UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`)
`
`))
`
`))
`
`TOM DEFOE, a minor by and through his
`parent and guardian, PHIL DEFOE,
`
`Plaintiffs,
`
`v.
`
`)
`)
`)
`SID SPIVA, in his individual and official
`)
`capacity as Principal of Anderson County
`)
`Career and Technical School; MERL
`KRULL, in his individual and official capacity )
`as Assistant Principal of Anderson County
`)
`Vocational School; GREG DEAL, in his
`)
`individual and official capacity as Principal
`)
`of Anderson County High School; V. L.
`)
`STONECIPHER, in his official capacity as
`)
`Director of Schools for Anderson County;
`)
`JOHN BURELL, in his official capacity as
`)
`Chairman of the Anderson County School
`)
`Board; and THE ANDERSON COUNTY
`)
`SCHOOL BOARD,
`
`No.:
`
`3:06-CV-450
`(VARLAN/SHIRLEY)
`
`))
`
`)
`
`Defendants.
`
`MEMORANDUM AND ORDER
`
`This civil action is before the Court on plaintiffs’ Motion to Reconsider Motion to
`
`Amend Complaint [Doc. 71]. Defendants have responded in opposition [Doc. 78, 79] and
`
`plaintiffs have filed a reply [Doc. 85]; thus, the motion is now ripe for determination. The
`
`Court has carefully reviewed the motion and responsive filings in light of the applicable law.
`
`For the reasons set forth herein, plaintiffs’ Motion to Reconsider Motion to Amend
`
`Complaint [Doc. 71] will be granted.
`
`Case 3:06-cv-00450 Document 127 Filed 01/07/08 Page 1 of 6 PageID #: 562
`
`
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`)
`
`))
`
`))
`
`TOM DEFOE, a minor by and through his
`parent and guardian, PHIL DEFOE,
`
`Plaintiffs,
`
`v.
`
`)
`)
`)
`SID SPIVA, in his individual and official
`)
`capacity as Principal of Anderson County
`)
`Career and Technical School; MERL
`KRULL, in his individual and official capacity )
`as Assistant Principal of Anderson County
`)
`Vocational School; GREG DEAL, in his
`)
`individual and official capacity as Principal
`)
`of Anderson County High School; V. L.
`)
`STONECIPHER, in his official capacity as
`)
`Director of Schools for Anderson County;
`)
`JOHN BURELL, in his official capacity as
`)
`Chairman of the Anderson County School
`)
`Board; and THE ANDERSON COUNTY
`)
`SCHOOL BOARD,
`
`No.:
`
`3:06-CV-450
`(VARLAN/SHIRLEY)
`
`))
`
`)
`
`Defendants.
`
`MEMORANDUM AND ORDER
`
`This civil action is before the Court on plaintiffs’ Motion to Reconsider Motion to
`
`Amend Complaint [Doc. 71]. Defendants have responded in opposition [Doc. 78, 79] and
`
`plaintiffs have filed a reply [Doc. 85]; thus, the motion is now ripe for determination. The
`
`Court has carefully reviewed the motion and responsive filings in light of the applicable law.
`
`For the reasons set forth herein, plaintiffs’ Motion to Reconsider Motion to Amend
`
`Complaint [Doc. 71] will be granted.
`
`Case 3:06-cv-00450 Document 127 Filed 01/07/08 Page 1 of 6 PageID #: 562
`
`
`
`I.
`
`Relevant Facts
`
`Plaintiffs filed their complaint with this Court on November 20, 2006 alleging that
`
`they are entitled to relief under 42 U.S.C. § 1983 because defendants violated plaintiffs’ First
`
`and Fourteenth Amendment rights by prohibiting Tom Defoe from wearing clothing
`
`depicting the confederate battle flag at school. [Doc. 1.] On September 21, 2007, plaintiffs
`
`filed a Motion to Amend Complaint [Doc. 52] seeking to add claims for punitive damages
`
`and new factual allegations. The Court denied the motion and plaintiffs thereafter filed the
`
`Motion to Reconsider Motion to Amend Complaint [Doc. 71] now before the Court.
`
`II.
`
`Analysis
`
`Plaintiffs seek to amend their complaint after the time for doing so as a matter of
`
`course has expired and therefore require the Court’s leave. Leave to amend “shall be freely
`
`given when justice so requires.” Fed. R. Civ. P. 15(a). The Supreme Court has stated that
`
`leave to amend should be granted under Rule 15(a) unless there is “undue delay, bad faith
`
`or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
`
`amendments previously allowed, undue prejudice to the opposing party by virtue of
`
`allowance of the amendment, [or] futility of amendment.” See Foman v. Davis, 371 U.S.
`
`178, 182 (1962).
`
`The Court originally concluded and defendants argue that plaintiffs’ motion to amend
`
`should be denied because the amendments are frivolous. A motion for leave to amend may
`
`be denied for futility “if the court concludes that the pleading as amended could not
`
`withstand a motion to dismiss.” Midkiff v. Adams County Reg’l Water Dist., 409 F.3d 758,
`
`2
`
`Case 3:06-cv-00450 Document 127 Filed 01/07/08 Page 2 of 6 PageID #: 563
`
`
`
`767 (6th Cir. 2005) (citing Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 249 (6th
`
`Cir. 1986)). A motion to dismiss should not be granted unless, taking all well-pleaded
`
`allegations as true and construing them in the light most favorable to the non-moving party,
`
`there are not sufficient facts to make out all material elements of the claims. Trezbuckowski
`
`v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003); Weiner v. Klais & Co., Inc., 108 F.3d
`
`86, 88 (6th Cir. 1997).
`
`A plaintiff can recover punitive damages in a § 1983 case from an individual
`
`defendant if it is shown that the defendant engaged in behavior that was “motivated by evil
`
`motive or intent, or when it involves reckless or callous indifference to the federally
`
`protected rights of others.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999) (quoting
`
`Smith v. Wade, 461 U.S. 30, 56 (1983)); accord Parker v. General Extrusions, Inc., 491 F.3d
`
`596, 602 (6th Cir. 2007). Because the First Amendment protects free speech, “student
`
`expression may not be suppressed unless school officials reasonably conclude that [the
`
`speech] will ‘materially and substantially disrupt the work and discipline of the school.’”
`
`Morse v. Frederick, 127 S. Ct. 2618, 2620 (2007) (quoting Tinker v. Des Moines Indep. Cmty
`
`Sch. Dist., 393 U.S. 503, 513 (1969)).
`
`Plaintiffs allege that Tom Defoe wore depictions of the confederate battle flag to
`
`express pride in his southern heritage. [Doc. 71-2 at ¶ 12.] Plaintiffs allege in their proposed
`
`amended complaint that defendants banned Tom Defoe’s displays of the confederate battle
`
`flag despite knowledge that student displays of the flag are not likely to cause a substantial
`
`3
`
`Case 3:06-cv-00450 Document 127 Filed 01/07/08 Page 3 of 6 PageID #: 564
`
`
`
`disruption. [Doc. 71-2 at ¶ 23.] Taking these allegations to be true, they are sufficient to
`
`survive a motion to dismiss.
`
`Defendants also argue that plaintiffs cannot recover punitive damages because the
`
`individual defendants are entitled to qualified immunity. Qualified immunity does not shield
`
`public officials from liability for violating constitutional rights which are clearly established.
`
`Saucier v. Katz, 533 U.S. 194, 201 (2001).
`
`The precise boundaries of a student’s right to the freedom of expression at school in
`
`every factual scenario are unclear. See Morse v. Frederick, 127 S. Ct. 2618 (2007)
`
`(permitting a restriction of student speech when the speech is deemed to promote illegal drug
`
`use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (holding that school officials
`
`may restrict student speech in a school supported student newspaper); Bethel Sch. Dist. No.
`
`403 v. Fraser, 478 U.S. 675, 682 (1986) (upholding a ban of lewd student speech); Tinker
`
`v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (holding that students have a
`
`right to wear armbands in protest of the Vietnam War where it could not be shown that this
`
`expression “materially and substantially disrupt[ed] the work and discipline of the school”).
`
`However, it is clear that school officials may not regulate student displays of the
`
`confederate flag unless they determine that the speech causes a material and substantial
`
`disruption or officials reasonably forecast such a disruption, and any regulation is applied in
`
`a viewpoint neutral manner. Castorina v. Madison County Sch. Bd., 246 F.3d 536, 544 (6th
`
`Cir. 2001) (holding that a school ban of displays of the confederate battle flag was
`
`unconstitutional when there had not been any disruptions as a result of the confederate flag
`
`4
`
`Case 3:06-cv-00450 Document 127 Filed 01/07/08 Page 4 of 6 PageID #: 565
`
`
`
`and students were permitted to wear other racially divisive symbols, including Malcolm X-
`
`inspired clothing); see also Lowery v. Euverard, 497 F.3d 584, 592 (6th Cir. 2007) (citation
`
`and quotations omitted) (noting that school officials do not have to wait for a disruption to
`
`occur but can regulate speech if “it was reasonable for school officials to forecast a
`
`substantial disruption of or material interference with school activities”).
`
`Though the facts are in dispute, the law is clearly established for the factual scenario
`
`alleged by plaintiffs. In their proposed amended complaint, plaintiffs allege that “[t]here
`
`have been no disruptions of the learning environment at Anderson County High School
`
`caused by Plaintiff or other students wearing or displaying items bearing the Confederate
`
`flag” and “Anderson County High School permits students to wear clothing bearing other
`
`expression of viewpoints including items containing words and/or images referring to
`
`Malcolm X . . . .” [Doc. 71-2 at ¶¶ 15, 16.] Plaintiffs further allege that defendants Deal and
`
`Stonecipher know that student displays of the confederate flag are not likely to cause a
`
`substantial disruption at Anderson County High School or Anderson County Career and
`
`Technical Center. [Doc. 71-2 at ¶ 23.] These allegations, if true, present a factual scenario
`
`in which the law is clearly established that defendants could not constitutionally regulate
`
`plaintiff Tom Defoe’s speech. Accordingly, because plaintiffs have alleged sufficient facts
`
`to survive a motion to dismiss on the issues of whether the individual defendants are entitled
`
`to qualified immunity and thus whether plaintiffs can seek punitive damages, the Court finds
`
`that plaintiffs’ amendments are not frivolous.
`
`5
`
`Case 3:06-cv-00450 Document 127 Filed 01/07/08 Page 5 of 6 PageID #: 566
`
`
`
`III. Conclusion
`
`For the reasons discussed herein, plaintiffs’ Motion to Reconsider Motion to Amend
`
`Complaint [Doc. 71] is hereby GRANTED, this Court’s Memorandum and Order denying
`
`Plaintiffs’ Motion to Amend Complaint [Doc. 60] is hereby VACATED. Plaintiffs are
`
`directed to electronically file the amended complaint within five (5) days of the entry of this
`
`order.
`
`IT IS SO ORDERED.
`
`s/ Thomas A. Varlan
`UNITED STATES DISTRICT JUDGE
`
`6
`
`Case 3:06-cv-00450 Document 127 Filed 01/07/08 Page 6 of 6 PageID #: 567
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