Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 1 of 28
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`FILED
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` 2005 Aug-12 AM 09:36
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ALABAMA
`NORTHEASTERN DIVISION
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`Case No.: 5:02-CV-1712-RDP
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`}}}}}}}}}}}
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`TYRON AND DELENE WHITE, et.
`al.,
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`Plaintiffs,
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`v.
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`RICKY NICHOLS and DEXTER
`RUTHERFORD,
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`Defendants.
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`MEMORANDUM OPINION
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`The court has before it Defendants’ Motion for Summary Judgment (Doc. # 49) and
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`Defendants’ Motion to Strike (Doc. # 63). The above-referenced motions have been fully briefed
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`and were under submission as of January 25, 2005. (Docs. # 47, 55).
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`The only remaining Plaintiffs in this case are Doyle Grimes, who brought suit on behalf of
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`Cody Grimes (“Cody”), a minor and a student at Lawrence County High School (“LCHS”), and
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`Blake Grimes (“Blake”), who was a minor at the time this case was filed but is now the age of
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`majority and a graduate of LCHS. (B. Grimes Depo. p. 8).1 Plaintiffs have sued Defendant Ricky
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`Nichols, the principal of LCHS, and Defendant Dexter Rutherford, superintendent of the Lawrence
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`County, Alabama School System, under 42 U.S.C. § 1983 and claim those Defendants have violated
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`their rights in the following ways: they have (1) deprived Plaintiffs of their rights under the First
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`Amendment to the Constitution of the United States; (2) discriminated against Plaintiffs on the basis
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`of national origin in violation of their rights to equal protection under the Fourteenth Amendment;
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` 1 All other Plaintiffs have voluntarily dismissed their claims. (Docs. # 68, 69). At the time of the
`incident made the basis of this lawsuit Blake was an eleventh grade student at LCHS (B. Grimes
`Depo. pp. 38-39), and Cody was an eighth grade student at LCHS. (C. Grimes Depo. pp. 10, 108).
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 2 of 28
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`(3) discriminated against Plaintiffs on the basis of race in violation of their rights to Equal Protection
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`under the Fourteenth Amendment; and (4) deprived Plaintiffs of their rights to due process under the
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`Fourteenth Amendment. (Doc. # 16). In addition to presenting certain arguments on the merits in
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`response to Plaintiffs’ claims, Defendants have asserted that Plaintiff Blake Grimes lacks standing
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`to pursue his claims and that both Defendants are due the protection of qualified immunity.
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`For the reasons outlined below, Defendants’ Motion for Summary Judgment is due to be
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`granted because there are no disputed issues of material fact and Defendants have demonstrated that
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`they are entitled to judgment as a matter of law. Defendants’ Motion to Strike will be denied.2
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`I.
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`Legal Standards for Evaluating a Summary Judgment Motion
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`Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings,
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`depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
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`show that there is no genuine issue as to any material fact and that the moving party is entitled to
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`judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking
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`for summary judgment always bears the initial responsibility of informing the court of the basis for
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`its motion and identifying those portions of the pleadings or filings which it believes demonstrate
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`the absence of a genuine issue of material fact. See id. at 323. Once the moving party has met his
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`burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and by his own
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`affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific
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` 2 The court has reviewed Defendants’ motion to strike and will assume, without deciding, for the
`purposes of summary judgment only, that it is due to be denied and that the evidence sought to be
`stricken is properly considered by the court in its summary judgment analysis. As the court is
`granting summary judgment in favor of Defendants, it finds that, even considering the evidence
`sought to be stricken, when the proper summary judgment standard is applied, Plaintiffs have not
`met their burden to refute the Defendants’ motion for summary judgment.
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`2
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 3 of 28
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`facts showing that there is a genuine issue for trial. See id. at 324.
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`The substantive law will identify which facts are material and which are irrelevant. See
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
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`and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of
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`Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
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`reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the
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`evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
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`See id. 249.
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`II.
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`Relevant Undisputed Facts3
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`On Friday, October 12, 2001, Principal Nichols announced over the school intercom system
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`at LCHS that, as of the following Monday, students would no longer be permitted to wear clothing
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`displaying the Confederate flag. (Nichols Depo. p. 101-103).4 Nichols had contacted Superintendent
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`Rutherford before announcing the ban and informed him of his intention. (Nichols Depo. p. 87).5
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`The ban applied only to LCHS; students at the Lawrence County School’s Vo-Tech facility were
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`permitted to wear Confederate symbols. (B. Grimes Depo. p. 55). Eighty-six (86) students signed
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` 3 If facts are in dispute, they are stated in the manner most favorable to the Plaintiffs. Fitzpatrick
`v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
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` 4 Although Plaintiffs initially thought that the ban included all Confederate symbols (B. Grimes
`Depo., p. 105; D. Grimes Depo., p. 69), Rutherford and Nichols have clarified that the ban covered
`just Confederate clothing. (Rutherford Depo., p. 118; Nichols Depo., p. 103). In fact, class rings
`with Confederate flag symbols were available for purchase at LCHS (through sales by third parties)
`and it is undisputed that the ban does not extend to jewelry/class rings or other non-clothing items.
`(Rutherford Depo., p 118; D. Grimes Depo., p. 39, 69; Nichols Depo., p 135).
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` 5 Nichols’ decision was subject to review by Superintendent Rutherford. (Nichols Depo. p.
`35-36).
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`3
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`a petition protesting the ban on Confederate symbols. (Doc. # 59, Ex. 7 C; 8 c, at p.1).
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`On the following Monday, a number of students wore Confederate flag shirts in violation of
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`the rule. (Nichols Depo. p. 104-106). Principal Nichols asked each student wearing Confederate
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`flag clothing if he or she was aware of the ban, and those who were not aware were permitted to
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`change clothes or cover their Confederate flag shirts for the remainder of the day. (Nichols Depo.
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`p. 104-106). Those who admitted that they were aware of the rule were suspended from school.
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`(Nichols Depo. p. 104-106).
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`Plaintiff Blake Grimes was one of the students who admittedly was aware of the ban but
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`nonetheless planned with other students to deliberately defy it. (B. Grimes Depo. p. 48-49, 50-51,
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`140).6 On Monday, October 15, Principal Nichols called Blake to his office to meet about the Dixie
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`Outfitters Confederate flag shirt he had worn that day, and Blake was allowed to explain his reasons
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`for wearing the shirt in violation of the ban. (B. Grimes Depo. p. 81, 92-93).7 Blake admitted that
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`he was aware of the rule, and he was suspended from school for three days. (B. Grimes Depo., p
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`83-84; Nichols Depo. 104).
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`Blake and his parents also met with Superintendent Rutherford about the ban on Confederate
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`clothing and Blake’s suspension. (B. Grimes Depo. p. 94-95; D. Grimes Depo. pp. 24-25). As a
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`result of the meeting with Rutherford, Blake’s suspension from school was removed from, or never
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`entered on, his permanent record. (B. Grimes Depo. p. 95-96). Also, as a result of the meeting Blake
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` 6 Blake told his parents on Sunday night that he intended to wear a Confederate flag shirt on
`Monday to protest the ban, and although his mother advised him against it, she did not forbid it. (B.
`Grimes Depo. p. 66).
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` 7 Blake’s mother was a substitute teacher at LCHS, and when he Principal Nichols called him to
`his office, his mother went with him. (B. Grimes Depo. p. 81).
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`4
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 5 of 28
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`was allowed to make up any missed school work during the suspension, including a math test that
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`he missed. (B. Grimes Depo. p. 97). Blake and his parents also attended the next regularly scheduled
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`board meeting. (B. Grimes Depo. pp. 101-102).8
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`Cody Grimes also learned about the ban when Principal Nichols announced it over the
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`intercom system at LCHS on October 12. (C. Grimes Depo. p. 29). Although Cody wore a
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`Confederate flag shirt to school the following Monday, he removed it when he learned that other
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`students were being suspended for violating the ban. (C. Grimes Depo. p. 46). Therefore, Cody was
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`not suspended from school. (C. Grimes Depo. p. 36). Cody testified that he had not planned with
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`other students to protest the ban but wore the shirt to defend his Southern heritage. (C. Grimes Depo.
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`p. 48-49).
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`At the time of the ban, the demographic composition of the student population at LCHS was
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`(approximately) less that 1% Hispanic, 12% African American, 23% Native American and the
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`remainder Caucasian. (Nichols Depo. p. 53-54). Principal Nichols testified that based upon his
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`observations at LCHS, there was a link between racial tension, interracial incidents, and students
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`wearing the Confederate flag. (Nichols Depo. p. 138-139). Prior to the ban, an African-American
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`female student and a White male student wearing a tee-shirt depicting a skull wearing a Confederate
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`flag “do-rag” were involved in an incident in which racial slurs were spoken to the minority student.
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`(Nichols Depo. p. 69-71; Doc. # 58, Ex. 5; Grimes Aff., p. 2 ¶¶ 1, 4).
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`Nichols also reported that in the Fall of 2001, the mother of an African-American female
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`student at LCHS complained to him that African-American students were concerned about the
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` 8 Plaintiffs’ attorneys also have met with Rutherford and the Lawrence County Board of
`Education in an attempt to persuade the school to rescind the ban on Confederate flag clothing.
`(Rutherford Depo. p. 126-129).
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`5
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 6 of 28
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`display of Confederate symbols at LCHS. (Nichols Depo. pp. 60-61). Between August and October
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`2001, one or two students reported to Nichols that a group of students, all wearing clothing
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`displaying Confederate flags, had spoken racial slurs in the hallway. (Nichols Depo. p. 65). Nichols
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`also testified that an African-American female student, whose name he cannot recall, reported feeling
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`ill because she was surrounded by Confederate flags and racial slurs spoken by unidentified students.
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`(Nichols Depo. p. 68-69; Doc. # 58, Ex. 4). No students had reported to Principal Nichols that the
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`Confederate flag itself had been used to intimidate them. (Nichols Depo., p. 76). However, all the
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`incidents that involved the Confederate flag and that were reported to Nichols involved students
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`wearing clothing that included the Confederate flag. (Nichols Depo. p. 76).9
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`III.
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`Standing and Mootness
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`As a threshold matter, this court must examine whether it has subject matter jurisdiction over
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`Blake Grimes’ claims in his case. FW/PBS v. Dallas, 493 U.S. 215, 231 (1990) (“The federal courts
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` 9 Although Plaintiffs’ summary judgment opposition asserts that “[the White student] using a
`racial slur to an African-American female student is the only agreed upon verifiable basis for Nichols
`banning the flag” (Doc. # 58, at No. 282), Blake Grimes admitted that he and other students
`understood that the ban was implemented because an African-American student and parent had
`complained that Confederate flag clothing was offensive to them. (B. Grimes Depo. p. 73).
`Moreover, although Plaintiffs dispute Nichols’ testimony that he received complaints about the
`Confederate flag and reports of racial incidents from students at LCHS, Plaintiffs do so primarily
`with affidavits of students who cannot possibly have personal knowledge of each and every
`complaint Nichols claims to have received. Rather, their testimonies fall into one or more of the
`following categories: (1) they admit that complaints could have occurred, but did not witness any
`incidents and/or they believe that any complaints were made by “trouble-makers,” (see e.g., Doc. #
`58, Ex. 8d, p. 2; C. Grimes Depo. 35-36); (2) they admit that complaints could have occurred, but
`they believe that the African-American students they know “have no problem with the Confederate
`flag,” (see, e.g., Doc. # 58, Ex. 8d, at p.2); or (3) they doubt that any complaints were made because
`they believe that if anyone had a problem with the Confederate flag, they “would have heard about
`it” (see, e.g., Doc. # 58, Ex. 8, at p. 2). This evidence is not sufficient to create a genuine issue of
`fact regarding Nichols’ testimony. Further, and in any event, Plaintiffs admit that, at the very least,
`one racial incident occurred as a result of Confederate flag clothing.
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`6
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 7 of 28
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`are under an independent obligation to examine their own jurisdiction.”); Focus on the Family v.
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`Pinellas Suncoast Transit Authority, 344 F. 3d 1263, 1272 (11th Cir. 2003) (finding that standing
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`and mootness should be addressed at the outset “because [they] directly implicate federal subject
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`matter jurisdiction”). It is undisputed that Blake graduated from Lawrence County High School in
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`2003 and is no longer a student in the Lawrence County School System. (B. Grimes Depo., pp. 8-9).
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`Standing and mootness are two companion components of jurisdiction. “The requisite
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`personal interest that must exist at the commencement of the litigation (standing) must continue
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`throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.
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`22 (1997) (internal quotations omitted). “In essence the question of standing is whether the litigant
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`is entitled to have the court decide the merits of the dispute or of particular issues.” Allen v. Wright,
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`468 U.S. 737, 750-51 (1984)(internal quotations omitted). A case becomes moot when it no longer
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`presents a live controversy with respect to which the court can give meaningful relief. Al Najjar v.
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`Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir.2001).
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`In this case, the court finds that it lacks subject matter jurisdiction over Blake Grimes’ claims
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`both because he lacks standing to assert them and because they have become moot. With respect to
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`standing, the Supreme Court has defined several requirements, all of which must be satisfied: (1)
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`an injury-in-fact, meaning an injury that is concrete and particularized, and actual or imminent; (2)
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`a causal connection between the injury and the causal conduct; and (3) a likelihood that the injury
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`will be redressed by a favorable decision. See Bennett v. Spear, 520 U.S. 154, 167 (1997).10 The
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`Eleventh Circuit has noted, “because injunctions regulate future conduct, a party has standing to seek
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` 10 The Supreme Court has also identified specific prudential considerations of standing, but none
`of those come into play here. Allen, 468 U.S. at 751; see also Bennett, 520 U.S. at 162.
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`7
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 8 of 28
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`injunctive relief only if the party alleges . . . a real and immediate – as opposed to a merely
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`conjectural or hypothetical – threat of future injury.” Wooden v. Board of Regents of University
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`System of Georgia, 247 F. 3d 1262, 1284 (11th Cir. 2001).
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`It is this requirement, which is specific to injunctive relief, that proves fatal to Blake’s claims.
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`Plaintiffs in this case seek only prospective injunctive relief in the form of a permanent injunction
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`and declaratory judgment. (Doc. # 16, at 18-19). Because Blake Grimes is no longer a student
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`subject to the Confederate ban that serves as the impetus for the claims in this case, he cannot allege
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`a real and immediate threat of future injury. Accordingly, Blake Grimes lacks standing to pursue
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`his claims for injunctive relief in this case. See Malowney v. Federal Collection Deposit Group, 193
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`F. 3d 1342, 1348 (11th Cir. 1999) (noting that “[i]njury in the past [] does not support a finding of
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`an Article III case or controversy when the only relief sought is a declaratory judgment”).11
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`Moreover, under the doctrine of mootness, Blake Grimes’ claims are no longer actionable.
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`“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally
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`cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). When events
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`subsequent to the commencement of a lawsuit create a situation in which the court can no longer
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`give the plaintiff meaningful relief, the case is moot and must be dismissed because any decision on
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`the merits of a moot case would be an impermissible advisory opinion. See Jews For Jesus, Inc. v.
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`Hillsborough County Aviation Auth., 162 F. 3d 627, 629 (11th Cir. 1998); Hall v. Beals, 396 U.S.
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` 11 Alternatively, Plaintiff claims that Blake’s father, Doyle Grimes, still has standing, because
`“parents have independent standing to bring constitutional challenges to the conditions in their
`children’s schools.” (Doc. # 56, at 8 (citing Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211,
`217 n. 2 (3d Cir. 2003)). The court agrees that Doyle Grimes still has standing to challenge
`Defendants’ actions with respect to his other minor son, Cody Grimes, but this has no effect on the
`now moot claims asserted by Blake Grimes. See Donovan, 336 F.3d at 217 n. 2 (citing Honig v.
`Doe, 484 U.S. 305, 320-322 (1988)).
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`8
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 9 of 28
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`45, 48 (1969). In this case, Blake is no longer subject to the rules and regulations of Lawrence
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`County Schools; therefore, there is no longer any live controversy in the present case to which the
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`court could give meaningful relief.
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`Relying on a non-binding Third Circuit case involving a challenge to religious speech in a
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`graduation ceremony, Plaintiff claims that “graduation from school does not automatically render
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`a case moot if the student’s claims are ‘capable of repetition, yet evading review.’” Donovan v.
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`Punxsutawney Area Sch. Bd., 336 F.3d 211, 216-17 (3d Cir. 2003). A quick review of Donovan,
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`however, demonstrates that it is not only distinguishable from this case, but also fails to support
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`Plaintiff’s contention that his claims for injunctive relief remain valid. In Donovan, Plaintiff sought
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`both money damages and injunctive relief. Donovan, 336 F.3d at 216-17. The Third Circuit held
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`that upon her graduation, the plaintiff’s claim for declaratory and injunctive relief became moot and
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`only her claim for damages continued to present a live controversy upon which the case could
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`proceed. Donovan, 336 F.3d at 217-18. As noted earlier, Blake has only sought injunctive relief in
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`this case and therefore under Donovan, his claims are no longer “capable of repetition.”
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`Accordingly, because the court finds that Blake Grimes has no standing to pursue his
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`injunctive relief claims in this case, and that his claims are moot, summary judgment will be granted
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`in favor of Defendants as to Blake Grimes’ claims.
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`IV.
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`Qualified Immunity
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`Defendants argue that Rutherford and Nichols are protected by the doctrine of qualified
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`immunity because they did not have final policymaking authority and because the school did not
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`have a policy or custom of banning Confederate symbols. (Doc. # 51, at 4). Plaintiffs respond by
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`arguing that Defendants did have final rule-making authority for the school and that regardless, the
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`9
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 10 of 28
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`school’s flag ban was a custom or practice within the meaning of Monell v. New York City Dep’t of
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`Social Svcs., 436 U.S. 658 (1978). Both parties’ arguments miss the mark. As outlined below,
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`neither qualified immunity nor the Monell analysis is applicable to this case because Defendants
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`have been sued only in their official capacities, and Plaintiffs have not sought money damages.
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`Under § 1983, suits against municipalities and other local government entities are permitted
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`under Monell, although liability is limited to situations in which the “execution of a government’s
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`policy or custom ... inflicts the injury.” Monell, 436 U.S. at 694. It is this Monell limitation upon
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`which Defendants base what they call their “qualified immunity” defense. (Doc. # 51, at 4-6).
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`Defendants’ argument confuses two separate bodies of law, neither of which are applicable to this
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`case.
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`First, Defendants inappropriately rely on Monell. It is undisputed that Plaintiffs have brought
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`claims against only Rutherford and Nichols in their official capacities – not against a municipality
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`or local governmental entity. Although generally a suit for monetary damages against an officer in
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`his official capacity is “in actuality, [a] suit[] directly against the [entity] that the officer represents,”
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`Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991)(quoting Kentucky v. Graham, 473 U.S.
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`159, 165 (1985), official capacity suits seeking only prospective injunctive relief are not deemed to
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`be suits against the entity, Ex Parte Young, 209 U.S. 123, 142-48 (1908). Because Plaintiffs seek
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`only prospective injunctive relief in this case, Ex Parte Young dictates that their claims are strictly
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`claims against Rutherford and Hayes. Monell, therefore, is inapplicable.
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`Second, Defendants erroneously call upon the doctrine of qualified immunity, which is not
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`available to Rutherford and Nichols because they have been sued in their official capacities. It is
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`well-settled that qualified immunity does not extend to claims against state actors in their official
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`10
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 11 of 28
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`capacities. Heggs v. Grant, 73 F.3d 317, 319 n.5 (11th Cir. 1996); Leatherman v. Tarrant County
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`Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 165-67 (1993); Lassiter v. Alabama A
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`& M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 n. 2 (11th Cir.1994). Because the qualified
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`immunity analysis has no place in this case,12 the court will not examine further the substance of
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`Defendants’ argument, and will now turn to the analysis of Plaintiffs’ claims.
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`V.
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`Plaintiffs’ First Amendment Claims
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` Plaintiffs’ First Cause of Action alleges that Defendants violated their First Amendment
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`right to freedom of symbolic expression by banning clothing displaying the Confederate flag.13 The
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`Eleventh Circuit has already considered the issue of school-imposed Confederate flag bans and
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`determined that such bans are not an unconstitutional restriction of the students’ First Amendment
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`rights. Scott v. School Board of Alachua County, 324 F. 3d 1246, 1247 (11th Cir. 2003). Because
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`this court finds no distinction between this case and Scott, summary judgment is appropriate on this
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` 12Defendants’ reliance on Denno v. School Board of Volusia County, Florida, 218 F.3d 1267
`(11th Cir. 2000) for their “qualified immunity” argument is also misplaced. In Denno, a public high
`school student who had been disciplined for displaying the Confederate flag at school sued the
`school board and two school administrators in their individual capacities under § 1983. Denno, 218
`F.3d at 1268. The court applied qualified immunity to shield the individual defendants from
`liability, and also found that the school board was not liable for the actions of the individual
`defendants under Monell because the individual defendants were not final policymakers and because
`Plaintiff failed to show that the board had a well-settled custom of banning the Confederate flag.
`Denno, 218 F.3d at 1270-75. As noted above, Plaintiffs in this case have not sued the board – such
`that Monell would apply – nor have Plaintiffs claimed monetary damages – such that qualified
`immunity would apply. Thus, Denno’s qualified immunity analysis is also inapplicable.
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` 13 Plaintiffs’ Second Amended Complaint also alleges that Defendants violated Plaintiffs’ First
`Amendment “right to inoffensively express their religious convictions, through the display of a
`venerated religious icon, Confederate battle flag,” and that Defendants have discriminated against
`Plaintiffs on the basis of religion in violation of the Equal Protection Clause of the Fourteenth
`Amendment. (Doc. # 16, at “Second, Ninth, and Tenth Causes of Action”). Plaintiffs have
`voluntarily abandoned their religion claims and therefore the court will not address them here. (Doc.
`# 56, at 13-22).
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`11
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 12 of 28
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`claim.
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`In Scott, the Eleventh Circuit addressed facts similar to the case at hand and affirmed the
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`constitutionality of the defendant school officials’ suspension of two students for violating an
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`unwritten ban on the display of Confederate flags on school grounds. Scott, 324 F. 3d at 1247. The
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`court held:
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`Although public school students’ First Amendment rights are not forfeited at the
`school door, those rights should not interfere with a school administrator’s
`professional observation that certain expressions have led to, and therefore could lead
`to, an unhealthy and potentially unsafe learning environment for the children they
`serve.
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`Scott, 324 F. 3d at 1247. The court reiterated that school officials can appropriately censure
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`students’ speech under either Tinker v. Des Moines Independent Comm. School Dist., 393 U.S. 503
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`(1969) or Bethel School District v. Fraser, 478 U.S. 675 (1986). Scott, 324 F. 3d at 1248. Tinker
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`proclaims that school officials can restrict students’ speech when they reasonably fear that certain
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`speech is likely to “appreciably disrupt the appropriate discipline in the school.” Denno v. School
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`Board of Volusia County Florida, 218 F. 3d 1267, 1271 (11th Cir. 2000), citing Tinker, 393 U.S. at
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`514. Alternatively, under Fraser, “even if disruption is not immediately likely, school officials are
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`charged with the duty to ‘inculcate the habits and manners of civility as values conducive both to
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`happiness and to the practice of self-government.’” Scott, 324 F. 3d at 1248, citing Denno, 218 F.3d
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`at 1271. Fraser mandates that officials have “the flexibility to control the tenor and contours of
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`student speech within school walls or on school property.” Scott, 324 F. 3d at 1248, citing Denno,
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`218 F.3d at 1271.14 The court in Scott found that the school officials’ Confederate flag ban satisfied
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` 14 As the Supreme Court stated in Fraser:
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`Surely it is a highly appropriate function of public school education to prohibit the
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`12
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 13 of 28
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`both tests and therefore was not an unconstitutional restriction on speech.
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`Likewise, this court finds that Defendants’ Confederate flag clothing ban was proper under
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`both Tinker and Fraser. Just as in Scott, Defendants in this case have presented evidence of racial
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`tensions at the school and other disruptions that appeared to be race-based and related to the display
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`of the Confederate flag. See Scott, 324 F. 3d at 1249. Nichols testified that prior to implementation
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`of the ban, more than one confrontation had occurred at LCHS involving students wearing
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`Confederate flag shirts. Nichols also had received reports from students (primarily minority
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`students) who either felt uncomfortable in the academic setting when surrounded by students
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`displaying the Confederate flag on their clothing, or reported having been harassed or intimidated
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`by those students. As noted earlier, although Plaintiffs dispute Nichols testimony, the court finds
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`that their dispute is not supported by the evidence to which they cite. See discussion footnote 9
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`supra. Regardless, even assuming that Plaintiffs had sufficient evidence to dispute Nichols’
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`testimony, they acknowledge (as they must) that at least one altercation ensued between a student
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`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.
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`The process of educating our youth for citizenship in public schools is not confined
`to books, the curriculum, and the civics class; schools must teach by example the
`shared values of a civilized social order. Consciously or otherwise, teachers – and
`indeed the older students – demonstrate the appropriate form of civil discourse and
`political expression by their conduct and deportment in and out of class.
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`Fraser, 478 U.S. at 683.
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 14 of 28
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`wearing a Confederate flag shirt and a minority student, and Blake Grimes admitted that he and other
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`students understood that the ban was implemented because an African-American student and parent
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`had complained that Confederate flag clothing was offensive to them. (B. Grimes Depo. p. 73). Thus,
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`this court finds that Defendants’ ban was constitutional under the Tinker standard.
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`Moreover, even in the absence of such evidence of racial tensions, it was not unreasonable
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`for Defendants to conclude that the Confederate battle flag has “uncivil aspects akin to those referred
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`to in Fraser, in that many people are offended when the Confederate flag is worn on a tee-shirt or
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`otherwise displayed.” Denno, 218 F.3d at 1274.15 As the Eleventh Circuit has noted, “[w]ords like
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`‘symbol,’ ‘heritage,’ ‘racism,’ ‘power,’ ‘slavery,’ and ‘white supremacy’ are highly emotionally
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`charged and reveal that for many, perhaps most, this is not merely an intellectual discourse. Real
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`feelings--strong feelings--are involved. It is not only constitutionally allowable for school officials
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`to closely contour the range of expression children are permitted regarding such volatile issues, it
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`is their duty to do so.” Scott, 324 F. 3d at 1249.16
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` 15 Plaintiffs pluck from Denno the Eleventh Circuit’s recognition that “the Confederate flag is
`honored by many as a non-racist memorial to their Southern heritage,” Denno, 218 F.3d at 1274, n.6,
`to bolster their argument that the display of the Confederate flag “clearly was an emotional matter
`of great public concern []and therefore [] should be permitted.” (Doc. # 56, at 19). Plaintiffs have
`grossly distorted the Eleventh Circuit’s analysis in Denno. What the court actually said is that it does
`not matter whether a plaintiff lacks racist intentions in displaying the Confederate flag or that other
`individuals revere the Confederate flag as a non-racist memorial to their Southern heritage; rather,
`the relevant issue is whether “the school official might reasonably think that other students would
`perceive the display as racist or otherwise uncivil.” Denno, 218 F.3d at 1274 n.6. This is but one
`of many occasions when Plaintiffs have taken statements out of context in a thinly veiled attempt
`to conceal the fact that the Eleventh Circuit has clearly pronounced their First Amendment claim
`unviable.
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` 16 The Eleventh Circuit’s conclusions above render meaningless Plaintiffs’ suggestion that it takes
`a finding of the school board that the Confederate Flag was a symbol linked to racial prejudice in
`order to justify Defendants’ actions in this case. (Doc. # 56, at 21-22).
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`Case 5:02-cv-01712-RDP Document 70 Filed 08/12/05 Page 15 of 28
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`The August 1995 decision by another judge of this court to take judicial notice that “the
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`wearing by a student in school of a shirt depicting a Confederate flag can cause dissension and
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`disruption” carries new weight in light of the Eleventh Circuit’s clear proclamation of thi