Laura Scott, Kathy Blitch v. School Board of Alachua County

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 20, 2003
No. 02-14931 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00029-CV-1-MMP

LAURA SCOTT, as Parent,
Legal Guardian and Next Friend for,
KATHY BLITCH, as Parent,
Legal Guardian and Next Friend for,

Plaintiffs,

FRANKLIN JAY SCOTT, JR., a Minor,
NICHOLAS THOMAS, a Minor

Plaintiffs-Appellants,

versus

SCHOOL BOARD OF ALACHUA COUNTY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 20, 2003)

Before TJOFLAT, BIRCH and RONEY Circuit Judges.
PER CURIAM:

Plaintiffs Franklin Jay Scott, Jr. and Nicholas Thomas (“Plaintiffs”), then both

Santa Fe High School students, filed a 42 U.S.C. § 1983 lawsuit against defendant

School Board of Alachua County (“School Board”), alleging that the discipline

imposed by Principal Lamar Simmons –school suspensions– for their displaying of

a Confederate flag on school premises, after previously being told not to do so,

violated their First Amendment right to symbolic speech. The district court granted

the School Board’s motion for summary judgment.

Plaintiffs appeal asserting three arguments. They first argue that their school

suspensions were based on an inadequate showing of a material and substantial

disruption and thus violated the Court’s decision in Tinker v. Des Moines Indep.

Cmty. School Dist., 393 U.S. 503 (1969). Next, plaintiffs argue that the School

Board’s “after-the-fact justifications” for Principal Simmons’ unwritten ban of

Confederate flags were pretextual and thus expose the School Board to monetary

liability. Third, plaintiffs assert that genuine issues of material fact exist as to

whether: (1) the School Board was aware or was deliberately indifferent to Principal

Simmons’ unwritten ban of Confederate flags and (2) the racial impact of a prior

disruption in the high school was adequate to precipitate Principal Simmons’

unwritten ban.

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 After careful review of the briefs, record, and relevant case law, we affirm the

decision of the district court, holding that Principal Simmons’ unwritten ban of

Confederate flags on school grounds was not an unconstitutional restriction of the

plaintiffs’ First Amendment rights. As such, there is no actionable § 1983 claim in

this case. Having decided that, we need not consider whether the Board was aware

or was deliberately indifferent to Principal Simmons’ unwritten ban of Confederate

flags.

Prior to setting forth the applicable portions of the district court’s well-

reasoned opinion, we note that this First Amendment freedom of expression case

stands against the unique backdrop of a public school. Although public school

students’ First Amendment rights are not forfeited at the school door, those rights

should not interfere with a school administrator’s professional observation that

certain expressions have led to, and therefore could lead to, an unhealthy and

potentially unsafe learning environment for the children they serve. Short of a

constitutional violation based on a school administrator’s unsubstantiated

infringement on a student’s speech or other expressions, this Court will not interfere

with the administration of a school.

The district court properly determined that Principal Simmons’ unwritten ban

on displaying the Confederate flag was not a violation of the plaintiffs’ First

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Amendment rights. The applicable portions of the Order of District Judge Maurice

M. Paul giving the reasons for this decision, which we accept, are as follows:

Simply put, the defendant's second argument is that the ban on
Confederate symbols was appropriate based on the potential disruption
that the displaying of Confederate symbols would likely create. After
a careful analysis of Denno v. School Bd. of Volusia County, 218 F.3d
1267 (11th Cir. 2000), Tinker v. Des Moines Independent Comm. School
Dist., 393 U.S. 503 (1969) and Bethel School District v. Fraser, 478 U.S.
675 (1986), the Court concludes that school officials can appropriately
censure students' speech under either of the following two theories.
First, from the Tinker case, school officials are on their most solid
footing when they reasonably fear that certain speech is likely to
"appreciably disrupt the appropriate discipline in the school." Denno,
218 F.3d at 1271, citing Tinker, 393 U.S. at 514. Second, from Fraser,
even if disruption is not immediately likely, school officials are charged
with the duty to "inculcate the habits and manners of civility as values
conducive both to happiness and to the practice of self-government." To
do so, they must have the flexibility to control the tenor and contours of
student speech within school walls or on school property, even if such
speech does not result in a reasonable fear of immediate disruption.
Denno, 218 F.3d at 1271. As the Supreme Court stated in Fraser:

Surely it is a highly appropriate function of public school
education to prohibit the use of vulgar and offensive terms
in public discourse. Indeed, the "fundamental values
necessary to the maintenance of a democratic political
system" disfavor the use of terms of debate highly
offensive or highly threatening to others. Nothing in the
Constitution prohibits the states from insisting that certain
modes of expression are inappropriate and subject to
sanctions. The inculcation of these values is truly the
"work of the schools." Tinker, 393 U.S. at 508, 89 S.Ct. at
737.... The determination of what manner of speech in the
classroom or in school assembly is inappropriate properly
rests with the school board.

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 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.

[478 U.S.] at 683, 106 S.Ct. at 3164.

In the case sub judice, however, the above language merely begs
the question. The real difference of opinion in this case, of course, is
whether the symbol should be considered "vulgar and offensive" at all.
That is, some say the symbol is not offensive if not intended to be
offensive. Others say it is innately offensive, while still others argue
that, even if the symbol is not intended to be offensive or innately
offensive, it is still dangerous because it is perceived as offensive by so
many people.

This debate, which is being played out in state legislatures,
newspaper editorial columns and classrooms across the South is
exemplified in the expert witness disclosures offered by the two sides in
this case. The plaintiffs' experts plan to testify that "the Confederate
battle flag is not a symbol of racism, but rather a historical symbol
embodying the philosophical and political principals of a decentralized
form of government in which states and local government retain all
powers not expressly ceded to the centralized federal government under
the constitution" and that thus the flag is merely "a symbol of southern
heritage." (Disclosure of proposed expert Marshall DeRosa, PhD, doc.
19). The defendant's expert plans to testify that "from its inception, the
confederacy was a political movement dedicated to the preservation of
the institution of slavery. Therefore from its inception, the confederacy
and its symbols represented approval of white supremacy" and that "the
confederate flag is a symbol that has acquired numerous racist
associations to the point that the flag itself has understandably come to

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be perceived as a racist symbol." (Disclosure of proposed expert Fitz
Brundage, PhD, doc. 24).

The problem, of course, is that both of them are correct. And they
are correct not only in describing the different emotions this symbol
evokes, but also in connoting the depth of those emotions through their
choice of words. Words like "symbol", "heritage", "racism", "power",
"slavery", and "white supremacy" are highly emotionally charged and
reveal that for many, perhaps most, this is not merely an intellectual
discourse. Real feelings -- strong feelings -- are involved. It is not only
constitutionally allowable for school officials to closely contour the
range of expression children are permitted regarding such volatile
issues, it is their duty to do so. The Court thus agrees with Denno in its
approval of the following language from the United States District Court
in Kansas:

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 threatening 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.

Denno, 218 F.3d at 1273, citing West v. Derby Unified School Dist. No.
260, 23 F. Supp.2d 1223, 1233-34 (D. Kan 1998), aff'd 206 F.3d 1358
(10th Cir. 2000)(quoting Fraser, 478 U.S. at 683).

In light of the above principles, the Court finds that the ban on the
display of Confederate symbols was not unconstitutional. School
officials presented evidence of racial tensions existing at the school and
provided testimony regarding fights which appeared to be racially based
in the months leading up to the actions underlying this case.
Additionally, one only needs to consult the evening news to understand

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 the concern school administrators had regarding the disruption, hurt
feelings, emotional trauma and outright violence which the display of
the symbols involved in this case could provoke. Therefore, under both
Tinker and Fraser, the school administrators did nothing wrong in
banning the display of Confederate flags on school property.

In sum, the school administrators did not violate the plaintiffs’ constitutional

rights by banning the display of Confederate flags on school grounds and

subsequently enforcing the ban by suspending them. Having found no constitutional

right violated, the plaintiffs have failed to set forth a prima facie case for § 1983

relief. The district court properly granted the defendant’s motion for summary

judgment.

AFFIRMED.

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