RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0066p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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TOM DEFOE, a minor by and through his
Plaintiffs-Appellants, --
parent and guardian Phil Defoe; PHIL DEFOE,
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No. 09-6080
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>
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v.
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SID SPIVA, in his individual and official
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capacity as Principal of Anderson County
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Career and Technical School; MERL KRULL,
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in his individual and official capacity as
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Assistant Principal of Anderson County
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Vocational and Technical School; GREG
DEAL, in his individual and official capacity -
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as Principal of Anderson County High
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School; V. L. STONECIPHER, in his official
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capacity as Director of Schools for Anderson
County; JOHN BURRELL, in his official -
capacity as Chairman of the Anderson County -
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School Board; ANDERSON COUNTY SCHOOL
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BOARD,
Defendants-Appellees. -
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Filed: March 14, 2011
Before: CLAY, ROGERS, and COOK, Circuit Judges.
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ORDER
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The court having received a petition for rehearing en banc, and the petition
having been circulated not only to the original panel members but also to all other active
judges of this court, and less than a majority of the judges having favored the suggestion,
the petition for rehearing has been referred to the original panel.
1
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 2
The panel has further reviewed the petition for rehearing and concludes that the
issues raised in the petition were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 3
BOGGS, Circuit Judge, dissenting from the denial of rehearing en banc. The
panel majority eviscerates the core holding of Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969)—that student speech can be suppressed
only based on its disruptive potential, not on its content. 393 U.S. at 509. There is no
indication in Tinker that its rules are any different if the speech at issue is deemed, by
either a school or an appellate court, to be offensive, “hostile,” or “contemptuous.” See
Defoe v. Spiva, 625 F.3d 324, 338 (6th Cir. 2010). Nor is there any indication that such
a judgment would change the basic First Amendment values that Tinker enshrines. See
Tinker, 393 U.S. at 511–13.
The panel majority rests its remarkable conclusion on Morse v. Frederick, 551
U.S. 393 (2007), where the Court found the speech in question—a 14-foot banner with
the message “BONG HiTS 4 JESUS”—to be promoting illegal drug use. 551 U.S. at
397, 402. The majority does so despite the clear warnings in Morse, especially in Justice
Alito’s decisive concurring opinion, that the Court was not undermining the basic
holding of Tinker, but was simply allowing an exception for speech promoting drug use,
which is both illegal and directly contrary to a tenet of the school system. 551 U.S. at
408–09; id. at 423, 425 (Alito, J., concurring). Morse does not give the slightest hint that
schools are authorized to suppress any speech that either they or an appellate court
deems contrary to the school’s “mission” or “core values.”
Wholly disregarding these warnings, the majority opinion asserts that this case
is controlled by Morse because “racially hostile or contemptuous” can be substituted for
“illegal drug use.” Defoe, 625 F.3d at 338–39 (“If we substitute ‘racial conflict’ or
‘racial hostility’ for ‘drug abuse,’ the analysis in Morse is practically on all fours with
this case.”). That is grammatically true, but it is equally true if you substitute “religious
dogma,” “Republican propaganda,” or “seditious libel.” Morse does not authorize
suppression on any of those grounds either, but the panel’s ipse dixit reading of Morse
would support such a holding just as strongly as the one it makes.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 4
The faults of the majority opinion are many, as ably pointed out in the amicus
brief of the ACLU. I wish to highlight a few.
The majority’s test was nowhere argued either at the district court or in the
briefing to the panel. No claim was ever made that speech could be banned simply
because an appellate court found it to be, as a matter of law, “racially hostile and
contemptuous.” See id. at 338. The school made no claim on that basis, nor did it claim
that the Confederate emblems in play here were such.
I emphasis the phrase “as a matter of law” because the proposition that the
symbol at issue is “racially hostile and contemptuous” was never put to a test in the
district court. Presumably it would otherwise be a matter of fact as to what the student
plaintiffs actually meant by the symbol, or perhaps expert opinions by semioticians could
reveal its abstract meaning. One would think that context would make some
difference—a Confederate flag on a book cover might be thought of as different in
meaning than a Confederate flag accompanied by “forget, Hell” text, as in some
cartoons. Or, if displayed crossed with a Union flag, perhaps which flag was on top
would make a difference in meaning and, accordingly, in any judgments of hostility and
contemptibility. But the panel never hints at such distinctions. It simply upholds the ban
based on its own interpretation of the symbol as “racially hostile and contemptuous.”
The panel may be right under some circumstances. But none were proven or adduced
here.
Next, the very basis of “racially hostile” is both undefined and unlimited. Is it
only what an appellate court determines to be “race?” Many authorities have stated that
term to be scientifically meaningless and only a social construct. See generally Saint
Francis College v. Al-Khazraji, 481 U.S. 604, 610 n.4 (1987); Ho v. San Francisco
Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998). How, then, does the panel opinion
limit “race?” We are given no answers. Does it apply also to what some regard as
religion? Jews, for example, have been considered a “race” in much literature in this
country. Does it apply to purely religious symbology, such as a “Christ fish” swallowing
a “Darwin fish” or vice versa? And certainly the use of some religious symbols, such
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 5
as the controversial cartoon of Mohammed with a bomb in his turban, could be
considered religiously hostile or contemptuous. See Al-Aulaqi v. Obama, 727 F. Supp.
2d 1, 21 (D.D.C. 2010). Further, national origin is considered by many to be racial. Is
an American flag “racially” hostile to recent immigrants or Native Americans? See
Lindsay Bryant, Five Morgan Hill students sent home for wearing American flag T-
shirts, MORGAN HILL TIMES, May 5, 2010; Lac du Flambeau Band of Lake Superior
Chippewa Indians v. Stop Treaty Abuse - Wisconsin, Inc., 843 F. Supp. 1284, 1289
(W.D. Wisc. 1994). Is a Mexican flag in an American public school “racially hostile”
to those whom, in some places, are called “Anglos?” See Defoe, 625 F.3d at 337 (Clay,
J., concurring) (describing uncertainty as to whether students were allowed to wear
Mexican flags).
Or is the real inquiry into hostility? Does “hostility” encompass political views?
Surely, the Second Circuit did not appear to think so in Guiles v. Marineau, 461 F.3d
320 (2006), where the image of a drug-snorting, cowardly American president could
hardly have been more contemptuous of both the person and his supporters. 461 F.3d
at 322, 330. But that case was pre-Morse, and the majority opinion here does nothing
to rule out a contrary result. Similarly, t-shirts with legends of Che Guevara or Mao Tse-
Tung could certainly be taken by many as displaying hostility and contempt toward their
victims and the victims’ supporters or descendents. May those images too be banned?
Finally, I would note that a religious service I recently attended included a
congregant wearing a “redneck IQ test” t-shirt that might well be considered hostile and
contemptuous by some of the very students involved in this litigation. See Defoe, 625
F.3d at 327 (Clay, J., concurring).
Surely what is revealed by these examples—and the total unwillingness of the
majority to even approach them—is that the law in the Sixth Circuit is now that “nice
symbols” (e.g., black armbands, which I imagine the majority would concede are still
controlled by Tinker) must be permitted, but “naughty symbols” (e.g., the Confederate
flag) can be banned without further analysis. This is directly contrary to Tinker and,
indeed, to any type of fidelity to First Amendment doctrine. Tinker itself shows this.
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 6
The Court had no interest at all in whether the black armbands at issue meant “I am a
nice pacifist” or, directed toward the children of servicemen, “your daddy is a war
criminal.”
Tinker is certainly subject to criticism, as the Tinker dissenters, including so
staunch a civil libertarian as Justice Black, noted vigorously. 393 U.S. at 526 (Black,
J., dissenting) (“I wish, therefore, wholly to disclaim any purpose on my part to hold that
the Federal Constitution compels the teachers, parents, and elected school officials to
surrender control of the American public school system to public school students. I
dissent.”).
But Tinker is the law, and the majority opinion flatly departs from it. Why, then,
should we not address en banc so egregious an error? Some might think that the
Supreme Court has caused this confusion and we should let the justices sort it out.
Others may think that it is unseemly to be on the same side as flaunters of the
Confederate flag. But the latter view has never kept American courts from judging First
Amendment issues neutrally, even where the immediate beneficiaries were Communists,
Nazis, or fascists. Schneider v. Smith, 390 U.S. 17 (1968); Nat’l Socialist Party of Am.
v. Vill. of Skokie, 432 U.S. 43 (1977); Terminiello v. City of Chicago, 337 U.S. 1 (1949);
see United States v. Schwimmer, 279 U.S. 644, 654–55 (Holmes, J., dissenting) (“[I]f
there is any principle of the Constitution that more imperatively calls for attachment than
any other it is the principle of free thought—not free thought for those who agree with
us but freedom for the thought that we hate.”).
No. 09-6080 Defoe, et al. v. Spiva, et al. Page 7
I would apply Tinker and Morse at face value and neutrally, and I believe the
majority’s failure to do so is sufficiently important that this case should be reheard en
banc. I therefore respectfully dissent.1
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk
1
The concurrence’s alternate basis for affirmance is also flawed. Under the correct Tinker
standard, summary judgment was inappropriate in this case, and the majority appeared to agree:
While there have been troublesome racial incidents in the Anderson County schools in
the past, there was also some testimony to the effect that the wearing of a Confederate
flag would not cause disruption. For us to uphold a summary judgment in favor of the
school board, there must be no genuine issue of material fact. If the school must after
all show a reasonable forecast of “substantial disruption,” then it is at least questionable
whether summary judgment for the school was appropriate.
Defoe, 625 F.3d at 341. In this case, the evidence to support a summary judgment as to a reasonable
forecast of substantial disruption is even weaker than in the questionable case of Barr v. Lafon. See 553
F.3d 463, 464–67 (6th Cir. 2009) (Boggs, J., dissenting from denial of rehearing en banc).