                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                       File Name: 09a0025p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
                                                  -
 DEREK BARR; ROGER CRAIG WHITE and
                                                  -
 CHRIS WHITE, by and through their parent
 and guardian ROGER WHITE,                        -
                          Plaintiffs-Appellants, -
                                                                 No. 07-5743

                                                  ,
                                                   >
                                                  -
                                                  -
            v.
                                                  -
                                                  -
 STEVE LAFON, in his individual and official
                                                  -
                                                  -
 capacity as Principal of William Blount High

                                                  -
 School; ALVIN HORD, in his official capacity
                                                  -
 as Director of Schools; and THE BLOUNT
                                                  -
 COUNTY SCHOOL BOARD,
                         Defendants-Appellees. -
                                                  -
                                                 N

                                    Filed: January 23, 2009
                                                                                                *
    Before: MOORE and CLAY, Circuit Judges; and SCHWARZER, District Judge.

                                       _________________

                                              ORDER
                                       _________________

        The court having received a petition for rehearing en banc, and the petition having been
circulated not only to the original panel members but also to all other active judges of this court,
and less than a majority of the judges having favored the suggestion, the petition for rehearing
has been referred to the original panel.

        The panel has further reviewed the petition for rehearing and concludes that the issues
raised in the petition were fully considered upon the original submission and decision of the case.
Accordingly, the petition is denied.




        *
          The Honorable William W Schwarzer, United States District Judge for the Northern District of
California, sitting by designation.


                                                  1
No. 07-5743          Barr, et al. v. Lafon, et al.                                         Page 2


         BOGGS, Chief Judge, dissenting from the denial of rehearing en banc. Prior to 1969,
the ability of public school administrators to enforce their views of reasonable decorum with
respect to political symbols was relatively uncontested. In that year, however, the Supreme
Court’s decision in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)
established that students did not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Id. at 506. In the case of a student wearing a black
armband, apparently as an antiwar protest, the court held that such a display of ideas (however
open to interpretation) was constitutionally protected, so long as disruption of school activities
could not reasonably be forecast. Absent evidence that certain expression “would substantially
interfere with the work of the school or impinge upon the rights of other students,” school
authorities cannot prohibit it. Id. at 509.

         While this new policy certainly had costs and benefits, and purported to apply
evenhandedly to all symbols and ideas, it carried within itself the seeds of two possible
difficulties. The first was whether schools and courts would export their degree of approbation
of symbols into the degree to which they could “reasonably forecast” disruption. The second
was the extent to which the policy would sanction a “heckler’s veto,” in the sense that it
appeared to make no distinction as to whether the forecast disruption was by supporters or
opponents of the symbols. Thus, in the Tinker case, the pacific response by any pro-war
militants (even though, perhaps, angered by the symbol in the face of the recent deaths in
combat of local military personnel) upheld Ms. Tinker’s rights, while it was unclear whether an
aggressive response by pacifists to military paraphernalia would justify the suppression of such
items.

         These seeds have come to some fruition in a number of recent cases such as Harper v.
Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006), cert. granted and vacated as moot, 127
S. Ct. 1484 (2007) and Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), cert. denied, 127 S.
Ct. 3054 (2007).

         Our case arises in a somewhat novel posture. In most cases under Tinker, court opinions
have focused on what appeared to be an agreed-upon set of facts. In our case, however, the key
issue is the extent to which disputes over facts are being treated by conventional summary
judgment standards. In my view, as set forth below, were this an employment discrimination
case or a tort dispute, let alone a case with the solicitude for careful examination of disputes of
fact normally accorded First Amendment cases, this case would have gone to trial. See Hurley
No. 07-5743          Barr, et al. v. Lafon, et al.                                           Page 3


v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 567-68 (1995) (on appeal, a
reviewing court must undertake a “fresh examination of crucial facts . . . so as to assure ourselves
that [the lower court’s] judgment does not constitute a forbidden intrusion on the field of free
expression”). The key issue is whether the school administrators, in the circumstances of this
case, reasonably forecast disruption based on permitting students to display symbols associated
with the Confederate States of America.

        Instead, in my view, of looking at the facts in the light most favorable to the students,
and drawing all reasonable inferences in favor of the students, the court rather uncritically
accepts the school administrators’ point of view. I will outline a number of ways in which a
reasonable jury could find, under that standard, that the administrators’ explanation was not
based on a reasonable forecast of disruption, rather than, for example, a desire to avoid political
and public controversy—a reason not sanctioned by Tinker.

        1. The precipitating incident for the policy was a tussle between two students,
        one black and one white, which led to a parental complaint and an investigation
        by the Department of Education Office of Civil Rights. The tussle had nothing
        to do with any symbolism, and the investigation found that the school had not
        discriminated by punishing the black student as the instigator and not the white
        student, who was found not to have responded.

                 Nonetheless, public controversy was aroused.

        2. Depositions by the administrators indicated their belief that the mere
        offensiveness of the Confederate flag to some students provided a sufficient
        basis for concluding it was disruptive and could be suppressed, or to use the
        words of one school representative, something that is offensive “will sooner or
        later” result in a disturbance. JA 115, 122-23. At times, these administrators
        went still further, suggesting any historic basis for being offended could justify
        the censorship of expression in general and the Confederate flag in particular.
        The Blount County Director of Schools, Alvin Lee Hord, answered in the
        affirmative when asked whether he would continue to support enforcement of
        the ban even if he became aware “the Confederate flag was no longer causing
        disruption.” JA 123. And the Principal of William Blount High School
No. 07-5743          Barr, et al. v. Lafon, et al.                                          Page 4


        admitted history alone might indicate that certain speech was disruptive despite
        evidence the particular expression would no longer cause a disruption. JA 98.

        3. The very thoroughgoingness of the speech suppression, it could be inferred,
        meant that the policy was based on offense at the symbols themselves, rather
        than actual fear of disruption. Thus, the record is clear that administrators
        suppressed not only what might be considered “in your face” tee shirts, but also
        armbands (the very basis of Tinker), belt buckles, automobile decals, and even
        a distribution of a local newspaper when it contained a symbol. In addition,
        administrators suppressed a tee shirt with no symbolism at all, but only a legend
        tweaking the policy itself: “You Can Make Me Change My Shirt, but You’ll
        Never Change My Mind.” JA 76.

        4. With the above background, the more serious incidents relied on by the
        school, which could certainly justify a reasonable jury in concluding that
        disruption could reasonably be forecast, must be weighed to see whether a
        reasonable jury might also take the opposite point of view.

        It should be emphasized that no disruption of any sort was directly associated with the
display of symbols, in that the persons displaying the symbols are not alleged to have been
involved in any physical incidents, nor to have instigated even any verbal ones. Castorina ex
rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536, 544 (6th Cir. 2001) (“If the students’ claims
. . . that there were no prior disruptive altercations as a result of Confederate flags are found
credible, the court below would be required to strike down the students’ suspension as a violation
of their rights of free speech as set forth in Tinker”) (emphasis added). The court says that
evidence of disruption is “uncontested,” but the record suggests otherwise. Barr v. Lafon, 538
F.3d 554, 566 (6th Cir. 2008). I note that some of the “disruption” was based on administrative
time responding to parental complaints. Consider also that one of the plaintiffs to this case, who
was involved in a verbal confrontation with another student, testified that after he was called a
“dumb redneck,” he did not respond because “it’s not worth my time beating somebody’s butt
because they’re just acting stupid.” JA 82. Though a confrontation short of a violent altercation
could amount to a disruption within the meaning of Tinker, not every disagreement or incident
of name-calling will support the suppression of speech. And it should be left to a jury to
determine whether this disagreement both constitutes a disruption and was sufficiently related
to the Confederate flag to justify a ban.
No. 07-5743          Barr, et al. v. Lafon, et al.                                          Page 5


        The more serious incidents referred to include bathroom graffiti of a graphic and obscene
sort, the circulation of two supposed hit-lists, vague rumors that students were bringing guns to
school, and the arrest of one student who allegedly told police he planned to pull the fire alarm
and shoot people in the ensuing commotion. Although these events are all no doubt frightening,
their relationship to the prohibited speech is subject to question. School officials could not
identify students responsible for the vandalism with anyone on either side of the dispute; they
could not say the so-called hit-lists targeted members of racial minority groups or students of any
particular race; and they did not testify that the student in custody threatened any particular
ethnic group as opposed to an act of random violence. Indeed, Director Hord stopped short of
saying in his deposition the Confederate flag would “substantially interfere” with the work of
the school. Rather, he said the flag was “hurtful to some people” and that he personally thought
it was disruptive. JA 115. Even the testimony of school authorities does not paint the picture
of a robust threat to the educational mission that would justify (on summary judgment) a ban on
political expression. And whatever the record shows about racial animus in Blount County, it
does not contain any evidence that even purports to demonstrate that t-shirts merely opposing
the school’s policy, that do not depict the Confederate flag or any other racially divisive
symbols, would substantially interfere with the school’s educational mission.

        On these facts, in my view, a reasonable jury could draw one of two conclusions. It
could conclude, as our court apparently did and the administrators alleged that they did, that any
display of Confederate symbolism or of opposition to the school policy could lead to disruption
(though it is unclear the extent to which this “disruption” included the disruption for the
administrators caused by having to respond to public outrage at the display, which certainly
occurred in Tinker as well).

        On the other hand, a reasonable jury could conclude that the incidents relied on were not
sufficiently serious, or not sufficiently tied to any student speech, that disruption from display
of the symbols could reasonably be forecast. The jury could conclude instead that the
administration, as school administrators sometimes do, was simply trying to prevent public
outrage, and that it was easier (or perhaps more in line with their own political views) to suppress
the students rather than to uphold the constitutional promise of Tinker.

        Under these circumstances, I believe that significant First Amendment principles (as
established in Tinker) are at stake and that rehearing en banc is warranted. If Tinker is to remain
the law, it should not be used as a sword for some expression but as a shield for those who would
No. 07-5743         Barr, et al. v. Lafon, et al.                                      Page 6


suppress some unpopular opinions. I therefore respectfully dissent from the denial of rehearing
en banc.




ENTERED BY ORDER OF THE COURT


         /s/ Leonard Green
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             Clerk
