Defoe Ex Rel. Defoe v. Spiva

625 F.3d 324, 2010 U.S. App. LEXIS 23714, 2010 WL 4643256
Court of Appeals for the Sixth Circuit·Decided November 18, 2010·No. 09-6080·Published·Cited by 32 cases

Opinions

CLAY, J., delivered the judgment of the court and an opinion. ROGERS, J. (pp. 338-42), 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.

All Anderson County schools have a code of student conduct in effect that states “[ajpparel 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 “[cjlothing 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 [327] 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 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 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.)

[328] 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.)

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Defoe Ex Rel. Defoe v. Spiva, 625 F.3d 324, 2010 U.S. App. LEXIS 23714, 2010 WL 4643256 (6th Cir. 2010).

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