IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2009
No. 08-10477 Charles R. Fulbruge III
Clerk
A M, by and through her Parents and Guardians Richard Dale McAllum Jr. and
Shelby Voda McAllum; A T, by and through her Parents and Guardians Darrell
Ray Thomas and Joni Ann Thomas; M T, by and through her Parents and
Guardians Darrell Ray Thomas and Joni Ann Thomas
Plaintiffs - Appellants
v.
PAUL ELLIOTT CASH, in his official capacity as Principal of Burleson High
School; BOARD OF TRUSTEES OF BURLESON INDEPENDENT SCHOOL
DISTRICT
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
Before GARWOOD, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
Plaintiffs are current and former students of Burleson High School, located
in Burleson, Texas. In response to previous incidents, the high school adopted
a policy prohibiting the display of the Confederate flag on school grounds. When
plaintiffs A.M. and A.T. came to school at the beginning of the spring 2006
semester carrying purses adorned with large images of the Confederate battle
flag, administrators required them to cease carrying the purses (giving them the
option of leaving the purses in the administrative offices until school ended for
the day, or to have someone come and pick the purses up from the school). The
girls voluntarily went home for the day rather than comply with the demand.
Plaintiffs then brought the instant action, seeking damages and permanent
injunctive relief on grounds, inter alia, that the policy and its enforcement
abridges the right to free speech and expression guaranteed by the First and
Fourteenth Amendments of the United States Constitution. The district court
granted summary judgment to defendants, based primarily on its conclusion
that the ban is permissible under the Supreme Court’s decision in Tinker v. Des
Moines Independent Community School District, 393 U.S. 503 (1969). For the
reasons set forth below, we affirm.
I. BACKGROUND
The school district’s dress code states that “there will be no tolerance for
clothing or accessories that ha[ve] inappropriate symbolism, especially that
which discriminates against other students based on race, religion, or sex.”
Supplementing this district-wide policy, Burleson High School (“BHS”) has a
policy, enacted during the 2002-2003 academic year, that prohibits the visible
display of the Confederate flag on the school’s campus. This policy followed
racial strife among students at the school, some of which centered on students’
display of the Confederate flag.
At the beginning of the spring semester in January 2006, plaintiffs A.M.
and A.T. came to school carrying purses bearing large images of the Confederate
battle flag. That same day, a teacher referred the girls to the administration for
discipline pursuant to the policy against visible displays of the Confederate flag.
Administrators, treating the purses like any other dress code violation, gave
A.M. and A.T. the options of leaving their purses in the front office until school
let out or having someone come to the school to retrieve the purses. Choosing
neither option, the girls chose to go home for the remainder of the day. A.M. and
A.T. were not suspended, and officials took no other disciplinary action against
them.
2
The girls subsequently appealed the policy prohibiting displays of the
Confederate flag using the school district’s internal administrative procedures.
The first step, referred to as a “Level I” appeal, was an appeal to defendant BHS
principal Paul Elliott Cash. Cash explained the history of the policy, noted the
past incidences of racial tension and violence on the campus, detailed infra, and
concluded that “the number of incidents would be higher but for the restriction
on visible displays of the Confederate flag.” Cash therefore denied the Level I
appeal. A.M. and A.T. then pursued a “Level II” appeal, which was heard by
district superintendent Mark Jackson. Jackson agreed with Cash’s
determination, reasoning that “if I did not enforce the Confederate flag ban, then
the number and types of confrontational incidents on campus would increase
dramatically, resulting in material interference and substantial disruption of the
educational environment.” Accordingly, Jackson denied the Level II appeal.
Cash’s affidavit and the affidavit of the preceding principal, Mark
Crummel, document the history of racial tension and hostility at BHS. This
evidence is largely uncontroverted. BHS has approximately 2,300 students. At
all relevant times, less than sixty of those students were African-American.
Cash reviewed the school’s disciplinary records and averred that during the
2002-2003 school year, there were 35 reported incidences of race-related
problems. The next year brought one referral based on a student’s use of a racial
epithet against another student. During the 2004-2005 school year, there were
ten referrals involving racial incidents. One of these incidents involved a
student who drew a Confederate flag in his notebook accompanied by the
statement “No niggers; subject to hanging.” Finally, during the 2005-2006 school
year (the year in which A.M. and A.T. brought their purses), there were seven
race-related referrals. One involved a student who drew a noose and made
comments about hanging minorities. Cash noted that these numbers likely do
not represent the full extent of race-related incidents as many invariably go
unnoticed by administrators and unreported by students. For example, it was
3
apparently common to find racially hostile graffiti in the restrooms, but this
rarely resulted in disciplinary referrals because the offending student could not
be identified. This racial hostility occasionally resulted in physical
confrontations. During the 2002-2003 school year, there was a fight in the lobby
area of the gymnasium prior to the start of a basketball game between BHS
students and supporters of a predominantly African-American high school. The
local police were called and “had to assist in restoring order.” This prompted
increased police presence at future athletic events.
Also during the 2002-2003 school year, a BHS student “shoved a
Confederate Flag in the face of several members” of another high school’s all-
black girls volleyball team as they walked through the BHS hallways. According
to Crummel, this incident caused tension and required Crummel, who was then
the principal at BHS, to apologize on behalf of the school. Thereafter, BHS
students attempted to display the flag at athletic events, prompting BHS
administration and staff to “intervene.” The same school year (2002-2003),
supporters of a predominantly African-American school left BHS during a
sporting event because a BHS student waived the flag from his pick-up truck in
front of them. This caused the state high school athletics governing body to view
the display of the flag at BHS events as a racial insult and a means of
intimidation, and led to the consideration of sanctions against BHS because the
school was “identified [as] having a reputation . . . as being openly hostile to
African-Americans; if not simply racist.” That year, some white BHS students
also waved a Confederate flag in the direction of a group of fellow African-
American students as they waited for the bus. According to Crummel, the staff
viewed this “as an attempt to intimidate our African-American students.”
Following these incidents, during the 2002-2003 school year, BHS instituted the
ban on visible displays of the Confederate flag.1
1
Plaintiffs have not offered evidence refuting that these incidents occurred. Rather,
they aver only that they did not know about the incidents, and have provided the affidavit of
4
During the 2005-2006 school year, administrators found graffiti in a boys
restroom containing racial epithets (which was apparently common)
accompanied by a drawing of the Confederate battle flag. On Martin Luther
King, Jr. Day in 2006 -- less than a month after A.M. and A.T. carried their
purses to school -- a homemade Confederate battle flag was raised on the BHS
flagpole and graffiti representing the flag was drawn on the sidewalk below. In
December 2006, the following academic year, a white BHS student attempted to
wrap his belt around an African-American student’s neck while using racial
epithets and threatening to hang him. That school year also saw three
disciplinary referrals of students who used racial epithets.
A.M. has averred that her purse did not cause a disruption and that she
had never heard of the 2002 incident involving the display of the flag in front of
an opposing team. A.M. also states that she has seen numerous violations of the
dress code, including sexually crude t-shirts, clothing promoting drug and
alcohol use, and clothing identifiable with a particular ethnic or social group
(e.g., Mexican flag t-shirts, t-shirts with Malcolm X, or rainbow belts) that she
claims violates the dress code yet did not result in discipline against the
students. As to her purse, A.M. asserts that her ancestors fought in the Civil
War and that the “flag is a venerated symbol of my ancestry, a symbol of my
Christian religious faith, and a symbol of the South, a symbol of American
history and a political symbol, to me, of limited government and resistance to
unconstitutional authority.” She further claims that there has not been a “single
fight related to the racial abuse,” and states that “[m]ore importantly none of
this stuff is related to our purses or even to the Confederate flag.”
Like A.M., A.T. states that she is “upset that [BHS] has tried to link the
harmless carrying of my Confederate purse with racial intimidation and
a school security guard who stated that, although he had no personal knowledge of the
volleyball incident, there was no recollection of the event among students and faculty
members.
5
violation of the rights of other students” and that the flag for her represents a
symbol of patriotism, faith, and family. A.T. has also noticed a lack of
enforcement of the dress code and specifically mentions displays of the Mexican
flag, the Canadian flag, Malcolm X, a male student who wears female makeup
and clothing, and sexually offensive t-shirts. She claims she had no connection
to the Martin Luther King, Jr. Day incident and the graffiti in the bathroom.
According to her, “Many students support my right to carry my purse, even
students who don’t care much for the Confederate flag.”
Plaintiffs filed the instant action in the United States District Court for
the Northern District of Texas on February 9, 2007. Their amended verified
complaint asserts five claims under federal and state law. Under 42 U.S.C. §
1983, plaintiffs allege: (1) that the ban on Confederate symbols as enforced
against plaintiffs abridged their rights under the First and Fourteenth
Amendments to freedom of speech and expression; (2) that the school’s dress
code violates their due process rights under the Fourteenth Amendment because
it is vague and overbroad; (3) that defendants have deprived plaintiffs of the
equal protection of the laws guaranteed by the Fourteenth Amendment by
enforcing the dress code against them “while allowing other students to wear
attire with politically, racially and ethnically provocative symbols”; and (4) that
plaintiffs’ ability to display pride in their heritage is a protected right under the
Ninth Amendment and has been infringed by defendants’ actions.2 Under Texas
law, plaintiffs assert that defendants have violated the free speech protections
of the Texas Constitution.3 Plaintiffs prayed for relief in the form of a judgment
declaring defendants have violated their constitutional rights, an order that
their student records be expunged, an award of damages and costs, and the
2
The district court granted defendants’ motion to dismiss this claim pursuant to Rule
12(b)(6). Plaintiffs do not appeal that decision.
3
Although the district court granted summary judgment to defendants on this state-
law claim, plaintiffs have not appealed this ruling.
6
issuance of a permanent injunction prohibiting defendants from further violating
these rights.
Thereafter, plaintiffs moved for a preliminary injunction prohibiting the
continued enforcement of the ban on displays of the Confederate flag at BHS.
The district court denied the motion, concluding that plaintiffs failed to show a
likelihood of success on the merits. Analyzing defendants’ actions under the
standard established in Tinker v. Des Moines Independent Community School
District, 393 U.S. 503 (1969), the district court found that defendants reasonably
concluded that the prohibited speech (i.e., visible displays of the Confederate
battle flag) was imposed to prevent an anticipated substantial and material
disruption of the educational process at BHS. Specifically, the district court
noted that defendants could reach this decision based on the historical
atmosphere of racial hostility at BHS as well as the problems caused by
displaying the Confederate battle flag in the past. Plaintiffs argued that the
Tinker standard was not met because there is no evidence that the Confederate
battle flag itself caused disruptions of the degree required to show that their
display would cause disruption. The district court found this argument
unpersuasive, reasoning that the prior incidents and the flag’s dual meaning
were sufficient to meet the Tinker standard. As to plaintiffs’ due process and
equal protection claims, the district court found that plaintiffs would not be able
to show that the policy was so vague as to violate due process and otherwise
found that these claims simply reiterated their meritless First Amendment
arguments.
Defendants moved for summary judgment on all of plaintiffs’ claims.
Relying heavily on the reasons stated in its order denying preliminary injunctive
7
relief, the district court granted summary judgment to defendants.4 Plaintiffs
timely appealed.
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary
judgment only if “the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). On a motion for summary judgment, the court must view the facts in the
light most favorable to the non-moving party and draw all reasonable inferences
in its favor. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th
Cir. 2004). In reviewing the evidence, the court must therefore “refrain from
making credibility determinations or weighing the evidence.” Turner, 476 F.3d
at 343.
III. DISCUSSION
A. Free Speech and Expression
It is axiomatic that students do not “shed their constitutional rights to
freedom or speech or expression at the schoolhouse gate.” Tinker, 393 U.S. at
504. Despite this well-established principle, school officials nonetheless retain
some “authority, consistent with fundamental constitutional safeguards, to
prescribe and control conduct in the schools.” Id. Recognizing the tension
between these interests, the Supreme Court in Tinker held that school officials
may prohibit student speech and expression upon showing “facts which might
reasonably have led school authorities to forecast [that the proscribed speech
would cause] substantial disruption of or material interference with school
4
The district court’s order granting summary judgment also addressed evidentiary and
discovery-related motions made by the plaintiffs (the court denied the motions). Plaintiffs do
not contest these rulings on appeal.
8
activities.” Id. at 514. School officials “must be able to show that [their]
action[s] [were] caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Id. at 508.
Tinker involved a group of students who planned to wear armbands at
school as a means of protesting the Vietnam War. Learning of the plan in
advance, the school district adopted a policy of suspending students who, upon
request of administrators, refused to remove their armbands. The plaintiff-
students were suspended when they wore their armbands and refused to comply
with a request to remove them. Applying the above standard to the facts of the
case, the Supreme Court held that the school district failed to meet its burden
because “the record fails to yield evidence that the school authorities had reason
to anticipate that the wearing of armbands would substantially interfere with
the work of the school or impinge upon the rights of other students.” Id. at 509.
The school district offered no evidence to prove that its policy was motivated by
a desire to avoid the type of material disruption that would support a ban on
speech: “Clearly 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.”
Id. at 510.
This court has further elaborated on Tinker’s material disruption
standard. Although school officials may prohibit speech based on a forecast that
the prohibited speech will lead to a material disruption, the proscription cannot
be based on the officials’ mere expectation that the speech will cause such a
disruption. Officials must base their decisions “on fact, not intuition, that the
expected disruption would probably result from the exercise of the constitutional
right and that foregoing such exercise would tend to make the expected
disruption substantially less probable or less severe.” Butts v. Dallas Indep. Sch.
Dist., 436 F.2d 728, 731 (5th Cir. 1971); see also id. at 732 (“[T]here must be
9
some inquiry, and establishment of substantial fact, to buttress the
determination.”); Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 970 (5th
Cir. 1972) (“[T]he board cannot rely on ipse dixit to demonstrate the ‘material
and substantial’ interference with school discipline.”). While school officials
must offer facts to support their proscription of student speech, this is not a
“difficult burden,” Shanley, 462 F.2d at 970, and “their decisions will govern” if
they are “within the range where reasonable minds will differ,” Butts, 436 F.2d
at 732.
Applying the Tinker standard to the instant case, defendants reasonably
anticipated that visible displays of the Confederate flag would cause substantial
disruption of or material interference with school activities. As an initial matter,
plaintiffs agree that some view the Confederate flag in certain circumstances as
a symbol of racism and intolerance, regardless of whatever other meanings may
be associated with it.5 There is ample, uncontroverted evidence that elements of
the BHS student body have continually manifested racial hostility and tension.
This tension has become evident in the various events described above, including
racially hostile graffiti and vandalism, multiple disciplinary referrals involving
racial epithets, and a physical confrontation between white BHS students and
the African-American students of another high school. Some of these events
included the use of the Confederate flag, including the incident in which a white
BHS student waved the flag in the direction of an opposing school’s
5
This concession comports with other courts’ views of the meanings associated with
the Confederate flag. See, e.g., Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249 (11th
Cir. 2003) (observing that the Confederate flag has multiple “emotionally charged” meanings,
and is viewed by some as a symbol of white supremacy and racism, even if others view it as
a symbol of heritage); United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001) (per
curiam) (“It is the sincerely held view of many Americans, of all races, that the confederate
flag is a symbol of racial separation and oppression. And, unfortunately, as uncomfortable as
it is to admit, there are still those today who affirm allegiance to the confederate flag precisely
because, for them, the flag is identified with racial separation. Because there are citizens who
not only continue to hold separatist views, but who revere the confederate flag precisely for
its symbolism of those views, it is not an irrational inference that one who displays the
confederate flag may harbor racial bias against African-Americans.”).
10
predominantly African-American volleyball team. As recently as spring 2006,
Confederate flags were flown over the flagpole on Martin Luther King Jr. Day
and a white student simulated the lynching of an African-American student.
Even if these events do not rise to the level of a “substantial disruption” under
Tinker (thus justifying the ban based on past actual disruption), they serve as
a factual basis for administrators’ forecast that disruptions might occur if
students were allowed to display racially charged symbols such as the
Confederate flag.
Other circuits, applying Tinker, have held that administrators may
prohibit the display of the Confederate flag in light of racial hostility and tension
at their schools. In Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008), the Sixth Circuit
held that a prohibition on clothing bearing the Confederate flag did not violate
students’ rights in light of “racial tensions” among students, evidenced by racist
graffiti, graffiti containing general and specific threats against students, and
physical altercations between white and African-American students. Id. at 565.
Similarly, in Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d
243 (3d Cir. 2002), the Third Circuit held that a policy prohibiting students’
possession of the Confederate flag was not facially overbroad because “[t]he
history of racial difficulties [at the school] provide a substantial basis for
legitimately fearing disruptions from the kind of speech prohibited by the
policy.” Id. at 262. This history, as in the instant case, included overt displays
of the Confederate flag. See id. at 247-48. And the Eleventh Circuit upheld a
prohibition on displaying the Confederate flag because there was “evidence of
racial tensions existing at the school,” as well as “testimony regarding fights
which appeared to be racially based.” Scott v. Sch. Bd. of Alachua County, 324
F.3d 1246, 1249 (11th Cir. 2003).6
6
The Eighth and Tenth Circuits have also concluded that prohibitions on the
Confederate flag did not infringe on students’ rights of free speech and expression, although
those cases involved physical altercations directly involving the Confederate flag, among other
events demonstrating racial hostility. See B.W.A. v. Farmington R.-7 Sch. Dist., 554 F.3d 734,
11
Plaintiffs nonetheless argue that defendants must do more than offer
evidence that racial tension exists at the school. Rather, they contend there
must be a direct connection between the prohibited speech and anticipated
disruption, shown by evidence that the Confederate flag has actually caused
disruptions in the past. Plaintiffs are only partially correct, insofar as Tinker
does require a connection between the proscribed speech and the expected
disruption. Without this connection, there would be no justification for
prohibiting the otherwise protected speech. See Tinker, 393 U.S. at 508.
However, plaintiffs read Tinker too narrowly, effectively requiring school officials
to wait for the speech to cause disruption before acting. This directly
contradicts Tinker’s holding that administrators may proscribe speech if there
are facts “which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school activities.” See id.
at 513 (emphasis added); see also Shanley, 462 F.2d at 970 (“It is not necessary
that the school administration stay a reasonable exercise of restraint ‘until
disruption actually occur[s].’” (alteration in original) (quoting Butts, 436 F.2d at
731)). Here, the racially inflammatory meaning associated with the Confederate
flag and the evidence of racial tension at BHS establish that defendants
reasonably forecast that the proscribed speech might cause substantial
disruption of school activities.
The Sixth and Tenth Circuits have expressly rejected the narrow
interpretation of Tinker that plaintiffs advance here. The Sixth Circuit noted
that the plaintiffs’ interpretation “would place ‘school officials . . . between the
proverbial rock and a hard place: either they allow the disruption to occur, or
they are guilty of a constitutional violation.’” Barr, 538 F.3d at 565 (alteration
in original) (quoting Lowery v. Everhard, 497 F.3d 584, 596 (6th Cir. 2001)).
Because Tinker permits school officials to act based on the potential for
739 (8th Cir. 2009); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1326, 1366 (10th
Cir. 2000).
12
disruption, the appropriate “inquiry, then, is whether the school reasonably
forecast that the Confederate flag would cause material and substantial
disruption to schoolwork and school discipline.” Id. We also agree with the
Tenth Circuit’s observation that “‘[t]he fact that a full-fledged brawl had not yet
broken out over the Confederate flag does not mean that the district was
required to sit and wait for one. In this case, the district had a reasonable basis
for forecasting disruption from display of such items at school, and its
prohibition was therefore permissible.’” West, 206 F.3d at 1366-67 (quoting West
v. Derby Unified Sch. Dist., 23 F. Supp. 2d 1223, 1233 (D. Kan. 1998)).7
Despite these decisions, plaintiffs argue that most courts have required
a direct connection between the Confederate flag and past disruptions. In
support of this argument, they cite to decisions finding that bans on the
Confederate flag do not violate students’ First Amendments rights where the
flag actually caused past disruptions. See West, 206 F.3d at 1362-63 (upholding
a school policy prohibiting the wearing or possession of items with the
Confederate flag because, in addition to other incidents of racial tension, there
were “several verbal confrontations” between groups of students wearing
Confederate flag and Malcolm X t-shirts); Melton v. Young, 465 F.2d 1332, 1333-
34 (6th Cir. 1972) (upholding a school policy prohibiting Confederate flags on
campus following community-wide racial disturbances involving the flag);
Phillips v. Anderson County Sch. Dist. Five, 987 F. Supp. 488, 492-93 (D.S.C.
1997) (upholding the suspension of a student for wearing a jacket bearing the
Confederate flag in light of prior incidents “of racial tension directly caused or
escalated by the presence of Confederate Flag clothing, . . . as well as incidents
of racial disputes”). Contrary to plaintiffs’ assertion, however, these cases do not
stand for the proposition that schools may not prohibit the display of the
Confederate flag unless it has actually caused past disruptions. Rather, they
7
Plaintiffs argue we should instead follow the Sixth Circuit’s decision in Castorina ex
rel. Rewt v. Madison County School Board, 246 F.3d 536 (5th Cir. 2001).
13
reflect the principle that administrators will usually meet their burden under
Tinker by showing that the proscribed speech has in fact been disruptive in the
past. See Shanley, 462 F.2d at 970; see also Newsom v. Albemarle County Sch.
Bd., 354 F.3d 249, 259 n.7 (4th Cir. 2003). But Tinker does not require a
showing of past disruption; administrators can also meet their burden by
establishing that they had a reasonable expectation, grounded in fact, that the
proscribed speech would probably result in disruption. See Butts, 436 F.2d at
731; see also Doninger v. Neihoff, 527 F.3d 41, 51 (2d Cir. 2008); Lowery v.
Euverard, 497 F.3d 584, 596 (6th Cir. 2007); LaVine v. Blaine Sch. Dist., 257
F.3d 981, 987 (9th Cir. 2001). While it is possible for administrators to fail to
meet this burden in the absence of past disruptions, see Castorina v. Madison
County Sch. Bd., 246 F.3d 536, 543-44 (6th Cir. 2001), the racial tension and
hostility at the school justified defendants’ ban on visible displays of the
Confederate flag in this case.
Accordingly, we hold the district court did not err in granting summary
judgment to defendants on plaintiffs’ free speech and expression claim.
B. Due Process
Plaintiffs next argue that the school district’s dress code, particularly its
use of the term “inappropriate symbolism,” is unconstitutionally vague because
students do not have adequate notice of what clothing is prohibited. We
disagree.
“A law is unconstitutionally vague if it (1) fails to provide those targeted
by the statute a reasonable opportunity to know what conduct is prohibited, or
(2) is so indefinite that it allows arbitrary and discriminatory enforcement.”
Women’s Medical Ctr. of N.W. Houston v. Bell, 248 F.3d 411, 421 (2001) (citing
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). Students may
challenge school policies based on their alleged vagueness, but the Supreme
Court has held that the standards for determining vagueness apply differently
in the school context:
14
We have recognized that ‘maintaining security and order in the
schools requires a certain degree of flexibility in school disciplinary
procedures, and we have respected the value of preserving the
informality of the student-teacher relationship.’ Given the school’s
need to be able to impose disciplinary sanctions for a wide range of
unanticipated conduct disruptive of the educational process, the
school disciplinary rules need not be as detailed as a criminal code
which imposes criminal sanctions.
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (quoting New Jersey
v. T.L.O., 469 U.S. 325, 340 (1985)).
The student in Fraser was given two days’ suspension for delivering a
sexually explicit speech at a school assembly. Id. at 678-79. The school
maintained a policy prohibiting “[c]onduct which materially and substantially
interferes with the educational process,” which expressly included “obscene”
speech, and teachers had warned the student prior to his speech that it was
“‘inappropriate’” and that he might face “‘severe consequences’” if he delivered
it. Id. at 678. The Supreme Court quickly rejected the student’s claim that the
policy was unconstitutionally vague, finding his argument “wholly without
merit.” The Court reasoned that the policy and warnings gave him adequate
notice that he might be punished for giving the speech, particularly given school
officials’ discretion to develop school policies and the fact that the student
received a relatively light sanction. Id. at 686.
Turning to the instant case, defendants could enact policies that permitted
enough flexibility to deal with “a wide range of unanticipated conduct,” and the
policy at issue here was not more vague than the prohibition in Fraser against
“obscene” speech. Plaintiffs here -- like the student in Fraser -- were given a
warning that the particular speech at issue would give rise to discipline, via a
policy specifically prohibiting visible displays of the Confederate battle flag.
Finally, plaintiffs were never suspended; they only voluntarily chose to go home
for the day rather than leave their purses in the school’s front office or have a
parent retrieve them. Just as in Fraser, this light sanction militates against
15
their vagueness claim. Thus, the district court properly granted summary
judgment to defendants on this due process claim.8
C. Equal Protection
Plaintiffs argue that defendants violated their rights to equal protection
because they were disciplined under the dress code for their Confederate flag
purses while other students who wore clothing with “inappropriate symbolism”
were not. The district court granted summary judgment to defendants on this
claim because they have not provided evidence that the ban was enforced
unequally and because the prohibition on the flag was justified under Tinker.
Under the equal protection clause, strict scrutiny applies to classifications
that infringe on a fundamental right (such as the right to free speech and
expression) or involve a protected classification. See Mass. Bd. of Retirement v.
Murgia, 427 U.S. 307, 312 & n.4 (1976) (“[E]qual protection analysis requires
strict scrutiny of a legislative classification only when the classification
impermissibly interferes with the exercise of a fundamental right or operates to
the peculiar disadvantage of a suspect class,” such as alienage, race, or
ancestry). For the reasons stated above, plaintiffs have not shown that the
defendants’ policy infringed their fundamental rights, nor have plaintiffs alleged
that they have been treated differently based on a protected classification.9
8
Plaintiffs have also claimed that the dress code violates due process because it is
“overbroad,” presumably referring to the overbreadth doctrine under the First Amendment as
incorporated by the Fourteenth Amendment Due Process Clause. See Hersh v. United States,
553 F.3d 743, 762 (5th Cir. 2008). However, plaintiffs have failed to offer any argument as to
the policy’s alleged overbreadth and have therefore waived this claim. See United States v.
Miranda, 248 F.3d 434, 444 (5th Cir. 2001).
9
We note that plaintiffs’ equal protection claim largely mirrors their claim that
defendants have impermissibly burdened their rights to free speech and expression. “It is
generally unnecessary to analyze laws which burden of the exercise of First Amendment rights
by a class of persons under the equal protection guarantee, because the substantive
guarantees of the Amendment serve as the strongest protection against the limitation of these
rights. Laws which classify persons in their exercise of these rights will have to meet strict
tests for constitutionality without need to resort to the equal protection clause. Should the
laws survive substantive review under the specific guarantees they are also likely to be upheld
under an equal protection analysis . . . .” 4 Rotunda & Nowak, Treatise on Constitutional Law:
16
Thus, plaintiffs’ rights to equal protection have been violated only if the
policy is not “rationally related to a legitimate government purpose.” See City
of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); Lyng v. Int’l Union, UAW, 485 U.S.
360, 370 (1988). The dress code and the ban on visible displays of the
Confederate flag undoubtedly satisfy the deferential rational-basis standard,
“which is the most relaxed and tolerant form of judicial scrutiny under the Equal
Protection Clause.” Stanglin, 490 U.S. at 26. The Supreme Court has
“repeatedly emphasized the need for affirming the comprehensive authority of
the States and of school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools.” Tinker, 393 U.S. at
507. Thus, there is a legitimate governmental interest in maintaining discipline
and order in the public schools. Cunningham v. Beavers, 858 F.2d 269, 273 (5th
Cir. 1988); Ingraham v. Wright, 252 F.2d 909, 916 (5th Cir. 1976) (en banc), aff’d,
430 U.S. 651 (1977). Because school officials reasonably anticipated that
displays of the Confederate flag would cause substantial disruption of or
material interference with school activities, we conclude the policy was
rationally related to the legitimate interest in maintaining school discipline and
order. Accordingly, the district court did not err in granting summary judgment
to defendants on this claim.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district
court.
Substance and Procedure § 18.40, at 389 (4th ed. 2008).
17
GARWOOD, Circuit Judge, concurring.
I concur, and append these remarks to reflect my understanding of the
contours of our holdings herein.
As Judge Dennis well explains, the evidence here adequately shows
sufficient incidents of actual disruption at BHS arising from student display of
the Confederate flag in the context of racial hostility and tension there. His
opinion correctly notes that the challenged policies followed and were in
response to incidents of “racial strife among students at the school, some of
which centered on students’ display of the Confederate flag,” such as, for
example, when BHS students shoved a Confederate flag in the face of several
members of another high school’s all black girls’ volleyball team as they walked
through the BHS hallways. Accordingly, there is no need to opine on whether
some generally assumed racially inflammatory meaning associated with the
Confederate flag together with evidence of racial tension at BHS would alone
suffice to sustain the instant ban on students wearing the flag at the school.
Any such ruminations would be essentially dicta. Moreover, there is no evidence
of actual or reasonably foreseeable disruption from BHS student wearing or
display of other symbols on clothing identifiable with any particular group or
cause. Nor is there any evidence that the school administrators acted out of
personal disagreement with or hostility to the ideas that the Confederate flag
symbolized to them, or otherwise for reasons apart from concern for the danger
that student display of the flag at school, in the BHS context, unreasonably
risked, as the evidence adequately showed, provoking disruption, including
racial physical confrontations, there. I do not read the opinion as subscribing to
the questionable idea that governmental actors may restrict display of the
Confederate flag on the basis of a general assumption that “some” who display
that flag “may” harbor racial bias or belief in racial separation.
18