Melton v. Young

WILLIAM E. MILLER, Circuit Judge

(dissenting).

The plaintiff in this case, Rod Melton, a student at Brainerd High School in Chattanooga, was suspended from school by the Principal because of his refusal to cease wearing a small shoulder patch sewn on one sleeve of his jacket and depicting the Confederate Flag. The sole reason for such suspension, as found by the district court and established by the evidence, was that the student, in the judgment of the Principal, had violated that portion of a school code of conduct which provided as follows: “Also, provocative symbols on clothing will not be allowed.” The district court held, and I think correctly so, that this regulation was invalid and unenforceable because of its vagueness and lack of specificity. If the rule under the sole authority of which the student was suspended is invalid because it infringed upon the *1336rights of the student to freedom of speech and expression, as the district court clearly held, it follows, in my opinion, that the student was entitled to have the suspension itself declared illegal and to have the benefit of the in-junctive relief which he sought by his complaint.

It is interesting to note that the district court, in invalidating this provision of the code, stated:

Although elsewhere in the regulations Confederate symbols were barred from use as school symbols and although there is evidence that the words ‘provocative symbols’ were construed by the school principal to mean ‘that which would cause a substantial disruption of the student body,’ such an interpretation is subjective to the principal, for nowhere in the regulatory scheme are the words ‘provocative symbols’ defined.

Yet the district court proceeded in its opinion to find that the Principal had every reason to believe, because of the disturbances which occurred in the prior school year, that the wearing of the shoulder patch was provocative and might lead to a disruption of the proper functions of the school. If his judgment in construing the regulation was subjective to him when he undertook to apply the code of conduct and assigned such code as the sole reason for suspension, it is difficult for me to fathom why his judgment should not be regarded equally as subjective in attempting to assess the validity of the suspension upon the hypothetical assumption of the district court that the Principal could have acted, although he did not, on the basis of his inherent authority over the operation of the school.

Since the Principal acted pursuant to the regulation alone and that regulation is void, it necessarily follows that the student’s constitutional rights were infringed and that he is entitled to appropriate relief. One cannot escape the conclusion that if the regulation itself is void on its face it cannot be validly applied in fact as the Principal in this case sought to do.

But even accepting the district court’s premise that the Principal’s action in suspending the student because of his refusal to remove the emblem is not dependent upon the validity of the regulation, I still hold the view that the district court’s conclusion that the student’s constitutional rights were not infringed is wrong.

I do not in any way quarrel with the finding of the district court with respect to the tense racial situation and disturbances which disrupted the school in the 1969-70 school year. As the district court, as well as the special Citizens Committee, found, the disturbances which occurred during that year were provoked primarily because of the use of a number of official or semi-official school symbols which appeared to be offensive to a minority group of the students in the school, including (a) the name “The Rebels” to designate the school’s athletic teams; (b) the song “Dixie”; and (c) the “Confederate Flag.” No finding was made with regard to the individual wearing of shoulder patches or insignia. It was recommended by the Committee, followed by later approval by the Board of Education, that the name “Rebel” or “Rebels” be retained, but that the Confederate Flag as a school symbol and the use of the song “Dixie” as a school pep song should be discontinued. These recommendations were implemented as codes of conduct at each of the schools, including the provision with respect to “provocative symbols” which the district court has held to be invalid.

The evidence in this case clearly brings it within the ambit of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). It is my firm conviction that the Principal in suspending the student simply over-reacted and was motivated by the kind of “undifferentiated fear or apprehension *1337of disturbance” which the court in Tinker held to be insufficient to overcome the right to freedom of expression. True enough, in this case the Principal was aware of the disturbances which had occurred during the prior school year, but he failed to take into account, in acting so hastily and precipitately, the following differentiating factors which appear to me to be of controlling significance:

1. The protests of the previous year were against a group of school symbols which by long usage and custom, if not by express official sanction, carried the impact of official sanction, whereas the wearing of the small sleeve insignia in this ease by a single student could in no way represent an official ruling or have the appearance of doing so.

2. In the early part of the 1970-71 school year (in September) a football game was played by the school team when some students imprudently and in violation of the school’s code of conduct waved Confederate flags, with no Resulting protests or outbreaks of violence, indicating a lessening of racial tension at the school.

3. In the interim between school years, the Board of Education, acting upon the recommendation of a citizens committee which had made an intensive study of the events of 1969-70, mandated the discontinuance at Brainerd of the song “Dixie” and the Confederate Flag as school symbols, but retained the designation of “Rebels” for the school’s athletic teams. If such continued use officially of a term equally as suggestive of the Confederacy as the flag caused no disruption, it is difficult to conceive how the wearing of a confederate flag insignia could be seriously taken as disruptive.

4. There was no finding by the Committee that the wearing of confederate symbols on clothing by individual students as matters of personal choice had contributed to the previous trouble or that it should be prohibited for the future.

5. The complaints received by the Principal concerning this student’s display of the Confederate Flag on his sleeve were, at best, minimal if not trivial.

6. As of the time this student was suspended there had been no acts of violence at the school and no significant threats of disruption, despite the continued “official” use of the team name “Rebels” and the events at the opening football game. There was every reason to believe that the official steps taken by the School Board in abolishing the school song and flag had satisfied the demands of those who protested the year before.

7. The nature of the “symbolism” in this case, (entitled under Tinker to the same reverence as “pure speech”) is of significance: It was small; it was worn as a part of an article of clothing; and it had no inherent qualities for causing disruption or disturbance.

8. The emblem was worn by the student in a quiet, peaceful and dignified manner with no untoward gestures or remarks.1

9. The Principal conducted no substantial inquiry to ascertain the true facts as to whether the wearing of the insignia would lead to further trouble.

The fact is that despite the racial strife of the year before the circumstances were altogether different in the school year beginning in the fall of 1970, and there is no substantial basis to support the Principal’s apprehension and fear that a small emblem worn by a single student on the sleeve of his jacket, which was merely symbolic of one of the *1338historie facts of American life, would activate anew the kind of turmoil which had previously existed and which had been caused by entirely different circumstances. After all, it should be emphasized, the school symbols which were discontinued, such as the song “Dixie” and the Confederate Flag, at least bore the appearance of officialdom and could hardly be compared with the personal choice of a single student to decorate his jacket with a harmless emblem of the Confederate Flag.

The language of the Fifth Circuit in Burnside v. Byars, 363 F.2d 744, 748 (1966), appears to me to be pertinent in the present context:

. . .. Thus it appears that the presence of “freedom buttons” did not hamper the school in carrying on its regular schedule of activities; nor would it seem likely that the simple wearing of buttons unaccompanied by improper conduct would ever do so. Wearing buttons on collars or shirt fronts is certainly not in the class of those activities which inherently distract students and break down the regimentation of the classroom such as carrying banners, scattering leaflets, and speechmaking, all of which are protected methods of expressions, but all of which have no place in an orderly classroom. If the decorum had been so disturbed by the presence of the “freedom buttons,” the principal would have been acting within his authority and the regulation forbidding the presence of buttons on school grounds would have been reasonable.

Since no question is made on appeal as to the validity of the district court’s ruling in striking down the “provocative symbol” regulation, I would reverse the remainder of the judgment and remand the case with directions to modify the judgment below so as to grant the in-junctive relief sought and for further proceedings on the issue of damages.

. There was evidence pro and con as to the student’s conduct in connection with prior racial situations, but the district court made no finding, and the record justifies none, that he was a troublemaker or that he wore the insignia other than for the purposes stated by him. His stated purpose was to indicate his pride in his Confederate heritage.