`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
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`)
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`))
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`))
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`TOM DEFOE, a minor by and through his
`parent and guardian, PHIL DEFOE,
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`Plaintiffs,
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`v.
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`)
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`SID SPIVA, in his individual and official
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`capacity as Principal of Anderson County
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`Career and Technical School; MERL
`KRULL, in his individual and official capacity )
`as Assistant Principal of Anderson County
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`Vocational School; GREG DEAL, in his
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`individual and official capacity as Principal
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`of Anderson County High School; V. L.
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`STONECIPHER, in his official capacity as
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`Director of Schools for Anderson County;
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`JOHN BURELL, in his official capacity as
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`Chairman of the Anderson County School
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`Board; and THE ANDERSON COUNTY
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`SCHOOL BOARD,
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`No.:
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`3:06-CV-450
`(VARLAN/GUYTON)
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`))
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`)
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`Defendants.
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`MEMORANDUM AND ORDER
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`Plaintiffs Tom Defoe, a junior at Anderson County High School, and his father Phil
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`Defoe, brought a § 1983 suit alleging that defendants, Anderson County school officials and
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`the Anderson County School Board, are violating plaintiffs’ First and Fourteenth
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`Amendment rights by prohibiting Tom Defoe from wearing clothing depicting the
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`confederate battle flag.
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`Case 3:06-cv-00450 Document 128 Filed 01/07/08 Page 1 of 11 PageID #: 568
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`This civil action is before the Court on Plaintiffs’ Motion and Memorandum of Points
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`and Authorities in Support of Motion to Reconsider Motion for Summary Judgment [Doc.
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`72] and defendants’ Motion for the Court to Reconsider Defendants Application for
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`Summary Judgment [Doc. 112]. The Court has carefully considered the pending motions and
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`responsive filings in light of the record as a whole and the applicable law. For the reasons
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`set forth herein, both Plaintiffs’ Motion and Memorandum of Points and Authorities in
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`Support of Motion to Reconsider Motion for Summary Judgment [Doc. 72] and defendants’
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`Motion for the Court to Reconsider Defendants Application for Summary Judgment [Doc.
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`112] will be denied.
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`I.
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`Relevant Facts
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`At the time of the incidents giving rise to this case, Plaintiff Tom Defoe was a high
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`school student who attended Anderson County High School and Anderson County Career
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`and Technical Center. [Doc. 63 at 2.] All Anderson County schools have a dress code policy
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`in effect which states in part:
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`Clothing and accessories such as backpacks, patches, jewelry, and notebooks must not
`display (1) racial or ethnic slurs/symbols, (2) gang affiliations, (3) vulgar, subversive,
`or sexually suggestive language or images; nor, should they promote products which
`students may not legally buy; such as alcohol, tobacco, and illegal drugs.
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`[Doc. 63 at 7.]
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`On October 30, 2006, Tom Defoe wore a t-shirt to school bearing the image of the
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`confederate battle flag. [Doc. 1 at ¶ 11; Doc. 14 at ¶ 12.] Anderson County High School
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`officials informed Tom Defoe that his shirt violated the school’s dress code policy, and he
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`2
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`was asked to remove the shirt or turn it inside out. [Doc. 1 at ¶ 11; Doc. 14 at ¶ 12.] Tom
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`Defoe refused to comply. [Doc. 1 at ¶ 11; Doc. 14 at ¶ 12.] Plaintiffs assert that Tom Defoe
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`was suspended in response to his refusal to comply, while defendants assert that he was
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`merely sent home. [Doc. 1 at ¶ 11; Doc. 14 at ¶ 12.] On November 6, 2006, Tom Defoe
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`wore a belt buckle depicting the confederate battle flag to school. [Doc. 1 at ¶ 12; Doc. 14
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`at ¶ 13.] Again, a school official informed Tom Defoe that his clothing violated the dress
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`code policy and when Tom Defoe refused to comply with the dress code, he was suspended
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`for insubordination. [Doc. 1 at ¶ 12; Doc. 14 at ¶ 13.] Prior to these two instances, Tom
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`Defoe wore clothing depicting the confederate battle flag to school on several occasions but
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`complied with requests to remove or cover the clothing. [Doc. 1 at ¶ 13; Doc. 14 at ¶ 14.]
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`Plaintiffs assert that there have been no disruptions to the learning environment caused
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`by displays of the confederate flag and that school officials and teachers stated that it was
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`unlikely that the confederate flag would cause a disruption at school. [Doc. 1 at ¶ 14; Doc.
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`50 at 6-7.] Defendants assert that there have been incidents of racial unrest, violence, and
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`general disruption of school activities as a result of displays of the confederate battle flag.
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`[Doc. 14 at ¶ 15.] Defendants cite testimony at the preliminary injunction hearing on January
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`30, 2007 describing racially-motivated incidents, at least one of which involved the
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`confederate flag, in support of this assertion. [Doc. 63; see also Hr’g Tr., Jan. 30, 3007.]
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`Plaintiffs assert Anderson County High School permits students to wear clothing bearing
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`other expressions of political or controversial viewpoints, including images referring to
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`Malcolm X, foreign national flags, and candidates for political office. [Doc. 1 at ¶ 15.]
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`3
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`Defendants deny that allegation. [Doc. 14 at ¶ 16.] Defendants plan to continue to enforce
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`the dress code ban on displays of the confederate flag. [Doc. 1 at ¶ 17; Doc. 14 at ¶ 18.]
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`II.
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`Standard of Review
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`Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if “the
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`pleadings, depositions, answers to interrogatories, admissions on file, together with the
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`affidavits, if any, show that there is no genuine issue of material fact and that the moving
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`party is entitled to judgment as a matter of law.” The burden of establishing there is no
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`genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S.
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`317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom
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`in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith
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`Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir.
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`2002). To establish a genuine issue as to the existence of a particular element, the non-
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`moving party must point to evidence in the record upon which a reasonable jury could find
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`in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue
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`must also be material; that is, it must involve facts that might affect the outcome of the suit
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`under the governing law. Id.
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`The judge’s function at the point of summary judgment is limited to determining
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`whether sufficient evidence has been presented to make the issue of fact a proper jury
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`question, and not to weigh the evidence, judge the credibility of witnesses, and determine the
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`truth of the matter. Id. at 249. Thus, “[t]he inquiry performed is the threshold inquiry of
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`determining whether there is the need for trial – whether, in other words, there are any
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`4
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`genuine factual issues that properly can be resolved only by a finder of fact because they may
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`reasonably be resolved in favor of either party.” Id. at 250.
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`III. Analysis
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`A.
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`Free Speech
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`While students do not “shed their constitutional rights to the freedom of speech or
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`expression at the schoolhouse gate,” students’ rights to free speech are limited. Tinker v. Des
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`Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). School officials may regulate
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`student speech which causes a material and substantial disruption to the learning
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`environment. Id. at 509. In applying Tinker, “[t]he Court must consider the content and
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`context of the speech, and the nature of the school’s response.” Lowery v. Euverard, 497
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`F.3d 584, 588 (6th Cir. 2007). While defendants question whether Tinker applies post-Morse
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`v. Frederick, 127 S. Ct. 2618 (2007), Morse addressed whether schools can regulate speech
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`that advocates drug use, and did not alter Tinker’s application here. See also Lowery, 497
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`F.3d at 596 (applying Tinker analysis post-Morse).
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`School officials do not have to wait for an actual disturbance to occur before they may
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`regulate speech. Tinker does not require certainty that a disruption will occur, only a
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`reasonable forecast of a substantial disruption. Lowery, 497 at 592 (quoting Pinard v.
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`Clatskanie Sch. Dist. 6J, 467 F.3d 755, 767 (9th Cir. 2006). Regulation of speech is
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`permissible if “it was reasonable for school officials ‘to forecast a substantial disruption of
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`or material interference with school activities.’” Lowery, 497 F.3d at 592 (citation omitted).
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`In a similar case, the Sixth Circuit held that the school does not have to wait for a disruption
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`5
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`caused by displays of the confederate battle flag to occur, but can regulate displays if school
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`officials can reasonably conclude that displays of the flag will lead to a disruption. D.B. v.
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`Lafon, 217 Fed. App’x 518, 524-25 (6th Cir.2007); see also Lowery, 497 F.3d at 596
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`(discussing the disastrous effect of requiring school officials to wait for an actual disturbance
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`to take place before acting).
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`Defendants assert that their forecast of a substantial disruption was reasonable because
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`there had been several instances of racial hostility at Anderson County High School and
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`Anderson County Career and Technical Center, at least one of which involved a display of
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`the confederate flag. [See, e.g., Doc. 63 at 11 (discussing display of confederate flag, the
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`purpose of which, in defendant Deal’s opinion, was to send a message that two new African-
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`American students were not welcome at Anderson County High School); Doc. 63 at 10-12
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`(recalling instances of racial slurs reported by minority students); Doc. 63 at 12 (describing
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`an incident at a basketball game when students threw Oreo cookies on the court when a
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`biracial player entered the game).] Plaintiffs assert that defendants could not have reasonably
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`forecasted a substantial disruption because they admit that displays of the confederate flag
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`are not likely to cause a substantial disruption at their schools. [Doc. 50 at 6-7.] Because the
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`determination of whether it was reasonable for defendants to forecast that plaintiff Tom
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`Defoe’s displays of the confederate flag would lead to a substantial disruption to the learning
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`environment is material to the outcome, summary judgment cannot be granted in favor of
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`either party on the issue of whether defendants’ regulation violated plaintiffs’ rights to free
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`speech.
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`6
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`B.
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`Equal Protection
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`Plaintiffs contend that even if regulation of racially divisive speech is permissible at
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`Anderson County High School and Anderson County Career and Technical Center, the
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`prohibition of displays of the confederate flag at issue here is impermissible because it
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`constitutes viewpoint discrimination. Plaintiffs are correct that Police Department of City
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`of Chicago v. Mosley prohibits unjustified viewpoint discrimination. 408 U.S. 92 (1972); see
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`also D.B. v. Lafon, 217 Fed. App’x at 523 (quoting Castorina v. Madison County Sch. Bd.,
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`246 F.3d 536, 544 (6th Cir. 2001)) (“[E]ven where past racial incidents justify a ban, schools
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`may not impose ‘a view-point specific ban on [some] racially divisive symbols and not
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`others.’”). Mosley notes that the government may “prohibit[] some picketing to protect
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`public order” as long as the prohibition meets a substantial government interest. 408 U.S.
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`at 98-99. The Mosley Court recognizes that preventing a school disruption is a legitimate
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`interest. Id. at 100. In determining whether some speech can be prohibited while other
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`speech is permitted, “the crucial question is whether there is an appropriate governmental
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`interest suitably furthered by the differential treatment.” Id. at 102.
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`One viewpoint may be regulated if it is shown that such a viewpoint is more disruptive
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`than other viewpoints. Mosley, 408 U.S. at 102 (citing Tinker, 393 U.S. at 511; Wirta v.
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`Alameda-Contra Costa Transit Dist., 434 P.2d 982 ( Cal. 1967). While the Mosley court
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`struck down the ordinance in question as unconstitutional, it can be distinguished because
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`it banned some peaceful picketing while allowing other peaceful picketing. See 408 U.S. at
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`94. The court determined that it was unreasonable for school officials to determine that one
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`7
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`form of peaceful protesting could cause a substantial disruption while another form of
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`peaceful protesting could not. Id. at 100-01. In Castorina, the Sixth Circuit, when viewing
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`the facts most favorably to the students, found that permitting students to display symbols
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`associated with Malcolm X but not the confederate flag was impermissible viewpoint
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`discrimination in a situation in which there was no showing that disruption occurred as a
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`result of the confederate flag displays. 246 F.3d at 542.
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`Here, the dress code facially prohibits all racially divisive symbols. [See Doc. 63 at
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`7 (providing dress code language).] Although plaintiffs contend that defendants’ application
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`of the dress code constitutes viewpoint discrimination because defendants do not prohibit all
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`expressions of political opinion, [see Docs. 1; 50], defendants dispute this fact, [see, e.g.,
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`Doc. 63 at 10 (Defendants Spiva and Deal have never seen any Malcolm X shirts at school);
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`Doc. 63 at 10, 12 (summarizing sworn statements of defendants Spiva and Deal stating that
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`they do not discriminate against any one political viewpoint)]. Defendants have also asserted
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`that there were disruptions at Anderson County High School and Anderson County Career
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`and Technical Center connected with displays of the confederate flag and that there were not
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`similar disruptions connected to non-banned symbols. [Doc. 63.] Therefore, the
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`circumstances in this case differ from those in Mosley and Castorina because there is a
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`dispute as to whether the school banned all racially divisive and disruptive displays, thus
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`applying the dress code in a viewpoint neutral manner, and therefore neither party is entitled
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`to summary judgment on this issue.
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`8
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`C.
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`Qualified Immunity
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`Defendants argue that summary judgment should be granted in favor of the individual
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`defendants on the basis that they are entitled to qualified immunity. The first step in
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`determining if qualified immunity applies is to determine if, viewing the allegations in the
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`light most favorable to plaintiffs, the facts show that defendants violated a constitutional
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`right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, the next step is to determine whether
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`that right is clearly established. Id. If the court determines that the right is clearly
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`established, qualified immunity does not shield the public officials from liability. Id.
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`Students do not “shed their constitutional rights to the freedom of speech or
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`expression at the schoolhouse gate.” Tinker, 393 U.S. at 506. Without a showing of a
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`substantial and material disruption to the school environment or a reasonable forecast of such
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`a disruption, a school cannot restrict a student’s display of the confederate flag. Lowery, 497
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`F.3d at 562. Even upon showing of a disruption, the speech cannot be restricted in a
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`viewpoint based manner. D.B., 217 Fed. App’x at 523. As discussed above, plaintiff alleges
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`that there have been no disruptions, it was not reasonable for defendants to forecast a
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`disruption, and defendants’ regulation of plaintiff Tom Defoe’s speech was based upon his
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`viewpoint. Viewing the facts in the light most favorable to the plaintiffs, for purposes of
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`summary judgment plaintiffs can satisfy the first part of the qualified immunity analyses.
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`Turning to the second part of the qualified immunity inquiry, whether students have
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`a clearly established right to free speech depends on the factual scenario. See Morse v.
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`Frederick, 127 S. Ct. 2618 (2007) (permitting a restriction of student speech when the speech
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`9
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`is deemed to promote illegal drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260
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`(1988) (holding that school officials may restrict student speech in a school supported student
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`newspaper); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (upholding a ban
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`of lewd student speech); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)
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`(holding that students have a right to wear armbands in protest of the Vietnam War where
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`it could not be shown that this expression “materially and substantially disrupt[ed] the work
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`and discipline of the school”); Castorina v. Madison County Sch. Bd., 246 F.3d 536, 544 (6th
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`Cir. 2001) (holding that a school ban of displays of the confederate battle flag was
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`unconstitutional when there had not been any disruptions as a result of the confederate flag
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`and students were permitted to wear other racially divisive symbols, including Malcolm X-
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`inspired clothing); see also Lowery v. Euverard, 497 F.3d 584, 592 (6th Cir. 2007) (citation
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`and quotations omitted) (noting that school officials do not have to wait for a disruption to
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`occur but can regulate speech if “it was reasonable for school officials to forecast a
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`substantial disruption of or material interference with school activities”).
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`The facts necessary to determine whether this case fits into the scenario where a
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`student’s right to display the confederate flag is clearly established are in dispute. Plaintiffs
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`allege that there have been no disruptions and defendants know that student displays of the
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`confederate flag are not likely to cause a substantial disruption at Anderson County High
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`School or Anderson County Career and Technical Center. [Doc. 71-2 at ¶ ¶ 15, 23.]
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`Plaintiffs further allege that defendants do not apply the dress code in a viewpoint neutral
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`manner. [Doc. 71-2 at ¶ 16.] Defendants allege that substantial disruptions have occurred
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`10
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`related to race and displays of the confederate flag. [Doc 63.] Additionally, defendants
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`contend that they do not engage in viewpoint discrimination. [Doc. 63 at 10, 12.] Because
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`these facts are in dispute, the Court cannot grant summary judgment to the individual
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`defendants on the basis of qualified immunity.
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`IV. Conclusion
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`For the reasons set forth herein, Plaintiffs’ Motion and Memorandum of Points and
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`Authorities in Support of Motion to Reconsider Motion for Summary Judgment [Doc. 72]
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`is hereby DENIED and defendants’ Motion for the Court to Reconsider Defendants
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`Application for Summary Judgment [Doc. 112] is hereby DENIED.
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`IT IS SO ORDERED.
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`s/ Thomas A. Varlan
`UNITED STATES DISTRICT JUDGE
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