RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`File Name: 11a0066p.06
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`No. 09-6080
`
`TOM DEFOE, a minor by and through his
`parent and guardian Phil Defoe; PHIL DEFOE,
` Plaintiffs-Appellants,
`
`v.
`
`SID SPIVA, in his individual and official
`capacity as Principal of Anderson County
`Career and Technical School; MERL KRULL,
`in his individual and official capacity as
`Assistant Principal of Anderson County
`Vocational and Technical School; GREG
`DEAL, in his individual and official capacity
`as Principal of Anderson County High
`School; V. L. STONECIPHER, in his official
`capacity as Director of Schools for Anderson
`County; JOHN BURRELL, in his official
`capacity as Chairman of the Anderson County
`School Board; ANDERSON COUNTY SCHOOL
`BOARD,
`
` Defendants-Appellees.
`
`X---->,--------------------N
`
`Filed: March 14, 2011
`
`Before: CLAY, ROGERS, and COOK, Circuit Judges.
`
`_________________
`
`ORDER
`_________________
`
`The court having received a petition for rehearing en banc, and the petition
`having been circulated not only to the original panel members but also to all other active
`judges of this court, and less than a majority of the judges having favored the suggestion,
`the petition for rehearing has been referred to the original panel.
`
`1
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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 2
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`The panel has further reviewed the petition for rehearing and concludes that the
`issues raised in the petition were fully considered upon the original submission and
`decision of the case. Accordingly, the petition is denied.
`
`

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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 3
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`BOGGS, Circuit Judge, dissenting from the denial of rehearing en banc. The
`panel majority eviscerates the core holding of Tinker v. Des Moines Independent
`Community School District, 393 U.S. 503 (1969)—that student speech can be suppressed
`only based on its disruptive potential, not on its content. 393 U.S. at 509. There is no
`indication in Tinker that its rules are any different if the speech at issue is deemed, by
`either a school or an appellate court, to be offensive, “hostile,” or “contemptuous.” See
`Defoe v. Spiva, 625 F.3d 324, 338 (6th Cir. 2010). Nor is there any indication that such
`a judgment would change the basic First Amendment values that Tinker enshrines. See
`Tinker, 393 U.S. at 511–13.
`
`The panel majority rests its remarkable conclusion on Morse v. Frederick, 551
`U.S. 393 (2007), where the Court found the speech in question—a 14-foot banner with
`the message “BONG HiTS 4 JESUS”—to be promoting illegal drug use. 551 U.S. at
`397, 402. The majority does so despite the clear warnings in Morse, especially in Justice
`Alito’s decisive concurring opinion, that the Court was not undermining the basic
`holding of Tinker, but was simply allowing an exception for speech promoting drug use,
`which is both illegal and directly contrary to a tenet of the school system. 551 U.S. at
`408–09; id. at 423, 425 (Alito, J., concurring). Morse does not give the slightest hint that
`schools are authorized to suppress any speech that either they or an appellate court
`deems contrary to the school’s “mission” or “core values.”
`
`Wholly disregarding these warnings, the majority opinion asserts that this case
`is controlled by Morse because “racially hostile or contemptuous” can be substituted for
`“illegal drug use.” Defoe, 625 F.3d at 338–39 (“If we substitute ‘racial conflict’ or
`‘racial hostility’ for ‘drug abuse,’ the analysis in Morse is practically on all fours with
`this case.”). That is grammatically true, but it is equally true if you substitute “religious
`dogma,” “Republican propaganda,” or “seditious libel.” Morse does not authorize
`suppression on any of those grounds either, but the panel’s ipse dixit reading of Morse
`would support such a holding just as strongly as the one it makes.
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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 4
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`The faults of the majority opinion are many, as ably pointed out in the amicus
`brief of the ACLU. I wish to highlight a few.
`
`The majority’s test was nowhere argued either at the district court or in the
`briefing to the panel. No claim was ever made that speech could be banned simply
`because an appellate court found it to be, as a matter of law, “racially hostile and
`contemptuous.” See id. at 338. The school made no claim on that basis, nor did it claim
`that the Confederate emblems in play here were such.
`
`I emphasis the phrase “as a matter of law” because the proposition that the
`symbol at issue is “racially hostile and contemptuous” was never put to a test in the
`district court. Presumably it would otherwise be a matter of fact as to what the student
`plaintiffs actually meant by the symbol, or perhaps expert opinions by semioticians could
`reveal its abstract meaning. One would think that context would make some
`difference—a Confederate flag on a book cover might be thought of as different in
`meaning than a Confederate flag accompanied by “forget, Hell” text, as in some
`cartoons. Or, if displayed crossed with a Union flag, perhaps which flag was on top
`would make a difference in meaning and, accordingly, in any judgments of hostility and
`contemptibility. But the panel never hints at such distinctions. It simply upholds the ban
`based on its own interpretation of the symbol as “racially hostile and contemptuous.”
`The panel may be right under some circumstances. But none were proven or adduced
`here.
`
`Next, the very basis of “racially hostile” is both undefined and unlimited. Is it
`only what an appellate court determines to be “race?” Many authorities have stated that
`term to be scientifically meaningless and only a social construct. See generally Saint
`Francis College v. Al-Khazraji, 481 U.S. 604, 610 n.4 (1987); Ho v. San Francisco
`Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998). How, then, does the panel opinion
`limit “race?” We are given no answers. Does it apply also to what some regard as
`religion? Jews, for example, have been considered a “race” in much literature in this
`country. Does it apply to purely religious symbology, such as a “Christ fish” swallowing
`a “Darwin fish” or vice versa? And certainly the use of some religious symbols, such
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`as the controversial cartoon of Mohammed with a bomb in his turban, could be
`considered religiously hostile or contemptuous. See Al-Aulaqi v. Obama, 727 F. Supp.
`2d 1, 21 (D.D.C. 2010). Further, national origin is considered by many to be racial. Is
`an American flag “racially” hostile to recent immigrants or Native Americans? See
`Lindsay Bryant, Five Morgan Hill students sent home for wearing American flag T-
`shirts, MORGAN HILL TIMES, May 5, 2010; Lac du Flambeau Band of Lake Superior
`Chippewa Indians v. Stop Treaty Abuse - Wisconsin, Inc., 843 F. Supp. 1284, 1289
`(W.D. Wisc. 1994). Is a Mexican flag in an American public school “racially hostile”
`to those whom, in some places, are called “Anglos?” See Defoe, 625 F.3d at 337 (Clay,
`J., concurring) (describing uncertainty as to whether students were allowed to wear
`Mexican flags).
`
`Or is the real inquiry into hostility? Does “hostility” encompass political views?
`Surely, the Second Circuit did not appear to think so in Guiles v. Marineau, 461 F.3d
`320 (2006), where the image of a drug-snorting, cowardly American president could
`hardly have been more contemptuous of both the person and his supporters. 461 F.3d
`at 322, 330. But that case was pre-Morse, and the majority opinion here does nothing
`to rule out a contrary result. Similarly, t-shirts with legends of Che Guevara or Mao Tse-
`Tung could certainly be taken by many as displaying hostility and contempt toward their
`victims and the victims’ supporters or descendents. May those images too be banned?
`
`Finally, I would note that a religious service I recently attended included a
`congregant wearing a “redneck IQ test” t-shirt that might well be considered hostile and
`contemptuous by some of the very students involved in this litigation. See Defoe, 625
`F.3d at 327 (Clay, J., concurring).
`
`Surely what is revealed by these examples—and the total unwillingness of the
`majority to even approach them—is that the law in the Sixth Circuit is now that “nice
`symbols” (e.g., black armbands, which I imagine the majority would concede are still
`controlled by Tinker) must be permitted, but “naughty symbols” (e.g., the Confederate
`flag) can be banned without further analysis. This is directly contrary to Tinker and,
`indeed, to any type of fidelity to First Amendment doctrine. Tinker itself shows this.
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`Page 6
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`The Court had no interest at all in whether the black armbands at issue meant “I am a
`nice pacifist” or, directed toward the children of servicemen, “your daddy is a war
`criminal.”
`
`Tinker is certainly subject to criticism, as the Tinker dissenters, including so
`staunch a civil libertarian as Justice Black, noted vigorously. 393 U.S. at 526 (Black,
`J., dissenting) (“I wish, therefore, wholly to disclaim any purpose on my part to hold that
`the Federal Constitution compels the teachers, parents, and elected school officials to
`surrender control of the American public school system to public school students. I
`dissent.”).
`
`But Tinker is the law, and the majority opinion flatly departs from it. Why, then,
`should we not address en banc so egregious an error? Some might think that the
`Supreme Court has caused this confusion and we should let the justices sort it out.
`Others may think that it is unseemly to be on the same side as flaunters of the
`Confederate flag. But the latter view has never kept American courts from judging First
`Amendment issues neutrally, even where the immediate beneficiaries were Communists,
`Nazis, or fascists. Schneider v. Smith, 390 U.S. 17 (1968); Nat’l Socialist Party of Am.
`v. Vill. of Skokie, 432 U.S. 43 (1977); Terminiello v. City of Chicago, 337 U.S. 1 (1949);
`see United States v. Schwimmer, 279 U.S. 644, 654–55 (Holmes, J., dissenting) (“[I]f
`there is any principle of the Constitution that more imperatively calls for attachment than
`any other it is the principle of free thought—not free thought for those who agree with
`us but freedom for the thought that we hate.”).
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`I would apply Tinker and Morse at face value and neutrally, and I believe the
`majority’s failure to do so is sufficiently important that this case should be reheard en
`banc. I therefore respectfully dissent.1
`
`ENTERED BY ORDER OF THE COURT
`
`/s/ Leonard Green
`___________________________________
`Clerk
`
`1The concurrence’s alternate basis for affirmance is also flawed. Under the correct Tinker
`standard, summary judgment was inappropriate in this case, and the majority appeared to agree:
`While there have been troublesome racial incidents in the Anderson County schools in
`the past, there was also some testimony to the effect that the wearing of a Confederate
`flag would not cause disruption. For us to uphold a summary judgment in favor of the
`school board, there must be no genuine issue of material fact. If the school must after
`all show a reasonable forecast of “substantial disruption,” then it is at least questionable
`whether summary judgment for the school was appropriate.
`Defoe, 625 F.3d at 341. In this case, the evidence to support a summary judgment as to a reasonable
`forecast of substantial disruption is even weaker than in the questionable case of Barr v. Lafon. See 553
`F.3d 463, 464–67 (6th Cir. 2009) (Boggs, J., dissenting from denial of rehearing en banc).