Seniors get to paint their parking space. So guess what happens?

When I first read a summary of Thomas v. Varnado it omitted a crucial fact.  The summary said that the student sued the district because the district painted over the painting that he put on his parking space in the school parking lot. First thought: students are not allowed to paint the school parking lot however they want.  What’s the problem here?  Then I read the case, and found out that the school had a policy of allowing seniors to paint their personal parking space in the school lot for a fee of $25. Of course there were some restrictions on what they could paint, but none of those restrictions prohibited a painting of Donald Trump trying to channel his inner Bruce Springsteen:

The painting on [the student’s] parking space portrayed President Trump wearing a stars-and-stripes bandana and sunglasses.

The superintendent ordered the grounds crew to cover it up with grey paint.  Lawsuit.  The court granted an injunction in favor of the student.  The painting of Trump returns. 

The school had its reasons for covering up this painting, but the court dismissed them as inadequate under the standard of Tinker v. Des Moines. The school argued that this year’s election was “particularly contentious” and this painting would only add to that.  The superintendent was sure that the painting would be offensive to African American students. There was an increased risk of vandalism.  There were reports of incidents at schools across the country, sparked by pro-Trump messages.

The judge dismissed all of that:

Ultimately, it is clear that school officials in this case acted based upon “an urgent wish to avoid controversy which might result from the expression.”  Tinker v. Des Moines Independent Community School District.

To justify its decision, the school had to come up with “demonstrable factors that would give rise to any reasonable forecast by the school administration of ‘substantial and material’ disruption.”  The school failed that test.

This case comes from Louisiana. As in all southern states, school districts and courts in Louisiana have had to grapple with the use of the Confederate flag as symbolic speech. In this case, the superintendent cited a prior incident in the school involving the Confederate flag.  The flag sparked a major disruption. The superintendent feared that the painting of Trump would do likewise.  But the court drew a distinction, citing a 5th Circuit case that arose in Burleson ISD in Texas:

[The student’s painting], while it is certainly a stylized and colorful image, depicts a sitting President of the United States. This is not a case involving a symbol such as a Confederate flag, which has an established meaning as a “symbol of racism and intolerance, regardless of whatever other meanings may be associated with it.”  A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224 (5th Cir. 2009). 

It's Thomas v. Varnado, decided by the federal court for the Eastern District of Louisiana on October 9, 2020. We found it at 2020 WL 5993156.


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