United States Court of Appeals
`FOR THE EIGHTH CIRCUIT
`___________
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`No. 07-3099
`___________
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`Appeal from the United States
`District Court for the
`Eastern District of Missouri.
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`B.W.A., a Minor; Marc Archambo,
`individually and as Next Friend of
`B.W.A. , A Minor; Tamra Archambo,
`individually and as Next Friend of
`B.W.A. , A Minor; R.S., a Minor;
`Opal Scaggs, as Next Friend of R.S.;
`S.B., a Minor; Patricia Hill, as Next
`Friend of S.B.,
`
`Plaintiffs - Appellants,
`
`v.
`
`Farmington R-7 School District;
`W. L. Sanders, in his official Capacity
`as Superintendent of Farmington R-7
`School District; Judith Delaney, in her
`official Capacity as Assistant
`Superintendent of Farmington R-7
`School District; Mark Kraus, in his
`official capacity as Teacher/Instructor
`of Farmington R-7 School District;
`Susan Barber, in her official capacity
`as Assistant Principal of Farmington
`R-7 School District; Todd McKinney,
`in his official capacity as Dean of
`Students of Farmington R-7 School
`District,
`
`Defendants - Appellees.
`____________________
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`___________
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`United States of America,
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`Amicus on Behalf of
`Appellee.
`
`Submitted: September 22, 2008
`Filed: January 30, 2009
`___________
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`Before LOKEN, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
`___________
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`SMITH, Circuit Judge.
`
`B.W.A., a minor and student at Farmington High School ("Farmington High"),
`along with fellow students R.S. and S.B., brought this First Amendment action against
`Farmington R-7 School District ("the District") and its school officials after they were
`sent home for refusing to remove items of clothing depicting the Confederate flag
`symbol. After extensive discovery, the district court1 granted the District's motion for
`summary judgment on the ground that Farmington High school officials had reason
`to believe that students displaying the Confederate flag would cause a substantial and
`material disruption. We affirm.
`
`I. Background
`B.W.A., R.S., and S.B. were students at Farmington High,2 which is part of the
`District. They were suspended during the 2006-2007 school year for wearing clothing
`
`1The Honorable Jean C. Hamilton, United States District Judge for the Eastern
`District of Missouri.
`
`2Approximately 1,100 students attend Farmington High and only 15 to 20 are
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`black.
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`depicting the Confederate flag. Prior to their suspensions, several racially-charged
`incidents occurred in the District during the preceding school year.
`
`In the first incident, a white student urinated on a black student while allegedly
`saying "that is what black people deserve." As a result, the black student withdrew
`from school and moved to another district. A second incident occurred when white
`students—one carrying an aluminum baseball bat—showed up at a black student's
`home. They made racial comments such as "anything that is not white is beneath
`them." When the black student's mother tried to separate the students, one of the white
`students struck her in the eye. A melee ensued involving her son and the white
`students. Later, "people" drove around the black student's home screaming racial
`epithets and threatening to burn down the home. A few days later, a group of white
`students surrounded the same black student and confronted him at Farmington High.
`As a result, the black student withdrew from school, and his family moved out of the
`District.
`
`A third incident occurred during a basketball tournament hosted by the Central
`School District when a heated confrontation erupted during a game between
`Farmington High and Festus Senior High School.3 During the game, a skirmish broke
`out after two Farmington High players allegedly used racial slurs against two black
`players from Festus. Shortly after the incident, the two Festus students filed a
`complaint with the Missouri State High School Activities Association, complaining
`that the two Festus students were the victims of racial slurs throughout the game with
`Farmington High. In that same time period, supporters of the Festus students
`distributed flyers accusing school administrators of not doing anything to prevent or
`stop the racial slurs. The flyer also noted that a Confederate flag was hanging in the
`hallway near the locker rooms during the game. The Festus students also reported the
`
`3According to a Farmington official, Festus has a "greater African American
`population than . . . Farmington."
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`incident to the United States Department of Justice's Office of Civil Rights (OCR),
`which conducted an investigation. As a result of the incident, the two teams no longer
`play each other unless required to by their athletic conference.
`
`Following the aforementioned incidents, the superintendent, relying on his
`authority to prevent disruption to the education of high school students, banned
`students from wearing clothing that depicted the Confederate flag.4 The
`superintendent based his decision on the belief that the incidents within the District
`were race-related.
`
`After the District banned clothing depicting the Confederate flag, additional
`racial incidents occurred prior to the 2006-2007 school year, including a white student
`
`4In 1995, the District adopted a student dress code. This dress code states:
`
`The Board of Education recognizes the value of allowing individual
`student expression as well as the necessity of protecting student health
`and safety and maintaining an atmosphere conducive to education.
`Student dress code procedures must be designed with the goal of
`balancing these competing interests.
`
`All dress code procedures will adhere to health and safety codes and
`comply with applicable law. Dress that materially disrupts the education
`environment will be prohibited. No procedure will impose dress and
`grooming rules based on gender in violation of Title IX. District
`procedures will specifically define ambiguous terms, and examples will
`be provided when practical.
`
`The Farmington High School Student and Parent Information Guide, which every
`student received at the beginning of the 2006-2007 school year, contained this dress
`code.
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`drawing swastikas and writing "white power" song lyrics in his notebook.5
`Additionally, school officials punished students for making racial slurs. Also, a white
`student told his teacher that the "n*gg*rs [are] here" while pointing at a visiting track
`team. This student also drew a swastika on the chalkboard.
`
`During the 2006-2007 school year, B.W.A. wore a baseball cap to school
`bearing the Confederate flag with the words "C.S.A., Rebel Pride, 1861" written on
`it. A Farmington teacher advised B.W.A. that he had to remove the hat and keep it in
`his backpack the rest of the day. The next day, B.W.A. wore a T-shirt and belt buckle
`containing an image of the Confederate flag and the words "Dixie Classic." An
`assistant principal at Farmington requested that he remove the items. When B.W.A.
`refused, the assistant principal suspended B.W.A. for the remainder of the day. That
`same day, B.W.A. withdrew from school.
`
`After B.W.A. withdrew from Farmington High, parents and other community
`members began gathering across the street from the school, protesting and displaying
`a Confederate flag. Some students believed that these protests increased the racial
`tension inside of Farmington High. Students complained to the principal that they felt
`that the Confederate Flag was offensive and would lead to more disruptive behavior.
`Farmington High was also subjected to racial vandalism and property damage. These
`events resulted in the District permitting a black student to leave Farmington High
`because he was "uncomfortable due to the racial tension."
`
`Approximately four months later, R.S. wore a shirt to school depicting an image
`of the Confederate flag and the words "The South was right[,] Our school is wrong."
`R.S. was suspended for the rest of the day for refusing to remove the shirt. The next
`day, R.S. wore a shirt to school with the slogan "Our school supports freedom of
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`5Specifically, the lyrics stated that "whites are superior, n*gg*rs are less;"
`"n*gg*rs will fall;" and "n*gg*rs faces will be a mess."
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`speech for all (except Southerners)." The assistant principal sent R.S. home to change
`the shirt, and R.S. complied. A couple of days later, S.B. wore a shirt to school
`containing the Confederate colors that said "Help Support B.[W.A.] Once a rebel,
`always and forever a rebel. We love B.[W.A.]" She was sent home after she refused
`to turn the shirt inside out.6
`
`As a result of the suspensions, B.W.A. filed a claim under 42 U.S.C. § 1983,
`alleging that the District and its school officials7 violated his First Amendment rights.
`Thereafter, B.W.A. amended his complaint by adding R.S. and S.B. as plaintiffs. They
`sought a declaratory judgment that they have a First Amendment right to wear the
`Confederate flag at school and an injunction prohibiting the District from banning the
`display of the Confederate flag. The District filed a motion for summary judgment,
`arguing that it had reason to believe that its display would cause a material and
`substantial disruption. The district court granted the District's summary judgment
`motion and dismissed the claims of B.W.A., R.S., and S.B.
`
`II. Discussion
`On appeal, B.W.A. alleges that the district court improperly granted summary
`judgment. B.W.A primarily argues that the school district exercised impermissible
`viewpoint discrimination and did not establish a substantial risk of disruption based
`on display of the Confederate flag. B.W.A. also argues that the district court
`misinterpreted Missouri Revised Statute § 167.166.7 (2005).
`
`6After the students were sent home, Farmington High was subjected to racial
`vandalism and property damage. Students complained to the principal that they felt
`the Confederate flag was offensive and would lead to more disruptive behavior.
`
`7School officials include W.L. Sanders, Superintendent; Judith Delaney,
`Assistant Superintendent; Mark Krause, Teacher/Instructor; Susan Barber, Assistant
`Principal; and Todd McKinney, Dean of Students.
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`A. Standard of Review
`We review a grant of summary judgment de novo. Henerey v. City of St.
`Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment should be upheld
`if the evidence, viewed in the light most favorable to the nonmoving party, indicates
`that no genuine issue of material fact exists and that the moving party is entitled to
`judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).
`
`B. The Tinker Standard
`B.W.A., R.S. and S.B. argue that because the school did not show a concrete
`and substantial threat of disruption, its ban on the Confederate flag amounted to
`viewpoint discrimination in contravention of the First Amendment.
`
`The First Amendment of the United States Constitution protects the free speech
`rights of students in school. But schools may legitimately restrict those rights in
`certain limited circumstances. In Tinker v. Des Moines Independent School District,
`the United States Supreme Court held that school administrators must demonstrate
`facts that might reasonably lead them "to forecast substantial disruption of or material
`interference with school activities" before prohibiting a particular expression of
`opinion. 393 U.S. 503, 514 (1969). In Tinker, the students were sent home and
`suspended from school for wearing black armbands to protest the Vietnam War. Id.
`at 504. The students filed a § 1983 claim alleging a violation of their First Amendment
`rights. Id. The Supreme Court held that because the armbands were not related in any
`way to actually or potentially disruptive conduct, the act of wearing the armbands
`constituted pure speech and, therefore, was protected by the First Amendment. Id. at
`505–06. The Court stated as follows:
`
`In order for the State in the person of school officials to justify
`prohibition of a particular expression of opinion, it must be able to show
`that its action was caused by something more than a mere desire to avoid
`the discomfort and unpleasantness that always accompany an unpopular
`viewpoint. Certainly where there is no finding and no showing that
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`engaging in the forbidden conduct would 'materially and substantially
`interfere with the requirements of appropriate discipline in the operation
`of the school,' the prohibition cannot be sustained.
`
`Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). The Tinker
`Court concluded that the prohibition could not be sustained in the absence of a
`showing of material or substantial interference with school discipline. Id.
`
`B.W.A., R.S. and S.B. rely on Tinker and its progeny, arguing that the District
`acted solely to suppress speech it deemed racially offensive. They contend that the
`District erroneously based its Confederate flag ban on incidents unrelated to the flag's
`display. See Butts v. Dallas Indep. Sch. Dist., 436 F.2d 728, 732 (5th Cir. 1971)
`(stating that there must be some "establishment of substantial fact" before suppression
`of speech is allowed). Racially offensive speech cannot be restricted for that reason
`alone; but, when that speech occurs in an educational and social context that enables
`school officials to reasonably suspect material and substantial discipline disruption,
`some limitation of normal free expression is constitutionally permissible. Based on the
`substantial race-related events occurring both at the school and in the community,
`some of which involved the Confederate flag, we hold that the District's ban was
`constitutionally permissible. Farmington school officials, considering the instant facts
`and circumstances, could reasonably "forecast" a "substantial disruption" resulting
`from any display of the Confederate flag. See Tinker, 393 U.S. at 514.
`
`Evidence of disruptions related to the Confederate flag or race include: (1) a
`skirmish between Farmington High and Festus High School after two Farmington
`High players allegedly used racial slurs against two black players from Festus in
`conjunction with a Confederate flag's display outside of the locker rooms; (2) a white
`student urinating on a black student, causing the black student to withdraw from the
`District; (3) a fight between a black student and white students at the black student's
`home, leading to a later confrontation at the school; (4) numerous racial slurs
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`occurring at the school; and (5) students drawing racially offensive symbols, such as
`swastikas, in their notebooks and on the chalkboard. These incidents provide
`substantial evidence of actual and potential disruptions likely related to the flag
`symbol.
`
`Tinker and its progeny allow a school to "forecast" a disruption and take
`necessary precautions before racial tensions escalate out of hand. As a result of race-
`related incidents both in and out of the school, the administration reasonably denied
`the display of the Confederate flag within the school. Our holding is in line with our
`sister circuits that have addressed this issue. See Scott v. Sch. Bd. of Alachua County.,
`324 F.3d 1246, 1248 (11th Cir. 2003) (holding that school officials may ban speech
`if they reasonably believe that speech is likely to "appreciably disrupt the appropriate
`discipline in the school"); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972). In Melton,
`an all-white school nicknamed the "Rebels" displayed the Confederate flag as its
`school flag. Melton, 465 F.2d at 1333. After increased black enrollment, racial
`tensions erupted over the use of the Confederate flag, causing the administration to
`discontinue use of the nickname and flag. Id. Later, a student wore a jacket with the
`Confederate symbol emblazoned on the sleeve. Id. at 1334. The principal asked the
`student to remove the jacket or leave school because the principal felt the emblem
`could be "provocative." Id. The Sixth Circuit held that it was reasonable for the
`principal to ban the emblem based on the past racial tension at the school and the
`potential for reoccurrence. Id. As in Melton, Farmington school officials, based on
`evident racial tension, could reasonably ban the flag to prevent anticipated future
`disruptions.
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`Moreover, no other circuit has required the administration to wait for an actual
`disruption before acting. See, e.g., Barr v. Lafon, 538 F.3d 554, 565 (6th Cir. 2008).
`In Barr, the Sixth Circuit held that Tinker does not require actual disruption based on
`the Confederate flag so long as the school could "reasonably forecast that the
`Confederate flag would cause substantial disruption to schoolwork and school
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`discipline." Id. at 565. Increasing racial tensions inside the school led administrators
`to ban the Confederate flag. Id. at 556–67. Based on conversations with students who
`viewed the flag as a racially divisive symbol, the principal believed that the flag
`"would be a source of confrontation and a symbol that would cause unrest with the
`student body." Id. at 560. On appeal, the aggrieved students argued that because there
`was no evidence "that the Confederate flag ever caused any disruption at the school,"
`the ban was unconstitutional according to Tinker. Id. at 565. The Sixth Circuit
`disagreed, holding that the increasing racial tensions in the school made it reasonable
`for the administration to forecast disruptions based on the Confederate flag. Id. at 568;
`see also West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th Cir.
`2000) (holding that based on racial tension, school officials had reason to believe that
`display of the Confederate flag by a student "might cause disruption and interfere with
`the rights of other students to be secure and let alone").
`
`Unquestionably, student speech is protected by the First Amendment. See
`Tinker, 393 U.S. at 506 (stating that "[i]t can hardly be argued that either students or
`teachers shed their constitutional rights to freedom of speech or expression at the
`schoolhouse gate"); Lowry v. Watson Chapel Sch. Dist., 540 F.3d 752, 759 (8th Cir.
`2008) (same). But "the constitutional rights of students in public school are not
`automatically coextensive with the rights of adults in other settings." Bethel Sch. Dist.
`No. 403 v. Fraser, 478 U.S. 675, 682 (1986). School administrators are armed with
`more authority to circumscribe certain student speech if a ban would be necessary to
`avoid substantial disruptions. Contrary
`to B.W.A.'s assertion, viewpoint
`discrimination by school officials is not violative of the First Amendment if the Tinker
`standard requiring a reasonable forecast of substantial disruption or material
`interference is met. Tinker, 393 U.S. at 511 (stating that "the prohibition of expression
`of one particular opinion, at least without evidence that it is necessary to avoid
`material and substantial interference with schoolwork or discipline, is not
`constitutionally permissible") (emphasis added). Schools may not suppress speech
`merely "to avoid the discomfort and unpleasantness that always accompany an
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`unpopular viewpoint." Tinker, 393 U.S. at 509; see generally Lowry, 540 F.3d at 760
`(holding that the students' First Amendment rights were violated because the school
`district punished their non-disruptive protest of the school's uniform policy). We
`believe that this case contains sufficient evidence beyond ordinary discomfort and
`unpleasantness of unpopular viewpoints. The record in this case contains evidence of
`likely racially-motivated violence, racial tension, and other altercations directly related
`to adverse race relations in the community and the school. Tinker is satisfied. Because
`the school could reasonably forecast a substantial disruption, the administration did
`not violate the First Amendment by banning the flag.
`
`B.W.A., R.S. and S.B. rely on the Supreme Court's recent decision in Morse v.
`Frederick, 127 S. Ct. 2618 (2007). In Morse, the Supreme Court rejected a First
`Amendment claim and held that "schools may take steps to safeguard those entrusted
`to their care from speech that can reasonably be regarded as encouraging illegal drug
`use." Id. at 2622. Joseph Frederick, a high school senior, was suspended for displaying
`a banner bearing the phrase "BONG HiTS 4 JESUS." Id. On appeal, the narrow
`question before the Supreme Court was "whether a principal may, consistent with the
`First Amendment, restrict student speech at a school event, when that speech is
`reasonably viewed as promoting illegal drug use." Id. at 2625. After noting the
`prevalence of drug use among our nation's youth, the Court upheld the school's
`restriction of the banner because it could be "reasonably viewed as promoting illegal
`drug use." Id. at 2628–29. This narrow holding is inapposite to our case, and we,
`therefore, apply Tinker.
`
`B.W.A., R.S. and S.B. characterize the case as one involving suppression of
`unpopular speech for its content alone. But this crops the full picture and distorts the
`situation confronting school officials. Here, in a school of 1,100 students, 15 to 20
`minority students were subjected to racial tension from a white majority student and
`community population sufficient to motivate some to withdraw. This can hardly be
`considered an environment conducive to educational excellence. Racial tension can
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`devolve to violence suddenly. Schools may act proactively to prohibit race-related
`violence or even excessive racial tension that forces unnecessary departures of
`minority students from the school. Based on the evidence in the record, the school's
`ban on the flag was reasonably related to a substantial disruption, did not amount to
`viewpoint discrimination, and did not violate the First Amendment. Therefore, we
`affirm the district court's grant of summary judgment.
`
`C. Missouri Strip Search Statute
`B.W.A., R.S. and S.B. also argue that the District violated Missouri Revised
`Statute § 167.166.7 because it discriminated against a student's viewpoint. B.W.A.,
`R.S. and S.B. argue that the district court's interpretation of the statute "stripped [the
`statute] of its obvious intended protection of students' speech." We disagree and
`affirm.
`
`The Missouri statute provides in relevant part:
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`No employee of or volunteer in or school board member of or school
`district administrator of a public school or charter school shall direct a
`student to remove an emblem, insignia, or garment, including a religious
`emblem, insignia, or garment, as long as such emblem, insignia, or
`garment is worn in a manner that does not promote disruptive behavior.
`
`Mo. Rev. Stat. § 167.166.7 (2005).
`
`To date, no Missouri appellate court has addressed this statute. Therefore, we
`must determine how Missouri would interpret its law. Lincoln Benefit Life Co. v.
`Edwards, 243 F.3d 457, 465 (8th Cir. 2001) (holding that this court must decide what
`the state's highest court would do if faced with a question of state law). In Missouri,
`the primary rule of statutory construction is to "determine the legislature's intent by
`considering the plain and ordinary meaning of the words used in the statute and by
`giving each word, clause, sentence, and section of the statute meaning." Neske v. City
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`of St. Louis, 218 S.W.3d 417, 424 (Mo. 2007). When determining intent, courts are
`to look at the whole act and its purposes and avoid unreasonable, unjust, or absurd
`results. State ex rel. Killingsworth v. George, 168 S.W.3d 621, 623 (Mo. Ct. App.
`2005).
`
`The overarching statutory purpose is to expressly prohibit strip searches by
`school personnel except under supervision by authorized law enforcement officials
`unless a weapon or dangerous substance poses an imminent threat of physical harm.
`See Mo. Rev. Stat. § 167.166.2 (2005). The statute also forbids school personnel from
`removing not only garments but also emblems or insignias unless those items are worn
`in a manner to "promote disruptive behavior." Mo. Rev. Stat. § 167.166.7. Although
`the statute makes no mention of the First Amendment or free speech, it seems
`apparent that the statute is protective of students' right to wear apparel that also
`functions expressively. The district court determined that Farmington officials did not
`violate this section of the statute because the plain language of the statute allows
`school officials to direct a child to remove an emblem that is worn in a manner that
`promotes disruption. The prominent display of the Confederate flag emblem by
`B.W.A., in the school environment present at Farmington at the relevant time, could
`reasonably have been determined by school officials to have been done in a disruptive
`manner. B.W.A. admitted that he knew that some students would view the
`Confederate flag on his hat as a statement of racism and that he himself was a racist.
`
`We agree with the district court that the school's actions did not contravene the
`Missouri strip search statute. We, therefore, affirm.
`
`III. Conclusion
`Accordingly, we affirm the judgment of the district court.
`______________________________
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