Linda Denno, as Parent, Legal Guardian and Next Friend for Wayne Denno v. School Board of Volusia County, Florida Dennis Roberts, an Individual

218 F.3d 1267, 2000 U.S. App. LEXIS 17435, 2000 WL 1005058

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 20, 2000
• Docket: 98-2718
• Status: Published

Opinions

ANDERSON, Chief Judge:

Appellant, Linda Denno as parent and next friend for Wayne Denno (“Denno”), filed this complaint against Volusia County School Board (“Board”) and Assistant Principals Dennis Roberts and Robert Wallace (“individual defendants”) alleging deprivation of First Amendment rights in violation of 42 U.S.C. § 1983. With respect to the § 1983 claim against the individual defendants, the district court dismissed the complaint pursuant to Fed. R.Civ.P. 12(b)(6) on the basis of qualified immunity. With respect to the § 1983 claim against the Board, the district court granted summary judgment in favor of the Board. Denno appeals.

We address two discrete issues on appeal.¹ First, Denno contends that the district court erred in dismissing the § 1983 claim as to the individual defendants pursuant to Fed.R.Civ.P. 12(b)(6) on the basis of qualified immunity. Second, Denno argues that the district court erred in granting summary judgment in favor of the Board on the § 1983 claim. We address each issue in turn.

I. QUALIFIED IMMUNITY FOR THE INDIVIDUAL DEFENDANTS

Qualified immunity shields government officials from both suit and liability if their conduct violates no clearly established right of which a reasonable person would have known. See Santamorena v. Georgia Military College, 147 F.3d 1337, 1339-40 (11th Cir.1998)(citing Williams v. Alabama State Univ., 102 F.3d 1179, 1182 (11th Cir.1997)). Elaborating on the qualified immunity standard, we have held:

For qualified immunity to be surrendered, preexisting law must dictate, that is, truly compel, (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.

Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1150 (11th Cir.1994)(en banc). We also held in Lassiter that the qualified immunity standard sets up a bright-line test that is a powerful constraint on causes of action under § 1983. Quoting from and elaborating on Dartland v. Metropolitan Dade County, 866 F.2d 1321 (11th Cir.1989), we noted:

When “no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where [First Amendment case law] would lead to the inevitable conclusion that the [act taken against] the employee was unlawful.” Unless a government agent’s act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit.

Id. at 1149 (quoting Dartland, 866 F.2d at 1323-24). One way that a plaintiff can satisfy the qualified immunity standard is to point to case law which predates the official’s alleged improper conduct, which case law involves materially similar facts and truly compels the conclusion that the plaintiff had a right under federal law. See Santamorena, 147 F.3d at 1340.²

Whether the instant complaint alleges a violation of such a clearly-established right is a question of law subject to de novo review. See Santamorena, 147 F.3d at 1340. The district court dismissed Denno’s claim against the individual defendants pursuant to Fed.R.Civ.P. 12(b)(6) based on qualified immunity. In the posture of this case, we are required to assume all reasonable inferences from the complaint in favor of Denno. See id. We briefly summarize the facts alleged in the complaint that are relevant to this issue.

At the time of the events giving rise to the instant case, Wayne Denno was a minor and a student at Pine Ridge High School. Dennis Roberts and Robert Wallace were assistant principals at that school. As a hobby, Wayne Denno had cultivated a keen interest in Civil War history. In his free time, Denno participated in Civil War reenactments and living histories. His hobby led him to join a reenactment group known as the Florida Light Artillery, Battery B, with which he participated in Civil War reenactments and living histories both within Florida and elsewhere in the South.

On December 13, 1995, during an outdoor lunch break at school, Wayne Denno was quietly conversing with a small group of friends, discussing his avocation of Civil War history and his hobby as a Civil War reenactor. As part of this discussion, Wayne Denno displayed to his friends a 4" x 4" Confederate battle flag as he discussed historical issues of Southern heritage. Without any provocation or disruption, defendant Roberts approached and observed a couple of students with apparel bearing Confederate symbols. Without any explanation, defendant Roberts ordered the students to remove or cover the Confederate symbols on their apparel, and also ordered Denno to put away his small flag. When Denno tried to explain the historical significance of the flag, Roberts ordered Denno to accompany him to an administrative office and on the way there advised Denno that he was suspended from school. At the administrative office, another student was detained for wearing a tee-shirt displaying the Confederate flag, and ordered to turn his shirt inside-out so as to conceal the flag. Denno urged the student to adhere to his principles and not submit to the alleged violation of his First Amendment rights.

Denno’s complaint alleges that his suspension constituted an unconstitutional deprivation of his First Amendment rights. As indicated in our elaboration above of the qualified immunity standard, pre-exist-ing law must clearly establish the alleged constitutional right. Thus, we examine the legal landscape at the time of the individual defendant’s actions. That legal landscape is dominated by two Supreme Court cases, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).

In Tinker, several Iowa high school and junior-high school students were suspended for wearing black armbands to school in protest of the Vietnam War. The Supreme Court found that the students “merely went about their ordained rounds in school” and “neither interrupted school activities nor sought to intrude in the school affairs or lives of others” by their wearing of the black cloth. Id. at 514, 89 S.Ct at 740. The Court held that a student has a First Amendment right to display the armband at school, notwithstanding the school officials’ fear that display of the symbol would create a disturbance, so long as there was no more than an “undifferentiated fear or apprehension of disturbance.” Id. at 508, 89 S.Ct. at 737. On the other hand, the Court in Tinker indicated that school .officials could have appropriately prohibited the display of the armband if there were circumstances that would warrant a reasonable fear on the part of the school officials that the display would appreciably disrupt the appropriate discipline in the school. See id. at 514, 89 S.Ct. at 740.

In 1986, the Supreme Court again addressed the First Amendment rights of students in public schools. In Bethel Sch. Dist., No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549, a high school student was disciplined following his speech to a school assembly nominating a fellow student for student elective office. The speech contained explicit sexual metaphor. The Court held that the school district was within its permissible authority in imposing the discipline. After stating that one of the purposes of public education is to inculcate the habits and manners of civility as values conducive both to happiness and to the practice of self-government, the Court stated:

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of the others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.

Id. at 681, 106 S.Ct. at 3163. After noting that the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings, the Court stated:

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.

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.

Id. at 683, 106 S.Ct. at 3164.³

The issue before us with respect to the individual defendants is whether every reasonable school official in the same circumstances would have known in light of the preexisting law that his actions violated First Amendment rights. In other words, were the actions so obviously wrong, in light of preexisting law, that only a plainly incompetent school official or one who was knowingly violating the law would have done such a thing.

Such a reasonable school official would be charged with knowledge of Tinker and Fraser. In our attempt to identify the legal landscape that would have been apparent to such a reasonable school official, it is instructive to take note of the perspective of several reasonable jurists who have attempted to articulate the legal landscape in light of Tinker and Fraser.

In Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir.1996), the Seventh Circuit was presented with a claim brought by an elementary school child challenging the school’s restriction on the child’s attempt to distribute, during non-instructional times, invitations to a religious meeting. The court upheld the school’s restrictions, applying a flexible reasonableness standard, namely whether the restrictions were reasonably related to legitimate pedagogical concerns. See id. at 1540. The court rejected plaintiffs’ argument, based upon Tinker, that the school was a public forum, with respect to personal intercommunication amongst students. Holding that intercommunication amongst students was indeed important, but was only one of many important school activities, the court stated:

Supreme Court decisions since Tinker indicate that the teaching of civility and the inculcation of tradition moral, social, and political norms may override student expression, or at least that it is permissible for a school board to so order its educational priorities. Fraser, 478 U.S. at 681 & 683, 106 S.Ct. at 3163 & 3164; Hazelwood, 484 U.S. at 271-72, 108 S.Ct. at 570-71.

Further, the potential “verbal cacophony” of a public forum, see Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284, can be antithetical to the delicate “custodial and tutelary” environment of an elementary school. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995). The cultivation of the “habits and manners of civility” that Fraser held “essential to a democratic society,” 478 U.S. at 681, 106 S.Ct. at 3163, can require a level of parent-like guidance that has no place in a public forum. Declaring the elementary school classroom, hallway, or playground forums for unfettered student communication would require either a severe incursion into the critical educational mission of the elementary school or a substantial contraction of the First Amendment protections afforded speech in a public forum. Perhaps both. But neither alteration is necessary on the facts before us. In a public forum, the Christian can tell the Jew he is going to hell, or the Jew can tell the Christian he is not one of God’s chosen, no matter how that may hurt. But it makes no sense to say that the overly zealous Christian or Jewish child in an elementary school can say the same thing to his classmate, no matter the impact. Racist and other hateful views can be expressed in a public forum. But an elementary school under its custodial responsibilities may restrict such speech that could crush child’s sense of self-worth.

Id. at 1539-AO. Thus, the Seventh Circuit, relying heavily upon Fraser applied a flexible reasonableness standard in analyzing a claim very similar to the claim made by Denno in the instant case.

In 1998 the United States Court for the District of Kansas addressed a challenge concerning a factual situation indistinguishable from the instant one. In West v. Derby Unified School Dist. No. 260, 23 F.Supp.2d 1223 (D.Kan.1998), aff'd, 206 F.3d 1358 (10th Cir.2000), the court addressed a challenge to a disciplinary action against a middle school student who had drawn and circulated a picture of the Confederate flag. The court, as have we, identified the two most relevant Supreme Court cases as being Tinker and Fraser. Because of the history of racial tensions in that school system, the court concluded that the school system adequately supported its policy prohibiting the display at school of the Confederate flag under the Tinker standard — i.e., the display would likely lead to a material and substantial disruption of the school’s discipline. Of greater relevance to the instant case, however, the West court held alternatively that the school’s policy was supported by the reasoning of Fraser. The ' court noted Fraser’s “habits and manners of civility” language, and quoted Fraser’s balancing test:

“The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced- against the societies countervailing interest in teaching students the boundaries of socially appropriate be-, havior.”

West, 23 F.Supp.2d at 1233 (quoting Fraser, 478 U.S. at 681, 106 S.Ct. at 3163). Applying that balancing test, the court held:

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 threating 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 thát 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.

Id. at 1233-34 (quoting from Fraser, 478 U.S. at 683, 106 S.Ct. at 3164).⁴

Thus, two courts viewing the relevant legal landscape have applied in analogous situations a more flexible reasonableness or balancing standard rather than, or in addition to, the Tinker standard of whether there is a reasonable fear of disruption. See also Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 736 (7th Cir.1994) (citing Fraser and commenting “[s]ince Tinker, however, the Supreme Court has cast some doubt on the extent to which students retain free speech rights in the school setting”).

In light of the holding and language in Fraser, and the interpretation of the Tinker-Fraser landscape by reasonable jurists, we cannot conclude that preexisting law dictates or truly compels the conclusion that the Tinker standard should apply in the instant case to the exclusion of the Fraser standard. We have noted that it would be inappropriate to hold government officials to a higher level of knowledge and understanding of the legal landscape than the knowledge and understanding displayed by judges whose everyday business it is to decipher the meaning of judicial opinions. See Barts v. Joyner, 865 F.2d 1187, 1194 (11th Cir.1989). The fact that reasonable jurists have applied Fraser’s more flexible standard in cases similar to the instant case is a strong indication that a reasonable school official might see the Tinker-Fraser legal landscape as including the more flexible Fraser standard. Moreover, such a reasonable official might have noted that the Fraser opinion pointed out that the Tinker Court itself “was careful to note that the case did not ‘concern speech or action that intrudes upon the work of the schools or the rights of other students.’” Fraser, 478 U.S. at 680, 106 S.Ct. at 3163 (quoting Tinker, 393 U.S. at 508, 89 S.Ct. at 737). Such official might have further noted that the Fraser Court contemplated that the “work of the schools” included the inculcation of fundamental values relating to the habits and manners of civility. Id. at 683, 106 S.Ct. at 3164. Thus, such a reasonable school official might have been led to the view that the legal landscape permitted application of the more flexible Fraser standard where the speech involved intrudes upon the function of the school to inculcate manners and habits of civility.⁵ The instant case involves display of the Confederate flag during school hours and on school premises. We do not believe that it would be unreasonable for a school official to believe that such displays have uncivil aspects akin to those referred to in Fraser, in that many people are offended when the Confederate flag is worn on a tee-shirt or otherwise displayed.⁶ We cannot conclude that only a plainly incompetent school official would have viewed the instant circumstances as implicating legitimate school functions relating to civility, and thus subject to the school’s authority under the more flexible Fraser standard to balance the freedom of one student to advocate unpopular and controversial views at school against the school’s countervailing interest in teaching students the boundaries of socially appropriate behavior.

To the extent that a reasonable school official viewed the relevant legal landscape as including the more flexible Fraser standard, the official would look not merely to the reasonable risk of disruption (the Tinker standard), but would also balance the freedom of Denno and the similarly situated students to advocate unpopular and controversial views against the school’s interest in teaching students the boundaries of socially appropriate behavior. We cannot conclude that the actions of the individual defendants in the instant case violated clearly-established First Amendment rights under the more flexible Fraser standard. Denno points to no case, binding or otherwise, in which materially similar actions of school officials have been held to violate First Amendment rights under the Fraser standard. Our research has uncovered no such cases.⁷ As indicated above, the application of the Fraser standard in the instant case would involve balancing the freedom of Denno and the other similarly situated students to advocate unpopular or controversial views against the school’s interest in promoting civil discourse amongst students at school. The balancing analysis under the Fraser standard would be analogous to that discussed by this court in a ease involving a public employer’s discharge of an employee because of the employee’s comments to the press on matters of public concern. See Dartland v. Metropolitan Dade County, 866 F.2d 1321 (11th Cir.1989). In granting summary judgment for the public official who fired Dartland, we described the analysis as follows:

The Supreme Court has never established a bright-line standard for determining when the State as an employer may take action adverse to an employee in response to that employee’s speech. Instead, the Court has balanced the interest of the employee in commenting on matters of public concern against the interest of the employer in performing public services efficiently. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). The court must necessarily balance these interests on a case-by-case basis. Because of this case-by-case approach, “[t]here will rarely be a basis for [an] a priori judgment that termination or discipline of a public employee violated ‘clearly established’ constitutional rights”.... Because no bright-line standard puts the reasonable public employer on notice of a constitutional viola- • tion, the employer is entitled to immunity except in the extraordinary case where Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful.

Id. at 1323 (quoting Noyola v. Texas Dep’t of Human Resources, 846 F.2d 1021, 1025 (5th Cir.1988)) (footnote omitted). Similarly, we cannot conclude that a Fraser balancing of the circumstances in the instant case would lead to the inevitable conclusion that the individual defendants here violated the First Amendment rights of the students. We cannot conclude that the prohibition of the displays of the Confederate flag in this case are “so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing.” Lassiter, 28 F.3d at 1149.

Thus, we affirm the district court’s dismissal of the § 1983 claim against the individual defendants.⁸ We turn to Den-no’s challenge to the district court’s grant of summary judgment in favor of the Board.

II. LIABILITY OF THE BOARD

Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), holds that local governments (and branches thereof)⁹ may not be held liable for constitutional deprivations on the theory of respondeat superior. Rather, they may be held liable only if such constitutional torts result from an official government policy, the actions of an official fairly deemed to represent government policy, or a custom or practice so pervasive and well-settled that it assumes the force of law. See id. at 694, 98 S.Ct. at 2037-38; Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997); Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir.1994). In order for the actions of a government official to be deemed representative of the municipality, the acting official must be imbued with final policymaking authority. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986). Unlike the qualified immunity issue discussed above, the district court permitted the § 1983 claims against the Board to proceed beyond the pleadings stage; however, the district court granted summary judgment in favor of the Board.

Because Denno does not argue that the Board maintained any official policy prohibiting Confederate symbols, our resolution of this claim hinges on two issues: 1) whether the Pine Ridge High School administrators were officials vested with final policymaking authority, and 2) whether a custom or practice banning Confederate symbols existed. The district court answered both queries in the negative and accordingly granted summary judgment in favor of the Board. We agree with that assessment for the following reasons.

A. Final Policymaking Authority

Scala v. City of Winter Park, 116 F.3d 1396 (11th Cir.1997), serves as our compass in the area of determining whether officials act with final policymak-ing authority so as to trigger entity liability under Monell. In Scala, drawing on City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)(plurality opinion), we squarely held that “[f]inal policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review.” Scala, 116 F.3d at 1401. With this “embedded” principle in mind, id., we find Denno’s argument that the school administrators possessed final policymaking authority unpersuasive.

Policy 208 of the Volusia County School Board, entitled “Code of Student Conduct and Discipline,” sets forth a successive three-step grievance procedure for the resolution of “complaints filed by a student or parent/guardian with regard to their respective rights under school board policy, school rule, state or federal law.” Step 1 involves meeting with the school principal informally; Step 2 involves review by the area assistant superintendent; and Step 3 permits a student to request a hearing if dissatisfied with the previous two steps. See Policy 208 at 14-15. In order to trigger review by the area assistant superintendent, the grievant is required to file a copy of the grievance form with the area assistant superintendent within 7 days of the meeting with the principal outlined in Step 1. See Policy 208 at 14.

The district court concluded that Policy 208, the “Code of Student Conduct and Discipline,” provided for meaningful review of the school officials’ disciplinary-decisions, but concluded that Denno did not timely comply with the requirements for seeking review under Step 2. The court relied on Policy 208 itself and on a letter dated April 22, 1996, from Area Assistant Superintendent Lee Britton, stating that Denno had failed to pursue the appeal of his suspension in timely fashion and had therefore waived the opportunity to request the hearing mentioned in Step 3 of the grievance procedure. Indeed, it appears that Denno did not pursue an appeal in timely fashion and never filed a copy of the grievance form necessary to proceed with Step 2 of the review procedure.

As a matter of law, we agree with the district court that the “Code of Student Conduct and Discipline” allowed for meaningful review of Denno’s suspension. The fact that Denno had to file an appeal with the area assistant superintendent before his suspension could be reviewed does not make the school administrators final policymakers. Scala clearly states that this circuit equates meaningful review with the opportunity for meaningful review. See Scala, 116 F.3d at 1402 (“It is clear that [officials] do not become policymakers for § 1983 purposes simply because persons who disagree with their decisions have to file an appeal in order to have those decisions reviewed.”). In other words, automatic review need not be made available when the opportunity for meaningful review is present. The express review mechanisms set into place by the grievance procedures detailed in the “Code of Student Conduct and Discipline” satisfy us that such opportunity existed in the instant case. Therefore, given the availability of this review, we agree with the district court that the Pine Ridge High School administrators were not final policymakers so as to make the Board liable under Mo-nell.

B. Custom or Practice

In order for the Board to be held liable under the custom or practice prong of Monell, Denno must demonstrate that a custom or practice of banning the Confederate flag at high schools within the school district is so well-settled and pervasive that it assumes the force of law. See Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997). Put another way, Denno must show a “persistent and widespread practice” of prohibiting the Confederate emblem about which the Board knew or of which practice it had constructive knowledge, because “formally random acts or isolated incidents are insufficient to establish a custom.... ” Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir.1994) (quoting Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir.1986)).

The district court held that a custom of prohibiting the Confederate flag from being displayed on school grounds could not be attributed to the Board. While Denno correctly points out that three other students were disciplined for similar displays of the flag in December 1995, these incidents transpired in the immediate aftermath of Denno’s suspension in an effort to maintain discipline amongst the students and did not represent a persistent and widespread practice of the Board.¹⁰ Indeed, Wayne Denno’s own testimony undermines his argument that there was a custom or practice of banning the flag. Denno stated in his deposition that he had previously displayed the Confederate flag on school grounds and had not been disciplined and had witnessed others do so without consequence. In fact, Denno could not recall any student, prior to his suspension, suffering punishment for the display of the Confederate flag at Pine Ridge High School. Nor did Denno adduce evidence of similar suspensions at other schools within the school district governed by the Board. Given the lack of evidence with respect to the prohibition of the Confederate flag at Pine Ridge or at other schools within the district, we agree with the district court that Denno failed to adduce evidence creating a genuine issue of fact as to a pervasive and well-settled custom of banning the Confederate flag so as to make the Board potentially liable under Monell.

For the foregoing reasons, we agree with the district court that, under Monell and its progeny, the Board cannot be held hable. Thus, we affirm the district court’s grant of summary judgment in favor of the Board.

III. CONCLUSION

We affirm the district court’s Rule 12(b)(6) dismissal of Denno’s § 1983 claims against the individual defendants and affirm the district court’s grant of summary judgment in favor of the Board. AFFIRMED.

1 . We reject Denno's other arguments on appeal without need for discussion.

2 . Santamorena notes that this is the usual rule, and notes possible exceptions. Id. at 1340 n. 6.

3 . We respectfully disagree with the dissent’s suggestion that we are relying upon dicta from Fraser. We believe that the rationale reflected in our quotations from Fraser was relied upon by the Supreme Court in reaching its holding. It is this rationale that has significance for this appeal. See infra.

4 . On appeal, the Tenth Circuit affirmed the district court and adopted the reasoning of the district court’s first holding, i.e., that under Tinker the restriction was permissible because, in light of past events at the school, "a student’s display of the Confederate flag might cause disruption and interfere with the rights of other students to be secure and let alone.” West v. Derby Unified School Dist. No. 260, 206 F.3d 1358, 1366 (10th Cir.2000). Although the appellate court evidently found this holding more appealing, it did not disavow the alternative holding. Moreover, the fact that the district court judge found the legal landscape so unclear as to include the alternative Fraser holding discussed above remains strong evidence that the law was not clearly established that Tinker prohibited the individual defendants’ actions, as opposed to the more flexible reasonableness or balancing standard of Fraser permitting them, in the instant case.

5 . We realize that strong arguments can be mounted to the effect that the more flexible Fraser standard is limited to situations in which the speech involved is likely to be perceived as bearing the imprimatur of the school. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 270-73, 108 S.Ct. 562, 569-71, 98 L.Ed.2d 592 (1988). However, we need not today decide the correct legal standard. Neither party has argued that we must decide the merits of the substantive constitutional issue before addressing qualified immunity. And we believe that this appeal is one of those exceptional cases in which we are not required to do so. See Santamorena v. Georgia Military College, 147 F.3d at 1342-43 (discussing the "better approach” of resolving the substantive constitutional issue first, and the relevant Supreme Court cases including County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). Thus, we need decide only whether pre-exist-ing law dictates, that is, truly compels the conclusion that the Tinker standard applies to the exclusion of the Fraser standard. See Lassiter, 28 F.3d at 1150. We cannot so conclude.

6 . The fact that Denno alleges that he had no racist intentions, an allegation which we accept as true, is not dispositive. Similarly, it is not dispositive that common experience teaches us that the Confederate flag is honored by many people as a non-racist memorial to their Southern heritage; common experience also teaches that many people perceive the flag as offensive, constituting either a racist message or at least reflecting an uncivil lack of sensitivity to the sensibilities of many people. The more relevant factor is that the school official might reasonably think that other students would perceive the display as racist or otherwise uncivil. The issue also is not whether the official's perception is accurate or justified; rather, the issue is whether only an incompetent school official would have such a perception.

7 . Indeed, Denno does not argue that there was a violation of clearly-established First Amendment rights under the Fraser standard; he argues only that the Tinker standard applies to the exclusion of the Fraser standard.

8 . Denno argues that the district court erred in applying heightened pleading standard. In making this argument in the district court, Denno moved for a reconsideration and proffered an amendment to his complaint. We need not address Denno's argument; we have considered his complaint as if amended by this proffered amendment, and conclude that neither it nor the heightened pleading issue would affect our holding.

9 . School boards constitute branches of local government and thus may be subject to liability under Monell. See Arnold v. Board of Escambia County, 880 F.2d 305, 310 (11th Cir.1989).

10 . Apparently, after Denno was suspended, the Dennos relayed the information to the local press. Pine Ridge Principal Sandra Rowe learned of the story covering Denno's suspension, and according to Denno, issued an unwritten ban of the Confederate flag to the faculty in a meeting held on December 15, 1995. The three other students who were disciplined after Denno for displaying the Confederate flag were disciplined subsequent to the December 15th meeting. However, for the reasons discussed above, the Principal was not a final policymaker, and for the reasons discussed in the text, there is no evidence that the unwritten ban was sufficiently pervasive or well-settled to have put the Board on notice.