Nicholas J. Boroff v. Van Wert City Board of Education John Basinger William Clifton and David Froelich

220 F.3d 465, 2000 U.S. App. LEXIS 18023, 2000 WL 1028957

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 26, 2000
• Docket: 98-3869
• Status: Published

Opinions

WELLFORD, J., delivered the opinion of the court, in which SILER, J., joined. GILMAN, J. (pp. 472-76), delivered a separate dissenting opinion.

OPINION

WELLFORD, Circuit Judge.

After Van Wert (Ohio) High School administrators told Nicholas Boroff that he was not allowed to wear “Marilyn Manson” T-shirts to school, Boroff s mother initiated this action on his behalf pursuant to 42 U.S.C. § 1983, alleging that the administrators’ refusal to let him wear the T-shirts violated his rights under the First and Fourteenth Amendments. The district court entered summary judgment in favor of the Van Wert City Board of Education and each of the school administrators who were named as defendants. We AFFIRM the decision of the district court.

I. BACKGROUND

This dispute arises out of a high school student’s desire to wear “Marilyn Manson” T-shirts to school, and the school’s opposing desire to prohibit those T-shirts. Marilyn Manson is the stage name of “goth” rock performer Brian Warner, and also the name of the band in which he is the lead singer. See Encarta World English Dictionary (2000) <http://dictionary.msn. com/find/'entry, asp ?search=goth (defining “goth” as “a style of popular music that combines elements of heavy metal with punk” and also “a style of fashion ... characterized by black clothes, heavy silver jewelry, black eye make-up and lipstick, and often pale face make-up”). Band members take the first part of their stage names from a famous model or celebrity, such as Marilyn Monroe, Madonna, or Twiggy, and the second part from a notorious serial killer, such as Charles Manson, John Wayne Gacy, or Richard Ramirez. Marilyn Manson (the individual) is popularly regarded as a worshiper of Satan, which he has denied. See Neil Strauss, Stage Fright, Rolling Stone, June 26 1997, at 20. He is also widely regarded as a user of illegal drugs, which he has not denied. In fact, one of his songs is titled “I Don’t Like the Drugs (But the Drugs Like Me).” See David Brown, .1998: The Best and Worst/Music, Entertainment Weekly, Dec. 25, 1998, at 140; see also Gina Vivinetto, Marilyn Manson, Not Kinder, Not Gentler, St. Petersburg Times, Mar. 26 1999, at 23 (reporting that Manson no longer stores his drugs and drug paraphernalia in lunch boxes because “everyone ... is carrying their paraphernalia that way. Too trendy”).

On August 29, 1997, Boroff, then a senior at Van Wert High School, went to school wearing a “Marilyn Manson” T-shirt. The front of the T-shirt depicted a three-faced Jesus, accompanied by the words “See No Truth. Hear No Truth. Speak No Truth.” On the back of the shirt, the word “BELIEVE” was spelled out in capital letters, with the letters “LIE” highlighted. Marilyn Mansoris name (although not his picture) was displayed prominently on the front of the shirt.¹ At the time, Van Wert High School had in effect a “Dress and Grooming” policy that provided that “clothing with offensive illustrations, drug, alcohol, or tobacco slogans ... are not acceptable.” Chief Principal’s Aide David Froelich told Boroff that his shirt was offensive and gave him the choice of turning the shirt inside-out, going home and changing, or leaving and being considered truant. Boroff left school.

On September 4, 1997, which was the next school day, Boroff wore another Marilyn Manson T-shirt to school. Boroff and his mother met that day with Froelich, Principal William Clifton, and Superintendent John Basinger. Basinger told the Boroffs that students would not be permitted to wear Marilyn Manson T-shirts on school grounds. Undaunted, Boroff wore different Marilyn Manson T-shirts on each of the next three school days, September 5, 8, and 9, 1997. The shirts featured pictures of Marilyn Manson, whose appearance can fairly be described as ghoulish and creepy. Each day, Boroff was told that he would not be permitted to attend school while wearing the T-shirts.

Boroff did not attend school for the next four days following September 9, 1997. On the fifth day, September 16, 1997, his mother initiated the present suit in the United States District Court for the Northern District of Ohio, alleging that the administrators’ refusal to allow her son to wear Marilyn Manson T-shirts in school violated his First Amendment right to free expression and his Fourteenth Amendment right to due process. (After his eighteenth birthday, Boroff was substituted for his mother as the plaintiff.) The complaint named as defendants the Van Wert City Board of Education, Chief Principal’s Aide Froelich, Principal Clifton, and Superintendent Basinger (collectively, the School). Boroff requested a temporary restraining order and moved for a preliminary injunction. The district court, following a hearing on September 16, 1997, denied both. Following discovery, both Boroff and the School moved for summary judgment. In a memorandum and order dated July 6, 1998, the district court entered summary judgment in favor of the School. This appeal followed.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s decision to grant or deny summary judgment. See Smith v. Ameritech, 129 F.3d 867, 863 (6th Cir.1997). Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists when there is sufficient “evidence on which the jury could reasonably find for the non-moving party.” Id. at 252, 106 S.Ct. 2505.

B. First Amendment Claim

“It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” Bethel School District No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). While students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the First Amendment rights of students in the public schools must be “applied in light of the special characteristics of the school environment.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733). With those precepts in mind, we apply the Tinker-Fraser-Kuhlmeier trilogy to the facts of this case.

In Tinker, a few students wore black armbands to school “to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them.” Tinker, 393 U.S. at 514, 89 S.Ct. 733. The school prohibited the armbands and suspended any student who was found wearing them. The Supreme Court held that the school’s actions violated the students’ freedom of speech. The Court noted that “[t]he problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment. ... Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’ ” Id. at 507-08, 89 S.Ct. 733. The Court concluded that to justify the prohibition of a particular expression of opinion, the school must “show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. at 509, 89 S.Ct. 733. The prohibition of the armbands, the Court held, could not be sustained without showing that engaging in the prohibited conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)).

Several years later, in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the Court “east some doubt on the extent to which students retain free speech rights in the school setting.” Baxter v. Vigo County School Corp., 26 F.3d 728, 737 (7th Cir.1994). In Fraser, the Court held that a school district acted within its permissible authority in disciplining a student who gave an offensively lewd and indecent speech at a school assembly. In reaching its conclusion, the Court noted “[t]he marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of respondent’s speech in this case.” Fraser, 478 U.S. at 680, 106 S.Ct. 3159. The Court recognized “that the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings.” Id. at 682, 106 S.Ct. 3159. It distinguished Tinker because the vulgar and offensive speech at issue was “unrelated to any political viewpoint.” Id. at 685, 106 S.Ct. 3159. The Court ultimately held that the school district had the authority to determine that the vulgar and lewd speech at issue would undermine the school’s basic educational mission. Id.

In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Court echoed its position in Fraser that “[a] school need not tolerate student speech that is inconsistent with its ‘basic educational mission ... even though the government could not censor similar speech outside the school.’ ” Kuhlmeier, 484 U.S. at 266, 108 S.Ct. 562 (quoting Fraser, 478 U.S. at 685, 106 S.Ct. 3159). In Kuhlmeier, the Court held that the school district, in that case did not violate the First Amendment by exercising editorial control over the content of student speech in a school-sponsored publication “so long as [the school’s] actions are reasonably related to legitimate pedagogical concerns.” Id. at 273, 108 S.Ct. 562. The Court distinguished between the First Amendment analysis applied in Tinker and the analysis applied in Fraser, noting that the decision in Fraser rested on the vulgar and offensive character of the speech, whereas Tinker rested on the propensity of the speech materially to disrupt classwork or involve substantial disorder. Id. at 271 n. 4, 89 S.Ct. 733.

The district court below determined that the rule in Fraser applied to this case, concluding that “[a] school may prohibit a student from wearing a T-shirt that is offensive, but not obscene, on school grounds, even if the T-shirt has not been shown to cause a substantial disruption of the academic program.” The court then held that the School did not act in a manifestly unreasonable manner in finding the T-shirts offensive and in enforcing its dress code.

In this appeal, Boroff argues that the district court erred in granting summary judgment to the School. In his appellate brief he maintains:

The way to analyze this is to first determine whether the speech is “vulgar or offensive”. If it is, then Fraser allows banning it, and the analysis is complete. Otherwise, apply Tinker and examine if there is a threat of substantial disruption such that would allow the school to ban the speech. .

Appellant’s Brief at 8. Boroff claims that the administrators’ decision that the T-shirts are offensive was manifestly unreasonable and unsupported by the evidence. Boroff relies, to a great extent on evidence that similar T-shirts promoting other bands, such as Slayer and Megadeth, were not prohibited, and also on evidence that one other student was not prohibited from carrying a backpack that donned three “Marilyn Manson” patches. Because the T-shirts were not “offensive,” Boroff reasons, and because there is no evidence that a substantial disruption would arise from his wearing the T-shirts, then the School violated his First Amendment rights. We disagree.

The standard for reviewing the suppression of vulgar or plainly offensive speech is governed by Fraser, supra. See Chandler v. McMinnville School District, 978 F.2d 524, 529 (9th Cir.1992) (finding that school buttons containing inoffensive terms may not be prohibited absent a showing of a reasonable forecast of substantial disruption in school activities). The School in this case, according to the affidavit of Principal Clifton, found the Marilyn Manson T-shirts to be offensive because the band promotes destructive conduct and demoralizing values that are contrary to the educational mission of the school. Specifically, Clifton found the “three-headed Jesus” T-shirt to be offensive because of the “See No Truth. Hear No Truth. Speak No Truth.” mantra on the front, and because of the obvious implication of the word “BELIEVE” with “LIE” highlighted on the back. The principal specifically stated that the distorted Jesus figure was offensive, because “[m]ocking any religious figure is contrary to our educational mission which is to be respectful of others and others’ beliefs.!’ The other T-shirts were treated with equal disapproval. Clifton went on to explain the reasoning behind the School’s prohibition of the T-shirts generally:

17. Although I do not know if [Bo-roff] intends to communicate anything when wearing, the Marilyn Manson t-shirts, I believe that the Marilyn Manson t-shirts can reasonably be considered a communication agreeing with or approving of the views espoused by Marilyn Manson in its lyrics and those views which have been associated to Marilyn Manson through articles in the press. I find some of the Marilyn Manson lyrics and some of the views associated with Marilyn Manson as reported in articles in the news and entertainment press offensive to our basic educational mission at Van Wert High School. Therefore, I believe that all of the Marilyn Manson t-shirts ... are offensive to and inconsistent with our educational mission at Van Wert High School.

Furthermore, Clifton quotes some of the lyrics from Marilyn Manson songs that the School finds offensive, which include (but certainly are not limited to) lines such as, “you can kill yourself now because you’re dead in my mind,” “let’s jump upon the sharp swords/and cut away our smiles/without the threat of death/there’s no reason to live at all,” and “Let’s just kill everyone and let your god sort them out/ Fuck ii/Everybody’s someone else’s nigger/I know you are so am I/I wasn’t born with enough middle fingers.” The principal attested that those types of lyrics were contrary to the school mission and goal of establishing “a common core of values that include ... human dignity and worth ... self respect, and responsibility,” and also the goal of instilling “into the students, an understanding and appreciation of the ideals of democracy and help them to be diligent and competent in the performance of their obligations as citizens.”

Clifton also submitted to the district court magazine articles that portray Marilyn Manson as having a “pro-drug persona” and articles wherein Marilyn Manson himself admits that he is a drug user and promotes drug use. Clifton concludes from his fourteen years of experience that children are genuinely influenced by the rock group and such propaganda.

Affidavits of other School officials support the administration’s position that the Marilyn Manson T-shirts, generally speaking, were prohibited because they were “counter-productive and go against the educational mission of the Van Wert City School District community.” Affidavit of John Basinger. ¶ 5. See also Affidavit of David Froelich, ¶ 11 (stating view that the T-shirts are a distraction and are “contrary to our educational mission”); Affidavit of Rita Hurless, ¶ 5 (stating the School’s conclusion that Marilyn Manson T-shirts “have no business in a school setting” and are “associated with values that are counterproductive and contrary to the educational mission of the Van Wert City School District”). The record is devoid of any evidence that the T-shirts, the “three-headed Jesus” T-shirt particularly, were perceived to express any particular political or religious viewpoint.

Under these circumstances, we find that the district court was correct in finding that the School did not act in a manifestly unreasonable manner in prohibiting the Marilyn Manson T-shirts pursuant to its dress code. The Supreme Court has held that the school board has the authority to determine “what manner of speech in the classroom or in school is inappropriate.” Fraser, 478 U.S. at 683, 106 S.Ct. 3159. The Court has determined that “[a] school need not tolerate student speech that is inconsistent with its ‘basic educational mission ... even though the government could not censor similar speech outside the school.’ ” Kuhlmeier, 484 U.S. at 266, 108 S.Ct. 562 (quoting Fraser, 478 U.S. at 685, 106 S.Ct. 3159). In this case, where Bo-roff s T-shirts contain symbols and words that promote values that are so patently contrary to the school’s educational mission, the School has the authority, under the circumstances of this case, to prohibit those T-shirts.

The dissent would find that the evidence was sufficient for a reasonable jury to infer that the School has engaged in “viewpoint discrimination” by prohibiting the T-shirts, similar to the armband prohibition in Tinker. The dissent primarily relies on one sentence in Principal Clifton’s affidavit, in which Clifton stated that he found the “three-headed Jesus” T-shirt to be offensive because “it mocks a major religious figure.” Under that reasoning, if a jury finds that the School has prohibited the T-shirts because of any viewpoint expressed on the shirts, then the School must show that it reasonably predicted that allowing the T-shirts would have caused a substantial disruption of, or material interference with, school activities. See Tinker, 393 U.S. at 509, 89 S.Ct. 733.

In our view, however, the evidence does not support an inference that the School intended to suppress the expression of Boroffs viewpoint, because of its religious implications. Rather, the record demonstrates that the School prohibited Boroffs Marilyn Manson T-shirts generally because this particular rock group promotes disruptive and demoralizing values which are inconsistent with and counter-productive to education. The dissenting judge agrees that “[i]f the only T-shirts at issue in this ease were thé ones that simply displayed illustrations of Marilyn Manson largely unadorned by text, the judgment of the district court might be sustainable.” He reasons, however, that the one T-shirt featuring the distorted Jesus figure may have been prohibited because of the School’s disagreement with its religious message. In our view, the School’s treatment of the “three-headed Jesus” T-shirt and the others is not distinguishable. 'The record establishes that all of the T-shirts were banned in the same manner for the same reasons—they were determined to be vulgar, offensive, and contrary to the educational mission of the school. See Pyle v. South Hadley School Committee, 861 F.Supp. 157, 159 (D.Mass.1994) (upholding a prohibition on T-shirt proclaiming “See Dick drink. See Dick drive. See Dick die. Don’t be a Dick.” and “Coed Naked Band: Do It To The Rhythm.”).

In sum, we are of the view that the School has the authority to prohibit Marilyn Manson T-shirts under these circumstances.

C. Fourteenth Amendment Claim

As for Boroffs Fourteenth Amendment claim, we do not believe that it was preserved for our review. Boroff suggests that the School’s actions violated his right to “due process,” but he does not discuss this claim at all in his brief on appeal. Cf. Bush v. Dictaphone Corp., 161 F.3d 363, 370 (6th Cir.1998) (noting that claims not pursued on appeal will typically be considered abandoned); United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996) (holding that issues raised by an appellant in a perfunctory manner, unaccompanied by some effort at developed argumentation, are considered abandoned). In any event, Boroff is not claiming that the School utilized unfair procedures in prohibiting him from wearing Marilyn Manson T-shirts to school. We therefore have no need to consider a procedural due process argument.

Moreover, Boroff would have no cognizable substantive due process claim under the law of this circuit even if it had been properly preserved. See Gfell v. Rickelman, 441 F.2d 444, 446 (6th Cir.1971) (rejecting the argument that “the freedom of choosing one’s hair style is a fundamental right”); Jackson v. Dorrier, 424 F.2d 213, 218 (6th Cir.1970) (per curiam) (rejecting the argument that high school students have a constitutionally protected privacy interest in being able to wear long hair to school). But see Massie v. Henry, 455 F.2d 779, 782 (4th Cir.1972) (concluding that high school students have a liberty or privacy interest in governing their physical appearance in school); Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir.1971) (same); Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir.1969) (same). In any event, the Supreme Court has repeatedly emphasized that substantive due process is not to be used as a fallback constitutional provision when another provision or amendment (in this case, the First Amendment) directly addresses the subject. See Conn v. Gabbert, 526 U.S. 286, 293, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (“We have held that where another provision of the Constitution ‘provides an explicit textual source of constitutional protection,’ a court must assess a plaintiffs claims under that explicit provision and not the more generalized notion of ‘substantive due process.’ ”) (quoting Graham v. Connor, 490 , 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

III. CONCLUSION

For the foregoing reasons and for the reasons stated in its opinion, we AFFIRM the decision of the district court.

1 . Though, the origin of the T-shirt is unknown, the distorted portrayal of Jesus seems to have been created in an effort to illustrate the band's hit album "Antichrist Superstar."