RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`File Name: 10a0358p.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
`
`Appeal from the United States District Court
`for the Eastern District of Tennessee at Knoxville.
`No. 06-00450—Thomas A. Varlan, District Judge.
`
`Argued: June 16, 2010
`
`Decided and Filed: November 18, 2010
`
`Before: CLAY, ROGERS, and COOK, Circuit Judges.
`
`_________________
`
`COUNSEL
`ARGUED: Van R. Irion, LAW OFFICES OF VAN R. IRION, Knoxville, Tennessee,
`for Appellants. Jonathan Swann Taylor, TAYLOR, FLEISHMAN & KNIGHT, P.C.,
`Knoxville, Tennessee, for Appellees. ON BRIEF: Van R. Irion, LAW OFFICES OF
`VAN R. IRION, Knoxville, Tennessee, for Appellants. Arthur F. Knight, III, TAYLOR,
`FLEISHMAN & KNIGHT, P.C., Knoxville, Tennessee, for Appellees.
`
`1
`
`

`
`No. 09-6080
`
`Defoe, et al. v. Spiva, et al.
`
`Page 2
`
`CLAY, J., delivered the judgment of the court and an opinion. ROGERS, J.
`(pp. 22–28), delivered a separate concurring opinion, in which COOK, J., joined.
`_________________
`
`OPINION
`_________________
`
`CLAY, Circuit Judge. Plaintiff Tom Defoe, a minor by and through his parent
`and guardian, Plaintiff Phil Defoe, and Plaintiff Phil Defoe, individually, appeal an order
`entered by the district court granting summary judgment for Defendants Sid Spiva, Merl
`Krull, Greg Deal, V.L. Stonecipher, John Burrell, and the Anderson County, Tennessee
`School Board based upon this Court’s decision in Barr v. Lafon, 538 F.3d 554 (6th Cir.
`2008). On appeal, Plaintiffs argue that the district court erroneously granted summary
`judgment in favor of Defendants based on the court’s conclusions that the evidence
`demonstrated that school officials banned displays of the Confederate flag based on a
`reasonable forecast that those displays would substantially disrupt or materially interfere
`with the school environment. For the reasons set forth below, we AFFIRM the district
`court’s decision.
`
`To the extent that there are any differences between this opinion and the
`concurring opinion, the concurring opinion shall govern as stating the panel’s majority
`position.
`
`I. BACKGROUND
`
`A.
`
`Factual Background
`
`The Anderson County school district encompasses seventeen schools, including
`two high schools, Anderson County High School (“ACHS”) and Clinton High School
`(“Clinton”), and one vocational school, Anderson County Career and Technical Center
`(“ACCTC”). ACCTC, which is located on the ACHS campus, draws students from both
`high schools. Plaintiff Tom Defoe attended both ACHS and ACCTC through at least
`December 2007. Plaintiff Phil Defoe is Tom Defoe’s father.
`
`

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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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`All Anderson County schools have a code of student conduct in effect that states
`“[a]pparel or appearance, which tends to draw attention to an individual rather than to
`a learning situation, must be avoided.” (Appellees’ Br. 11.) The policy further states
`that “[c]lothing 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.” (Id.)
`
`According to V.L. Stonecipher, Director of Anderson County schools, a racially
`tense environment has existed at Clinton High School since 1956 when the school was
`integrated.1 (Trial Tr. Vol. I 96-99.) Stonecipher has been employed by Anderson
`County schools since 1965 as a teacher, principal, and administrator. He testified in the
`court below that during his tenure with the Anderson County school system, he has dealt
`with several instances of racial hatred such as the name-calling experienced by black
`students. Stonecipher stated that displays of the Confederate flag would be a distraction
`to any student offended by it and could result in some sort of dangerous disagreement
`resulting in conflict or violence.
`
`John Burrell, Chairman of the Anderson County School Board, stated that the
`Board decided to ban anything it felt would be disruptive to students, and the
`Confederate flag fell into that category. Burrell stated that he would not consider lifting
`the ban as long as the flag was disruptive to any students in the school system.
`Specifically, Burrell said he “would be against removing the ban as long as we have a
`racially mixed group with some of those students who I think [the flag] would be
`offensive to.” (Trial Tr. Vol. I 49.) Burrell stated that after a student becomes offended,
`“the next step is a fight, a riot, that type of situation.” (Trial Tr. Vol. I 63.) Burrell also
`
`1On August 27, 1956 twelve black students, known as the Clinton 12, integrated Clinton High
`School. Because of the backlash that subsequently ensued, the National Guard was brought in to restore
`and maintain order. On October 5, 1958, Clinton High School was bombed. The school was rebuilt and
`reopened in 1960. The campus of what once was Clinton High School is now the campus of Clinton
`Middle School.
`
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`testified that if a child was sitting in class and something is offensive to him or her, that
`could affect the child’s learning.
`
`Several racial incidents have occurred at both ACHS and ACCTC. Examples of
`such happenings are detailed below.
`
`1.
`
`Anderson County High School
`
`Greg Deal, the ACHS principal, testified that racial tension has existed in the
`community for years. (Trial Tr. Vol. II 117-19.) Deal recalled an incident that occurred
`in 2003 where a Hispanic male student had a verbal confrontation with a white female
`student in class about a paper on her desk and a white male student told the Hispanic
`student to shut up. After class and on the way to lunch, the same white male student
`called the Hispanic student a “sand nigger, dirty mexican.” (Id. at 122-23.) The Hispanic
`student went to his older brother and told him what happened. The student’s big brother
`subsequently got into a physical confrontation with the white male student. Also in
`2003, two Hispanic students approached Deal complaining that they were being called
`“dirty niggers, sand niggers and dirty mexicans” and told that they need to leave ACHS
`when they walked down the “redneck hallway.”2 (Id. at 126.) Deal noted that when he
`went to talk to the self-proclaimed “rednecks,” some of them were wearing the
`Confederate flag.
`
`In January 2005, there was a basketball game between ACHS and Clinton High
`School. Clinton had a biracial basketball player. Prior to the commencement of the
`game, ACHS students threw Oreo cookies onto the basketball court as the biracial player
`was completing warm-up drills. (Id. at 123.) Deal’s investigation into this incident
`
`2Deal testified that various groups of students hang out in different areas of the campus. The
`“redneck hallway” referred to by the Hispanic students was where “the John Deere gang or the rednecks,
`the young men who liked to wear [Carhartts]” hung out with each other. (Trial Tr. Vol. II 125.)
`Urbandictionary.com defines the term “redneck” as a “[m]ildly offensive term for a lower class white
`person from the southeastern states of the [United States].”
`
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`revealed that the students threw the Oreo cookies at the player because one of his parents
`is black and one is white.3 (Id. at 123.)
`
`In August 2005, two black male students, one of whom had been displaced by
`Hurricane Katrina, enrolled at ACHS. Deal testified that, according to his recollection,
`a black student had not attended ACHS since 1990 or 1991. Two days after the two
`black male students enrolled, a large Confederate flag was draped in a school hallway.
`Deal testified that he had never seen a Confederate flag hanging in the hallway before,
`yet, two days after two black male students enrolled at the school, there was a
`Confederate flag hanging in the hallway. When Deal went over to remove the flag from
`the wall, he observed the “rednecks” or John Deere gang “laughing and snickering” as
`he took the flag down. (Id. at 109.) Deal considered the flag to be a message to the
`administration “that, hey, we don’t want these black young men enrolled in our school.”
`(Id.)
`
`There was also an incident where a black student from Clinton High School
`attending a leadership class at ACHS was called a “nigger” by a group of white students.
`(Id. at 131.) In 2008, racially-charged graffiti was discovered in the school auditorium
`and in two areas of the high school football stadium. In the auditorium, a Swastika was
`found along with the terms “niggers” and “white power.” (Id. at 133.) On the football
`bleachers, graffiti included comments like “White 4 Life” and “I Hate Niggas, J/K
`AVM.”4 (Id. at 140.) In 2008, graffiti discovered on the track pole vault pit was
`determined to be the names of a black male student and a white female student along
`with “something about nigger-lover, white girl, black boy, in my school” and a picture
`of a hangman’s noose (Id. at 142-43.) The two students whose names were written were
`dating at the time. Deal stated that he believed lifting the Confederate flag ban would
`disrupt the learning environment.
`
`3Although often used to describe persons deemed “[b]lack on the outside, [w]hite on the inside,”
`Urbandictionary.com, the term “oreo” is sometimes used to refer to a person of black and white heritage.
`4Deal testified that he understood “J/K” to mean “joking” and AVM to stand for “Andersonville
`Mafia,” which is a group of students Deal characterized as a “[g]ang[] or gang ‘wannabes’” who think they
`are “gangsters.” (Trial Tr. Vol. II 140-41.)
`
`

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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 6
`
`2.
`
`Anderson County Career and Technical Center
`
`Until he retired, Sidney Spiva was the principal at ACCTC. Spiva recalled an
`incident at ACCTC when he confiscated a student’s shirt. Spiva testified that the
`student’s shirt bore an image of a skeleton in the same kind of robe worn by members
`of the Ku Klux Klan (“KKK”) and included an image of the Confederate flag. He stated
`that the student’s mother came down to the school and was upset that Spiva even
`commented to the student about his shirt.
`
`Spiva testified that he believes the presence of the Confederate flag, even in a
`virtually all-white school, would likely disrupt the learning environment. Spiva also
`noted that recruiting minorities to ACCTC had been a struggle and that out of 400 or so
`students enrolled while he was the principal, only two or three were minorities. Spiva
`said that during interviews with potential minority recruits at Clinton, the students stated
`they did not want to attend ACCTC for reasons such as they “don’t want to go up there
`with those rednecks.” (Trial Tr. Vol. I 139.)
`
`Tim Parrott, the current principal of ACCTC, also testified about several racial
`incidents that had occurred at ACCTC. The first incident was a parent complaint about
`a black male student being called a “nigger” on the school bus. (Parrott Dep. 67.) The
`second incident involved a black student who requested to change classes and return to
`Clinton High School because he was afraid of a white student at ACHS. (Id. at 68.) The
`third incident involved three white male students who were singing a racial song about
`a black student on the school bus, one of whom had an image of the Confederate flag on
`his belt buckle. (Id. at 69.) There was also a fight on the bus arising from one student,
`in a text message, making a racial joke about a particular female student.
`
`Merl Krull, the Assistant Principal at ACCTC, testified regarding a racial
`incident where a biracial female student was subjected to racist name-calling. Krull
`noted that the student “was very upset about what had happened in the classroom and
`wanted to call home.” (Trial Tr. Vol. II 12.) Krull testified that he believed lifting the
`Confederate flag ban might result in more incidents of students arguing about the display
`
`

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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 7
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`of the flag. David Landrum, a welding instructor at ACCTC, also stated that lifting the
`Confederate flag ban would probably result in disruption to the learning environment.
`
`Prior to becoming principal of ACCTC, Parrott was assistant vice principal at
`Clinton High School. Parrott recalled several episodes occurring during his tenure as
`vice president at Clinton High School, including multiple incidents of racially-charged
`graffiti that had to be painted over. Examples of such graffiti included KKK references,
`“I hate niggers,” and “Kill all the niggers.” (Trial Tr. Vol. III 15.) Parrott stated that
`he kept a can of spray paint in his office because if such graffiti was not removed from
`the walls immediately, there could have been a fight. Clinton High School administration
`once discovered graffiti in the girls’ restroom that said “I hate this nigger-hating school.
`I’m going to blow it up.” (Id.) There had even been a noose discovered in a student’s
`locker along with stickers displaying terms like “White Power” and “KKK.” (Id. at 17.)
`
`On October 30, 2006, Tom Defoe wore a t-shirt to school bearing an image of
`the Confederate flag. School officials told Defoe he was in violation of the code of
`conduct and he was asked to either turn the shirt inside out or remove it. Defoe refused
`to comply so he was sent home. On November 6, 2006, Defoe wore a belt buckle to
`school that displayed an image of the Confederate flag. A school official informed
`Defoe he was in violation of the code of conduct and when Defoe refused to comply with
`the dress code, he was suspended. Prior to these two incidents, Defoe wore clothing
`depicting the Confederate battle flag on several occasions but complied when school
`officials requested he remove or cover the clothing.
`
`B.
`
`Procedural History
`
`On November 20, 2006, Plaintiffs commenced this action, alleging violation of
`the First and Fourteenth Amendments. Plaintiffs filed a motion for a preliminary
`injunction and a temporary restraining order the same day. On May 16, 2007, the district
`court denied Plaintiffs’ motion. Plaintiffs also filed a motion to amend their complaint,
`which was denied.
`
`

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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 8
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`On September 21, 2007, Plaintiffs filed a motion for summary judgment, which
`was denied. Although the record does not make clear exactly when, at some point,
`Defendants also moved for summary judgment. Defendants’ motion was denied.
`Plaintiffs moved for reconsideration of their summary judgment motion. Plaintiffs
`subsequently requested the recusal of the district court judge and moved once again to
`amend their complaint in order to add two additional parties.
`
`Defendants filed a response to Plaintiffs’ motion to reconsider in which they
`argued that summary judgment should be granted in favor of the individual Defendants
`based on qualified immunity. The district court denied both Plaintiffs’ and Defendants’
`motions for reconsideration of their respective summary judgment motions. On January
`7, 2008, the court granted Plaintiffs’ motion to amend. On January 9, 2008, Defendants
`filed an interlocutory appeal regarding the district court’s denial of their summary
`judgment motion asserting qualified immunity.
`
`Defendants dismissed their appeal on March 26, 2008 and filed a motion for
`partial summary judgment on April 28, 2008, arguing that the individual defendants
`were entitled to qualified immunity. The court granted Defendants’ motion for partial
`summary judgment in part and denied it in part, concluding that Stonecipher and Burrell,
`who were added after Defendant’s initial summary judgment motion, were entitled to
`qualified immunity in their individual capacities and, as it had previously concluded, the
`other Defendants were not entitled to qualified immunity.
`
`From August 11, 2008 through August 15, 2008, a jury trial was held that ended
`in a mistrial because the jury was unable to reach an unanimous verdict. The district
`court subsequently requested that the parties file post-trial briefs in light of this Court’s
`decision in Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008). On August 11, 2009, the district
`court granted summary judgment in favor of Defendants and dismissed the action.
`Plaintiffs now appeal.
`
`

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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
`
`Page 9
`
`II. DISCUSSION
`
`A.
`
`Standard of Review
`
`The Court reviews de novo a motion for summary judgment. Kleiber v. Honda
`of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). Summary judgment is appropriate
`where “the pleadings, the discovery and disclosure materials on file, and any affidavits
`show that there is no genuine issue as to any material fact and that the movant is entitled
`to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). Where the record, viewed as
`a whole, “could not lead a rational trier of fact to find for the non-moving party, there
`is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
`U.S. 574, 587 (1986). In considering a summary judgment motion, all inferences to be
`drawn from the facts must be viewed in the light most favorable to the non-moving
`party. Id. A judge’s role is not to weigh the evidence, judge the credibility of witnesses,
`or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
`255 (1986).
`
`Once a summary judgment motion is properly made and supported, “an opposing
`party may not rely merely on allegations or denials in its own pleading; rather its
`response must–by affidavits or as otherwise provided in this rule–set out specific facts
`showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); accord Matsushita, 475 U.S.
`at 587. If the opposing party fails to respond in this manner, summary judgment should
`be entered against that party if appropriate. Fed. R. Civ. P. 56(e)(2). The opposing party
`must present more than a “mere scintilla” of evidence; the evidence must be such that
`a reasonable jury could find for the non-movant. Anderson, 477 U.S. at 252.
`
`B.
`
`Analysis
`
`1.
`
`Relevant Precedent
`
`In Tinker v. Des Moines Independent Community School District, the Supreme
`Court made clear that “First Amendment rights, applied in light of the special
`characteristics of the school environment, are available to teachers and students.” 393
`U.S. 503, 506 (1969). Indeed, it is well-established that students do not “shed their
`
`

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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 10
`
`constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id.
`Nonetheless, school officials retain some “authority . . . consistent with fundamental
`constitutional safeguards to prescribe and control conduct in the schools.” Id. at 507.
`“[T]he constitutional rights of students in public school are not automatically
`coextensive with the rights of adults in other settings,” and the Constitution does not
`compel “school officials to surrender control of the American public school system to
`public school students. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 686
`(1986). Students’ First Amendment rights must be “applied in light of the special
`characteristics of the school environment.” Tinker, 393 U.S. at 506.
`
`In Tinker, the Court considered whether schools violated students’ First
`Amendment rights when they suspended students who wore black armbands to school
`as an expression of their opposition to the Vietnam War. The Court determined that “the
`wearing of armbands in the circumstances of this case was entirely divorced from
`actually or potentially disruptive conduct by those participating in it” and more “akin to
`‘pure speech,’” which was entitled to comprehensive protection under the First
`Amendment. Id. at 505-06.
`
`The Court noted the absence of any evidence that the suspended students’ protest
`interfered with the schools’ work or collided with the rights of other students to be
`secure and let alone. Id. at 508. Specifically, the Court noted that the wearing of the
`armbands did not “materially and substantially interfere with the requirements of
`appropriate discipline in the operation of the school.” Id. at 509 (internal quotation
`marks omitted). Instead, concluded the Court, the schools’ actions appeared to have been
`motivated by “an urgent wish to avoid controversy which might result from the
`expression . . . of opposition to this Nation’s part in the conflagration in Vietnam.” Id.
`at 510. Because there was no evidence that “school authorities had reason to anticipate
`that the wearing of the armbands would substantially interfere with the work of the
`school or impinge upon the rights of other students,” the Court reversed the appellate
`court’s affirmance of dismissal. Id. at 509.
`
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`Page 11
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`In two subsequent cases, the Court clarified that schools did not always need to
`justify the regulation of student speech using the Tinker framework. In Bethel School
`District No. 403 v. Fraser, a male student, while delivering a speech nominating another
`student for an elected student office, referred to the candidate using a graphic, sexually
`explicit metaphor. The Court considered whether the student’s public high school
`violated his First Amendment rights when it suspended him for violating the school’s
`rule prohibiting “the use of obscene, profane language or gestures.” 478 U.S. at 678.
`
`The Court concluded that the First Amendment did not preclude the school from
`punishing the student, noting that it is “a highly appropriate function of public school
`education to prohibit the use of vulgar and offensive terms in public discourse.” Id. at
`683. The Court referenced the “marked distinction between the political ‘message’ of
`the armbands in Tinker and the sexual content of [the student’s] speech” and the
`“obvious concern . . . to protect children–especially in a captive audience–from exposure
`to sexually explicit, indecent, or lewd speech.” Id. at 684. Consequently, stated the
`Court, “[s]chools, as instruments of the state, may determine that the essential lessons
`of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or
`offensive speech and conduct” such as that of the student. Id. at 683.
`
`In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme
`Court addressed whether a public high school violated students’ First Amendment rights
`by exercising editorial control over the style and content of student speech in a school-
`sponsored activity. Staff members of a high school newspaper brought suit against the
`school district, alleging that the principal violated their First Amendment rights when
`he deleted two pages of the newspaper that contained students’ experiences regarding
`pregnancy and the effect of divorce on students. The Court noted that the question
`confronted in Tinker differed from the question currently before it, id. at 270-71, and
`concluded that “educators do not offend the First Amendment by exercising editorial
`control over the style and content of student speech in school-sponsored expressive
`activities so long as their actions are reasonably related to legitimate pedagogical
`concerns.” Id. at 273.
`
`

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`Page 12
`
`As this Court noted in Barr v. Lafon:
`
`The above trilogy of cases yields three principles: (1) under Fraser, a
`school may categorically prohibit vulgar, lewd, indecent, or plainly
`offensive student speech, Fraser, 478 U.S. at 683-85, 106 S.Ct. 3159;
`Hazelwood, 484 U.S. at 272 n. 4, 108 S.Ct. 562; (2) under Hazelwood,
`a school has limited authority to censor school-sponsored student speech
`in a manner consistent with pedagogical concerns, 484 U.S. at 273, 108
`S.Ct. 562; and (3) the Tinker standard applies to all other student speech
`and allows regulation only when the school reasonably believes that the
`speech will substantially and materially interfere with schoolwork or
`discipline, 393 U.S. at 513, 89 S.Ct. 733.
`
`538 F.3d at 563-64 (footnote omitted). Accordingly, Tinker governs this case because
`by wearing clothing bearing images of the Confederate flag, Tom Defoe engaged in
`“pure speech,” which is protected by the First Amendment, and thus Fraser would not
`apply; and the speech was not sponsored by the school, which means Hazelwood does
`not apply. See id. at 564 (internal quotation marks omitted). Thus, the inquiry in this
`case focuses on whether the record demonstrates “any facts which might reasonably
`have led school authorities to forecast substantial disruption of or material interference
`with school activities.” Tinker, 393 U.S. at 514.
`
`The Supreme Court’s decision in Morse v. Frederick, 551 U.S. 393 (2007), does
`not alter our application of the Tinker standard. Indeed, the Court in Morse reiterated
`that “schools may regulate some speech ‘even though the government could not censor
`similar speech outside the school.’” 551 U.S. at 405-06. The Court also noted that “the
`rule of Tinker is not the only basis for restricting student speech.” Id. at 406. As this
`Court has already recognized, however, the Morse holding was a narrow one,
`determining no more than that a public school may prohibit student expression at school
`or at school-sponsored events during school hours that can be “reasonably viewed as
`promoting drug use.” Id. at 409-10.5
`
`5In his concurrence, Justice Alito stated that he joined the Morse majority opinion
`on the understanding that (a) it goes no further than to hold that a public school may
`restrict speech that a reasonable observer would interpret as advocating illegal drug use
`and (b) it provides no support for any restriction of speech that can plausibly be
`interpreted as commenting on any political or social issues, including speech on issues
`
`

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`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 13
`
`2.
`
`Analysis under Tinker of the School District’s Ban on
`Displays of the Confederate Flag
`The district court granted summary judgment in favor of Defendants based on
`this Court’s decision in Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008). In Barr, racial
`tensions at Blount County High School in Blount County, Tennessee prompted the
`principal to announce that displays of the Confederate flag were prohibited. Two
`students who subsequently wore t-shirts to school displaying the Confederate flag sued
`after being told to remove or cover-up the t-shirts or face suspension. The students
`alleged that the ban violated their free speech rights.
`
`This Court upheld the district court’s grant of summary judgment in favor of the
`school board on the basis that school officials reasonably forecast that displays of the
`Confederate flag would disrupt school work and discipline, and thus adhered to the
`Tinker standard. In reaching this conclusion, the Court pointed to evidence in the record
`regarding racial violence, threats, and tension. Specifically, the Court pointed to the
`following evidence: (1) a fight between an a black student and a white student; (2) a
`complaint filed with the Office of Civil Rights alleging that the school punished a black
`student more harshly than a white student following a racially-motivated altercation;
`(3) racist graffiti that included racial slurs and generalized threats against the lives of
`blacks; (4) “hit lists” of specific student names; (5) unspecified race-related fights; (6) a
`fear of racial violence that resulted in absenteeism among black students; and (7) a
`school “lockdown” implemented because of the deterioration of student discipline and
`the threat of race-related violence. 538 F.3d at 566-67. The Court concluded that these
`occurrences established that school officials reasonably forecast that displays of the
`Confederate flag would likely disrupt the school environment. Id. at 567.
`
`Plaintiffs argue that the Confederate flag itself has not caused any disruption in
`the past at ACHS or ACCTC that would justify the ban. However, as this Court stated
`
`such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”
`
`551 U.S. at 422 (Alito, J., concurring). Justice Alito also stated that he joined the majority opinion “on
`the understanding that the opinion does not hold that the special characteristics of the public schools
`necessarily justify . . . speech restrictions” beyond those recognized in Tinker, Fraser, and Hazelwood.
`Id. at 423.
`
`

`
`No. 09-6080
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`Defoe, et al. v. Spiva, et al.
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`Page 14
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`in Barr, such an argument “misapplies the Tinker standard” because “Tinker does not
`require disruption to have actually occurred.” 538 F.3d at 565 (quoting Lowery v.
`Euverard, 497 F.3d 584, 591, 593 (6th Cir. 2007)) (internal quotation marks omitted).
`Instead, the Court evaluates the circumstances to determine whether the school’s forecast
`of substantial disruption was reasonable. Id.
`
`Under Tinker, “to justify prohibition of a particular expression of
`opinion,” a school district must be able to show only “that its action was
`caused by something more than a mere desire to avoid the discomfort and
`unpleasantness that always accompany an unpopular viewpoint,” but
`rather, “that the school authorities had reason to anticipate that the
`wearing of [the banned imagery] would substantially interfere with the
`work of the school or would impinge upon the rights of other students,”
`including the right “to be secure and to be let alone.”
`
`Brogdon v. Lafon, 217 F. App’x 518, 525 (6th Cir. 2007) (citations omitted).
`
`Plaintiffs also argue that the district court erred in granting summary judgment
`by “erroneously conclud[ing] that ‘ACHS and ACCTC have recently experienced
`intense racial conflict’” and that such a conclusion could not have been made without
`the court improperly weighing evidence and failing to grant all reasonable inferences in
`Plaintiffs’ favor. (Appellant’s Br. 19.) More specifically, Plaintiffs argue that the
`evidence demonstrates that racial tension is low at both ACHS and ACCTC. We
`disagree.
`
`The record contains uncontested evidence of racial violence, threats, and tensions
`at both ACHS and ACCTC. At ACHS, several incidents have occurred: two days after
`two black male students enrolled at ACHS, a large Confederate flag appeared draped in
`a school hallway; racial slurs such as “dirty niggers, sand niggers and dirty mexicans”
`were directed at Hispanic students; racially-charged graffiti including a Swastika and the
`words “niggers” and “white power,” and the comments “White 4 Life” and “I Hate
`Niggas, J/K AVM”; graffiti including the name of a racially mixed couple along with
`“something about nigger-lover, white girl, black boy, in my school” and a picture of a
`hangman’s noose; a black Clinton High School student involved in a leadership program
`at ACHS being called a “nigger” by a group of white ACHS students; Oreo cookies
`
`

`
`No. 09-6080
`
`Defoe, et al. v. Spiva, et al.
`
`Page 15
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`thrown onto the basketball court when a biracial Clinton High School basketball player
`attempted to warm-up before a basketball game; and a physical altercation between a
`Hispanic student and a white male student stemming from the white student’s reference
`to the Hispanic student’s brother as a “sand nigger, dirty mexican.”
`
`There is also uncontested evidence pertaining to incidents and the racial climate
`at ACCTC: a complaint from a black student’s parent after the student was called a
`“nigger” on the school bus; a black student changing classes and transferring to Clinton
`High School based on his fear of a white student; incidents that occurred on ACCTC
`school buses stemming from racial epithets such as “nigger” and white students singing
`racial songs; a physical altercation resulting from a racial joke; a biracial female student
`being subjected to racist name-calling such that she “wanted to call home”; and
`difficulty recruiting minorities to