Linda Denno, as Parent, Legal Guardian and Next Friend for Wayne Denno v. School Board of Volusia County, Florida Dennis Roberts, an Individual

FORRESTER, District Judge,

concurring in part and dissenting in part:

The facts of this case raise at least two questions to anyone even minimally familiar with First Amendment jurisprudence. The first question, which immediately explodes into the mind, is whether the school official could require Denno to put away his flag. The majority makes an attractive case that the law, applied to our facts, was not clearly established on that point in December 1995. Because of this finding, the majority affirms the school officials’ right to qualified immunity. The second question — whether Denno could be suspended from school for nine days for displaying the flag under the circumstances pled — does not so quickly engage the mind, but this is the issue presented to the court for decision. Denno seeks not a declaration of his right to his particular speech, but rather to relief from school-imposed discipline suffered on account of the content of his speech. Since at least 1966, case law binding on this circuit has prohibited student discipline on account of their speech unless the speech actually caused material and substantial disruption of the school environment.

Further Facts

In addition to the facts set out in the majority opinion, the following facts are pled in the complaint and are important to the issue before us. An assistant principal approached the group of students, which included Denno, because he saw that several students in the group had Southern symbols on their clothes. Only at that time did he notice Denno’s flag. He told Denno to put it away. Denno explained what he was doing, and the assistant principal told him to “shut up.” The assistant principal said that he considered the flag a racist symbol. When Denno asked about his First Amendment rights, the assistant principal replied that Denno had no rights at the school. Denno was suspended in part for attempting to incite a riot because he paraded a Confederate flag during lunch period.

Equally important to this discussion are those facts not pled in the complaint. The complaint alleges no history of prior racial tension in the school. There is no contention that the school had an official policy specifically prohibiting Denno’s conduct. There is no allegation that Denno’s flag was seen by any African-American or other individual who might find the flag offensive,1 nor is there any allegation of student *1279misconduct at the time the flag was displayed, or afterward, as a result of Den-no’s having the battle flag. The question, as indicated, is whether on these facts the law was clearly established that Denno could not be disciplined for his speech.

“Clearly Established Law” and Qualified Immunity

One has only to survey the precedent relevant to the appeal at bar, and note the varying rationales of the many judges and justices who have written on the subject, to understand that a school official might have any one of a variety of subjective responses to the two questions presented here. Indeed, many people feel, especially in light of recent incidents of violence in our nation’s schools, that the paramount role of school officials is to thwart even the most remote possibility of disharmony on the school grounds. Thus, a school official might personally feel that the inculcation of manners and civility warranted the actions taken by the school officials in the instant case. Our circuit, of course, recognizes that it is to apply an objective standard when judging what reasonable officials would understand about the rights created by federal law, and “the government actor’s intent or motivation are insignificant in determining entitlement to qualified immunity.” Wood v. City of Lakeland, FL, 203 F.3d 1288, 1291 (11th Cir.2000). See also Evans v. Hightower, 117 F.3d 1318, 1320 (11th Cir.1997); Doli-hite v. Maughon by and through Videon, 74 F.3d 1027, 1041 (11th Cir.1996); Lassiter v. Alabama A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc); Harris v. Coweta County, 21 F.3d 388, 390 (11th Cir.1994). It is the objective reasonableness of the official’s actions, and not his wisdom or good faith, that determines whether immunity attaches.

The majority finds that the decision of the Supreme Court in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), sufficiently clouded the prior decision in Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), so that the right pronounced in Tinker was not clearly established at the time the school officials acted in this case. A school official could certainly utilize excerpts from Fraser to fashion an argument that the law was not clearly established, just as the majority has done. The question, however, is whether it would be reasonable for him to do so in light of existing precedent. We learned in the seminal case of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), that in practice, whether or not the law is clearly established is determined by the judge, and whether the official has properly determined it for himself is of no import. Id. at 818-19, 102 S.Ct. 2727 (“If the law was clearly established, the immunity defense *1280ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”)- For the layperson, as well as for judges, confusion about the state of the law most often comes about by confusing the holding of a case with the dicta in the opinion. It is well established in this circuit, however, that dicta are of no assistance in determining whether or not law is clearly established for the purpose of qualified immunity. Jones v. Cannon, 174 F.3d 1271, 1288 n. 11 (11th Cir.1999); Hamilton v. Cannon, 80 F.3d 1525, 1530 (11th Cir.1996).

Was the Law Clearly Established?

On July 2, 1966, the old Fifth Circuit Court of Appeals handed down the companion cases of Burnside v. Byars, 363 F.2d 744 (5th Cir.1966), and Blackwell v. Issaquena County Bd. of Educ., 363 F.2d 749 (5th Cir.1966).2 In both cases, students in all-black schools were wearing and distributing buttons put out by the Student Nonviolent Coordinating Committee. In the Blackwell case, the buttons showed black and white hands joined and bore the word “SNCC.” Blackwell, 363 F.2d at 750. In the Burnside case, the buttons had the words “One Man One Vote” and “SNCC.” Burnside, 363 F.2d at 746. Both cases arose after students challenged the suspensions they received for incidents involving the buttons.

In the Blackwell case, the episode began when approximately 150 pupils came to school wearing the buttons. These buttons were distributed in the corridors and pinned on the students even though they were not requested. One younger student began crying. The principal brought the students to the cafeteria and informed them that they were forbidden to wear the buttons at school. Immediately thereafter, several students conducted themselves discourteously and displayed an attitude of hostility. On the following day, 200 students appeared wearing the buttons. They were assembled and told that if they returned the next day, they would be suspended. On the third day, students again returned to school wearing the buttons and were immediately sent home by the principal. One of the.- suspended students entered a classroom while class was in session and importuned another student to leave the class. A bus driver was going about the school building with a cardboard box full of buttons and distributing them, even in active classrooms. The district court found that there were numerous instances where students conducted themselves in a disorderly manner, disrupted classroom procedure, interfered with proper decorum and discipline of the school, and disturbed other students who did not wish to participate in wearing the buttons. On these facts, the court of appeals found the school action reasonable and affirmed the decision of the lower court to deny the issuance of a preliminary injunction enjoining the suspensions. Blackwell, 363 F.2d at 754.

In Burnside, a number of students came to school wearing the buttons. The principal told the entire student body that they were not permitted to wear these buttons in the schoolhouse or in various classes. Despite this warning, three or four students appeared at school wearing the buttons the next day. All were given an opportunity to remove them. Three did not remove them and were sent home. Several days afterwards, 30 or 40 students came to school displaying these buttons. A teacher complained that they were causing a commotion, and the principal gave the students the opportunity of removing the buttons or going home. A large number of those elected to return home, and they were suspended. The court of appeals noted that other students only showed a mild curiosity over the insignia, and even the principal testified that the children were expelled not for causing a commotion or disrupting classes but for violating a school regulation. Burnside, *1281363 F.2d at 748. The court found that the regulation was arbitrary and unreasonable, and directed the district court to enter an injunction forbidding its enforcement. The court concluded with these comments:

[W]e must also emphasize that school officials cannot ignore expressions of feelings with which they do not wish to contend. They cannot infringe on their students’ right to free and unrestricted expression as guarantee[d] to them under the First Amendment to the Constitution, where the exercise of such rights in the school buildings and school rooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.

Id. at 749.

The next decision relevant to our question is Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In this case, the United States Supreme Court reversed a decision by the lower court dismissing a complaint by several students who were suspended from school on account of wearing black armbands in protest of the war in Vietnam. The Court’s holding rested on the absence of any evidence that the activity of the students materially disrupted class work or involved substantial disorder or invasion of the rights of others. Id. at 513, 89 S.Ct. 733. The case is the more remarkable for our purposes because it specifically bases its rationale on the Fifth Circuit’s decisions in Burnside and Blackwell. See id.

After Tinker, the old Fifth Circuit was presented with a case involving the discipline of several Grambling College students. See Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992 (5th Cir.1975). Although the case was decided after the decision in Tinker, Judge Roney, writing for the court, said that the rule of decision was provided by Burnside, as expounded upon in Tinker. Id. at 1002. The record before the court contained evidence of students hurling bricks, stones and bottles at the women’s dormitories and of a Volkswagen being overturned in front of the administration building and stripped of its hubcaps. The court said that the actions of the appellants in going about the campus shouting “organize,” “unite,” and “student power” subjected the teaching and learning atmosphere of the college to disruption, distraction and destruction. Id. at 1003. Finding the actions of the students more akin to those in Blackwell than to either Burnside or Tinker because the students’ conduct involved material and substantial interference with the requirements of appropriate discipline in the operation of an educational institution, the court found that the speech was not protected by the First Amendment. Id.

The line of authority on the question sub judice seemingly ends with Shamloo v. Mississippi State Bd. of Trustees of Inst. of Higher Learning, 620 F.2d 516 (1980). In Shamloo, a number of Iranian students demonstrated on campus on several occasions in support of the new government of the Ayatollah Khomeini, and were subsequently suspended. Noting that the students were disciplined for failing to comply with the university’s regulations concerning student demonstrations, the appellate court identified a three-step inquiry for analyzing their First Amendment claim. First, the court needed to determine whether the regulations were actually violated. Next, the court needed to consider whether the university’s action in suspending the students violated their First Amendment rights by punishing them for protected activity. Finally, the court needed to examine the constitutionality of the regulations at issue. Id. at 520. Finding that the students did in fact violate the regulations, the court of appeals moved on to the second inquiry. In resolving this issue, the district court found that the demonstrations had a disruptive effect with respect to other students’ rights and confirmed the suspensions of the student demonstration leaders. The court of appeals, however, said that this finding by the district court was insufficient to support the conclusion that the demonstra*1282tions were not protected by the First Amendment. According to the Shamloo decision, for conduct to be outside the protections of the First Amendment, a court must also find a material disruption of the classroom or thát the conduct in question involved substantial disorder or an invasion of the rights of others. Put differently, for student demonstrations or other speech-related conduct to fall outside the protections of the Constitution, the conduct “must constitute á material and substantial interference with discipline.” Id. at 522. Because the district court had made no such findings, the court of appeals could not say that the demonstration was not protected by the' First Amendment, and in light of that conclusion, the court moved on. to the final inquiry, striking down the regulations as unconstitutionally vague. Id. at 522-24.

It seems, therefore, after reviewing the aforementioned precedent, that this circuit has two pairs of decisions — Blackwell and Burnside, and Jenkins and Shamloo— clearly setting out the sine qua non for the disciplining of a student because of his or her speech. As these cases show, the necessary condition for such discipline is a material and substantial interference with the educational environment or with the rights of other students. See also Tinker, 393 U.S. at 513, 89 S.Ct. 733. It should be noted also that the outcome is not at all dependent on the content of the speech. This could not be clearer than in the first couplet, where the buttons constituting the students’ speech were virtually identical.

What to Make of Fraser, Muller, and West

Much of the majority opinion’s case for qualified immunity depends on Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), Muller by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir.1996), and West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir.2000). As demonstrated below, none of these decisions dilutes the clearly established law just discussed.

In Fraser, a student at a large high school assembly nominated a peer for class office in “elaborate, graphic, and explicit sexual metaphor.” Fraser, 478 U.S. at 677-78, 106 S.Ct. 3159. The assembly was a part of a school-sponsored educational program in self-government. The school had a disciplinary .rule prohibiting the use of obscene language if the conduct materially and substantially interfered with the educational process. During the speech students hooted and yelled. The sexual activities alluded to were being graphically simulated by others. Some students were bewildered or embarrassed, and one teacher had to forego a portion of her class lesson the following day in order to discuss the speech with her pupils. After a hearing, Fraser was suspended for two days. The Supreme court affirmed that action.

■Fraser stands for the proposition that a student may be suspended for materially and substantially interfering with the educational process; it stands for the proposition that a student may be suspended for insubordination with reference to an established school rule which is reasonable; and it stands for the proposition that a public school has the right to disassociate itself from certain speech. Id. at 685, 106 S.Ct. 3159; see also id. at 680, 106 S.Ct. 3159 (distinguishing Tinker on grounds that it “did not concern speech or action that intrudes upon the work of the schools or the rights of other students”). The rest of what Chief Justice Burger says in the majority opinion is dicta and, as such, does not bear on a determination of whether or not the law is clearly established for purposes of qualified immunity. It is, to be sure, an eloquent articulation of the role of school boards in inculcating civility, but it says nothing new' that other courts have not said about the function of education. It is, in fact, an extension and elaboration on Chief Justice Burger’s dissent in Papish v. Bd. of Curators of the Univ. of Missouri, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973), where the Supreme Court, in a majority per curiam opinion, held that expelling a student for distribut*1283ing a publication on campus that allegedly contained indecent speech was unconstitutional.

“Dictum ” is a term that has been variously defined. Dictum may be defined as “a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding.” United States v. Crawley, 837 F.2d 291, 292 (7th Cir.1988) (quoting Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1084 (7th Cir.1986)). Dictum may be defined as a statement not necessary to the decision and having no binding effect. See id. (quoting American Family Mut. Ins. Co. v. Shannon, 120 Wis.2d 560, 356 N.W.2d 175, 178 (1984)); Black’s Law Dictionary 1100 (7th ed.1999). See also New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1500 n. 7 (11th Cir.1993) (Edmondson, J., concurring) (suggesting that dictum is statement not squarely presented by facts and one not absolutely necessary to decision of concrete case before the court). The Supreme Court has indicated that dicta are those statements that constitute neither the result of the case nor the portions of the opinion necessary to such result. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66-67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). As Judge Posner has indicated, however, what is often at stake in distinguishing dictum from the holding of a case is that dictum is not authoritative. Craw-ley, 837 F.2d at 292. “So instead of asking what the word ‘dictum’ means we can ask what reasons there are against a court’s giving weight to a passage found in a previous opinion.” Id.

There are at least two reasons for labeling much of what is said in Fraser as dicta. First, Chief Justice Burger’s statements about the mission of public education is written so broadly as to be considered an aside lacking the authority of binding precedent. The opinion sweepingly states that public education is to inculcate “fundamental values necessary to the maintenance of a democratic political system,” Fraser, 478 U.S. at 681, 106 S.Ct. 3159, and intimates that such fundamental values may be considered in determining the appropriateness of student speech. See id. at 683, 106 S.Ct. 3159. Many, however, would consider patriotism a fundamental value, yet the Court held that arguably unpatriotic speech in Tinker was protected by the First Amendment. Tinker, 393 U.S. at 514, 89 S.Ct. 733. Cf. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (holding that school could not compel students to salute American flag). Some might feel that promoting long-held American virtues such a freedom of religion and due process of law is a fundamental value, yet the predecessor of this circuit, at a time when American citizens were being held hostage, found protected under the First Amendment speech in support of the Ayatollah’s Iran, a theocratic state hostile to the United States. Shamloo, 620 F.2d at 522. These examples strongly suggest that the Court did not mean to endorse the full ramifications of Chief Justice Burger’s sweeping statements about fundamental values.

Second, Fraser’s discussion of civility and values is not necessary to the decision in the case. As noted, the student’s speech was disruptive and interfered with the maintenance of an orderly educational environment. Therefore, regardless of any discussion about civility and values, the disciplinary action was valid under Tinker. See Tinker, 393 U.S. at 513, 89 S.Ct. 733 (stating that student may express opinions “if he does so without ‘materially and substantially interfer[ing] with the operation of the school’ and without colliding with the rights of others”) (quoting Burnside, 363 F.2d at 749). Further, as was said in both Burnside and Blackwell, on which the Tinker Court relied, a court is not to be concerned with the wisdom or expedience of the school’s disciplinary action but whether such action is a reasonable exercise of the school’s (that is, the government’s) power to regulate. Blackwell, 363 F.2d at 754; Burnside, 363 F.2d at 748. The language in Fraser about civility and values is an exposition on *1284the wisdom of the school’s actions. All that was needed to decide the case, however, was a finding that those actions were reasonable because of the disruptive effect of the student’s speech.

Not only is Chief Justice Burger’s tribute to civility dicta in Fraser, it is not even the Supreme Court’s own understanding of what was decided there. In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), it was said that Fraser stands for the proposition that a school is entitled to disassociate itself from speech that would demonstrate to others that such vulgarity is “wholly inconsistent with the ‘fundamental values’ of public education. Fraser at 686, 106 S.Ct. 3159.” In Fraser itself, the Court indicated that the decision stood for the proposition that a school has the authority to refuse to sponsor student speech that might reasonably be perceived as inconsistent with “the shared values of a civilized social order.” Fraser, 478 U.S. at 683, 106 S.Ct. 3159. For these reasons, Fraser does not muddy the clearly established law governing this case, where the student’s speech was not disruptive, did not violate an established school rule, and could not be said to bear the imprimatur of the school.

The majority also cites to Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir.1996), to support its contention that the law was not clearly established that Denno could not be punished for his symbolic speech. This heavy reliance cannot be justified. First, it is the decision of another circuit and thus of no aid to our appellees if the law of our circuit was clearly established to the contrary. Cf. Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (suggesting that parties look first to “controlling authority in their jurisdiction” and then to persuasive authority). See also Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n. 4 (11th Cir.1997) (en banc) (explaining that decisions from only United States Supreme Court, Eleventh Circuit, or highest court of relevant state clearly establish law for purposes of qualified immunity). Second, it was decided after the incident in question and, therefore, could not deconstruct the established law. See Lassiter, 28 F.3d at 1150 (noting that qualified immunity is surrendered only when “pre-existing law” clearly establishes right in question). Third, it deals with speech in a grammar school, not a high school, and the discussion of the need for parent-like custody in Muller is therefore not as persuasive. Fourth, the question before the Muller court was the reasonableness of a school code dealing with the distribution of publications on campus, not student discipline.3 The case stands only for the proposition that this regulation was reasonable. It clearly does not stand for the proposition that student rights of free speech have been modified by Fraser or Hazelwood. Fifth, two of the three judges on the panel concurred only in the result (that the regulation was reasonable) and not with the analysis on the extent of the rights of pupils freely to express their ideas. For *1285all of these reasons, Muller has no bearing on a determination of whether the school officials in this case are entitled to qualified immunity.

Finally, the majority makes reference to the district court opinion in West v. Derby Unified School Dist. No. 260, 23 F.Supp.2d 1223 (D.Kan.1998). As the majority mentions, this case has now been decided by the Tenth Circuit. 206 F.3d 1358 (10th Cir.2000). In that case (which, like Muller, was decided after Denno’s suspension), a student was suspended for drawing and passing along a Confederate flag. He was suspended because his actions violated the “Racial Harassment and Intimidation” policy which had been adopted by the high school after a series of very serious racial incidents occurred. The policy prohibited students from having in their possession any written material that was racially divisive and included by way of example Confederate flags. The Tenth Circuit found the rule to be reasonable in that it was not the product of undifferentiated fear or apprehension, but rather was the product of the school officials’ reasonable belief, based on past events, that the student’s display of the flag would cause disruption. Id. at 1366. Cf. Tinker, 393 U.S. at 508, 89 S.Ct. 733.

There is no doubt that a school is always on a firm constitutional footing in adopting regulations that impinge on student speech, where the regulations take into consideration legitimate pedagogical concerns and the atmosphere of the school. See Bayless v. Martine, 430 F.2d 873, 878-79 (5th Cir.1970). In our case, the regulation of the speech was ad hoc, and the student was disciplined solely because of the content of his speech. Further, so far as our record goes, Denno’s actual speech accompanying the display of the battle flag dealt with the historical aspects of the Civil War, one of the most significant and complicated periods in this nation’s annals. The Confederate battle flag itself is a catalyst for the discussion of varying viewpoints on history, politics, and societal issues. Discourse on such issues, without the fear of undue government constraint or retaliation, is exactly what the First Amendment was designed to protect. See Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Repressing this kind of discussion would be as unreasonable, and hopefully unthinkable, as a rule that forbids students to discuss the Constitution of the United States on the basis that it recognized slavery or forbids the display of the American flag because it has been carried by hate groups.

But the reasonableness of school regulations that enact notions of political correctness au courant in the name of inculcating students with civility is not the issue for this dissent. It is, instead, whether in 1995 it was clearly established that a student could not be disciplined because of the content of his speech. The law of this circuit clearly answers that the student is at the mercy of the consequences of his speech, and if the speech occasions a material disruption of class work or substantial disorder, he may be punished; otherwise, he may not. Nothing in the court’s opinion establishes that this proposition was seriously in doubt in 1995.

Finally, I agree with the majority’s ruling as to the liability of the Board and join that portion of the majority opinion in toto.

. Some could argue that the Confederate battle flag displayed by Denno would be inherently disruptive because Florida was a member of the Confederate States of America and the present population therefore consists in large part of the descendants of former slaves and the descendants of former slave owners, with the perceived animosities that allegedly result from such a mix. Although, as indicated, the complaint makes no allegations of disruption, to the extent it is thought relevant, *1279dos, following legislative facts bear heavily upon the argument just mentioned. See United States v. Bowers, 660 F.2d 527, 530 (5th Cir. Unit B 1971) ("Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally....”). The demographics of Deltona, Florida, where Pine Ridge High School is located, show that only 2.98% of its population is African-American. See General Population and Housing Characteristics for Deltona, Florida (visited July 7, 2000) <hltp://factfinder. census.gov/java_prod/dads. ui.fac CommunityFactsPage>. Moreover, a majority of Florida's present population traces its roots to somewhere other than the South. Only 24.7% of the population was bom in Florida, and another 14.7% was born in other Southern states. Lucy Morgan, Newcomers Proud to Be “Floridians”, St. Peters-burg Times, July 15, 1999, at IB. Florida’s population, therefore, cannot fairly be described as a direct product of the Old South, as might be said of states like Georgia, where 66% of the population was born within the state, or South Carolina, where nearly 70% of the population was born within the state. See Social Characteristics for Georgia; Social Characteristics for South Carolina (visited July 7, 2000) <http://factfinder.census.gov/sus.gov/ java_prod/dads.ui.fac CommunityFactsPage>. It should also be noted that the argument mentioned above presupposes that all white Southerners revere the flag and all black *1280Southerners abhor it, presuppositions that are certainly questionable.

. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to October 1, 1981.

. The regulation in question, Section 6144.11, stated in part:

Non-school-sponsored publications. Publications produced by school district students without school sponsorship, or handbills, may be distributed and/or sold within the school according to the following procedure. 1. They must include the name of the sponsoring organization and/or individual. 2. A time and place for the distribution must be set cooperatively with the principal. 3. A copy must be given to the principal at least 24 hours before its distribution. 4. The publication shall contain this phrase: "The opinions expressed are not necessarily those of the school district or its personnel." 5. If the principal finds the publication (1) contains libelous or obscene language, (2) may incite (lead) persons to illegal acts, (3) is insulting to any group or individuals, or (4) he/she can reasonably forecast that its distribution to the students will greatly disrupt or materially interfere with school procedures and intrude into school affairs or the lives of others, the principal shall notify the sponsors of the publication that its distribution may not be started, or must stop. The principal shall state the reason for his/her decisions.

Muller, 98 F.3d at 1534.