IN THE UNITED STATES COURT OF APPEALS
`
`[PUBLISH]
`
`________________________
`
`FOR THE ELEVENTH CIRCUIT
` FILED
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` U.S. COURT OF APPEALS
` ELEVENTH CIRCUIT
` MARCH 20, 2003
` THOMAS K. KAHN
` CLERK
`
`No. 02-14931
`Non-Argument Calendar
`________________________
`D. C. Docket No. 01-00029-CV-1-MMP
`
`LAURA SCOTT, as Parent,
`Legal Guardian and Next Friend for,
`KATHY BLITCH, as Parent,
`Legal Guardian and Next Friend for,
`
`FRANKLIN JAY SCOTT, JR., a Minor,
`NICHOLAS THOMAS, a Minor
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`versus
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`SCHOOL BOARD OF ALACHUA COUNTY,
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`Plaintiffs,
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`Plaintiffs-Appellants,
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`Defendant-Appellee.
`
`________________________
`
`Appeal from the United States District Court
`for the Northern District of Florida
`_________________________
`(March 20, 2003)
`
`Before TJOFLAT, BIRCH and RONEY Circuit Judges.
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`

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`PER CURIAM:
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`Plaintiffs Franklin Jay Scott, Jr. and Nicholas Thomas (“Plaintiffs”), then both
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`Santa Fe High School students, filed a 42 U.S.C. § 1983 lawsuit against defendant
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`School Board of Alachua County (“School Board”), alleging that the discipline
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`imposed by Principal Lamar Simmons –school suspensions– for their displaying of
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`a Confederate flag on school premises, after previously being told not to do so,
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`violated their First Amendment right to symbolic speech. The district court granted
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`the School Board’s motion for summary judgment.
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`Plaintiffs appeal asserting three arguments. They first argue that their school
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`suspensions were based on an inadequate showing of a material and substantial
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`disruption and thus violated the Court’s decision in Tinker v. Des Moines Indep.
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`Cmty. School Dist., 393 U.S. 503 (1969). Next, plaintiffs argue that the School
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`Board’s “after-the-fact justifications” for Principal Simmons’ unwritten ban of
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`Confederate flags were pretextual and thus expose the School Board to monetary
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`liability. Third, plaintiffs assert that genuine issues of material fact exist as to
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`whether: (1) the School Board was aware or was deliberately indifferent to Principal
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`Simmons’ unwritten ban of Confederate flags and (2) the racial impact of a prior
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`disruption in the high school was adequate to precipitate Principal Simmons’
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`unwritten ban.
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`After careful review of the briefs, record, and relevant case law, we affirm the
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`decision of the district court, holding that Principal Simmons’ unwritten ban of
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`Confederate flags on school grounds was not an unconstitutional restriction of the
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`plaintiffs’ First Amendment rights. As such, there is no actionable § 1983 claim in
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`this case. Having decided that, we need not consider whether the Board was aware
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`or was deliberately indifferent to Principal Simmons’ unwritten ban of Confederate
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`flags.
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`Prior to setting forth the applicable portions of the district court’s well-
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`reasoned opinion, we note that this First Amendment freedom of expression case
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`stands against the unique backdrop of a public school. Although public school
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`students’ First Amendment rights are not forfeited at the school door, those rights
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`should not interfere with a school administrator’s professional observation that
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`certain expressions have led to, and therefore could lead to, an unhealthy and
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`potentially unsafe learning environment for the children they serve. Short of a
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`constitutional violation based on a school administrator’s unsubstantiated
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`infringement on a student’s speech or other expressions, this Court will not interfere
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`with the administration of a school.
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`The district court properly determined that Principal Simmons’ unwritten ban
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`on displaying the Confederate flag was not a violation of the plaintiffs’ First
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`Amendment rights. The applicable portions of the Order of District Judge Maurice
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`M. Paul giving the reasons for this decision, which we accept, are as follows:
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`Simply put, the defendant's second argument is that the ban on
`Confederate symbols was appropriate based on the potential disruption
`that the displaying of Confederate symbols would likely create. After
`a careful analysis of Denno v. School Bd. of Volusia County, 218 F.3d
`1267 (11th Cir. 2000), Tinker v. Des Moines Independent Comm. School
`Dist., 393 U.S. 503 (1969) and Bethel School District v. Fraser, 478 U.S.
`675 (1986), the Court concludes that school officials can appropriately
`censure students' speech under either of the following two theories.
`First, from the Tinker case, school officials are on their most solid
`footing when they reasonably fear that certain speech is likely to
`"appreciably disrupt the appropriate discipline in the school." Denno,
`218 F.3d at 1271, citing Tinker, 393 U.S. at 514. Second, from Fraser,
`even if disruption is not immediately likely, school officials are charged
`with the duty to "inculcate the habits and manners of civility as values
`conducive both to happiness and to the practice of self-government." To
`do so, they must have the flexibility to control the tenor and contours of
`student speech within school walls or on school property, even if such
`speech does not result in a reasonable fear of immediate disruption.
`Denno, 218 F.3d at 1271. As the Supreme Court stated in Fraser:
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`Surely it is a highly appropriate function of public school
`education to prohibit the use of vulgar and offensive terms
`in public discourse. Indeed, the "fundamental values
`necessary to the maintenance of a democratic political
`system" disfavor the use of terms of debate highly
`offensive or highly threatening to others. Nothing in the
`Constitution prohibits the states from insisting that certain
`modes of expression are inappropriate and subject to
`sanctions. The inculcation of these values is truly the
`"work of the schools." Tinker, 393 U.S. at 508, 89 S.Ct. at
`737.... The determination of what manner of speech in the
`classroom or in school assembly is inappropriate properly
`rests with the school board.
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`The process of educating our youth for citizenship in
`public schools is not confined to books, the curriculum,
`and the civics class; schools must teach by example the
`shared values of a civilized social order. Consciously or
`otherwise, teachers--and indeed the older students--
`demonstrate the appropriate form of civil discourse and
`political expression by their conduct and deportment in and
`out of class.
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`[478 U.S.] at 683, 106 S.Ct. at 3164.
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`In the case sub judice, however, the above language merely begs
`the question. The real difference of opinion in this case, of course, is
`whether the symbol should be considered "vulgar and offensive" at all.
`That is, some say the symbol is not offensive if not intended to be
`offensive. Others say it is innately offensive, while still others argue
`that, even if the symbol is not intended to be offensive or innately
`offensive, it is still dangerous because it is perceived as offensive by so
`many people.
`
`This debate, which is being played out in state legislatures,
`newspaper editorial columns and classrooms across the South is
`exemplified in the expert witness disclosures offered by the two sides in
`this case. The plaintiffs' experts plan to testify that "the Confederate
`battle flag is not a symbol of racism, but rather a historical symbol
`embodying the philosophical and political principals of a decentralized
`form of government in which states and local government retain all
`powers not expressly ceded to the centralized federal government under
`the constitution" and that thus the flag is merely "a symbol of southern
`heritage." (Disclosure of proposed expert Marshall DeRosa, PhD, doc.
`19). The defendant's expert plans to testify that "from its inception, the
`confederacy was a political movement dedicated to the preservation of
`the institution of slavery. Therefore from its inception, the confederacy
`and its symbols represented approval of white supremacy" and that "the
`confederate flag is a symbol that has acquired numerous racist
`associations to the point that the flag itself has understandably come to
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`be perceived as a racist symbol." (Disclosure of proposed expert Fitz
`Brundage, PhD, doc. 24).
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`The problem, of course, is that both of them are correct. And they
`are correct not only in describing the different emotions this symbol
`evokes, but also in connoting the depth of those emotions through their
`choice of words. Words like "symbol", "heritage", "racism", "power",
`"slavery", and "white supremacy" are highly emotionally charged and
`reveal that for many, perhaps most, this is not merely an intellectual
`discourse. Real feelings -- strong feelings -- are involved. It is not only
`constitutionally allowable for school officials to closely contour the
`range of expression children are permitted regarding such volatile
`issues, it is their duty to do so. The Court thus agrees with Denno in its
`approval of the following language from the United States District Court
`in Kansas:
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`Part of a public school's essential mission must be to teach
`students of differing races, creeds and colors to engage
`each other in civil terms rather than in "terms of debate
`highly offensive or highly threatening to others."... There
`is no evidence that the school district has attempted to
`suppress civil debate on racial matters, but the district had
`concluded that the display of certain symbols that have
`become associated with racial prejudice are so likely to
`provoke feelings of hatred and ill will in others that they
`are inappropriate in the school context.
`
`Denno, 218 F.3d at 1273, citing West v. Derby Unified School Dist. No.
`260, 23 F. Supp.2d 1223, 1233-34 (D. Kan 1998), aff'd 206 F.3d 1358
`(10th Cir. 2000)(quoting Fraser, 478 U.S. at 683).
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`In light of the above principles, the Court finds that the ban on the
`display of Confederate symbols was not unconstitutional. School
`officials presented evidence of racial tensions existing at the school and
`provided testimony regarding fights which appeared to be racially based
`in the months leading up to the actions underlying this case.
`Additionally, one only needs to consult the evening news to understand
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`the concern school administrators had regarding the disruption, hurt
`feelings, emotional trauma and outright violence which the display of
`the symbols involved in this case could provoke. Therefore, under both
`Tinker and Fraser, the school administrators did nothing wrong in
`banning the display of Confederate flags on school property.
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`In sum, the school administrators did not violate the plaintiffs’ constitutional
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`rights by banning the display of Confederate flags on school grounds and
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`subsequently enforcing the ban by suspending them. Having found no constitutional
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`right violated, the plaintiffs have failed to set forth a prima facie case for § 1983
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`relief. The district court properly granted the defendant’s motion for summary
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`judgment.
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`AFFIRMED.
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