Denno v. School Bd. Volusia County FL

• Decision Date: 20 July 2000
• Docket Number: No. 98-2718,98-2718
• Citation: 218 F.3d 1267
• Parties: (11th Cir. 2000) Linda DENNO, as parent, legal guardian and next friend for Wayne Denno, Plaintiff-Appellant, v. SCHOOL BOARD OF VOLUSIA COUNTY, FLORIDA; Dennis Roberts, an individual, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1267

218 F.3d 1267 (11th Cir. 2000)

Linda DENNO, as parent, legal guardian and next friend for Wayne Denno, Plaintiff-Appellant, v. SCHOOL BOARD OF VOLUSIA COUNTY, FLORIDA; Dennis Roberts, an individual, et al., Defendants-Appellees.

No. 98-2718.

United States Court of Appeals, Eleventh Circuit.

July 20, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Middle District of Florida. (No. 96-00763-CV-ORL-22B), Anne C. Conway, Judge.

ON PANEL REHEARING^*

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER^**, District Judge.

ANDERSON, Chief Judge:

Appellant, Linda Denno as parent and next friend for Wayne Denno ("Denno"), filed this complaint against Volusia County School Board ("Board") and Assistant Principals Dennis Roberts and Robert Wallace ("individual defendants") alleging deprivation of First Amendment rights in violation of 42 U.S.C. § 1983. With respect to the § 1983 claim against the individual defendants, the district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the basis of qualified immunity. With respect to the § 1983 claim against the Board, the district court granted summary judgment in favor of the Board. Denno appeals.

We address two discrete issues on appeal.¹ First, Denno contends that the district court erred in dismissing the § 1983 claim as to the individual defendants pursuant to Fed.R.Civ.P. 12(b)(6) on the basis of qualified immunity. Second, Denno argues that the district court erred in granting summary judgment in favor of the Board on the § 1983 claim. We address each issue in turn.

I. QUALIFIED IMMUNITY FOR THE INDIVIDUAL DEFENDANTS

Qualified immunity shields government officials from both suit and liability if their conduct violates no clearly established right of which a reasonable person would have known. See Santamorena v. Georgia Military College, 147 F.3d 1337, 1339-40 (11th Cir.1998)(citing Williams v. Alabama State Univ., 102 F.3d 1179, 1182 (11th Cir.1997)). Elaborating on the qualified immunity standard, we have held:

For qualified immunity to be surrendered, preexisting law must dictate, that is, truly compel, (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.

Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1150 (11th Cir.1994)(en banc). We also held in Lassiter that the qualified immunity standard sets up a bright-line test that is a powerful constraint on causes of action under § 1983. Quoting from and elaborating on Dartland v. Metropolitan Dade County, 866 F.2d 1321 (11th Cir.1989), we noted:

When "no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where [First Amendment case law] would lead to the inevitable conclusion that the [act taken against] the employee was unlawful." Unless a government agent's act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit.

Id. at 1149 (quoting Dartland, 866 F.2d at 1323-24). One way that a plaintiff can satisfy the qualified immunity standard is to point to case law which predates the official's alleged improper conduct, which case law involves materially similar facts and truly compels the conclusion that the plaintiff had a right under federal law. See Santamorena, 147 F.3d at 1340.²

Whether the instant complaint alleges a violation of such a clearly-established right is a question of law subject to de novo review. See Santamorena, 147 F.3d at 1340. The district court dismissed Denno's claim against the individual defendants pursuant to Fed.R.Civ.P. 12(b)(6) based on qualified immunity. In the posture of this case, we are required to assume all reasonable inferences from the complaint in favor of Denno. See id. We briefly summarize the facts alleged in the complaint that are relevant to this issue.

At the time of the events giving rise to the instant case, Wayne Denno was a minor and a student at Pine Ridge High School. Dennis Roberts and Robert Wallace were assistant principals at that school. As a hobby, Wayne Denno had cultivated a keen interest in Civil War history. In his free time, Denno participated in Civil War reenactments and living histories. His hobby led him to join a reenactment group known as the Florida Light Artillery, Battery B, with which he participated in Civil War reenactments and living histories both within Florida and elsewhere in the South.

On December 13, 1995, during an outdoor lunch break at school, Wayne Denno was quietly conversing with a small group of friends, discussing his avocation of Civil War history and his hobby as a Civil War reenactor. As part of this discussion, Wayne Denno displayed to his friends a 4" x 4" Confederate battle flag as he discussed historical issues of Southern heritage. Without any provocation or disruption, defendant Roberts approached and observed a couple of students with apparel bearing Confederate symbols. Without any explanation, defendant Roberts ordered the students to remove or cover the Confederate symbols on their apparel, and also ordered Denno to put away his small flag. When Denno tried to explain the historical significance of the flag, Roberts ordered Denno to accompany him to an administrative office and on the way there advised Denno that he was suspended from school. At the administrative office, another student was detained for wearing a tee-shirt displaying the Confederate flag, and ordered to turn his shirt inside-out so as to conceal the flag. Denno urged the student to adhere to his principles and not submit to the alleged violation of his First Amendment rights.

Denno's complaint alleges that his suspension constituted an unconstitutional deprivation of his First Amendment rights. As indicated in our elaboration above of the qualified immunity standard, pre-existing law must clearly establish the alleged constitutional right. Thus, we examine the legal landscape at the time of the individual defendant's actions. That legal landscape is dominated by two Supreme Court cases, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).

In Tinker, several Iowa high school and junior-high school students were suspended for wearing black armbands to school in protest of the Vietnam War. The Supreme Court found that the students "merely went about their ordained rounds in school" and "neither interrupted school activities nor sought to intrude in the school affairs or lives of others" by their wearing of the black cloth. Id. at 514, 89 S.Ct at 740. The Court held that a student has a First Amendment right to display the armband at school, notwithstanding the school officials' fear that display of the symbol would create a disturbance, so long as there was no more than an "undifferentiated fear or apprehension of disturbance." Id. at 508, 89 S.Ct. at 737. On the other hand, the Court in Tinker indicated that school officials could have appropriately prohibited the display of the armband if there were circumstances that would warrant a reasonable fear on the part of the school officials that the display would appreciably disrupt the appropriate discipline in the school. See id. at 514, 89 S.Ct. at 740.

In 1986, the Supreme Court again addressed the First Amendment rights of students in public schools. In Bethel Sch. Dist., No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549, a high school student was disciplined following his speech to a school assembly nominating a fellow student for student elective office. The speech contained explicit sexual metaphor. The Court held that the school district was within its permissible authority in imposing the discipline. After stating that one of the purposes of public education is to inculcate the habits and manners of civility as values conducive both to happiness and to the practice of self-government, the Court stated:

These fundamental values of "habits and manners of civility" essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these "fundamental values" must also take into account consideration of the sensibilities of the others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior.

Id. at 681, 106 S.Ct. at 3163. After noting that the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings, the Court stated:

Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the "fundamental values necessary to the maintenance of a democratic political system" disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the "work of the schools." Tinker, 393 U.S. at 508, 89 S.Ct. at 737.... The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.

The process of educating our youth for citizenship in public schools is not confined to books, the curriculum,...