowing the manner in which the school board enforced its dress code and whether Madison County High School had actually experienced any racially based violence prior to the suspensions. As a result, material questions of fact remain which render this case inappropriate for summary judgment and we therefore remand this case to the district court for trial. Once the district court has made the necessary findings of fact, it should apply the legal framework set forth in this opinion.

I. Facts

In the fall of 1997, when all of the events in question took place, Timothy Castorina and Tiffany Dargavell were students at Madison Central High School, located in Madison County, Kentucky. Castorina was a junior and Dargavell a freshman. At the time, Castorina and Dargavell were dating. Neither had previously experienced any significant disciplinary problems.

On the morning of September 17, both plaintiffs arrived at school wearing matching Hank Williams, Jr. concert T-shirts given to them by Dargavell's father. Country music star Hank Williams, Jr. was pictured on the front of the T-shirts and two Confederate flags were displayed on the back, along with the phrase "Southern Thunder." The plaintiffs said that they were wearing the T-shirts in commemoration of Hank Williams, Sr.'s birthday and to express their southern heritage. When the two students went to the principal's office to change Dargavell's class schedule, the principal, William Fultz, informed them that the Confederate flag emblem violated the school's dress code. He gave the students the choice of either turning the shirts inside out for the rest of the day or returning home to change. Fultz based this instruction on his interpretation of the school's dress code, which prohibits students from wearing any clothing or emblem "that is obscene, sexually suggestive, disrespectful, or which contains slogans, words or in any way depicts alcohol, drugs, tobacco or any illegal, immoral, or racist implication." The dress code specified that if the violation could not be corrected at school, then the principal had the authority to send the offender home to change and to assign appropriate punishment. When Castorina and Dargavell refused to comply with his directives, Fultz called their parents. He explained to the parents that the clothing was a violation of the dress code, but that if the parents convinced the students to go home and change there would be no disciplinary action. If the students refused to change, they would be suspended for three days. The parents strongly supported their children's decision, and Fultz suspended each student. At the end of the three days, Castorina and Dargavell returned to school wearing the same shirts. Fultz again explained that the flag was offensive to other students and a violation of the dress code. When the parents reiterated their support for the students' desire to wear the T-shirts, Fultz suspended them for a second three-day period. Castorina and Dargavell never returned to Madison Central and were subsequently given home-schooling by their parents.

In ruling on the students' suit challenging their suspensions, the district court found that wearing the T-shirts did not qualify as "speech"and that even if it were "speech," the plaintiffs failed to show a First Amendment violation. In addition, the court rejected the plaintiffs' contention that the school dress code was vague and overbroad. The Court then dismissed all supplemental state claims without prejudice.

II. Analysis

This case raises two main questions: (1) does wearing the Confederate flag T-shirts qualify as the type of speech covered by the First Amendment, and (2) if so, is that speech protected given the special rules governing schools' authority to regulate student speech? The district court's answer to the first question -- that wearing the Hank Williams, Jr. T-shirts did not qualify as "speech" -- was incorrect. The plaintiffs wore the shirts to express a certain viewpoint and that viewpoint was easily ascertainable by an observer. On the second question, viewing all of the facts in the light most favorable to the plaintiffs, it appears that the school board enforced the dress code in an uneven and viewpoint-specific manner, thereby violating core values of the First Amendment. In addition, the school has not shown that the plaintiffs' conduct creates a likelihood of violence or other disruption that warrants this kind of regulation.

1. The Plaintiffs' Conduct was Speech Governed by the First Amendment. - In Texas v. Johnson, 491 U.S. 397 (1989) (the flag-burning case), the Supreme Court laid out the standard for what conduct constitutes expression protected by the First Amendment. This inquiry focused on "whether [a]n intent to convey a particularized message was present and [whether] the likelihood was great that the message would be understood by those who viewed it." Id. at 404. In the instant case, the district court concluded that the plaintiffs intended to commemorate Hank Williams, Sr.'s birthday. The court found that this was a particularized message, but that this message was unascertainable based on the plaintiffs' decision to wear a Hank Williams, Jr. T-shirt. The court characterized the wearing of these T-shirts as a "mere display" of a confederate flag and ruled that this did not result in a finding of protected speech. Both plaintiffs, however, testified that they intended to convey pride in their southern heritage in addition to any message associated with Hank Williams, Sr. The school board does not dispute the plaintiffs' claim that they also intended to affirm their southern backgrounds. The T-shirts prominently displayed two Confederate flags and the phrase "Southern Thunder." In addition, both Hank Williams, Sr. and Hank Williams, Jr. are singers whose songs have strong appeal in the South. We therefore conclude that the plaintiffs intended to express more than a mere appreciation for the life and music of either performer. Further, their decision to return to school at the end of the first suspension still wearing the T-shirts demonstrates that the students fully appreciated the message that school administrators understood the T-shirts to convey. Because the plaintiffs' intended expression was both a commemoration of Hank Williams, Sr.'s birthday as well as a statement affirming the plaintiffs' shared southern heritage, their decision to wear the Hank Williams T-shirts constitutes speech falling within the First Amendment.

2. The School Board's Authority To Regulate the Plaintiffs' Speech. - This case is governed by the Supreme Court's landmark decision concerning student speech, Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). While Tinker has been narrowed by two more recent cases, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), neither of these decisions altered Tinker's core principles concerning the circumstances under which public schools may regulate student speech. In Tinker, the Supreme Court struck down the school district's ban on the wearing of black armbands to protest the Vietnam War. Central to the decision was the fact that the school district did not ban other clothing that expressed controversial views, including Iron Crosses, which were often understood as symbols of Hitler and the Nazis. Tinker, 393 U.S. at 506-511. This aspect of the decision is consistent with a number of later Supreme Court decisions signaling that viewpoint-specific speech restrictions are an egregious violation of the First Amendment. See, e.g., Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 828-29 (1995) ("Discrimination against speech because of its message is presumed to be unconstitutional"), R.A.V. v. St. Paul, 505 U.S. 377, 391-92 (1992) (striking down a Minnesota hate-speech statute on the basis of impermissible viewpoint discrimination).

In contrast, Fraser concerned a school's decision to discipline a student after he used "offensively lewd and indecent speech" during a speech...