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After listening to the Parks case audio lecture, read Defoe and prepare a 5-page typed, double-spaced paper using and explaining the proper applicable analysis — is it strict scrutiny or intermediatescrutiny? USE OUR FLOWCHART (Handout 2 for Ch 3). Finally, discuss how the Tinker case applies to Defoe (see CL, pp. 120-127).
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confederate_flag_case.pdf

parks_v_city_of_columbus.pdf

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0358p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
TOM DEFOE, a minor by and through his
parent and guardian Phil Defoe; PHIL DEFOE,
Plaintiffs-Appellants, -No. 09-6080
>
v.
,
SID SPIVA, in his individual and official
capacity as Principal of Anderson County
Career and Technical School; MERL KRULL,
in his individual and official capacity as
Assistant Principal of Anderson County
Vocational and Technical School; GREG
DEAL, in his individual and official capacity
as Principal of Anderson County High
School; V. L. STONECIPHER, in his official
capacity as Director of Schools for Anderson
County; JOHN BURRELL, in his official
capacity as Chairman of the Anderson County School Board; ANDERSON COUNTY SCHOOL
BOARD,
Defendants-Appellees. N
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 06-00450—Thomas A. Varlan, District Judge.
Argued: June 16, 2010
Decided and Filed: November 18, 2010
Before: CLAY, ROGERS, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Van R. Irion, LAW OFFICES OF VAN R. IRION, Knoxville, Tennessee,
for Appellants. Jonathan Swann Taylor, TAYLOR, FLEISHMAN & KNIGHT, P.C.,
Knoxville, Tennessee, for Appellees. ON BRIEF: Van R. Irion, LAW OFFICES OF
VAN R. IRION, Knoxville, Tennessee, for Appellants. Arthur F. Knight, III, TAYLOR,
FLEISHMAN & KNIGHT, P.C., Knoxville, Tennessee, for Appellees.
1
No. 09-6080
Defoe, et al. v. Spiva, et al.
Page 2
CLAY, J., delivered the judgment of the court and an opinion. ROGERS, J.
(pp. 22–28), delivered a separate concurring opinion, in which COOK, J., joined.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Tom Defoe, a minor by and through his parent
and guardian, Plaintiff Phil Defoe, and Plaintiff Phil Defoe, individually, appeal an order
entered by the district court granting summary judgment for Defendants Sid Spiva, Merl
Krull, Greg Deal, V.L. Stonecipher, John Burrell, and the Anderson County, Tennessee
School Board based upon this Court’s decision in Barr v. Lafon, 538 F.3d 554 (6th Cir.
2008). On appeal, Plaintiffs argue that the district court erroneously granted summary
judgment in favor of Defendants based on the court’s conclusions that the evidence
demonstrated that school officials banned displays of the Confederate flag based on a
reasonable forecast that those displays would substantially disrupt or materially interfere
with the school environment. For the reasons set forth below, we AFFIRM the district
court’s decision.
To the extent that there are any differences between this opinion and the
concurring opinion, the concurring opinion shall govern as stating the panel’s majority
position.
I. BACKGROUND
A.
Factual Background
The Anderson County school district encompasses seventeen schools, including
two high schools, Anderson County High School (“ACHS”) and Clinton High School
(“Clinton”), and one vocational school, Anderson County Career and Technical Center
(“ACCTC”). ACCTC, which is located on the ACHS campus, draws students from both
high schools. Plaintiff Tom Defoe attended both ACHS and ACCTC through at least
December 2007. Plaintiff Phil Defoe is Tom Defoe’s father.
No. 09-6080
Defoe, et al. v. Spiva, et al.
Page 3
All Anderson County schools have a code of student conduct in effect that states
“[a]pparel or appearance, which tends to draw attention to an individual rather than to
a learning situation, must be avoided.” (Appellees’ Br. 11.) The policy further states
that “[c]lothing and accessories such as backpacks, patches, jewelry, and notebooks must
not display (1) racial or ethnic slurs/symbols, (2) gang affiliations, (3) vulgar,
subversive, or sexually suggestive language or images; nor, should they promote
products which students may not legally buy; such as alcohol, tobacco, and illegal
drugs.” (Id.)
According to V.L. Stonecipher, Director of Anderson County schools, a racially
tense environment has existed at Clinton High School since 1956 when the school was
integrated.1 (Trial Tr. Vol. I 96-99.) Stonecipher has been employed by Anderson
County schools since 1965 as a teacher, principal, and administrator. He testified in the
court below that during his tenure with the Anderson County school system, he has dealt
with several instances of racial hatred such as the name-calling experienced by black
students. Stonecipher stated that displays of the Confederate flag would be a distraction
to any student offended by it and could result in some sort of dangerous disagreement
resulting in conflict or violence.
John Burrell, Chairman of the Anderson County School Board, stated that the
Board decided to ban anything it felt would be disruptive to students, and the
Confederate flag fell into that category. Burrell stated that he would not consider lifting
the ban as long as the flag was disruptive to any students in the school system.
Specifically, Burrell said he “would be against removing the ban as long as we have a
racially mixed group with some of those students who I think [the flag] would be
offensive to.” (Trial Tr. Vol. I 49.) Burrell stated that after a student becomes offended,
“the next step is a fight, a riot, that type of situation.” (Trial Tr. Vol. I 63.) Burrell also
1
On August 27, 1956 twelve black students, known as the Clinton 12, integrated Clinton High
School. Because of the backlash that subsequently ensued, the National Guard was brought in to restore
and maintain order. On October 5, 1958, Clinton High School was bombed. The school was rebuilt and
reopened in 1960. The campus of what once was Clinton High School is now the campus of Clinton
Middle School.
No. 09-6080
Defoe, et al. v. Spiva, et al.
Page 4
testified that if a child was sitting in class and something is offensive to him or her, that
could affect the child’s learning.
Several racial incidents have occurred at both ACHS and ACCTC. Examples of
such happenings are detailed below.
1.
Anderson County High School
Greg Deal, the ACHS principal, testified that racial tension has existed in the
community for years. (Trial Tr. Vol. II 117-19.) Deal recalled an incident that occurred
in 2003 where a Hispanic male student had a verbal confrontation with a white female
student in class about a paper on her desk and a white male student told the Hispanic
student to shut up. After class and on the way to lunch, the same white male student
called the Hispanic student a “sand nigger, dirty mexican.” (Id. at 122-23.) The Hispanic
student went to his older brother and told him what happened. The student’s big brother
subsequently got into a physical confrontation with the white male student. Also in
2003, two Hispanic students approached Deal complaining that they were being called
“dirty niggers, sand niggers and dirty mexicans” and told that they need to leave ACHS
when they walked down the “redneck hallway.”2 (Id. at 126.) Deal noted that when he
went to talk to the self-proclaimed “rednecks,” some of them were wearing the
Confederate flag.
In January 2005, there was a basketball game between ACHS and Clinton High
School. Clinton had a biracial basketball player. Prior to the commencement of the
game, ACHS students threw Oreo cookies onto the basketball court as the biracial player
was completing warm-up drills. (Id. at 123.) Deal’s investigation into this incident
2
Deal testified that various groups of students hang out in different areas of the campus. The
“redneck hallway” referred to by the Hispanic students was where “the John Deere gang or the red necks,
the young men who liked to wear [Carhartts]” hung out with each other. (Trial Tr. Vol. II 125.)
Urbandictionary.com defines the term “redneck” as a “[m]ildly offensive term for a lower class white
person from the southeastern states of the [United States].”
No. 09-6080
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revealed that the students threw the Oreo cookies at the player because one of his parents
is black and one is white.3 (Id. at 123.)
In August 2005, two black male students, one of whom had been displaced by
Hurricane Katrina, enrolled at ACHS. Deal testified that, according to his recollection,
a black student had not attended ACHS since 1990 or 1991. Two days after the two
black male students enrolled, a large Confederate flag was draped in a school hallway.
Deal testified that he had never seen a Confederate flag hanging in the hallway before,
yet, two days after two black male students enrolled at the school, there was a
Confederate flag hanging in the hallway. When Deal went over to remove the flag from
the wall, he observed the “rednecks” or John Deere gang “laughing and snickering” as
he took the flag down. (Id. at 109.) Deal considered the flag to be a message to the
administration “that, hey, we don’t want these black young men enrolled in our school.”
(Id.)
There was also an incident where a black student from Clinton High School
attending a leadership class at ACHS was called a “nigger” by a group of white students.
(Id. at 131.) In 2008, racially-charged graffiti was discovered in the school auditorium
and in two areas of the high school football stadium. In the auditorium, a Swastika was
found along with the terms “niggers” and “white power.” (Id. at 133.) On the football
bleachers, graffiti included comments like “White 4 Life” and “I Hate Niggas, J/K
AVM.”4 (Id. at 140.) In 2008, graffiti discovered on the track pole vault pit was
determined to be the names of a black male student and a white female student along
with “something about nigger-lover, white girl, black boy, in my school” and a picture
of a hangman’s noose (Id. at 142-43.) The two students whose names were written were
dating at the time. Deal stated that he believed lifting the Confederate flag ban would
disrupt the learning environment.
3
Although often used to describe persons deemed “[b]lack on the outside, [w]hite on the inside,”
Urbandictionary.com, the term “oreo” is sometimes used to refer to a person of black and white heritage.
4
Deal testified that he understood “J/K” to mean “joking” and AVM to stand for “Andersonville
Mafia,” which is a group of students Deal characterized as a “[g]ang[] or gang ‘wannabes’” who think they
are “gangsters.” (Trial Tr. Vol. II 140-41.)
No. 09-6080
Defoe, et al. v. Spiva, et al.
2.
Page 6
Anderson County Career and Technical Center
Until he retired, Sidney Spiva was the principal at ACCTC. Spiva recalled an
incident at ACCTC when he confiscated a student’s shirt. Spiva testified that the
student’s shirt bore an image of a skeleton in the same kind of robe worn by members
of the Ku Klux Klan (“KKK”) and included an image of the Confederate flag. He stated
that the student’s mother came down to the school and was upset that Spiva even
commented to the student about his shirt.
Spiva testified that he believes the presence of the Confederate flag, even in a
virtually all-white school, would likely disrupt the learning environment. Spiva also
noted that recruiting minorities to ACCTC had been a struggle and that out of 400 or so
students enrolled while he was the principal, only two or three were minorities. Spiva
said that during interviews with potential minority recruits at Clinton, the students stated
they did not want to attend ACCTC for reasons such as they “don’t want to go up there
with those rednecks.” (Trial Tr. Vol. I 139.)
Tim Parrott, the current principal of ACCTC, also testified about several racial
incidents that had occurred at ACCTC. The first incident was a parent complaint about
a black male student being called a “nigger” on the school bus. (Parrott Dep. 67.) The
second incident involved a black student who requested to change classes and return to
Clinton High School because he was afraid of a white student at ACHS. (Id. at 68.) The
third incident involved three white male students who were singing a racial song about
a black student on the school bus, one of whom had an image of the Confederate flag on
his belt buckle. (Id. at 69.) There was also a fight on the bus arising from one student,
in a text message, making a racial joke about a particular female student.
Merl Krull, the Assistant Principal at ACCTC, testified regarding a racial
incident where a biracial female student was subjected to racist name-calling. Krull
noted that the student “was very upset about what had happened in the classroom and
wanted to call home.” (Trial Tr. Vol. II 12.) Krull testified that he believed lifting the
Confederate flag ban might result in more incidents of students arguing about the display
No. 09-6080
Defoe, et al. v. Spiva, et al.
Page 7
of the flag. David Landrum, a welding instructor at ACCTC, also stated that lifting the
Confederate flag ban would probably result in disruption to the learning environment.
Prior to becoming principal of ACCTC, Parrott was assistant vice principal at
Clinton High School. Parrott recalled several episodes occurring during his tenure as
vice president at Clinton High School, including multiple incidents of racially-charged
graffiti that had to be painted over. Examples of such graffiti included KKK references,
“I hate niggers,” and “Kill all the niggers.” (Trial Tr. Vol. III 15.) Parrott stated that
he kept a can of spray paint in his office because if such graffiti was not removed from
the walls immediately, there could have been a fight. Clinton High School administration
once discovered graffiti in the girls’ restroom that said “I hate this nigger-hating school.
I’m going to blow it up.” (Id.) There had even been a noose discovered in a student’s
locker along with stickers displaying terms like “White Power” and “KKK.” (Id. at 17.)
On October 30, 2006, Tom Defoe wore a t-shirt to school bearing an image of
the Confederate flag. School officials told Defoe he was in violation of the code of
conduct and he was asked to either turn the shirt inside out or remove it. Defoe refused
to comply so he was sent home. On November 6, 2006, Defoe wore a belt buckle to
school that displayed an image of the Confederate flag. A school official informed
Defoe he was in violation of the code of conduct and when Defoe refused to comply with
the dress code, he was suspended. Prior to these two incidents, Defoe wore clothing
depicting the Confederate battle flag on several occasions but complied when school
officials requested he remove or cover the clothing.
B.
Procedural History
On November 20, 2006, Plaintiffs commenced this action, alleging violation of
the First and Fourteenth Amendments. Plaintiffs filed a motion for a preliminary
injunction and a temporary restraining order the same day. On May 16, 2007, the district
court denied Plaintiffs’ motion. Plaintiffs also filed a motion to amend their complaint,
which was denied.
No. 09-6080
Defoe, et al. v. Spiva, et al.
Page 8
On September 21, 2007, Plaintiffs filed a motion for summary judgment, which
was denied. Although the record does not make clear exactly when, at some point,
Defendants also moved for summary judgment. Defendants’ motion was denied.
Plaintiffs moved for reconsideration of their summary judgment motion. Plaintiffs
subsequently requested the recusal of the district court judge and moved once again to
amend their complaint in order to add two additional parties.
Defendants filed a response to Plaintiffs’ motion to reconsider in which they
argued that summary judgment should be granted in favor of the individual Defendants
based on qualified immunity. The district court denied both Plaintiffs’ and Defendants’
motions for reconsideration of their respective summary judgment motions. On January
7, 2008, the court granted Plaintiffs’ motion to amend. On January 9, 2008, Defendants
filed an interlocutory appeal regarding the district court’s denial of their summary
judgment motion asserting qualified immunity.
Defendants dismissed their appeal on March 26, 2008 and filed a motion for
partial summary judgment on April 28, 2008, arguing that the individual defendants
were entitled to qualified immunity. The court granted Defendants’ motion for partial
summary judgment in part and denied it in part, concluding that Stonecipher and Burrell,
who were added after Defendant’s initial summary judgment motion, were entitled to
qualified immunity in their individual capacities and, as it had previously concluded, the
other Defendants were not entitled to qualified immunity.
From August 11, 2008 through August 15, 2008, a jury trial was held that ended
in a mistrial because the jury was unable to reach an unanimous verdict. The district
court subsequently requested that the parties file post-trial briefs in light of this Court’s
decision in Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008). On August 11, 2009, the district
court granted summary judgment in favor of Defendants and dismissed the action.
Plaintiffs now appeal.
No. 09-6080
Defoe, et al. v. Spiva, et al.
Page 9
II. DISCUSSION
A.
Standard of Review
The Court reviews de novo a motion for summary judgment. Kleiber v. Honda
of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). Summary judgment is appropriate
where “the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). Where the record, viewed as
a whole, “could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). In considering a summary judgment motion, all inferences to be
drawn from the facts must be viewed in the light most favorable to the non-moving
party. Id. A judge’s role is not to weigh the evidence, judge the credibility of witnesses,
or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
255 (1986).
Once a summary judgment motion is properly made and supported, “an opposing
party may not rely merely on allegations or denials in its own pleading; rather its
response must–by affidavits or as otherwise provided in this rule–set out specific facts
showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); accord Matsushita, 475 U.S.
at 587. If the opposing party fails to respond in this manner, summary judgment should
be entered against that party if appropriate. Fed. R. Civ. P. 56(e)(2). The opposing party
must present more than a “mere scintilla” of evidence; the evidence must be such that
a reasonable jury could find for the non-movant. Anderson, 477 U.S. at 252.
B.
Analysis
1.
Relevant Precedent
In Tinker v. Des Moines Independent Community School District, the Supreme
Court made clear that “First Amendment rights, applied in light of the special
characteristics of the school environment, are available to teachers and students.” 393
U.S. 503, 506 (1969). Indeed, it is well-established that students do not “shed their
No. 09-6080
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constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id.
Nonetheless, school officials retain some “authority . . . consistent with fundamental
constitutional safeguards to prescribe and control conduct in the schools.” Id. at 507.
“[T]he constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings,” and the Constitution does not
compel “school officials to surrender control of the American public school system to
public school students. Bethel Sch. Dist. No. 403 v. …
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