concurring.
I concur with the majority in remanding this case to the district court to resolve the factual issues, and I concur with Part II. 1 of the majority opinion holding that the conduct in question constitutes First Amendment protected speech. I write separately, however, because I disagree with the analysis in Part II.2 of the majority opinion. Contrary to the majority’s argument, I find that individual speech not sponsored by the school may be regulated in a school setting if and only if there is ^specific evidence to support a belief that the conduct will result in disruption to the school’s educational environment.
The majority accepts the argument that this case is factually similar to Tinker and is therefore governed by the Supreme *545Court’s holding there, invalidating a school’s ban on black armbands worn to protest the Vietnam war. The majority apparently fails to recognize, however, that in Tinker, the Court explicitly relied on the fact that “there were no threats or acts of violence on school premises,” id. at 508, 89 S.Ct. 733, while in the present case, there is evidence to support a likelihood of disruption. Despite the majority’s summary statement that the school banned the confederate flag shirts “without any showing of disruption,” the record shows that a fight broke out involving students wearing confederate flag T-shirts the day before Fultz prohibited plaintiffs from wearing their shirts, and Fultz stated- that students told him that the confederate flag was the cause of that prior fight. (J.A. 173.) Although it is clear that even in a school setting “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,” id. at 508, 89 S.Ct. 733, the Supreme Court has recognized a compelling government interest in protecting a school’s educational environment. Tinker rejected a school’s ability to regulate based on the content of the views expressed where there was no evidence of disruption to justify the regulation. But Tinker acknowledged that actual disruption may justify regulation of speech, explaining that “the prohibition of expression of one particular opinion, at least loithout evidence that it is necessa'ry to avoid material and substantial interference ivith schoolwork or discipline, is not constitutionally permissible.” Id. at 511, 89 S.Ct. 733 (emphasis added).
The Sixth Circuit has previously recognized that a showing of likely disruption is the central tenet to permissible regulation of First Amendment speech in a school setting. In Melton v. Young, 465 F.2d 1332 (6th Cir.1972), this court upheld a school regulation banning the display of the confederate flag. The Melton court held that “[ujnlike the Tinker case, where the Court found no evidence of either actual or potential disruptive conduct, but only an ‘undifferentiated fear or apprehension of disturbance,’ the record in the present case reflects quite clearly that ... school officials had every right to. anticipate that a tense racial situation continued to exist as of the opening of school.” Id. at 1335. Thus, the school was allowed to regulate because of factual evidence showing that the flag would cause disruption.
In the present case, a physical fight between students, one day earlier, caused by an image of the confederate flag, would give the principal a concrete basis to think additional disruption would ensue if plaintiffs were permitted to wear the flag shirts. The prior fight distinguishes this case from Tinker and places it in the category of cases in which factual evidence demonstrates that disruption will likely result. The majority claims that the evidence of the fight is not dispositive because other students testified that the fight was not about the confederate flag. The critical issue, however, is whether the principal acted on what he reasonably believed to be actual evidence that the shirts would be disruptive. So long as he was told by a student that a confederate flag was the subject of the prior fight and he was not unreasonable for believing that student, he had a reasonable basis to infer that plaintiffs’ shirts would spark more disruption.
In addition, I cannot agree with the majority’s statement that the school’s “rationale for the suspensions was that the T-shirts violated the school dress code, which bans clothing containing any ‘illegal, immoral or racist implications.’ ” While I agree that principal Fultz banned the shirts because' they violated the school’s dress code, he did not rely on the “racist implications” portion of the policy. Con*546trary to the majority’s description of the facts, Fultz’s deposition testimony clearly indicates that he explicitly refused to say that he thought the flag was racist:
Q: Now, isn’t it true that you told my clients, and the parents of my clients that the Confederate Flag was a racist symbol on that day?
A: I don’t know if I said it in that terms. I said that the Confederate Flag is offensive to certain students.
Q: So to the best of your recollection you never related to them that it was your opinion that the Confederate Battle Flag is a racist symbol, is that your testimony?
A: That is my opinion. I think in my opinion the Confederate Flag is offensive to black students.
(J.A. 170-71.) Later in the deposition, plaintiffs’ attorney and Fultz had the following exchange:
Q: Well, let me just cut right to the chase then. Do you think the Confederate Flag is a racist symbol?
A: That’s, you know, as far as I’m concerned the Confederate Flag or any of the other kinds of shirts is not all that offensive to me personally, but I do know that it causes conflict between the students and that my job is to try to help maintain a safe and orderly environment for students to learn and teachers to teach.
(Fultz Dep. 32.) Thus, when he banned plaintiffs’ shirts, the record permits the finding that Fultz acted under the portion of the school’s dress code policy which prohibits any attire that “cause[s] disruption of the educational process.” (J.A. 81.)
The majority subsequently concludes, however, that prohibiting the confederate flag shirts while other students were allowed to wear Malcolm X shirts was not permissible as it amounted to viewpoint discrimination. I would note that while there is a factual dispute, principal Fultz testified that he had on several occasions asked students to take off a Malcolm X shirt, but that he had not seen one recently.1 Under relevant Supreme Court case-law, including Tinker, I believe that the presence of Malcolm X shirts is irrelevant to the analysis in this case. Although the Tinker Court did say that “[i]t is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance,” the Court then immediately acknowledged that the case would be different were there evidence of disruption. Id. at 510, 89 S.Ct. 733. The Court stated that, “conduct by the student, ... which for any reason ... materially disrupts classwork or involves substantial disorder ... is, of course, not immunized by the constitutional guarantee of freedom of speech.” Id. at 513, 89 S.Ct. 733. The Supreme Court has itself reviewed Tinker in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). There, the Court explained the holding in Tinker:
[W]e nowhere suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for his unlimited expressive purposes. Expressive activity could *547certainly be restricted, but only if the forbidden conduct “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Grayned, 408 U.S. at 117-18, 92 S.Ct. 2294 (citing Tinker, 393 U.S. at 513, 89 S.Ct. 733). Furthermore, in upholding the city ordinance prohibiting noisy and disruptive picketing outside a school, the Grayned Court explained that the ordinance was constitutional because:
[The ordinance] goes no further than Tinker says a municipality may go to prevent interference with its schools. It is narrowly tailored to further [the town’s] compelling interest in having an undisrupted school session conducive to the students’ learning, and does not unnecessarily interfere with First Amendment rights. Far from having an imper-missibly broad prophylactic ordinance, [the town] punishes only conduct which disrupts or is about to disrupt normal school activities. That decision is made, as it should be, on an individualized basis, given the particular facts of the situation.
Id. at 119, 92 S.Ct. 2294. Thus, the only conduct that can be regulated in order to achieve the compelling interest of a stable educational environment is activity which will disrupt that environment. No other regulation of protected speech can be considered narrowly tailored to meet this compelling interest. In short, evidence of likely disruption is both sufficient and necessary to justify regulation of protected speech in a school setting. Therefore, I would not only conclude that the school would not necessarily be required to prohibit Malcolm X shirts if it prohibits confederate flag shirts, but in fact, I question whether the school could be permitted to prohibit displaying a symbol of either Malcolm X or the confederate flag unless it could show evidence that such a display would result in disruption. First Amendment protected conduct may only be regulated if it disrupts or is about to disrupt normal school activities. See Tinker, 393 U.S. at 511, 89 S.Ct. 733; Grayned, 408 U.S. at 119, 92 S.Ct. 2294.2
The Fifth Circuit’s recent evaluation of First Amendment protection in a school setting is applicable here. See Canady v. Bossier Parish School Board, 240 F.3d 437, 2001 WL 58722 (5th Cir. Jan.23, 2001). In Canady the Fifth Circuit upheld a school’s right to enforce a mandatory school uniform. After acknowledging that the question of school uniforms did not fit exactly within the three categories established by Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (addressing school regulation directed at specific student viewpoints), Bethel School District v.. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (addressing student expression involving lewd, vulgar or obscene speech), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (addressing school-sponsored student speech), the court held that:
Because (1) choice of clothing is personal expression that happens to occur on the school premises and (2) the School Board’s uniform policy is unrelated to any viewpoint, a level of scrutiny should apply in this case that is higher than the standard in Kuhlmeier, but less stringent than the school official’s burden in Tinker.
Canady, 240 F.3d 437, 442-43. That same standard should apply to the present case, *548where (1) plaintiffs’ choice of confederate flag shirts was personal expression and was clearly not school sponsored, and (2) the relevant portion of the dress code policy, banning disruptive clothing, is viewpoint neutral. In formulating that standard, the Fifth Circuit then concluded that:
[T]he school board’s uniform policy will pass constitutional scrutiny if it furthers an important or substantial government interest; if the interest is unrelated to the suppression of student expression; and if the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest.
Id. (citing United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). Applying that test to the present case, I would conclude that a stable, disruption-free educational environment is a substantial government interest, that the interest is unrelated to the suppression of student expression, and that by limiting the prohibition to clothing which will be disruptive, the school minimizes First Amendment restrictions to no more than what is necessary to facilitate that interest.
I concur in remanding this case to the district court for necessary findings of fact. I would conclude, however, that if the district court finds evidence to support defendants’ contention that principal Fultz reasonably believed that a prior fight occurred as a result of the presence of a confederate flag and that prior fight gave Fultz, reason to anticipate additional disruption, then defendants’ regulation of plaintiffs’ conduct was no more than that necessary to achieve a compelling government interest and did not violate the First Amendment.
. Fultz’s deposition testimony was as follows:
Q: How many times have you asked somebody to take a Malcolm X shirt off in your school?
A: I’ve asked them on — I can’t count, but I’ve asked them on several occasions.
Q: When was the last time you asked them?
A: I don't recall. I haven't seen one this year.
(J.A. 177.)
. I certainly agree with the principle put forth by the majority that regulation of First Amendment speech must be content neutral. Because the implicated portion of the school’s dress code policy prohibiting any dress which would cause disruption is content neutral, however, I simply do not find a discussion of content neutrality dispositive in this case.