Federal panel reverses course, sides with school officials in Confederate flag case

Friday, July 28, 2000

A panel of federal judges has reversed course and determined that two
assistant school principals in Deltona, Fla., cannot be held liable for
suspending a student for displaying a Confederate battle flag on school

In December 1995, Wayne Denno, a student at Pine Ridge High School,
showed several of his friends a 4-by-4 inch Confederate flag during a lunchtime
discussion about the Civil War. Denno alleges that a school official
immediately told him to remove the flag and accompany him to the administrative
office. Denno was suspended for nine days.

Denno’s mother filed a suit on his behalf against the Volusia
County School Board and assistant principals Dennis Roberts and Robert Wallace,
alleging a First Amendment violation.

In August 1998, U.S. District Judge Anne Conway dismissed the lawsuit.
Conway ruled that the school officials were entitled to qualified immunity
because they did not violate a clearly established constitutional right.

On appeal, a three-judge panel of the 11th U.S. Circuit Court of
Appeals, by a 2-1 vote, reversed Dunno’s suit with respect to the
qualified immunity issue. The panel ruled that because the school did not have
a history of racial tension, it was possible that there was a First Amendment

However, three months later, the panel withdrew its opinion and
ordered a rehearing. On July 20, the panel reversed its earlier decision and
agreed with Conway.

The panel voted 2-1 in Denno v. School
Board of Volusia County
that the assistant principals were
entitled to qualified immunity because they did not violate a clearly
established constitutional right.

Most courts examining cases involving student suspensions over
Confederate flags have analyzed them under the standard articulated by the U.S.
Supreme Court in its
decisionTinker v. Des Moines Indep. Community
School Dist.
In Tinker, the high court ruled that school officials
could not censor student expression unless they could reasonably forecast that
the expression would cause a substantial disruption in the educational

However, in its most recent opinion, the panel majority said that the
controlling legal standard was not Tinker, but the more recent 1986 decision
Bethel School Dist. No. 403 v.

In Fraser, the high court
ruled that school officials did not violate the First Amendment when they
suspended a student who gave a speech laced with vulgar references during a
school assembly.

The panel majority cited the following language in the
Fraser case as the legal standard
for public school officials: “The undoubted freedom to advocate unpopular
and controversial views in schools and classrooms must be balanced against
society’s countervailing interest in teaching students the boundaries of
socially appropriate behavior.”

The panel majority determined that a reasonable school official could
presume that he or she had to comport with the Fraser standard rather than the
Tinker standard. “Thus, such a
reasonable school official might have been led to the view that the legal
landscape permitted application of the more flexible Fraser standard where the
speech involved intrudes upon the function of the school to inculcate manners
and habits of civility,” Judge Lanier Anderson wrote for the majority.

Anderson switched positions in the second panel opinion. In the July
1999 opinion, Anderson and Judge Owen Forrester ruled to reinstate
Denno’s lawsuit. Judge Susan Black dissented.

In the more recent decision, Anderson and Black ruled to dismiss
Denno’s lawsuit, while Forrester once again voted to reinstate part of
the suit.

“The Confederate battle flag itself is a catalyst for the
discussion of varying viewpoints on history, politics and societal
issues,” Forrester wrote. “Discourse on such issues, without the
fear of undue government constraint or retaliation is exactly what the First
Amendment was designed to protect.”

Frank Jakes, Denno’s attorney, criticized the panel’s
handling of the case, calling the decision to vacate the prior opinion and
issue another opinion without petition by either side “bizarre.”

“Why they took such a course of action may be the mystery that
may never be solved,” Jakes said.

Bruce Hanna, attorney for the school officials, agreed: “It is
very unusual for a circuit court to vacate its prior opinion without a motion
from either party.”

Jakes criticized the majority’s reliance on the
Fraser standard. “If this
decision is upheld, then as to First Amendment rights in public schools in the
11th Circuit, public school officials will have absolute carte blanche to
unilaterally infringe on student rights with impunity and without losing
qualified immunity.”

Hanna responded: “The court was correct in deciding that, given
the tension between Tinker and Fraser, it is not clearly established that a
student has an unqualified right to symbolic speech.”

Jakes said that he will “absolutely challenge the ruling on some

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