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Yasreen Ijaz
Eric Lee
April 28, 2011
U.S. Constitution
Professor KC Johnson
Defoe v. Spiva Summary
In 2006, Tom Defoe, a student in Anderson County High School and Anderson County
Career and Technical Center in Eastern district of Tennessee at Knoxville was suspended for
wearing a T-shirt and belt buckle bearing the image of the confederate flag. The school had a
strict code of conduct, specifically appearance wise, to maintain order in a learning environment
rather than on the particular individual. The conduct policy stated that clothing, backpacks,
patches, jewelry, and notebook 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”1.
Sidney Spiva, before he retired, was principal, at the time, of Anderson County High
School and Anderson County Career and Technical Center. On October 30, 2006, Tom Defoe
was wearing a T-Shirt bearing an image of the Confederate flag. Spiva caught sight of Defoe and
asked him [Defoe] to either turn the shirt inside out or remove it2. Tom Defoe refused the firm
order by his principal and was sent home. A second similar incident occurred on November 6,
2006; Defoe wore a belt buckle to school bearing an image of the confederate flag. A school
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2
United States Court of Appeals for the sixth Circuit (Summary)
law.com/jsp/tal/PubArticleTAL.jsp?id=1202475397104&slreturn=1&hbxlogin=1
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official approached Defoe and informed him that he was in violation of the school conduct dress
code. When Defoe still refused to listen he was suspended from Anderson High School and
Anderson County Career Technical Center.
The First Amendment of the United States Constitution is part of the Bill of Rights. The
First Amendment offers religious minority groups protection, freedom of speech, press, religion,
assembly and petition. Tom Defoe, in federal court, sued Sid Spiva in 2006, debating that school
officials violated his First Amendment Rights when they suspended him for his “expressive”
clothing. David L. Hudson Junior, a First Amendment scholar, had written an article in 2008,
Tenn. Confederate-flag controversy set for Aug. trial. Hudson writes: “DeFoe argued that his
Confederate-flag clothing caused no disruption at school. School officials countered that there
had been incidents of racial unrest, violence and disruptions as a result of other displays of the
Confederate flag.” Defoe defended himself by continually arguing that since his protest was
peacefully silent, school officials did not have a right to interrogate him to remove his T-shirt
and belt buckle. And since they did so, they were violating his first amendment rights.
Janet Shan wrote an article titled “Tom DeFoe, Former Anderson County High School
Student, Says He's Proud of Confederate Heritage”3. Shan confirms the argument that even
though the confederate flag does indeed evoke negative images and feelings concerning African
Americans, it still holds traditional values for southerners. Tom Defoe testified that “I am proud
of my heritage. And I am proud to be a southerner. I don’t see any reason that anybody can’t
wear what they’re proud of.”
3
hinterlandgazette.com/2008/08/tom-defoe-former-anderson-county-high.html
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The existence of the flags of the confederate States of America has been in use since
1861-1865. The end of the American Civil War has brought about some controversies regarding
the confederate flag itself. Even today in our contemporary world, some flags of certain states in
the U.S. are based on the original confederate flag, Tennessee being one of them. “Stars and
bars”, that was the name of the original confederate flag in 1861. The idea in the making of the
original confederate flag was to not abandon the “old” U.S. flag. However on the battlefield
confusion arose; people were confused by the similarity the confederate flag had to the U.S. flag.
Over the years the confederates will create many versions of their flag symbolizing their beliefs
in the American Civil war. The second national flag’s name issued by the confederate congress
was “the stainless banner” issued in 1865. “Stainless” referred to a pure white field, even though
their were many interpretations of what the flag itself might mean. The third national flag issued
by the confederate congress was named “the Blood Stained Banner”, adopted in 1865. It was
proclaimed that the white field symbolism in the second flag might be mistaken as a flag of truth.
Another name for the confederate flag was the Battle flag. It is true that the confederate flag is
widely recognized as the flag of the south just because the confederate congress in the south
wanted to represent their troops in the American Civil War.
Southern civilians are very proud of their revolutionary heritage and culture. They are
often referenced towards being a “proper” American. Country music openly sings what makes
one a “true American” things such as American pie, The Fourth of July, Support of the U.S.
Army, and everything else that represents what southern ancestors, living during the Civil War,
fought for and believed in. The southern people are a conservative group and they represent
tradition rather than abstract, they are unwilling to adopt new ideas because doing so will disrupt
a heritage and way of life that the southern people have led and want to continue through their
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children. The southerners are trying to preserve the world that they used to live in but does not
exist anymore.
The Confederate flag, in many ways, is an offense taken by many people. It is also
referred as a rebel flag because so many civilians in the south used it to set opposition against
Northern ideas during the Civil War. People are offended by what the confederate flag
symbolizes; it symbolizes White domination of African Americans. Civilians are also offended
by the fact that the world has since integrated and yet this flag speaks the unspeakable. It draws
an invisible line towards the treatment of Africans as slaves and Africans as people who have
earned their respect in society and treated as individuals. However this flag is a symbol of
southern pride. In America, where we are taught that everyone has their own interpretation of
several things, why can’t we tolerate what the flag represents to the south? Why can’t we accept
that they view the flag as a symbol of their heritage and as a way of pride? The confederate flag
is viewed as a symbol of their [southern] historical past. It is what constitutes as their [southern]
heritage, culture, and pride. It is the world that they came from and they world they want to
preserve for their children. Many country singers advocate what it is to be a southerner; they
build up a level of pride and joy in coming from the south.
There have been two other precedential student free speech cases involving students who
want to speak out and exercise their rights as civilians. In 1969 the case of Tinker vs. Des
Moines had taken place. Three pupils from Des Moines, Iowa were suspended from school for
wearing black arm bands to protest against Government policy in Vietnam. The arm bands were
against school code of conduct, and so the students were asked to leave. The court of Appeals,
sitting en banc, stated that their [the students] conduct was within the protection of the First
Speech clause of the first Amendment and the Due Process Clause of the Fourteenth. Pp. 505-
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5064. Since they were not disrupting peace on the school grounds by wearing arm bands but were
rather quite and passive protestors, the court was in their favor. They were merely expressing
their opinions, and to deny them their right to express would be a violation of their rights as
citizens of the U.S. and a violation of the first and fourteenth amendment, same as in Tom
Defoe’s case.
A second case that is precedent to Defoe vs. Spiva is Morse vs. Frederic. In 2002, a
school-supervised event went astray when Deborah Morse, a high school principal, suspended
18-year-old Joseph Frederick after he displayed a banner that read “BONG HITS 4 JESUS”.
Deborah Morse suspended Frederick, on terms that he was trying to promote illegal drug use.
Joseph Frederick sued his principal, Deborah Morse claiming that his constitutional rights, as far
as free speech was concerned, were being violated. The court, again, ruled that even though his
inappropriate banner was during a school event, he was indeed violating school codes. However,
the court also argued that Frederick’s banner was silent and non-disruptive.
Defoe vs. Spiva, Morse vs. Frederic, and Tinker vs. Des Moines; all these cases involve
student free speech, where teenage students are using their rights as citizens to protest in
something that they believe in. In all these cases it has been argued that, yes, the students were
violating a school rule of conduct, however it has also been argued that they were not disrupting
or causing a massive riot among their fellow student body. In a world where teenage
involvement is much needed in politics, they were merely expressing, silently, their individual
thoughts and viewpoints.
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http://www.bc.edu/bc_org/avp/cas/comm/free_speech/tinker.html
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Consitutional History
Moot court
Eric Lee
Yasreen Ijaz
Briefs of moot court Defoe v. Spiva
In the defense of Tom Defoe a minor aged student of the Anderson County Career and
technical School of Knoxville Tennessee. This case argues that the principle Sid Spiva violated
the student’s first amendment rights by send him home for wearing a T-shirt which featured a
Confederate Flag logo. On the defense of Sid Spiva and the Anderson County school it is argued
that by allowing Defoe to wear this shirt he may incite a disturbance among the student body and
by sending this student home they are protecting the other students. These are the arguments that
will be used in defense of the plaintiff.
1. One of the first arguments is that by wearing this T-shirt Defoe did not physically
interrupt the classroom or cause any type of disruption to any school activates. There is no
evidence that any of the other students acknowledged the shirt as offensive. Plaintiffs assert that
there has been no disruptions to the learning environment caused by displays of the confederate
flag and that school officials and teachers stated that it was unlikely that the confederate flag
would cause a disruption at school. [Doc. 50 at 6-7; Doc. 130 at ¶ 15.] Although, there were
some previous racial issues inn the school. None of them are related to a student wearing a tshirt.
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2.The symbol of the confederate flag is part of national identity in this region of the
country. Traditions whether if it is displayed on a t-shirt or bumper sticker are normality. It can
be argued that symbols like the Confederate Flag have no intrinsic meaning. The meanings
symbols carry is that which humans attach from their own learning. Thus, any viewer of a
symbol is free to assign it any range of meanings. The symbol itself then is constant, but the
value symbolized is not.
3. Indeed, it is well established that students do not "shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate. The Supreme Court said in Tinker that
"[If] conduct by the student, in class or out of it, which for any reason — whether it stems from
time, place, or type of behavior — materially disrupts class work or involves substantial disorder
or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of
freedom of speech." This is the hinge upon which many cases turn when a school violates a
student's free speech protections. There is no indication by any witnesses or staff that indicated
Defoe’s t-shirt disrupted the classroom or school.
4. It is true that even where past racial incidents justify a ban, schools may not impose `a
view-point specific ban on [some] racially divisive symbols and not others.” It has been noted
that there were some students that “got away” with wearing a Malcolm X t-shirt. While wearing
a t-shirt of Malcolm X may be a symbol of African American freedom this shirt should fit in the
same category as the confederate flag. If the school felt that the Confederate flag is controversial,
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why wouldn’t the militant teachings of Malcolm X provoke a distraction for those who deem it
inappropriate?
5. The prohibition of expression of one particular opinion, at least without evidence that it
is necessary to avoid material and substantial interference with schoolwork or discipline, is not
constitutionally permissible. The Supreme Court has held that schools and school administrators
can censor student publications such as student newspapers. The difference between the
tolerance of expression, as in Tinker, and in promotion of student views, is the key. By wearing
an armband, a student is expressing his view and the school is not taking a stand, nor endorsing
the student. But in a student newspaper, the school itself is represented in the newspaper, and by
publishing a student piece, is now no longer a passive observer but an active participant. In
Hazelwood School v Kuhlmeier (484 US 260 [1988]), the Supreme Court ruled that articles in
the school paper that were counter to the educational mission of the school were subject to
censorship. Tinker was all about freedom of expression. The students in Tinker merely wore
black armbands. They did not disrupt school activities in any other way. The actions of the
students are often used to distinguish the right of speech and expression for students from the
rules that can govern those rights. Again the distinction hinges on the impact of the expression
on the educational process.
6. At most, a couple of witnesses testified that various students "got away" with wearing
Confederate flag clothing and there was limited testimony regarding one student wearing a flag
with an image of the Mexican flag and someone wearing a Malcolm X shirt. There appears to be
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some ambiguity regarding whether school officials would act upon seeing a display of the
Mexican flag but, unlike the Confederate flag and Malcolm X shirts, there is no district-wide ban
on the Mexican flag's display nor is there any indication that it has been disruptive to the
educational process or that school officials have reasonably forecasted that it would be.
7. Because no principal or teacher can make exceptions to the ban based on the
circumstances within individual schools and classrooms, the ban is unnecessarily broad and thus,
violative of the Constitution. In Cohen v California (403 US 15 [1971]), the Court overturned a
conviction of a man who wore a jacket with the words "F___ the Draft" on it. The Court ruled
that the presence of a printed vulgarity couldn’t be sufficient cause for an arrest and 30-day
imprisonment. The Court said: "absent a more particularized and compelling reason for its
actions, the State may not, consistently with the First and Fourteenth Amendments, make the
simple public display here involved of this single four-letter expletive a criminal offense." Cohen
was not a student and the jacket was not displayed in a school, however. Dress codes that
prohibit certain kinds of dress (like cut-off shorts or shirts with obscene or commercial
messages) have not been challenged at the level of the Supreme Court, but have generally been
upheld as promoting the educational process.
8. The Confederate battle flag, it is true, may convey a noble message, for instance to
signify honor for one's ancestors who fought bravely with their state compatriots for
independence from the industrial North. In the case of Defoe he was paying homage to his
heritage. The question arises, how different would wear this t-shirt be from students from
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Mexico wearing a Mexican flag? As we can see the symbol of the confederacy was even a state
symbol at one point in time. How is it possible that the students may learn about these subjects
but not feel any attachment to their historical heritage?
9. Another argument that can be made is that Defoe maybe influenced by popular culture.
Today there are many types of music, movies and magazines that are outlets for personal
expression. Today we live in an individualistic world where a minor like Defoe can misconstrue
the intentions of symbols or personal protest. Defoe may not have known the impact of wear
such a shirt would do to someone who may interpret the confederate flag as inappropriate.
Additionally, Defoe ‘s parents may not have spoken to their son about what this symbol may
mean to some ethnic groups.
10. The last argument deals with the population of the school. The school’s population is
composed mostly of white students. Since the confederate flag is accepted commonly Defoe (if
intentional) may not have felt there were any groups that would be offended.