Tuesday, November 30, 2010
Defoe v. Spiva, No. 09-6080 (6th Cir. Nov. 18, 2010), is an interesting case. The Sixth Circuit held that a school district’s ban on displays of the Confederate flag in school does not violate students’ free speech rights. Although the panel’s decision was unanimous, the panel issued two separate opinions, with the concurrence, in which two of the judges joined, governing as the majority’s position to the extent in differed with the other opinion. The first opinion concluded that the ban met the requirements of the substantial disruption standard enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). It found that school officials had sufficient evidence from which to reasonably forecast that permitting Confederate flag symbols in its schools would result in substantial disruption or material interference with the school environment.
The concurrence differed by relying on the U.S. Supreme Court’s reasoning in Morse v. Frederick, 551 U.S. 393 (2007), to uphold the ban. It enumerated two principles for its reliance on Morse instead of Tinker. First, the U.S. Supreme Court in Morse recognized that “the mode of analysis set forth in Tinker is not absolute.” Second, just as the Court in Morse recognized an “’important, perhaps compelling interest’ in deterring drug use in the schools, there is of course a comparably ‘important, perhaps compelling’ interest in reducing racial tension in the public schools.”
Law review commentary on this issue would be most welcome.
Mitchell H. Rubinstein