West v. Derby Unified School Dist. No. 260

• Decision Date: 21 March 2000
• Docket Number: No. 98-3247,98-3247
• Citation: 206 F.3d 1358
• Parties: (10th Cir. 2000) TERRY WEST, individually and as guardian of a minor, T.W.; T.W., a minor, Plaintiffs-Appellants, v. DERBY UNIFIED SCHOOL DISTRICT NO. 260, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1358

206 F.3d 1358 (10th Cir. 2000)

TERRY WEST, individually and as guardian of a minor, T.W.; T.W., a minor, Plaintiffs-Appellants, v. DERBY UNIFIED SCHOOL DISTRICT NO. 260, Defendant-Appellee.

No. 98-3247

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 21, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 98-CV-1163) (23 F. Supp. 2d 1223)

[Copyrighted Material Omitted] Jason M. Sneed of Lathrop & Gage L.C., Overland Park, Kansas, for Plaintiffs-Appellants.

Jeffrey L. Griffith of Griffith & Griffith (M. Kathryn Webb and Richard J. Liby of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, Kansas, with him on the brief), Derby, Kansas, for Defendant-Appellee.

Robert L. Hawkins, III of Hawkins Law Offices, Jefferson City, Missouri, filed an Amicus Curiae Brief for Sons of Confederate Veterans, Inc., in support of Plaintiffs-Appellants.

Julie Underwood of National School Boards Association, Alexandria, Virginia, and Cynthia Lutz Kelly of Kansas Association of School Boards, Topeka, Kansas, filed an Amicus Curiae Brief in support of Defendant-Appellee.

Before BALDOCK, McWILLIAMS, and ANDERSON, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Derby Unified School District # 260 is a school district in Sedgwick County, Kansas, responsible for operating Derby Middle and High Schools. In response to incidents of racial tension between black and white students at Derby High School during 1995, the school district adopted a "Racial Harassment and Intimidation" policy which provides in relevant part:

District employees and student(s) shall not racially harass or intimidate another student(s) by name calling, using racial or derogatory slurs, wearing or possession of items depicting or implying racial hatred or prejudice. District employees and students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred. (Examples: clothing, articles, material, publications or any item that denotes Ku Klux Klan, Aryan Nation-White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other "hate" group. This list is not intended to be all inclusive). Violations of this policy shall result in disciplinary action by school authorities. For students there will be a three day out-of-school suspension for the first offense with a required parent conference prior to readmittance. . . .

(emphasis added).

Derby Middle School's assistant principal, Brad Keirns, suspended Plaintiff T.W., then a seventh grade student, for three days during the 1997-98 academic year after T.W. drew a Confederate flag on a piece of paper during math class in violation of the district's policy. T.W.'s father promptly filed suit for injunctive relief against the school district on his son's behalf under 42 U.S.C. § 1983, alleging that the school district's policy (1) violated his son's First Amendment free speech right, (2) was unconstitutionally vague and overbroad, (3) violated his son's Fourteenth Amendment right to procedural due process, and (4) violated his son's Fourteenth Amendment right to equal protection.

On the parties' cross motions for summary judgment, the district court ruled in favor of the school district on T.W.'s due process and equal protection claims. See West v. Derby Unified Sch. Dist. # 260, No. 98-1163-WEB, unpub. order (D. Kan. July 27, 1998). The court held that T.W. received the process due him because before deciding to suspend T.W., the assistant principal informed T.W. of the basis for the charge against him, and gave him an opportunity to present his side of events, which T.W. did in writing. Id. at 18. The court further held that the school district's policy did not violate equal protection by discriminating against students who possessed the Confederate flag to express a viewpoint, rather than for legitimate educational purposes. Id. at 18-19. The district court reserved ruling on the questions of whether the school district's policy violated T.W.'s free speech right, or was vague and overbroad, until after a bench trial.

Following trial, the district court entered judgment in favor of the school district on all counts. See West v. Derby Unified Sch. Dist. # 260, 23 F. Supp. 2d 1223 (D. Kan. 1998). As to T.W.'s free speech claim, the district court held that the school district's policy did not violate the First Amendment because "school officials in Derby had evidence from which they could reasonably conclude that possession and display of Confederate flag images, when unconnected with any legitimate educational purpose, would likely lead to a material and substantial disruption of school discipline." Id. at 1232. As to T.W.'s claim that the district's policy was overbroad, the court held that the policy was not unconstitutionally overbroad as applied by school administrators, because "the policy permits the administrator to consider whether the student's conduct was willful, whether the student displayed the symbol in some manner, and whether the conduct had the effect of creating ill will, and the district does not interpret the policy to prohibit the use or possession of such symbols for legitimate educational purposes." Id. at 1234-35. As to T.W.'s claim that the policy was void for vagueness, the court held that the policy provided T.W. fair warning of his prohibited conduct because T.W. knew he was violating the school district's policy when he drew the flag. Id. at 1235.

T.W. appeals, raising the same arguments against the school district that he did in the district court. We exercise jurisdiction under 28 U.S.C. § 1291. We review the ultimate question of the constitutionality of the school district's actions de novo. See United States v. Kimball, 73 F.3d 269, 272 (10th Cir. 1995). We review the underlying factual basis for the district court's decision for clear error. Id. Applying this standard, we affirm the judgment of the district court substantially for the reasons stated in the district court's two opinions.

I.

A detailed recitation of the district court's findings of fact in this case, which are amply supported by the record and neither party seriously disputes, is ably set forth in the district court's second opinion. West, 23 F. Supp. 2d at 1225-31. We need not fully repeat those findings here. Suffice it to say that in early 1995, several verbal confrontations occurred between black and white students at Derby High School. Some white students wore shirts bearing the image of the Confederate flag, while some black students wore shirts with an "X", denoting support for the teachings of Malcolm X. Members of the Aryan Nation and Ku Klux Klan became active off campus circulating materials to students encouraging racism. Around the same time, graffiti stating such things as "KKK" (Ku Klux Klan), "KKKK" (Ku Klux Klan Killer), and "Die Nigger" appeared on campus in bathrooms and on walls and sidewalks. School officials received reports of racial incidents on school buses and at football games. At least one fight broke out as a result of a student wearing a Confederate flag headband. The Derby Middle School was not immune from the racial tensions. Although the tensions were not widespread and involved relatively few students at the middle school, incidents occurred involving the Confederate flag. These included students drawing the Confederate flag on their notebooks and arms.

In response to the situation, the Derby School District organized a 350-member task force comprised of parents, teachers, and other community members to propose a course of action for the district. The task force recommended the adoption of a racial harassment policy to help alleviate the problem. The school district subsequently adopted the "Racial Harassment and Intimidation" policy at issue in this case. The policy resulted in a "marked decline of incidents of racial harassment and discord" in the school district. Id. at 1228. "The number of referrals in the middle school dealing with racial problems in the last two years are significantly lower than the number observed in 1996." Id.

At the beginning of each school year, the school district requires all students at the middle school to review a student handbook which sets forth the school district's policies, including the harassment and intimidation policy. In August 1997, T.W. signed an acknowledgment form stating: "'I have reviewed and understand the disciplinary policy at DMS as outlined in the DMS agenda book.'" Id. Teachers at the middle school then reviewed the policies in the handbook with students, including T.W. Nevertheless, T.W. became involved in numerous disciplinary incidents during the 1997-98 school year. At one point, T.W. received a three-day suspension for calling another student "blackie." After another incident, T.W. had an administrative conference with the school's assistant principal, who reviewed the harassment and intimidation policy with T.W. Accordingly, T.W. was well aware of the school district's policy prohibiting the drawing of the Confederate flag.

On April 14, 1998, during math class at the Derby Middle School, T.W., at the prompting of another student, drew a Confederate flag on a piece of paper. The other student took the drawing and showed it to the math teacher. The teacher turned the drawing over to the school's assistant principal. When confronted, T.W. admitted to the assistant principal that he had drawn the picture and provided a written statement regarding the occurrence.¹

Pursuant to the school district's policy, the assistant principal suspended T.W. from school for three days. The school district did not dispute that T.W. never intended to harass or intimidate any student by drawing the Confederate flag. The assistant principal, however, did consider certain factors outside the policy...