UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`No.:
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`3:06-CV-450
`(VARLAN/SHIRLEY)
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`)
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`))
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`))
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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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`SID SPIVA, et al.,
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`Defendants.
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`MEMORANDUM OPINION
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`This civil action is before the Court on the Plaintiffs’ Motion and Memorandum in
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`Support of Motion to Reconsider Plaintiffs’ Motion for Summary Judgment [Doc. 340] and
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`defendants’ request for judgment as a matter of law contained within Defendants’ Post-trial
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`Memorandum of Facts and Law [Doc. 341]. The Court has reviewed all relevant filings,
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`including the transcripts of the trial of this matter [Docs.336; 337; 338], and for the reasons
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`stated herein, defendants’ request for judgment as a matter of law will be granted and
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`Plaintiffs’ Motion and Memorandum in Support of Motion to Reconsider Plaintiffs’ Motion
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`for Summary Judgment [Doc. 340] will be denied.
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`Case 3:06-cv-00450 Document 429 Filed 08/11/09 Page 1 of 22 PageID #: 3472
`
`
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`No.:
`
`3:06-CV-450
`(VARLAN/SHIRLEY)
`
`)
`
`))
`
`))
`
`)
`)
`
`))
`
`)
`
`TOM DEFOE, a minor by and through his
`parent and guardian, PHIL DEFOE,
`
`Plaintiffs,
`
`v.
`
`SID SPIVA, et al.,
`
`Defendants.
`
`MEMORANDUM OPINION
`
`This civil action is before the Court on the Plaintiffs’ Motion and Memorandum in
`
`Support of Motion to Reconsider Plaintiffs’ Motion for Summary Judgment [Doc. 340] and
`
`defendants’ request for judgment as a matter of law contained within Defendants’ Post-trial
`
`Memorandum of Facts and Law [Doc. 341]. The Court has reviewed all relevant filings,
`
`including the transcripts of the trial of this matter [Docs.336; 337; 338], and for the reasons
`
`stated herein, defendants’ request for judgment as a matter of law will be granted and
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`Plaintiffs’ Motion and Memorandum in Support of Motion to Reconsider Plaintiffs’ Motion
`
`for Summary Judgment [Doc. 340] will be denied.
`
`Case 3:06-cv-00450 Document 429 Filed 08/11/09 Page 1 of 22 PageID #: 3472
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`
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`I.
`
`Relevant Background1
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`Plaintiff Tom Defoe was a high school student who attended Anderson County High
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`School (“ACHS”) and Anderson County Career and Technical Center (“ACCTC”) until at
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`least December 20, 2007. All Anderson County schools have a dress code policy in effect
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`which states in part:
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`Apparel or appearance, which tends to draw attentions to an individual rather than to
`a learning situation, must be avoided.
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`***
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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.
`
`[Doc. 341.]
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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 flag. School officials informed Tom Defoe that his shirt violated the school’s
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`dress code policy, and he was asked to remove the shirt or turn it inside out. Tom Defoe
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`refused to comply and was sent home. On November 6, 2006, Tom Defoe wore a belt buckle
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`depicting the Confederate flag to school. Again, a school official informed Tom Defoe that
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`his clothing violated the dress code policy and when Tom Defoe refused to comply with the
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`dress code, he was suspended for insubordination. Prior to these two instances, Tom Defoe
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`1Because of the extensive history of this case, only the relevant facts and background are
`included in this discussion. Because much of the Court’s analysis focuses on whether defendants
`reasonably forecasted a material and substantial disruption, the facts discussed here focus on the
`testimony related to this issue.
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`2
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`
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`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.
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`Plaintiffs sued defendants claiming that Tom Defoe’s constitutional rights were
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`violated by the schools’ ban on displays of the Confederate flag. The case proceeded to trial
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`but ended in a mistrial after the jury was unable to reach an unanimous verdict.
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`At trial, Tom Defoe testified that he wore depictions of the Confederate flag to display
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`his pride for his southern heritage. Trial Tr. vol. 2, 49-50, 69, Aug, 12, 2008. He stated that
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`his father told him about his ancestors and his heritage and that the flag represents part of
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`who he is. Id. at 50. He also testified that he did not believe his displays of the Confederate
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`flag would cause any disruption at the school if there was no rule against such displays. Id.
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`at 62.
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`
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`Greg Deal, principal of ACHS, testified at trial that there had been some racially
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`motivated incidents and interactions before the 2006-2007 school year that caused him to be
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`concerned about students displaying the Confederate flag. Id. at 104. He further stated that
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`he believed that a disruption or interference with the learning environment would likely occur
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`if the ban was lifted tomorrow. Id. at 148. However, he admitted that he previously stated
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`in a deposition that he would not expect a disruption to occur in the school at that time
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`because of the Confederate flag’s presence. Id. at 104; 148. He clarified at trial that he
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`meant that he did not think a display of the flag would cause fight or a riot because there was
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`only one African-American student and he could not do much on his own, but that student
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`may have felt threatened or intimidated. Id. at 105-06. Specifically, he stated,
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`3
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`
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`I think that if a student comes into your school, a minority student comes into your
`school, and he walks down a hallway and there’s a group of young men standing there
`with rebel flags on their t-shirts, and they call him the ‘n’ word or they tell him, ‘get
`your ass out of our hallway,’ that’s a disruption. That has happened.
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`Id. at 106.
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`He also described an incident when students used the Confederate flag to intimidate
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`others. Id. at 108. He stated that two days after two African-American young men enrolled
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`in the school, he found a big Confederate flag hanging in the hallway of the school. Id. He
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`testified that when he went to take it down, there was a group of “good ol’ boys” laughing
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`and snickering. Id. at 109. From the circumstances, Mr. Deal stated that he concluded the
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`flag was hung to send the message that the African-American men were not welcome at the
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`school. Id.
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`Additionally, Mr. Deal stated that he has observed racism both in the community and
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`at the school, including people telling him that they are lucky not to have any black people
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`at ACHS. Id. at 118. He stated that he went into the 2005-2006 school year anticipating
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`trouble because of his experience in the community and the fact that he had an African-
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`American student enrolling. Id. at 119.
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`Mr. Deal described an incident that occurred at a basketball game in January 2005
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`between ACHS and Clinton High School. During the warm-up, Oreo cookies were thrown
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`onto the court from the ACHS student section. Id. at 123. During his investigation of the
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`incident, students told Mr. Deal that they had thrown the cookies on the floor because a
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`player from Clinton High School was bi-racial. Id. at 124. The Clinton High School
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`4
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`
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`student’s father wrote a letter to the editor that was printed in the Clinton Courier stating that
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`the ACHS students were racist and the school administration needed to do something about
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`it. Id.
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`Mr. Deal recalled an incident that occurred in September 2003 when some Hispanic
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`students were harassed by self-proclaimed “rednecks” on the basis of their race. Id. at 124-
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`26. Mr. Deal stated that the Hispanic students came in to talk to him and reported “the
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`rednecks are harassing us. When we walk by they called us dirty niggers, sand niggers and
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`dirty Mexicans and said you need to leave, get out of our school.” Id. at 126. The Hispanic
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`students complained that some of the harassing students were wearing shirts with an image
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`of the Confederate flag. When Mr. Deal went to investigate, the group referred to as the
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`rednecks denied the name calling, but those wearing Confederate flag shirts agreed to turn
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`them inside out. Id.
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`Mr. Deal described a situation in which an African-American student from Clinton
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`High School attended at Leadership class at ACHS and was called a “nigger” by several
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`white students. Id. at 130-31. He investigated the situation but was unable to identify the
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`responsible students. Id. at 131-32.
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`Mr. Deal stated that he has observed several instances of racially charged graffiti at
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`ACHS. Id. at 132-142. He described graffiti in the auditorium as being a swastika with “the
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`‘F’ bomb, ‘hell yeah,’ ‘niggers,’ [and] ‘white power’” written near it. Id. at 133. On the
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`football bleachers, he discovered graffiti reading, “White 4 Life” and “I Hate Niggas, J/K
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`AVM.” Id. at 135-40. He indicated that he understood J/K to mean “joking” and AVM to
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`5
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`
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`mean “Andersonville Mafia,” a name used by a group of students who are “gangsters.” Id.
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`at 140-41. Additionally he observed the name of an African-American young man and the
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`name of girl he dated along with “something about nigger-lover, white girl, black boy” and
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`a drawing of a hangman’s noose by the pole vaulting pit at the school. Id. at 142-43.
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`Mr. Deal stated he never saw a student wear a shirt with a picture of Malcolm X,
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`Martin Luther King, or a black fist on it. Id. at 147. He stated that one of those displays
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`would likely cause a reprisal and that if he saw a shirt with Malcolm X on it, he would ban
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`it. Id.
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`Mr. Deal testified that when he started as assistant principal in 1998, he did not like
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`the Confederate flag ban in the dress code because he did not understand the need for it. Id.
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`at 127. However, after witnessing different events at the school, his feelings about the policy
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`changed and now he agrees with it. Id. at 127-28.
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`Sidney Spiva, former principal at ACCTC, stated that the Confederate flag ban is
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`intended to avoid offending certain students. Trial Tr. vol. 1, 135, Aug. 11, 2008. He stated
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`that he believed that there could be a conflict if Tom Defoe approached certain students who
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`did not share his viewpoint on the Confederate flag while displaying the flag on his clothing.
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`Id. at 123. Mr. Spiva testified that he believes that a disruption or interference in the learning
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`environment would occur if the ban were lifted. Id. at 146-47. However, Mr. Spiva also
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`stated that he would enforce the ban even if he knew the particular display was not going to
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`cause any disruption. Id. at 122; 135-36.
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`6
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`Mr. Spiva testified that a student wore a “very racially charged” and “offensive” shirt
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`to school one day and he asked the student to remove it before classes started and the student
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`complied. Id. at 128-29; 139-40. He stated that had the student not have removed the shirt,
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`the school would have received complaints about it from minorities and from the general
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`school population. Id. at 140. He stated that the shirt would have “most definitely” caused
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`a disruption or interfered with the learning environment at the school. Id. at 146.
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`Mr. Spiva testified that he would not allow a student to wear a t-shirt with a black fist
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`on it but he would allow an image of Martin Luther King to be displayed if he did not have
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`any basis for thinking it would cause a problem. Id. at 132-33. However, he had never seen
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`either of the images displayed on a shirt at his school. Id. at 146.
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`Merl Krull, former assistant principal at ACCTC, testified that the Confederate flag
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`is banned because it offends some people and “[i]t interferes with the educational process.”
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`Trial Tr., vol. 2, 14, Aug. 12, 2008. Mr. Krull reported that Tom Defoe’s displays of the
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`Confederate flag caused disruptions in the form of discussions about the flag between
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`students in the hallway between classes. Id. at 9, 14. He also stated that he believed that
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`there would be more incidents with students getting into arguments about the Confederate
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`flag if the ban was lifted. Id. at 14. However, Mr. Krull testified that he would enforce the
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`ban even if he knew the flag would not cause a disruption at the school. Id. at 14; see also
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`id. 8.
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`Mr. Krull cited one specific occasion when a teacher brought one of his students to
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`Mr. Krull’s office because she was very upset about something that happened in the
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`7
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`classroom and wanted to call home. Id. at 12. Mr. Krull determined that the student had
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`been called some racist and inappropriate names in reference to her Caucasian mother and
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`African-American father. Id. at 12.
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`John Burrell, chairman of the Anderson County School Board, stated that the Board
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`decided to ban anything that they felt would be disruptive to students in the school systems
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`and they determined that the Confederate flag fell within that category. Trial Tr. vol. 1, 33-
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`34, Aug. 11, 2008. He stated that the School Board would not consider lifting the ban as
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`long as the flag was disruptive to any group of students in the system, but if it was not
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`disruptive, he would not oppose displays of the Confederate flag. Id. at 39.
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`He testified that even if the principal from ACHS reported that a display of the
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`Confederate flag was not likely to cause a disruption in his school, he would still ban it
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`because it was a system-wide ban. Id. at 40. However, he then stated that he did think the
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`ban was necessary at ACHS because there have been “enough racial incidences there to
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`warrant it.” Id. at 45. He cited the incidents involving the display of the Confederate flag
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`in the hallway immediately after the enrollment of two African-American students and the
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`basketball game when Oreo cookies were thrown on the floor. Id. at 45-46.
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`Dr. Burrell specifically stated, “I would be against removing the ban as long as we
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`have a racially mixed group [of students] with some of those students who I think it would
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`be offensive to.” Id. at 48-49. He testified that after a student was offended, “the next step
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`is a fight, a riot, that type of situation. We want a safe environment for our school for our
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`8
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`students to be educated.” Id. at 63-64. He testified that if a child was sitting in class and
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`something is offensive to him, that could impact his learning. Id. at 64.
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`V.L. Stonecipher, Director of Schools for the Anderson County School Board, stated
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`that it is the school board’s interpretation of the code of conduct that the Confederate flag is
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`banned in all Anderson County Schools. Id. at 68. He stated that he did not recall a
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`discussion by the school board regarding a ban of the Confederate flag, but said that instead,
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`“we’ve always looked at things as to whether or not they are going to be a distraction,
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`whether it’s going to be dangerous or whether it’s going to create a dangerous disagreement.”
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`Id. at 71.
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`He stated that he would have enforced the ban even if the principal told him that the
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`flag was unlikely to cause a disruption in a particular school. Id. at 83. He testified that he
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`could not confirm that there were some schools in the county where the Confederate flag
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`would not cause a disruption. Id. at 81-82. He stated that preventing some students from
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`being offended justified the ban. Id. at 83.
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`Mr. Stonecipher testified that displays of the Confederate flag would be a distraction
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`to any student who was offended by it and could escalate to some type of conflict or
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`violence. Id. at 99. He went on to testify,
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`Once a student’s offended, sometimes they can become irrational, and when you have
`those disagreements occurring they can be dangerous disagreements. When those –
`when you have what I consider to be dangerous disagreements, there’s, most of the
`time, there’s going to be some type of conflict or violence.
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`9
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`
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`Id. at 99. He stated that during his forty-three years in the Anderson County School System,
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`he experienced several instances of racial hatred. Id. at 96-97.
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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., 475 U.S.
`
`at 587; Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue
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`as to the existence of a particular element, the non-moving party must point to evidence in
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`the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby,
`
`Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must
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`involve facts that might affect the outcome of the suit under the governing law. Id. To
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`defeat a motion for summary judgment, the opposing party “may not rely merely on
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`allegations or denials in its own pleading; rather, its response must--by affidavits or as
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`otherwise provided in this rule--set out specific facts showing a genuine issue for trial.” Fed.
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`R. Civ. P. 56(e).
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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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`10
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`question, and not to weigh the evidence, judge the credibility of witnesses, or determine the
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`truth of the matter. Anderson, 477 U.S. at 249. Thus, “[t]he inquiry performed is the
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`threshold inquiry of determining whether there is the need for trial – whether, in other words,
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`there are any genuine factual issues that properly can be resolved only by a finder of fact
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`because they may 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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`Procedural Errors
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`Before reaching the merits of the pending motions, the Court will address plaintiffs’
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`argument that defendants should not be granted any relief due to procedural errors with
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`defendants’ request for judgment as a matter of law. [See Doc. 345.] Plaintiffs argue that
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`the Court does not have authority to grant the relief requested in Defendants’ Post-Trial
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`Memorandum of Facts and Law [Doc. 341] because it was not styled as a motion and that,
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`if it is an extension of defendants’ motion for directed verdict made during trial, it is
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`untimely.
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` The Court notes the somewhat unusual procedural posture of this case. After multiple
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`motions for summary judgment and motions for a preliminary injunction were filed and
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`denied, this case went to trial. After three days of trial and two days of jury deliberation, the
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`foreperson informed the Court that the jury was unable to reach a unanimous decision and
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`a mistrial was declared. After the mistrial, the Court held a status conference and ordered
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`that the parties shall have thirty days after receipt of the trial transcript to file any motions.
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`Within the thirty day period, plaintiffs filed a motion for summary judgment and a motion
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`11
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`for a preliminary injunction, and defendants filed a post-trial memorandum arguing that
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`defendants are entitled to judgment as a matter of law.
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`Although plaintiffs are correct that defendants did not style their post-trial
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`memorandum as a motion and that a renewed motion under Federal Rule of Civil Procedure
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`would be untimely, the Court does not agree that it does not have the authority to grant the
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`relief requested in Defendants’ Post-Trial Memorandum of Facts and Law [Doc. 341]. A
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`district court may grant summary judgment sua sponte when the party adversely affected is
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`put on notice to produce evidence establishing a genuine issue of material fact. See Brown
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`v. Raymond Corp., 432 F.3d 640, 649 (6th Cir. 2005) (citing Celotex Corp., 477 U.S. at 326).
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`The Court recalls stating at the status conference that it was allowing the parties the
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`opportunity to brief the Court on their positions in light of the trial testimony and the recently
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`decided opinion in Barr v. Lafon, 538 F.3d 554, 562 (6th Cir. 2008). The Court stated that
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`it was aware of the parties’ positions and, therefore, they were not required to file responses
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`to their opponents’ briefs. Accordingly, plaintiffs were put on notice that their opportunity
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`to argue for judgment in their favor and against judgment in favor of the defendants was in
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`their filing within the thirty-day period. Plaintiffs were put on notice of defendants’ position
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`through defendants’ prior motions for summary judgment, their arguments at trial, and their
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`post-trial memorandum [Doc. 341]. Thus, even if the defendants did not properly move for
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`summary judgment as plaintiffs contend, the Court could still sua sponte grant summary
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`judgment in defendants’ favor.
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`12
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`Additionally, the Court considers it a mere technicality that defendants did not style
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`their post-trial memorandum as a motion and failure to consider defendants’ request for
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`judgment as a matter of law on the merits would be unjust. See Fed. R. Civ. P. 1 (“These
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`rules . . . should be construed and administered to secure the just, speedy, and inexpensive
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`determination of every action and proceeding.”). Accordingly, the Court will consider
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`Defendants’ Post-Trial Memorandum of Facts and Law [Doc. 341] as a request for judgment
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`as a matter of law.
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`B.
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`Free Speech
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`Plaintiffs argue that defendants failed to produce evidence to support a finding of a
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`reasonable forecast of a material and substantial disruption to the school environment.
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`Defendants argue that the evidence on the record clearly supports the ban of potentially
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`racially divisive symbols, including the Confederate flag.
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`“[T]he constitutional rights of students in public school are not automatically
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`coextensive with the rights of adults in other settings.” Bethel Sch. Dist. No. 403 v. Fraser,
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`478 U.S. 675, 682 (1986). While students do not “shed their constitutional rights to the
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`freedom of speech or expression at the schoolhouse gate,” students’ rights to free speech are
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`limited due to the special characteristics of the school environment. Tinker v. Des Moines
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`Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969); see also Hazelwood Sch. Dist. v.
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`Kuhlmeier, 484 U.S. 260, 266 (1988); Barr v. Lafon, 538 F.3d 554, 562 (6th Cir. 2008).
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`Students’ right to free speech must be balanced against the need for school officials “to
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`13
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`maintain the discipline and learning environment necessary to accomplish the school’s
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`educational mission.” See Barr, 538 F.3d at 562.
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`In light of these considerations, Tinker provides that 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. Tinker, 393 U.S. at 509; see also Barr, 538 F.3d at 564 (“Tinker governs the
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`instant case because, by wearing clothing depicting images of the Confederate flag, students
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`engage in pure speech not sponsored by the school.”). Tinker does not require certainty that
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`a disruption will occur, only a reasonable forecast of a substantial disruption. Barr, 538 F.3d
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`at 565; Lowery v. Euverard, 497 F.3d 584, 592 (6th Cir. 2007). Therefore, it is not necessary
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`for the Confederate flag to have caused a disruption in the past. Barr, 538 F.3d at 565.
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`Rather, regulation of displays of the Confederate flag in the school environment is
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`permissible if “the school reasonably forecast that the Confederate flag would cause material
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`and substantial disruption to schoolwork and school discipline.” Id. at 565; accord Lowery,
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`497 F.3d at 592. “[A] school may reasonably forecast that the Confederate flag would cause
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`a substantial and material disruption of a school when the school had recently experienced
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`intense racial conflict.” Barr, 538 F.3d at 568. However, the school cannot ban displays
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`based upon an “undifferentiated fear or apprehension of disturbance.” Tinker, 393 U.S. at
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`508; Barr, 538 F.3d at 567.
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`Defendants presented significant evidence of recent racial disruptions at ACHS and
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`ACCTC. Defendants gave examples of disruptions and racial tension including a large
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`Confederate flag being hung in the hallway of ACHS two days after two African-American
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`14
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`students enrolled to send a message that the African-American students were not welcome;
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`people in the community and at the school expressing racism; Oreo cookies being thrown
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`onto the gym floor at a basketball game because a player from the opposing team was
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`biracial; the father of the Clinton basketball player writing a letter to the editor of the Clinton
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`Courier stating that ACHS students were racist and the administration needed to do
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`something about it; a report to the school principal that a group of students, some of whom
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`were wearing t-shirts displaying the Confederate flag, were calling Hispanic students racist
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`names; an African-American student from Clinton High School being called racist names
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`while attending a leadership class at ACHS; racist graffiti being found around the school with
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`content such as “white power,” “White 4 Life,” “I Hate Niggers, J/K AVM,” and a drawing
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`of a hangman’s noose with the name of an African-American young man and a girl he dated
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`with “something about nigger-lover, white girl, black boy;” and a teacher taking a female
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`student out of class at ACCTC because she was being called racist names by other students
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`and wanted to call home.
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`These incidents show that both ACHS and ACCTC have recently experienced intense
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`racial conflict. In Tinker, the Supreme Court found that student displays of black armbands
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`in protest of the Vietnam war did not cause a disruption to the school environment because
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`the speech did not “intrude[] upon the work of the schools or the rights of other students.”
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`393 U.S. at 508. A notable difference between the speech in Tinker and displays of the
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`confederate flag here, is that the speech in Tinker communicated negative feelings toward
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`the Vietnam war, while the speech in this case conveys a message of hatred toward some
`
`15
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`students because of their race. In finding that displays of the confederate flag interfered with
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`other students’ rights, the Sixth Circuit stated, “Unlike in Tinker, Plaintiffs-Appellants’ free-
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`speech rights ‘colli[de] with the rights of other students to be secure and let alone.’” Barr,
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`538 F.3d at 568 (quoting Tinker, 393 U.S. at 508). Accordingly, it was reasonable for school
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`officials to forecast that displays of the Confederate flag would cause a material and
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`substantial disruption.
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`The conclusion the Court reaches here is supported by the Sixth Circuit’s recent
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`holding in Barr. In Barr, several students who attended William Blount High School sued
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`various school officials alleging that the defendants’ dress code prohibition of clothing
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`depicting the Confederate flag violated their rights to free speech and equal protection. 538
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`F.3d 554. The defendants presented evidence of prior racial disruptions at William Blount
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`High School similar to that present in the case here. This included evidence of a physical
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`altercation between an African-American and a white student at a basketball game on
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`February 22, 2005, which resulted in the parent of the African-American student filing a
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`complaint with the Office of Civil Rights at the Department of Education alleging that the
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`school punished the African-American student more harshly than the white student; racist
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`graffiti containing racial slurs and “hit lists” of students’ names; a parental complaint that his
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`daughter was called racially derogatory names, threatened because of her race, and taunted
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`by the Confederate flag; an increase in absenteeism among African-American students out
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`of fear of racial violence; and a school lockdown in April 2005, the purpose of which was
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`to be proactive and show that the school was safe and secure. Id. at 557-59, 566.
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`16
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`Additionally, some of the student plaintiffs admitted that racial tensions were high at the
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`school. Id. at 558, 566. The Sixth Circuit held that based upon these events “the school
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`reasonably forecast that clothing bearing images of the Confederate flag would disrupt
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`schoolwork and school discipline.” Id. at 567.
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`One fact plaintiffs cite in support of their position that there was no reasonable
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`forecast of a material and substantial disruption is that Mr. Krull, Mr. Spiva, Mr. Deal, and
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`Mr. Stonecipher all testified that they would enforce the ban even if they did not believe that
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`a particular display would cause a disruption. However, the fact that several school officials
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`testified that they would ban displays of the flag even if they did not feel it would cause a
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`disruption does not change the result as that is a hypothetical situation not now before the
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`Court. In fact, a school official made a similar statement in Barr that he would still ban
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`displays of the flag even if displays of the flag did not cause a disruption, yet the regulation
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`was upheld. See id. at 560.
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`In light of the factually similar Barr opinion and other controlling precedent, the Court
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`concludes that it was reasonable for school officials to forecast that displays of the
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`Confederate flag would cause a material and substantial disruption to the school
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`environment. Accordingly, it was constitutional for school officials to restrict displays of the
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`Confederate flag at ACHS and ACCTC.
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`C.
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`Viewpoint Discrimination
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`Plaintiffs contend that even if regulation of racially divisive speech is permissible, the
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`prohibition of displays of the Confederate flag at issue here is impermissible because it
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`17
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`constitutes viewpoint discrimination. Defendants argue that there are no facts in the record
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`that show viewpoint discrimination.
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`Even when a school is permitted to ban a certain expression because the school
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`reasonably forecasts that the expression will cause a substantial disruption of school
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`activities, the ban must be viewpoint neutral. See id. at 571; Castorina v. Madison County
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`Sch. Bd., 246 F.3d 536, 543-44 (6th Cir. 2001). Viewpoint discrimination occurs when there
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`is “a ban on the use of racial slurs by one group of speakers but not those speakers
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`opponents.” Barr, 538 F.3d at 572 (internal quotations omitted). Thus, if both proponents
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`of racial tolerance and proponents of racial discrimination are forbidden to display the
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`Confederate flag, there is no viewpoint discrimination. See id. at 572. In Barr, the court
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`affirmed summary judgment on the issue of viewpoint discrimination for school officials
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`stating, “there is no evidence that the ban on disruptive symbols would not have been applied
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`equally to a student displaying a Confederate flag in solidarity with hate groups, and another
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`who displayed a Confederate flag in a circle with a line drawn through it.” Id. at 572.
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`The same is true here as there is no evidence that any displays of the Confederate flag
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`are permitted at ACHS or ACCTC. In fact, the ban of Tom Defoe’s displays of the
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`Confederate flag support this idea because his displays were prohibited despite that fact that
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`he stated that his reason for displaying it was to show his pride for his southern heritage and
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`not to convey a message of racial hatred.
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`Plaintiffs also complain that the school should not be able to teach diversity but ban
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`racially divisive symbols. However, this argument has no support in the law. “[A]lthough
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`18
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`the restriction on racially intolerant but not racially tolerant messages may be
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`unconstitutional as applied to adults acting in a public forum, the same is not true in the
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`public schools.” Id. at 573 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 391-94 (1992)).
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`The Barr court recognized that “courts accord more weight in the school setting to the
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`educational authority of the school in attending to all students’ psychological and
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`development
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