[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 98-2718 ELEVENTH CIRCUIT
JULY 20 2000
________________________
THOMAS K. KAHN
D. C. Docket No. 96-00763-CIV-ORL-22B CLERK
LINDA DENNO, as parent, legal guardian and
next friend for Wayne Denno,
Plaintiff-Appellant,
versus
SCHOOL BOARD OF VOLUSIA COUNTY, FLORIDA;
DENNIS ROBERTS, an individual, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 20, 2000)
ON PANEL REHEARING**
Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER*,
District Judge.
ANDERSON, Chief Judge:
______________
* Honorable J. Owen Forrester, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
**The previous opinion of this panel published at 182 F.3d 780 (11th Cir. 1999), was vacated and
withdrawn and panel rehearing was ordered. Denno v. School Board of Volusia County, Florida,
193 F.3d 1178 (11th Cir. 1999).
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,
1
We reject Denno’s other arguments on appeal without need for discussion.
2
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 pre-existing 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
3
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.
2
Santamorena notes that this is the usual rule, and notes possible exceptions. Id. at 1340 n.6.
4
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-existing law must clearly
5
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 (1969), and Bethel School Dist. No.
403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (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 837. 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.
6
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, 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
7
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
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.
8
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, can be
antithetical to the delicate “custodial and tutelary” environment of an
9
elementary school. See Acton, ___U.S. at ___, 115 S. Ct. at 2392.
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 a crush a child’s sense of self-worth.
Id. at 1539-40. 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
10
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 behavior”
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 that 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
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
11
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 pre-existing
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 Bart v. Joyner, 865 F.2d 1187, 1194 (11th Cir. 1989). The
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.
206, 206 F.3d 1358,1366 (10th Cir. 2000). Although the appellate court evidently found the 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.
12
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
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 (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 (1998)). Thus, we need decide only whether pre-existing law dictates, that is, truly compels
the conclusion that the Tinker standard applies to the exclusion of the Fraser standard. See Lassiter,
13
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
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.
14
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 case 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:
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.
15
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 (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 violation, 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, 864 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.
16
Thus, we affirm the district court’s dismissal of the § 1983 claim against the
individual defendants.8 We turn to Denno’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
(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
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).
17
imbued with final policymaking authority. See Pembaur v. City of Cincinnati, 475
U.S. 469, 481, 106 S.Ct. 1292, 1299 (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 policymaking
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 (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
18
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
19
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 Monell.
20
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
“[n]ormally 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
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
21
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 liable. Thus, we affirm the district
court’s grant of summary judgment in favor of the Board.
III. CONCLUSION
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.
22
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.
23
FORRESTER, District Judge, concurring in part and dissenting in part:
The facts of this case raise at least two questions to anyone even minimally
familiar with First Amendment jurisprudence. The first question, which
immediately explodes into the mind, is whether the school official could require
Denno to put away his flag. The majority makes an attractive case that the law,
applied to our facts, was not clearly established on that point in December 1995.
Because of this finding, the majority affirms the school officials’ right to qualified
immunity. The second question — whether Denno could be suspended from
school for nine days for displaying the flag under the circumstances pled — does
not so quickly engage the mind, but this is the issue presented to the court for
decision. Denno seeks not a declaration of his right to his particular speech, but
rather to relief from school-imposed discipline suffered on account of the content
of his speech. Since at least 1966, case law binding on this circuit has prohibited
student discipline on account of their speech unless the speech actually caused
material and substantial disruption of the school environment .
Further Facts
In addition to the facts set out in the majority opinion, the following facts are
pled in the complaint and are important to the issue before us. An assistant
principal approached the group of students, which included Denno, because he saw
24
that several students in the group had Southern symbols on their clothes. Only at
that time did he notice Denno’s flag. He told Denno to put it away. Denno
explained what he was doing, and the assistant principal told him to “shut up.”
The assistant principal said that he considered the flag a racist symbol. When
Denno asked about his First Amendment rights, the assistant principal replied that
Denno had no rights at the school. Denno was suspended in part for attempting to
incite a riot because he paraded a Confederate flag during lunch period.
Equally important to this discussion are those facts not pled in the complaint.
The complaint alleges no history of prior racial tension in the school. There is no
contention that the school had an official policy specifically prohibiting Denno’s
conduct. There is no allegation that Denno’s flag was seen by any African-
American or other individual who might find the flag offensive ,11 nor is there any
11
Some could argue that the Confederate battle flag displayed by Denno would be inherently
disruptive because Florida was a member of the Confederate States of America and the present
population therefore consists in large part of the descendants of former slaves and the descendants
of former slave owners, with the perceived animosities that allegedly result from such a mix.
Although, as indicated, the complaint makes no allegations of disruption, to the extent it is thought
relevant, the following legislative facts bear heavily upon the argument just mentioned. See United
States v. Bowers, 660 F.2d 527, 530 (5th Cir. Unit B 1971) (“Legislative facts are established truths,
facts or pronouncements that do not change from case to case but apply universally . . . .”). The
demographics of Deltona, Florida, where Pine Ridge High School is located, show that only 2.98%
of its population is African-American. See General Population and Housing Characteristics for
Deltona, Florida (visited July 7, 2000) . Moreover, a majority of Florida’s present
population traces its roots to somewhere other than the South. Only 24.7% of the population was
born in Florida, and another 14.7% was born in other Southern states. Lucy Morgan, Newcomers
Proud to Be ‘Floridians’, St. Petersburg Times, July 15, 1999, at 1B. Florida’s population,
25
allegation of student misconduct at the time the flag was displayed, or afterward, as
a result of Denno’s having the battle flag. The question, as indicated, is whether on
these facts the law was clearly established that Denno could not be disciplined for
his speech.
“Clearly Established Law” and Qualified Immunity
One has only to survey the precedent relevant to the appeal at bar, and note
the varying rationales of the many judges and justices who have written on the
subject, to understand that a school official might have any one of a variety of
subjective responses to the two questions presented here. Indeed, many people
feel, especially in light of recent incidents of violence in our nation’s schools, that
the paramount role of school officials is to thwart even the most remote possibility
of disharmony on the school grounds. Thus, a school official might personally feel
that the inculcation of manners and civility warranted the actions taken by the
school officials in the instant case. Our circuit, of course, recognizes that it is to
apply an objective standard when judging what reasonable officials would
therefore, cannot fairly be described as a direct product of the Old South, as might be said of states
like Georgia, where 66% of the population was born within the state, or South Carolina, where
nearly 70% of the population was born within the state. See Social Characteristics for Georgia;
Social Characteristics for South Carolina (visited July 7, 2000)
. It should also be noted
that the argument mentioned above presupposes that all white Southerners revere the flag and all
black Southerners abhor it, presuppositions that are certainly questionable.
26
understand about the rights created by federal law, and “the government actor’s
intent or motivation are insignificant in determining entitlement to qualified
immunity.” United States v. City of Lakeland, Fla., 203 F.3d 1288, 1291 (11th Cir.
2000). See also Evans v. Hightower, 117 F.3d 1318, 1320 (11th Cir. 1997);
Dolihite v. Maughon by and through Videon, 74 F.3d 1027, 1041 (11th Cir. 1996);
Lassiter v. Alabama A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.
1994) (en banc); Harris v. Coweta County, 21 F.3d 388, 390 (11th Cir. 1994). It is
the objective reasonableness of the official’s actions, and not his wisdom or good
faith, that determines whether immunity attaches.
The majority finds that the decision of the Supreme Court in Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), sufficiently clouded the prior
decision in Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503
(1969), so that the right pronounced in Tinker was not clearly established at the
time the school officials acted in this case. A school official could certainly utilize
excerpts from Fraser to fashion an argument that the law was not clearly
established, just as the majority has done. The question, however, is whether it
would be reasonable for him to do so in light of existing precedent. We learned in
the seminal case of Harlow v. Fitzgerald, 457 U.S. 800 (1982), that in practice,
whether or not the law is clearly established is determined by the judge , and
27
whether the official has properly determined it for himself is of no import. Id. at
818-19 (“If the law was clearly established, the immunity defense ordinarily should
fail, since a reasonably competent public official should know the law governing
his conduct.”). For the layperson, as well as for judges, confusion about the state
of the law most often comes about by confusing the holding of a case with the
dicta in the opinion. It is well established in this circuit, however, that dicta are of
no assistance in determining whether or not law is clearly established for the
purpose of qualified immunity. Jones v. Cannon, 174 F.3d 1271, 1288 n.11 (11th
Cir. 1999); Hamilton v. Cannon, 80 F.3d 1525, 1530 (11th Cir. 1996).
Was the Law Clearly Established?
On July 2, 1966, the old Fifth Circuit Court of Appeals handed down the
companion cases of Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), and Blackwell
v. Issaquena County Bd. of Educ., 363 F.2d 749 (5th Cir. 1966).12 In both cases,
students in all-black schools were wearing and distributing buttons put out by the
Student Nonviolent Coordinating Committee. In the Blackwell case, the buttons
showed black and white hands joined and bore the word “SNCC.” Blackwell, 363
F.2d at 750. In the Burnside case, the buttons had the words “One Man One Vote”
12
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to October 1,
1981.
28
and “SNCC.” Burnside, 363 F.2d at 746. Both cases arose after students
challenged the suspensions they received for incidents involving the buttons.
In the Blackwell case, the episode began when approximately 150 pupils
came to school wearing the buttons. These buttons were distributed in the
corridors and pinned on the students even though they were not requested. One
younger student began crying. The principal brought the students to the cafeteria
and informed them that they were forbidden to wear the buttons at school.
Immediately thereafter, several students conducted themselves discourteously and
displayed an attitude of hostility. On the following day, 200 students appeared
wearing the buttons. They were assembled and told that if they returned the next
day, they would be suspended. On the third day, students again returned to school
wearing the buttons and were immediately sent home by the principal. One of the
suspended students entered a classroom while class was in session and importuned
another student to leave the class. A bus driver was going about the school
building with a cardboard box full of buttons and distributing them, even in active
classrooms. The district court found that there were numerous instances where
students conducted themselves in a disorderly manner, disrupted classroom
procedure, interfered with proper decorum and discipline of the school, and
disturbed other students who did not wish to participate in wearing the buttons. On
29
these facts, the court of appeals found the school action reasonable and affirmed
the decision of the lower court to deny the issuance of a preliminary injunction
enjoining the suspensions. Blackwell, 363 F.2d at 754.
In Burnside, a number of students came to school wearing the buttons. The
principal told the entire student body that they were not permitted to wear these
buttons in the schoolhouse or in various classes. Despite this warning, three or
four students appeared at school wearing the buttons the next day. All were given
an opportunity to remove them. Three did not remove them and were sent home.
Several days afterwards, 30 or 40 students came to school displaying these buttons.
A teacher complained that they were causing a commotion, and the principal gave
the students the opportunity of removing the buttons or going home. A large
number of those elected to return home, and they were suspended. The court of
appeals noted that other students only showed a mild curiosity over the insignia,
and even the principal testified that the children were expelled not for causing a
commotion or disrupting classes but for violating a school regulation. Burnside,
363 F.2d at 748. The court found that the regulation was arbitrary and
unreasonable, and directed the district court to enter an injunction forbidding its
enforcement. The court concluded with these comments:
[W]e must also emphasize that school officials cannot ignore
expressions of feelings with which they do not wish to contend. They
30
cannot infringe on their students’ right to free and unrestricted
expression as guarantee[d] to them under the First Amendment to the
Constitution, where the exercise of such rights in the school buildings
and school rooms do not materially and substantially interfere with the
requirements of appropriate discipline in the operation of the school.
Id. at 749.
The next decision relevant to our question is Tinker v. Des Moines
Independent Community Sch. Dist., 393 U.S. 503 (1969). In this case, the United
States Supreme Court reversed a decision by the lower court dismissing a
complaint by several students who were suspended from school on account of
wearing black armbands in protest of the war in Vietnam. The Court’s holding
rested on the absence of any evidence that the activity of the students materially
disrupted class work or involved substantial disorder or invasion of the rights of
others. Id. at 513. The case is the more remarkable for our purposes because it
specifically bases its rationale on the Fifth Circuit’s decisions in Burnside and
Blackwell. See id.
After Tinker, the old Fifth Circuit was presented with a case involving the
discipline of several Grambling College students. See Jenkins v. Louisiana State
Bd. of Educ., 506 F.2d 992 (5th Cir. 1975). Although the case was decided after the
decision in Tinker, Judge Roney, writing for the court, said that the rule of decision
was provided by Burnside, as expounded upon in Tinker. Id. at 1002. The record
31
before the court contained evidence of students hurling bricks, stones and bottles at
the women’s dormitories and of a Volkswagen being overturned in front of the
administration building and stripped of its hubcaps. The court said that the actions
of the appellants in going about the campus shouting “organize,” “unite,” and
“student power” subjected the teaching and learning atmosphere of the college to
disruption, distraction and destruction. Id. at 1003. Finding the actions of the
students more akin to those in Blackwell than to either Burnside or Tinker because
the students’ conduct involved material and substantial interference with the
requirements of appropriate discipline in the operation of an educational
institution, the court found that the speech was not protected by the First
Amendment. Id.
The line of authority on the question sub judice seemingly ends with
Shamloo v. Mississippi State Bd. of Trustees of Inst. of Higher Learning, 620 F.2d
516 (1980). In Shamloo, a number of Iranian students demonstrated on campus on
several occasions in support of the new government of the Ayatollah Khomeini,
and were subsequently suspended. Noting that the students were disciplined for
failing to comply with the university’s regulations concerning student
demonstrations, the appellate court identified a three-step inquiry for analyzing
their First Amendment claim. First, the court needed to determine whether the
32
regulations were actually violated. Next, the court needed to consider whether the
university’s action in suspending the students violated their First Amendment
rights by punishing them for protected activity. Finally, the court needed to
examine the constitutionality of the regulations at issue. Id. at 520. Finding that
the students did in fact violate the regulations, the court of appeals moved on to the
second inquiry. In resolving this issue, the district court found that the
demonstrations had a disruptive effect with respect to other students’ rights and
confirmed the suspensions of the student demonstration leaders. The court of
appeals, however, said that this finding by the district court was insufficient to
support the conclusion that the demonstrations were not protected by the First
Amendment. According to the Shamloo decision, for conduct to be outside the
protections of the First Amendment, a court must also find a material disruption of
the classroom or that the conduct in question involved substantial disorder or an
invasion of the rights of others. Put differently, for student demonstrations or other
speech-related conduct to fall outside the protections of the Constitution, the
conduct “must constitute a material and substantial interference with discipline.”
Id. at 522. Because the district court had made no such findings, the court of
appeals could not say that the demonstration was not protected by the First
33
Amendment, and in light of that conclusion, the court moved on to the final
inquiry, striking down the regulations as unconstitutionally vague. Id. at 522-24.
It seems, therefore, after reviewing the aforementioned precedent, that this
circuit has two pairs of decisions — Blackwell and Burnside, and Jenkins and
Shamloo — clearly setting out the sine qua non for the disciplining of a student
because of his or her speech. As these cases show, the necessary condition for
such discipline is a material and substantial interference with the educational
environment or with the rights of other students. See also Tinker, 393 U.S. at 513.
It should be noted also that the outcome is not at all dependent on the content of
the speech. This could not be clearer than in the first couplet, where the buttons
constituting the students’ speech were virtually identical.
What to Make of Fraser, Muller, and West
Much of the majority opinion’s case for qualified immunity depends on
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), Muller by Muller v.
Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996), and West v. Derby Unified
Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000). As demonstrated below, none
of these decisions dilutes the clearly established law just discussed.
In Fraser, a student at a large high school assembly nominated a peer for
class office in “elaborate, graphic, and explicit sexual metaphor.” Fraser, 478 U.S.
34
at 677-78. The assembly was a part of a school-sponsored educational program in
self-government. The school had a disciplinary rule prohibiting the use of obscene
language if the conduct materially and substantially interfered with the educational
process. During the speech students hooted and yelled. The sexual activities
alluded to were being graphically simulated by others. Some students were
bewildered or embarrassed, and one teacher had to forego a portion of her class
lesson the following day in order to discuss the speech with her pupils. After a
hearing, Fraser was suspended for two days. The Supreme court affirmed that
action.
Fraser stands for the proposition that a student may be suspended for
materially and substantially interfering with the educational process; it stands for
the proposition that a student may be suspended for insubordination with reference
to an established school rule which is reasonable; and it stands for the proposition
that a public school has the right to disassociate itself from certain speech. Id. at
685; see also id. at 680 (distinguishing Tinker on grounds that it “did not concern
speech or action that intrudes upon the work of the schools or the rights of other
students”). The rest of what Chief Justice Burger says in the majority opinion is
dicta and, as such, does not bear on a determination of whether or not the law is
clearly established for purposes of qualified immunity. It is, to be sure, an
35
eloquent articulation of the role of school boards in inculcating civility, but it says
nothing new that other courts have not said about the function of education. It is,
in fact, an extension and elaboration on Chief Justice Burger’s dissent in Papish v.
Bd. of Curators of the Univ. of Missouri, 410 U.S. 667 (1973), where the Supreme
Court, in a majority per curiam opinion, held that expelling a student for
distributing a publication on campus that allegedly contained indecent speech was
unconstitutional.
“Dictum” is a term that has been variously defined. Dictum may be defined
as “a statement in a judicial opinion that could have been deleted without seriously
impairing the analytical foundations of the holding.” United States v. Crawley,
837 F.2d 291, 292 (7th Cir. 1988) (quoting Sarnoff v. American Home Products
Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)). Dictum may be defined as a statement
not necessary to the decision and having no binding effect. See id. (quoting
American Family Mut. Ins. Co. v. Shannon, 356 N.W.2d 175, 178 (Wis. 1984));
Black’s Law Dictionary 1100 (7th ed. 1999). See also New Port Largo, Inc. v.
Monroe County, 985 F.2d 1488, 1500 n.7 (11th Cir. 1993) (Edmondson, J.,
concurring) (suggesting that dictum is statement not squarely presented by facts
and one not absolutely necessary to decision of concrete case before the court).
The Supreme Court has indicated that dicta are those statements that constitute
36
neither the result of the case nor the portions of the opinion necessary to such
result. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66-67 (1996). As Judge
Posner has indicated, however, what is often at stake in distinguishing dictum from
the holding of a case is that dictum is not authoritative. Crawley, 837 F.2d at 292.
“So instead of asking what the word ‘dictum’ means we can ask what reasons there
are against a court’s giving weight to a passage found in a previous opinion.” Id.
There are at least two reasons for labeling much of what is said in Fraser as
dicta. First, Chief Justice Burger’s statements about the mission of public
education is written so broadly as to be considered an aside lacking the authority of
binding precedent. The opinion sweepingly states that public education is to
inculcate “fundamental values necessary to the maintenance of a democratic
political system,” Fraser, 478 U.S. at 681, and intimates that such fundamental
values may be considered in determining the appropriateness of student speech.
See id. at 683. Many, however, would consider patriotism a fundamental value, yet
the Court held that arguably unpatriotic speech in Tinker was protected by the First
Amendment. Tinker, 393 U.S. at 514. Cf. West Virginia Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) (holding that school could not compel students to salute
American flag). Some might feel that promoting long-held American virtues such
a freedom of religion and due process of law is a fundamental value, yet the
37
predecessor of this circuit, at a time when American citizens were being held
hostage, found protected under the First Amendment speech in support of the
Ayatollah’s Iran, a theocratic state hostile to the United States. Shamloo, 620 F.2d
at 522. These examples strongly suggest that the Court did not mean to endorse
the full ramifications of Chief Justice Burger’s sweeping statements about
fundamental values.
Second, Fraser’s discussion of civility and values is not necessary to the
decision in the case. As noted, the student’s speech was disruptive and interfered
with the maintenance of an orderly educational environment. Therefore, regardless
of any discussion about civility and values, the disciplinary action was valid under
Tinker. See Tinker, 393 U.S. at 513 (stating that student may express opinions “if
he does so without ‘materially and substantially interfer[ing] with the operation of
the school’ and without colliding with the rights of others”) (quoting Burnside, 363
F.2d at 749). Further, as was said in both Burnside and Blackwell, on which the
Tinker Court relied, a court is not to be concerned with the wisdom or expedience
of the school’s disciplinary action but whether such action is a reasonable exercise
of the school’s (that is, the government’s) power to regulate. Blackwell, 363 F.2d
at 754; Burnside, 363 F.2d at 748. The language in Fraser about civility and
values is an exposition on the wisdom of the school’s actions. All that was needed
38
to decide the case, however, was a finding that those actions were reasonable
because of the disruptive effect of the student’s speech.
Not only is Chief Justice Burger’s tribute to civility dicta in Fraser, it is not
even the Supreme Court’s own understanding of what was decided there. In
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988), it was said that
Fraser stands for the proposition that a school is entitled to disassociate itself from
speech that would demonstrate to others that such vulgarity is “wholly inconsistent
with the ‘fundamental values’ of public education. Fraser at 686.” In Fraser
itself, the Court indicated that the decision stood for the proposition that a school
has the authority to refuse to sponsor student speech that might reasonably be
perceived as inconsistent with “the shared values of a civilized social order.”
Fraser, 478 U.S. at 683. For these reasons, Fraser does not muddy the clearly
established law governing this case, where the student’s speech was not disruptive,
did not violate an established school rule, and could not be said to bear the
imprimatur of the school.
The majority also cites to Muller by Muller v. Jefferson Lighthouse School,
98 F.3d 1530 (7th Cir. 1996), to support its contention that the law was not clearly
established that Denno could not be punished for his symbolic speech. This heavy
reliance cannot be justified. First, it is the decision of another circuit and thus of
39
no aid to our appellees if the law of our circuit was clearly established to the
contrary. Cf. Wilson v. Lane, 526 U.S. 603, 617 (1999) (suggesting that parties
look first to “controlling authority in their jurisdiction” and then to persuasive
authority). See also Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821,
826 n.4 (11th Cir. 1997) (en banc) (explaining that decisions from only United
States Supreme Court, Eleventh Circuit, or highest court of relevant state clearly
establish law for purposes of qualified immunity). Second, it was decided after the
incident in question and, therefore, could not deconstruct the established law. See
Lassiter, 28 F.3d at 1150 (noting that qualified immunity is surrendered only when
“pre-existing law” clearly establishes right in question). Third, it deals with speech
in a grammar school, not a high school, and the discussion of the need for parent-
like custody in Muller is therefore not as persuasive. Fourth, the question before
the Muller court was the reasonableness of a school code dealing with the
distribution of publications on campus, not student discipline.13 The case stands
13
The regulation in question, Section 6144.11, stated in part:
Non-school-sponsored publications. Publications produced by
school district students without school sponsorship, or handbills, may
be distributed and/or sold within the school according to the
following procedure. 1. They must include the name of the
sponsoring organization and/or individual. 2. A time and place for
the distribution must be set cooperatively with the principal. 3. A
copy must be given to the principal at least 24 hours before its
distribution. 4. The publication shall contain this phrase: “The
opinions expressed are not necessarily those of the school district or
its personnel.” 5. If the principal finds the publication (1) contains
40
only for the proposition that this regulation was reasonable. It clearly does not
stand for the proposition that student rights of free speech have been modified by
Fraser or Hazelwood. Fifth, two of the three judges on the panel concurred only in
the result (that the regulation was reasonable) and not with the analysis on the
extent of the rights of pupils freely to express their ideas. For all of these reasons,
Muller has no bearing on a determination of whether the school officials in this
case are entitled to qualified immunity.
Finally, the majority makes reference to the district court opinion in West v.
Derby Unified School Dist. No. 260, 23 F. Supp.2d 1223 (D. Kan. 1998). As the
majority mentions, this case has now been decided by the Tenth Circuit. 206 F.3d
1358 (10th Cir. 2000). In that case (which, like Muller, was decided after Denno’s
suspension), a student was suspended for drawing and passing along a Confederate
flag. He was suspended because his actions violated the “Racial Harassment and
Intimidation” policy which had been adopted by the high school after a series of
very serious racial incidents occurred. The policy prohibited students from having
libelous or obscene language, (2) may incite (lead) persons to illegal
acts, (3) is insulting to any group or individuals, or (4) he/she can
reasonably forecast that its distribution to the students will greatly
disrupt or materially interfere with school procedures and intrude into
school affairs or the lives of others, the principal shall notify the
sponsors of the publication that its distribution may not be started, or
must stop. The principal shall state the reason for his/her decisions.
Muller, 98 F.3d at 1534.
41
in their possession any written material that was racially divisive and included by
way of example Confederate flags. The Tenth Circuit found the rule to be
reasonable in that it was not the product of undifferentiated fear or apprehension,
but rather was the product of the school officials’ reasonable belief, based on past
events, that the student’s display of the flag would cause disruption. Id. at 1366.
Cf. Tinker, 398 U.S. at 508.
There is no doubt that a school is always on a firm constitutional footing in
adopting regulations that impinge on student speech, where the regulations take
into consideration legitimate pedagogical concerns and the atmosphere of the
school. See Bayless v. Martine, 430 F.2d 873, 878-79 (5th Cir. 1970). In our case,
the regulation of the speech was ad hoc, and the student was disciplined solely
because of the content of his speech. Further, so far as our record goes, Denno’s
actual speech accompanying the display of the battle flag dealt with the historical
aspects of the Civil War, one of the most significant and complicated periods in
this nation’s annals. The Confederate battle flag itself is a catalyst for the
discussion of varying viewpoints on history, politics, and societal issues.
Discourse on such issues, without the fear of undue government constraint or
retaliation, is exactly what the First Amendment was designed to protect. See Mills
v. Alabama, 384 U.S. 214, 218-19 (1966); Thornhill v. Alabama, 310 U.S. 88, 102
42
(1940). Repressing this kind of discussion would be as unreasonable, and
hopefully unthinkable, as a rule that forbids students to discuss the Constitution of
the United States on the basis that it recognized slavery or forbids the display of
the American flag because it has been carried by hate groups.
But the reasonableness of school regulations that enact notions of political
correctness au courant in the name of inculcating students with civility is not the
issue for this dissent. It is, instead, whether in 1995 it was clearly established that
a student could not be disciplined because of the content of his speech. The law
of this circuit clearly answers that the student is at the mercy of the consequences
of his speech, and if the speech occasions a material disruption of class work or
substantial disorder, he may be punished; otherwise, he may not. Nothing in the
court’s opinion establishes that this proposition was seriously in doubt in 1995.
Finally, I agree with the majority’s ruling as to the liability of the Board and
join that portion of the majority opinion in toto.
43