D.B. v. Lafon, No. 06-5982 (6th Cir. Feb. 21, 2007)
The U.S. Court of Appeals for the Sixth Circuit has ruled that officials at a Tennessee high school did not violate students’ free speech rights by prohibiting clothing that depicts the Confederate battle flag. (Sixth Circuit: MI, OH, KY, TN.) When some students wore T-shirts depicting the flag to William Blount High School, Principal Steve Lafon told them they would be suspended unless they covered up the symbols or removed the shirts. The Blount County Schools (BCS) dress code prohibits clothing that "causes disruption to the educational process." The students sued, claiming that their free speech rights were violated, that the school has permitted other controversial expressions, such as foreign flags, Malcolm X symbols, and political slogans, and that no disruption has resulted from the flag. School officials responded by reporting on racial tensions at the school during the 2004-05 and 2005-06 school years that required the stationing of county sheriff’s department deputies at the school. BCS had concluded that wearing the Confederate flag had a significant disruptive effect on the ability of school officials to maintain a proper education environment. The federal district court denied the plaintiffs’ request for a preliminary injunction barring enforcement of the ban, finding they had not demonstrated they were substantially likely to succeed on the merits of their case. The plaintiffs appealed to Sixth Circuit, arguing the lower court had erroneously concluded that school officials "had reason to believe that a student’s display of the Confederate flag might cause disruption."
The appeals court, however, found that the district court’s conclusion was not clearly erroneous, given the school’s recent history. In so ruling, the Sixth Circuit rejected the plaintiffs’ contention that the lower court’s finding "requires a presumption that the Confederate flag is per se ‘racially divisive’ and in essence rises to the level of judicially noticed fact." Noting that other courts have taken notice of the inherently racially divisive nature of the Confederate flag, the Sixth Circuit stated that "even if some recognition of the flag’s racially divisive nature is implicit in the district court’s finding, that finding is not rendered clearly erroneous thereby," and, "Even assuming that no students’ wearing of that symbol had caused a disruptive incident in the past, the district court nonetheless reasonably could conclude that displays of the Confederate flag would be likely to lead to unrest in the future."
The court also declined to find that the dress code was enforced in a viewpoint specific manner: "The plaintiffs presented no evidence showing how frequently or conspicuously other political symbols were worn by students, or even that school officials were aware of the presence of clothing depicting those other political symbols." While acknowledging the plaintiffs’ contention that the Confederate flag was the only symbol specifically mentioned when school officials announced the dress code, the court found the plaintiffs "have not produced sufficient evidence to show that the school’s policy probably imposes ‘a viewpoint-specific ban on [some] racially divisive symbols but not others."
Finally, the court found that the U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), does not require that "the banned form of expression itself actually have been the source of past disruptions." Rather, "subsequent appellate court decisions considering school bans on expression have focused on whether the banned conduct would likely trigger disturbances such as those experienced in the past." During the prior school year, the court noted, Blount "had been the scene of racial tension, intimidation and violence to such an extent that law enforcement officials were brought in to maintain order, and the school was defending against lawsuits depicting it as a racially hostile educational environment."
D.B. v. Lafon, No. 06-5982 (6th Cir. Feb. 21, 2007)
[Full opinion]
[Editor’s Note: Background on the case appears below at the first link. See also the information on similar disputes in other communities.]
[NSBA School Law pages on filing of lawsuit]
[NSBA School Law pages on Alvin, Texas dispute]
American School Board Journal
By Benjamin Dowling-Sendor
[Full article]