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School Ban on Confederate Flag Clothing Challenged

B.W.A. v. Farmington R-7 School District, 554 F.3d 734 (C.A. 8, Jan. 30, 2009)

B.W.A., R.S. and S.B. (“Students”) were high school students in the Farmington, Missouri R-7 School District when a series of racially charged events occurred, ranging from a white student urinating on a black student, to racial slurs during a basketball tournament that resulted in complaints to the Missouri State High School Activities Association and the U.S. Department of Justice Office of Civil Rights. As a result of these incidents, some black students withdrew from school in the District.

The District instituted a policy banning students from wearing clothing depicting the Confederate flag. Under this policy, the District disciplined the Students, all in separate incidents, for wearing various items of clothing bearing images of the Confederate flag. After they were disciplined, the Students filed suit pursuant to 42 U.S.C. §1983, alleging violation of their First Amendment rights. The District moved for summary judgment, which the U.S. District Court (E.D. Mo.) granted. The Students appealed.

After extensively detailing racial incidents that occurred within the District over the past year, the Eighth Circuit applied the standard set forth by the U.S. Supreme Court in Tinker v. Des Moines Independent School District, 303 U.S. 503 (1969) to the facts of this case. The Court noted that disruptive incidents occurred prior to the District adopting the new clothing policy, resulting in racial vandalism and property damage. Pursuant to Tinker, the Court held that while the clothing ban may constitute viewpoint discrimination, it was not a violation of free speech because the District reasonably forecast substantial disruption from wearing clothing depicting the Confederate flag.

The Court found precedent for its decision in similar decisions by the Eleventh and Sixth Circuits. In accordance with other courts that had addressed similar issues, the Court rejected the notion that a student wearing the Confederate flag symbol had to cause an actual disruption before such clothing could be banned. The Court also disagreed with the Students’ contention that the more restrictive holding of Morse v. Frederick, 127 S.Ct. 2618 (2007) governed this case, reiterating that Tinker clearly governed.

The Court rejected the Students' contention that requiring them to remove or turn inside out the offending clothing was contrary to a Missouri strip search statute.

The judgment of the District Court was affirmed.



Judge(s): James B. Loken, Chief Judge; Roger L. Wollman and Lavenski R. Smith, Circuit Judges
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Civil Procedure , Civil Rights , Constitutional Law
Amicus Lawyer(s) Amicus Law Firm(s)
Mark Lenard Gross U.S. Department of Justice
Lisa Wilson Edwards US Department of Justice
Teresa Kwong US Department of Justice
Kevin J. O'Connor US Department of Justice

Appellant Lawyer(s) Appellant Law Firm(s)
Lawrence J. Altman Schwartz Herman & Davidson
Robert Herman Schwartz Herman & Davidson

Appellee Lawyer(s) Appellee Law Firm(s)
Thomas A. Mickes Mickes & Goldman
Sarah A. Wight Mickes & Goldman



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complaint with the missouri state high school activities association, complaining more authority to circumscribe certain student speech if a ban would be necessary to c. missouri strip search statute for the eighth circuit disruptions. that no genuine issue of material fact exists and that the moving party is entitled to in the first incident, a white student urinated on a black student while allegedly interfere with the requirements of appropriate discipline in the operation material disruption. we affirm. farmington high was also subjected to racial vandalism and property damage. these incidents occurred in the district during the preceding school year. grooming rules based on gender in violation of title ix. district to turn the shirt inside out.6 constitutionally permissible") (emphasis added). schools may not suppress speech giving each word, clause, sentence, and section of the statute meaning." neske v. city -4- judgment as a matter of law. id.; fed. r. civ. p. 56(c). the farmington high school student and parent information guide, which every frederick, 127 s. ct. 2618 (2007). in morse, the supreme court rejected a first devolve to violence suddenly. schools may act proactively to prohibit race-related farmington r-7 school district ("the district") and its school officials after they were official capacity as assistant * drawing swastikas and writing "white power" song lyrics in his notebook.5 students from wearing clothing that depicted the confederate flag.4 situation confronting school officials. here, in a school of 1,100 students, 15 to 20 of one particular opinion, at least without evidence that it is necessary to avoid school district; mark kraus, in his * assistant superintendent; mark krause, teacher/instructor; susan barber, assistant his backpack the rest of the day. the next day, b.w.a. wore a t-shirt and belt buckle farmington high. in that same time period, supporters of the festus students filed: january 30, 2009 w. l. sanders, in his official capacity * as a result, the black student withdrew from school, and his family moved out of the -9- appellee. * ___________ i. background play each other unless required to by their athletic conference. assistant principal at farmington requested that he remove the items. when b.w.a. the primary rule of statutory construction is to "determine the legislature's intent by case: 07-3099 page: 9 date filed: 01/30/2009 entry id: 3512112 50506. the court stated as follows: * appeal from the united states student told his teacher that the "n*gg*rs [are] here" while pointing at a visiting track s.b., a minor; patricia hill, as next * of st. louis, 218 s.w.3d 417, 424 (mo. 2007). when determining intent, courts are to ban the confederate flag. id. at 55667. based on conversations with students who 324 f.3d 1246, 1248 (11th cir. 2003) (holding that school officials may ban speech superintendent of farmington r-7 * if they reasonably believe that speech is likely to "appreciably disrupt the appropriate alleging that the district and its school officials7 students surrounded the same black student and confronted him at farmington high. school officials to direct a child to remove an emblem that is worn in a manner that misinterpreted missouri revised statute 167.166.7 (2005). containing the confederate colors that said "help support b.[w.a.] once a rebel, amicus on behalf of * of the confederate flag and the words "the south was right[,] our school is wrong." official capacity as teacher/instructor * to believe that students displaying the confederate flag would cause a substantial and tension inside of farmington high. students complained to the principal that they felt united states court of appeals b. the tinker standard students. later, "people" drove around the black student's home screaming racial unpopular speech for its content alone. but this crops the full picture and distorts the substantial evidence of actual and potential disruptions likely related to the flag events resulted in the district permitting a black student to leave farmington high material and substantial interference with schoolwork or discipline, is not district erroneously based its confederate flag ban on incidents unrelated to the flag's reasonably viewed as promoting illegal drug use." id. at 2625. after noting the vandalism and property damage. students complained to the principal that they felt viewpoint discrimination and did not establish a substantial risk of disruption based potential for reoccurrence. id. as in melton, farmington school officials, based on merely "to avoid the discomfort and unpleasantness that always accompany an the display of the confederate flag within the school. our holding is in line with our likelyracially-motivatedviolence,racialtension,andotheraltercationsdirectlyrelated approximatelyfourmonthslater,r.s.woreashirttoschooldepictinganimage always and forever a rebel. we love b.[w.a.]" she was sent home after she refused no. 403 v. fraser, 478 u.s. 675, 682 (1986). school administrators are armed with apparent that the statute is protective of students' right to wear apparel that also that the two festus students were the victims of racial slurs throughout the game with discipline in the school"); melton v. young, 465 f.2d 1332 (6th cir. 1972). in melton, to adverse race relations in the community and the school. tinker is satisfied. because "would be a source of confrontation and a symbol that would cause unrest with the case: 07-3099 page: 11 date filed: 01/30/2009 entry id: 3512112 facts that might reasonably lead them "to forecast substantial disruption of or material balancing these competing interests. case: 07-3099 page: 5 date filed: 01/30/2009 entry id: 3512112 tinker and its progeny allow a school to "forecast" a disruption and take 1 way to actually or potentially disruptive conduct, the act of wearing the armbands team. this student also drew a swastika on the chalkboard. violence or even excessive racial tension that forces unnecessary departures of statute] of its obvious intended protection of students' speech." we disagree and functions expressively. the district court determined that farmington officials did not according to a farmington official, festus has a "greater african american high players allegedly used racial slurs against two black players from festus in before loken, chief judge, wollman and smith, circuit judges. minority students from the school. based on the evidence in the record, the school's school district when a heated confrontation erupted during a game between saying "that is what black people deserve." as a result, the black student withdrew use." id. at 2622. joseph frederick, a high school senior, was suspended for displaying 7 id. at 509 (quoting burnside v. byars, 363 f.2d 744, 749 (5th cir. 1966)). the tinker * eastern district of missouri. the student to remove the jacket or leave school because the principal felt the emblem specifically, the lyrics stated that "whites are superior, n*gg*rs are less;" case: 07-3099 page: 7 date filed: 01/30/2009 entry id: 3512112 ___________ r-7 school district; todd mckinney, * must determine how missouri would interpret its law. lincoln benefit life co. v. evidence of disruptions related to the confederate flag or race include: (1) a of the school,' the prohibition cannot be sustained. -2- viewed the flag as a racially divisive symbol, the principal believed that the flag believe that this case contains sufficient evidence beyond ordinary discomfort and if the evidence, viewed in the light most favorable to the nonmoving party, indicates district administrator of a public school or charter school shall direct a rights of students in school. but schools may legitimately restrict those rights in school personnel except under supervision by authorized law enforcement officials out after two farmington high players allegedly used racial slurs against two black display of the confederate flag by a student "might cause disruption and interfere with the discomfort and unpleasantness that always accompany an unpopular somelimitationofnormalfreeexpressionisconstitutionallypermissible.basedonthe environment will be prohibited. no procedure will impose dress and approximately 1,100 students attend farmington high and only 15 to 20 are discipline." id. at 565. increasing racial tensions inside the school led administrators b.w.a., in the school environment present at farmington at the relevant time, could that its action was caused by something more than a mere desire to avoid b.w.a., r.s. and s.b. argue that because the school did not show a concrete case: 07-3099 page: 4 date filed: 01/30/2009 entry id: 3512112 the shirt, and r.s. complied. a couple of days later, s.b. wore a shirt to school judgment. b.w.a primarily argues that the school district exercised impermissible authority to prevent disruption to the education of high school students, banned considering the plain and ordinary meaning of the words used in the statute and by viewpoint discrimination, and did not violate the first amendment. therefore, we code. as superintendent of farmington r-7 * individually and as next friend of * defendants - appellees. * constituted pure speech and, therefore, was protected by the first amendment. id. at edwards, 243 f.3d 457, 465 (8th cir. 2001) (holding that this court must decide what day, r.s. wore a shirt to school with the slogan "our school supports freedom of first amendment, restrict student speech at a school event, when that speech is during the 2006-2007 school year, b.w.a. wore a baseball cap to school display of the confederate flag. the district filed a motion for summary judgment, smith, circuit judge. hallway near the locker rooms during the game. the festus students also reported the case: 07-3099 page: 6 date filed: 01/30/2009 entry id: 3512112 opal scaggs, as next friend of r.s.; * we agree with the district court that the school's actions did not contravene the 3 case: 07-3099 page: 10 date filed: 01/30/2009 entry id: 3512112 no employee of or volunteer in or school board member of or school removing not only garments but also emblemsorinsigniasunlessthoseitems areworn v. * district court for the constitutionallypermissible.farmingtonschoolofficials,consideringtheinstantfacts from school and moved to another district. a second incident occurred when white a. standard of review unquestionably, student speech is protected by the first amendment. see them." when the black student's mother tried to separate the students, one of the white automatically coextensive with the rights of adults in other settings." bethel sch. dist. conjunction with a confederate flag's display outside of the locker rooms; (2) a white -11- b.w.a. , a minor; r.s., a minor; * case: 07-3099 page: 3 date filed: 01/30/2009 entry id: 3512112 mo. rev. stat. 167.166.7 (2005). in 1995, the district adopted a student dress code. this dress code states: amendment claim and held that "schools may take steps to safeguard those entrusted alone; but, when that speech occurs in an educational and social context that enables incident to the united states department of justice's office of civil rights (ocr), drug use." id. at 262829. this narrow holding is inapposite to our case, and we, ___________ as a result of the suspensions, b.w.a. filed a claim under 42 u.s.c. 1983, black. submitted: september 22, 2008 be provided when practical. ___________ -12- home. they made racial comments such as "anything that is not white is beneath as assistant principal of farmington * * and circumstances, could reasonably "forecast" a "substantial disruption" resulting occurring at the school; and (5) students drawing racially offensive symbols, such as confederate symbol emblazoned on the sleeve. id. at 1334. the principal asked the sent home for refusing to remove items of clothing depicting the confederate flag district punished their non-disruptive protest of the school's uniform policy). we substantial race-related events occurring both at the school and in the community, in barr, the sixth circuit held that tinker does not require actual disruption based on 2 superintendent based his decision on the belief that the incidents within the district was no evidence "that the confederate flag ever caused any disruption at the school," comply with applicable law. dress that materially disrupts the education violated his first amendment rights. a third incident occurred during a basketball tournament hosted by the central case: 07-3099 page: 13 date filed: 01/30/2009 entry id: 3512112 * substantial disruption. the district court granted the district's summary judgment and substantial threat of disruption, its ban on the confederate flag amounted to b.w.a., r.s. and s.b. rely on the supreme court's recent decision in morse v. it. a farmington teacher advised b.w.a. that he had to remove the hat and keep it in the board of education recognizes the value of allowing individual symbol. population than . . . farmington." the overarching statutory purpose is to expressly prohibit strip searches by sister circuits that have addressed this issue. see scott v. sch. bd. of alachua county., the rights of other students to be secure and let alone"). swastikas, in their notebooks and on the chalkboard. these incidents provide unless a weapon or dangerous substance poses an imminent threat of physical harm. farmington high and festus senior high school.3 -3- after b.w.a. withdrew from farmington high, parents and other community plaintiffs - appellants, * and safety and maintaining an atmosphere conducive to education. the first amendment of the united states constitution protects the free speech opinion. 393 u.s. 503, 514 (1969). in tinker, the students were sent home and 2008) (same). but "the constitutional rights of students in public school are not 2000) (holding that based on racial tension, school officials had reason to believe that 2005). home, leading to a later confrontation at the school; (4) numerous racial slurs same day, b.w.a. withdrew from school. court concluded that the prohibition could not be sustained in the absence of a iii. conclusion after the students were sent home, farmington high was subjected to racial restriction of the banner because it could be "reasonably viewed as promoting illegal following the aforementioned incidents, the superintendent, relying on his charles, 200 f.3d 1128, 1131 (8th cir. 1999). summary judgment should be upheld r.s. was suspended for the rest of the day for refusing to remove the shirt. the next school flag. melton, 465 f.2d at 1333. after increased black enrollment, racial ______________________________ the confederate flag so long as the school could "reasonably forecast that the students--one carrying an aluminum baseball bat--showed up at a black student's missouri strip search statute. we, therefore, affirm. b.w.a., r.s. and s.b. characterize the case as one involving suppression of case: 07-3099 page: 1 date filed: 01/30/2009 entry id: 3512112 on display of the confederate flag. b.w.a. also argues that the district court garment is worn in a manner that does not promote disruptive behavior. motion and dismissed the claims of b.w.a., r.s., and s.b. (holding that the students' first amendment rights were violated because the school in order for the state in the person of school officials to justify district. confederate flag would cause substantial disruption to schoolwork and school on appeal, b.w.a. alleges that the district court improperly granted summary susan barber, in her official capacity * viewpoint. certainly where there is no finding and no showing that results. state ex rel. killingsworth v. george, 168 s.w.3d 621, 623 (mo. ct. app. because he was "uncomfortable due to the racial tension." b.w.a., r.s. and s.b. rely on tinker and its progeny, arguing that the district minority students were subjected to racial tension from a white majority student and a confederate flag. some students believed that these protests increased the racial the missouri statute provides in relevant part: a banner bearing the phrase "bong hits 4 jesus." id. on appeal, the narrow no. 07-3099 individually and as next friend of * engaging in the forbidden conduct would 'materially and substantially * students struck her in the eye. a melee ensued involving her son and the white players from festus. shortly after the incident, the two festus students filed a b.w.a., a minor and student at farmington high school ("farmington high"), acted solely to suppress speech it deemed racially offensive. they contend that the see mo. rev. stat. 167.166.2 (2005). the statute also forbids school personnel from some of which involved the confederate flag, we hold that the district's ban was ___________ interference with school activities" before prohibiting a particular expression of ii. discussion student expression as well as the necessity of protecting student health could be "provocative." id. the sixth circuit held that it was reasonable for the tensions erupted over the use of the confederate flag, causing the administration to all dress code procedures will adhere to health and safety codes and related incidents both in and out of the school, the administration reasonably denied ____________________ * district. they were suspended during the 2006-2007 school year for wearing clothing discontinue use of the nickname and flag. id. later, a student wore a jacket with the -13- additionally, school officials punished students for making racial slurs. also, a white r.s. and s.b. argue that the district court's interpretation of the statute "stripped [the suspended from school for wearing black armbands to protest the vietnam war. id. b.w.a. , a minor; tamra archambo, * -8- (stating that there must be some "establishment of substantial fact" before suppression the confederate flag was offensive and would lead to more disruptive behavior. of farmington r-7 school district; * prevalence of drug use among our nation's youth, the court upheld the school's moreover, no other circuit has required the administration to wait for an actual certain limited circumstances. in tinker v. des moines independent school district, refused, the assistant principal suspended b.w.a. for the remainder of the day. that from any display of the confederate flag. see tinker, 393 u.s. at 514. see also west v. derby unified sch. dist. no. 260, 206 f.3d 1358, 1366 (10th cir. racial incidents occurred prior to the 2006-2007 school year, including a white student during the game, a skirmish broke viewpoint discrimination in contravention of the first amendment. district of missouri. the state's highest court would do if faced with a question of state law). in missouri, reasonably have been determined by school officials to have been done in a disruptive unpopular viewpoint." tinker, 393 u.s. at 509; see generally lowry, 540 f.3d at 760 student to remove an emblem, insignia, or garment, including a religious the statute makes no mention of the first amendment or free speech, it seems friend of s.b., * necessary precautions before racial tensions escalate out of hand. as a result of race- promotes disruption. the prominent display of the confederate flag emblem by tinker, 393 u.s. at 506 (stating that "[i]t can hardly be argued that either students or principal to ban the emblem based on the past racial tension at the school and the display. see butts v. dallas indep. sch. dist., 436 f.2d 728, 732 (5th cir. 1971) standard requiring a reasonable forecast of substantial disruption or material that the confederate flag was offensive and would lead to more disruptive behavior. case: 07-3099 page: 12 date filed: 01/30/2009 entry id: 3512112 along with fellow students r.s. and s.b., brought this first amendment action against the ban was unconstitutional according to tinker. id. at 565. the sixth circuit violate this section of the statute because the plain language of the statute allows prohibition of a particular expression of opinion, it must be able to show confederate flag on his hat as a statement of racism and that he himself was a racist. we review a grant of summary judgment de novo. henerey v. city of st. which conducted an investigation. as a result of the incident, the two teams no longer arguing that it had reason to believe that its display would cause a material and ban on the flag was reasonably related to a substantial disruption, did not amount to epithets and threatening to burn down the home. a few days later, a group of white farmington r-7 school district; * principal; and todd mckinney, dean of students. skirmish between farmington high and festus high school after two farmington distributed flyers accusing school administrators of not doing anything to prevent or district, * accordingly, we affirm the judgment of the district court. procedures will specifically define ambiguous terms, and examples will school officials include w.l. sanders, superintendent; judith delaney, b.w.a., r.s. and s.b. also argue that the district violated missouri revised in a manner to "promote disruptive behavior." mo. rev. stat. 167.166.7. although -10- disruption before acting. see, e.g., barr v. lafon, 538 f.3d 554, 565 (6th cir. 2008). school district; judith delaney, in her * the school could reasonably forecast a substantial disruption, the administration did 5 question before the supreme court was "whether a principal may, consistent with the "n*gg*rs will fall;" and "n*gg*rs faces will be a mess." stop the racial slurs. the flyer also noted that a confederate flag was hanging in the evident racial tension, could reasonably ban the flag to prevent anticipated future -7- b.w.a., a minor; marc archambo, * -6- symbol. after extensive discovery, the district court1 student body." id. at 560. on appeal, the aggrieved students argued that because there student dress code procedures must be designed with the goal of granted the district's motion for speech for all (except southerners)." the assistant principal sent r.s. home to change the honorable jean c. hamilton, united states district judge for the eastern confederate flag at school and an injunction prohibiting the district from banning the affirm. sought a declaratory judgment that they have a first amendment right to wear the an all-white school nicknamed the "rebels" displayed the confederate flag as its members began gathering across the street from the school, protesting and displaying discrimination by school officials is not violative of the first amendment if the tinker community population sufficient to motivate some to withdraw. this can hardly be at 504. the students filed a 1983 claim alleging a violation of their first amendment students of farmington r-7 school * rights. id. the supreme court held that because the armbands were not related in any of speech is allowed). racially offensive speech cannot be restricted for that reason affirm the district court's grant of summary judgment. district; (3) a fight between a black student and white students at the black student's not violate the first amendment by banning the flag. 6 in his official capacity as dean of * manner. b.w.a. admitted that he knew that some students would view the * summary judgment on the ground that farmington high school officials had reason interference is met. tinker, 393 u.s. at 511 (stating that "the prohibition of expression 4 student received at the beginning of the 2006-2007 school year, contained this dress containing an image of the confederate flag and the words "dixie classic." an b.w.a., r.s., and s.b. were students at farmington high,2 which is part of the to look at the whole act and its purposes and avoid unreasonable, unjust, or absurd after the district banned clothing depicting the confederate flag, additional depicting the confederate flag. prior to their suspensions, several racially-charged case: 07-3099 page: 8 date filed: 01/30/2009 entry id: 3512112 therefore, apply tinker. showing of material or substantial interference with school discipline. id. disagreed, holding that the increasing racial tensions in the school made it reasonable case: 07-3099 page: 2 date filed: 01/30/2009 entry id: 3512112 student urinating on a black student, causing the black student to withdraw from the avoid substantial disruptions. contrary to b.w.a.'s assertion, viewpoint unpleasantness of unpopular viewpoints. the record in this case contains evidence of schoolhouse gate"); lowry v. watson chapel sch. dist., 540 f.3d 752, 759 (8th cir. bearing the confederate flag with the words "c.s.a., rebel pride, 1861" written on to date, no missouri appellate court has addressed this statute. therefore, we united states of america, * statute 167.166.7 because it discriminated against a student's viewpoint. b.w.a., teachers shed their constitutional rights to freedom of speech or expression at the the united states supreme court held that school administrators must demonstrate school officials to reasonably suspect material and substantial discipline disruption, were race-related. -5- emblem, insignia, or garment, as long as such emblem, insignia, or for the administration to forecast disruptions based on the confederate flag. id. at 568; to their care from speech that can reasonably be regarded as encouraging illegal drug considered an environment conducive to educational excellence. racial tension can thereafter, b.w.a. amended his complaint byadding r.s. and s.b. as plaintiffs. they

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