Barr v. Lafon

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0305p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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DEREK BARR; ROGER CRAIG WHITE and CHRIS
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WHITE, by and through their parent and guardian
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ROGER WHITE,
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No. 07-5743
Plaintiffs-Appellants,
,
>
v. -
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STEVE LAFON, in his individual and official capacity -
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as Principal of William Blount High School; ALVIN
Schools; and THE BLOUNT COUNTY SCHOOL BOARD, --
HORD, in his official capacity as Director of
Defendants-Appellees. -
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 06-00075—Thomas A. Varlan, District Judge.
Argued: April 22, 2008
Decided and Filed: August 20, 2008
Before: MOORE and CLAY, Circuit Judges; SCHWARZER, District Judge.*
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COUNSEL
ARGUED: Van R. Irion, LAW OFFICES OF VAN R. IRION, Knoxville, Tennessee, for
Appellants. LaJuana G. Atkins, CRAWFORD, CRAWFORD & NEWTON, Maryville, Tennessee,
for Appellees. ON BRIEF: Van R. Irion, LAW OFFICES OF VAN R. IRION, Knoxville,
Tennessee, for Appellants. LaJuana G. Atkins, Norman H. Newton, Jr., CRAWFORD,
CRAWFORD & NEWTON, Maryville, Tennessee, Robert N. Goddard, GODDARD & GAMBLE,
Maryville, Tennessee, Gary M. Prince, O’NEIL, PARKER & WILLIAMSON, Knoxville,
Tennessee, for Appellees.
*
The Honorable William W Schwarzer, United States District Judge for the Northern District of California,
sitting by designation.
1
No. 07-5743 Barr et al. v. Lafon, et al. Page 2
_________________
OPINION
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KAREN NELSON MOORE, Circuit Judge. Derek Barr, Roger Craig White, and Chris
Nicole White (“Plaintiffs-Appellants”), students at William Blount High School (“the school”) in
Blount County, Tennessee, would like to express their southern heritage by wearing clothing
depicting the Confederate flag at school. They appeal the district court’s grant of summary
judgment to the principal of their school, Steven Lafon (“Lafon”), the director of the Blount County
schools, Alvin Hord (“Hord”), and the Blount County School Board1 on their First Amendment,
Equal Protection Clause, and Due Process Clause claims.
I. FACTS AND PROCEDURE
A. Factual Background
1. Written Dress Code
The Blount County Board of Education issued a dress code on December 4, 2003 in
recognition of “the effect that student dress and grooming have upon student behavior and learning.”
Joint Appendix (“J.A.”) at 155 (Hord Aff. Ex. 1 at 1). Among other prohibitions, the dress code bars
middle- and high-school students from wearing during the school day:
clothing which exhibits written, pictorial, or implied references to illegal substances,
drugs or alcohol, negative slogans, vulgarities, or causes disruption to the
educational process; wearing apparel that is sexually suggestive or that features
crude or vulgar commercial lettering or printing and/or pictures that depict drugs,
tobacco, alcohol beverages, racial/ethnic slurs or gang affiliation . . . .
J.A. at 156 (Hord Aff. Ex. 1 at ¶ 4(f)) (emphasis added). On the first day of the 2005-2006 school
year, in keeping with school policy, students attended a meeting at which they received a “[p]lanner”
containing an agenda and school rules. Students’ home-room teachers reviewed the planner with
them, and the school asked both parents and students to sign a page of the planner indicating that
they had read the policy. J.A. at 102 (Lafon Dep. at 26:19-27:7).
2. Announcement of the Ban on Clothing Displaying the Confederate Flag
At an assembly for the freshman class in August 2005, Principal Lafon told the class that
“they would not be allowed to have Rebel flags or symbols of [the] Rebel flag on their clothing, or
anything else that was a disruption to the school.” J.A. at 102 (Lafon Dep. at 28:10-12). Lafon
testified at his deposition that he did not mention any other flags as similarly banned because there
were not “any other flags at that point that were causing disruption or that we knew had caused a
disruption in the previous year.” J.A. at 102 (Lafon Dep. at 28:17-23). Lafon told the students that
“in general . . . anything that is a disruption to the school learning environment would not be
tolerated.” J.A. at 103 (Lafon Dep. at 29:5-9).
1
Plaintiffs-Appellants brought suit against Lafon in his individual and official capacities. Plaintiffs-Appellants
brought suit against Hord only in his official capacity. Defendants-Appellees are collectively referred to as “the Board”
throughout the opinion.
No. 07-5743 Barr et al. v. Lafon, et al. Page 3
3. Rationale for the Ban on the Confederate Flag and Racially Divisive Symbols
According to Hord, racial tensions at the school comprised the context for the clothing ban.
Relevant incidents included racist graffiti that made general threats against the lives of African-
Americans, graffiti containing “hit lists” of specific students’ names, physical altercations between
African-American and white students, and a police lockdown at the school. J.A. at 53-54 (Hord Aff.
3/10/06 at ¶¶ 3-4); J.A. at 111, 113-14, 115-16 (Hord Dep. at 17-18, 25-31, 36-39). Hord attests that
“[b]ased upon the aforementioned incidents, the wearing of the ‘Confederate flag’ by students
during school hours has a significant disruptive effect on the proper educational environment of the
students at the Blount County high school.” J.A. at 54 (Hord Aff. 3/10/06 at ¶ 5). Of the
approximately 1,750 students attending the school, less than ten percent are African-American. J.A.
at 153 (Hord Aff. 4/3/07 at ¶ 10).
a. February 22, 2005 Altercation and other Altercations
Both sides in the instant case cite an incident that occurred on February 22, 2005 as the
catalyst of heightened racial tension in the school. Barr recounted his observation of the incident.
According to Barr, the incident involved a physical altercation at a basketball game in the gym,
between an African-American student (whose name Barr did not know) and a Caucasian student
named J.H. J.A. at 235 (Barr Dep. at 8:12-20). Barr did not remember exactly what the argument
was about. J.A. at 235 (Barr Dep. at 8:21-23). Barr indicated that a third “racist” white student
named C.P.“didn’t like what the African-American kid was saying, and they got into it.” J.A. at
235-36 (Barr Dep. at 8:24-9:3). The African-American student rounded up a group of friends, and
Barr joined a “couple of other kids . . . because [J.H.] was our friend and we didn’t want to see him
getting jumped by anybody.” J.A. at 236 (Barr Dep. at 9:3-9). Before a physical altercation began,
“the teachers and everybody got down there and split them up and everything like that and told them
to go to class. And from then on there was a tight racist thing going on in the school.” J.A. at 236
(Barr Dep. at 9:10-13). Barr testified that by “tight racist thing,” he meant that the African-
American students “tried to find anything they could to get” Caucasian students “in trouble.” J.A.
at 236 (Barr Dep. at 9:15-20).
The incident resulted in the parent of the African-American student involved in the February
22 altercation, whom the school suspended, filing a complaint with the Office of Civil Rights
(“OCR”) at the Department of Education alleging that the complainant’s son received harsher
discipline than a white student who did not receive a suspension. J.A. at 111 (Hord Dep. at 17-18);
J.A. at 289 (OCR Letter at 1). OCR investigated the incident and concluded “that the witnesses did
not substantiate the allegations that Student #2 [a Caucasian student] engaged in fighting. All
witnesses stated that Student #2 had not pushed back when Student #1 pushed him into the
bleachers.” J.A. at 291 (OCR Letter at 3).2 Furthermore, OCR concluded although “[t]he
complainant reported that the two [Caucasian] HHS students threatened, used racial slurs or
intimidating conduct (noose gestures) against [her son, African-American] Student #1[,] . . . that
allegation was not corroborated by witnesses.” Id.
In addition to the February 22 incident, Hord attests that the school experienced “multiple
racially motivated threats and physical altercations,” but Hord does not specifically describe other
2
The OCR report states that Student #2 attended Heritage High School and not William Blount High School.
J.A. at 289 (OCR Letter at 1). Both Heritage and William Blount High Schools, however, lie within the Blount County
School District and both are subject to the district’s policies regarding discrimination and harassment. J.A. at 290 (OCR
Letter at 2). OCR did not find material to its investigation the fact that students #1 and #2 attended different high
schools. Moreover, it is possible that OCR received misinformation from William Blount High School regarding which
high school Student #2 attended. Barr’s testimony at deposition implies that all students involved in the February 22
altercation attended William Blount High School. JA. at 70-71 (Barr. Dep. at 8:4-9:22).
No. 07-5743 Barr et al. v. Lafon, et al. Page 4
physical altercations. J.A. at 53 (Hord Aff. 3/10/06 at ¶ 3(b)). Hord mentioned at his deposition an
incident in January 2005 involving a mixed-race step team that he believed contributed to racial
tensions at the school. J.A. at 111 (17:7-16).
b. Racist Graffiti and “Hit Lists”
In the spring of 2005, the school experienced multiple incidents of racist graffiti and graffiti
containing “hit lists” with students’ names. On March 23, 2005, School Resource Officer and
Deputy Sheriff Joe Crisp investigated graffiti in the girls’ restroom after an Assistant Principal at
the school contacted him. J.A. at 183 (Crisp Aff. at ¶ 2). He did not take pictures because the
custodians had painted over the graffiti before he arrived; however, he filed an incident report with
the Sheriff’s Office. J.A. at 183 (Crisp Aff. at ¶ 2). According to his report, the Assistant Principal
told him that the phrase “all niggers must die” was accompanied by a list with future victims’ names.
J.A. at 188 (Incident Report).
Another incident involving racist graffiti occurred on April 1, 2005; the principal of the
school contacted Crisp to ask him to investigate racial remarks on a restroom stall. J.A. at 183
(Crisp Aff. at ¶ 3). Crisp took pictures, J.A. at 377-384 (Photographs), and filed an incident report.
J.A. at 183 (Crisp Aff. at ¶ 3); J.A. at 191 (Incident Report). Four days later, on April 5, 2005, Crisp
took photographs of graffiti in a boys’ restroom, J.A. at 202; the graffiti stated: “All niggers will
still die on 4-13-05[.] It’s time for a new revolution[.] KKK.” J.A. at 184 (Crisp Aff. at ¶ 4); J.A.
at 386 (Crisp Aff. Ex. 4). Deputy Sheriff Andy Waters took photographs of the graffiti in a boys
restroom in the vocational wing of the school. J.A. at 392-411 (Photographs); J.A. at 206
(Investigative Report). The graffiti included the scrawled statements: “The South Will Rise Again,”
J.A. at 398-99 (Waters Aff. Ex. 2), and “Niggers ‘Hang em,’” written above a drawing of a noose
next to the Confederate flag. J.A. at 404-09 (Waters Aff. Ex. 2).
The graffiti included a “hit list” with students’ names. J.A. at 113-14 (Hord Dep. at 25-31);
J.A. at 367 (Crisp Aff. at ¶ 2); J.A. at 369-72 (Crisp Aff. Ex. 1). Hord testified that he was not
certain whether all the names on the list were those of minority students. J.A. at 114 (Hord Dep. at
29). Deputy Sheriff David Henderson stated in his report that the graffiti threatened “rednecks” as
well as African-Americans. J.A. at 231 (Henderson Report). Plaintiff-Appellant Barr testified that
the list was on paper and was shown to various students. J.A. at 238 (Barr Dep. at 11:19-24). Barr
testified that “it wasn’t just Caucasian kids doing it.” J.A. at 238 (Barr Dep. at 11:7-8). He testified
that he knew “a lot” of the people on the list, some Caucasian and some African-American. J.A. at
239 (Barr Dep. at 12:2-7).
c. Lockdown
After a meeting with representatives from the Sheriff’s Department and an FBI agent, Hord
decided to implement a lockdown at the school in early April 20053 to “be proactive” and “show
that the school [was] secure and it [was] safe and we [were] interested in keeping it that way.” J.A.
at 54 (Hord Aff. 3/10/06 at ¶ 4); J.A. at 115 (Hord Dep. at 36:20-22); J.A. at 117-18 (Hord Dep. at
44:24-45:2) (reiterating the need to demonstrate that the school was safe and free of guns). Hord
pointed out that there had been “threats to bring guns, to hang people, to do all of this stuff. I had
been accused by some people of not taking this serious[ly].” J.A. at 115 (Hord Dep. at 36:17-19).
One parent Hord remembered in particular, John Cleveland, called Hord because his daughter had
been called racially derogatory names, threatened because of her race, and “exposed to being taunted
by the [Rebel] flag or something to that nature.” J.A. at 116 (Hord Dep. at 40:4-7, 20). Hord was
concerned about violence. J.A. at 116 (Hord Dep. at 37:15-16).
3
Lafon was a teacher at the school at this time; he assumed the principalship in the summer of 2005. J.A. at
97 (Lafon Dep. at 6:18-20); J.A. at 120 (Hord Dep. at 53:21-25).
No. 07-5743 Barr et al. v. Lafon, et al. Page 5
The Sheriff’s Office “maintained a continued presence,” J.A. at 228 (Henderson Aff. at ¶ 3),
at the school on April 7-8, 2005. The office assigned “approximately 40-50 officers” “to secure”
the high school and “investigate racial incidents.” J.A. at 228 (Henderson Aff. at ¶ 3). Officer
Waters “checked purses and backpacks at the school entrance as part of the security assigned” to the
school. J.A. at 204 (Waters Aff. at ¶ 3). “The investigation did not reveal any suspects for the
graffiti, racial threats[,] or racial slurs.” J.A. at 184 (Crisp Aff. at ¶ 5). One student, J.H., “was
charged and delivered to the Blount County Juvenile Detention Center after he admitted that he
stated that he and his friends were going to bring a gun to school and kill all African American
students and other people they did not like.” J.A. at 184 (Crisp Aff. at ¶ 5).
d. Hord’s Conclusions Regarding the Disruptive Effect of the Confederate Flag
Hord attests that in making the decision to ban the Confederate flag and other “racially
divisive symbols,” he “relied upon numerous conversations with students and parents of students
which revealed that students were taunted by the Confederate flag and were fearful for their safety
as a result of the racial tensions at William Blount High School.” J.A. at 152 (Hord Aff. 4/3/07 at
¶ 5). Hord further attests that “[t]he parents’ and the students’ fears were evidenced by a dramatic
increase in absenteeism during the time of racial tension prior to the lockdown and the ban.” Id.
Hord characterized the Confederate flag as both offensive and disruptive: “I think when that
offense becomes something that you have to deal with day-in and day-out [] it is disruptive to what
our normal process is, yes.” J.A. at 115 (Hord Dep. at 34:6-8); see also J.A. at 112 (Hord Dep. at
21:7-16). Hord believed that student offense as a result of the flag would lead to disruption. J.A.
at 122-23 (Hord Dep. at 64:18-65:2). Hord stated that he was not banning the Confederate flag
because it was a “racist symbol”: he based the continued ban on the events that began in January
2005 and information that he continues to gain
that says to me, when you have it, you have disruption, you have—you have
interference with the learning process. And you have hurt feelings and you have
people that are offended and it is something that we have to deal with. My primary
purpose is to take us forward instructionally and that prohibits that and you’re
worried about the insecurity and safety and all of those things rather than the
instruction process.
J.A. at 115 (Hord Dep. at 33:5-16). Lafon believed that were the ban lifted, the Confederate flag
“would be a source of confrontation and a symbol that would cause unrest with the student body.”
J.A. at 99 (Lafon Dep. at 14: 19-20). Lafon also believed that the presence of the flag would lead
to racially motivated physical altercations. J.A. at 99 (Lafon Dep. at 14:23-24). Hord, however,
stated in his deposition that he intended “at this point” to keep the ban in place, even if appearances
of the Confederate flag (despite the ban) did not cause disruption. J.A. at 121 (Hord Dep. at 59:9-
60:10).
4. Enforcement of the Ban on Racially Divisive Symbols
According to Lafon, between August 2005 and March 2006, the school witnessed “over 452
documented violations of the dress code policy . . . twenty-three (23) of which involved the wearing
of the ‘Confederate flag’ by students.” J.A. at 51 (Lafon Aff. at ¶ 4). Plaintiff-Appellant Barr
declares:
On or about September 1, 2005, to express pride in my southern heritage, I wore a
T-shirt to school bearing a small image of the Confederate flag, a picture of two
dogs, and the words “Guarding our Southern Heritage” on the back. I was
confronted by Defendant Lafon. Prior to my encounter with Mr. Lafon, no student
or teacher had commented on my shirt that day. I was informed by Mr. Lafon that
No. 07-5743 Barr et al. v. Lafon, et al. Page 6
items displaying the Confederate flag were banned at William Blount High School.
Defendant Lafon informed me that I had to turn the shirt inside out or take it off.
Lafon informed me that if I refused to remove the shirt I would be suspended from
school.
J.A. at 26-27 (Barr Decl. at ¶ 4). Plaintiff-Appellant Chris White declares that she “wore a shirt with4
an image of the Confederate flag to school” in January 2006. J.A. at 24 (Chris White Decl. at ¶ 4).
A teacher told Chris White “that the shirt violated school policy because of the image of the flag.”
J.A. at 24-25 (Chris White Decl. at ¶ 4). The teacher told Chris White “to cover the shirt with a
jacket for the rest of the day or return home and be suspended.” J.A. at 25 (Chris White Decl. at
¶ 4). We note that the declarations of Derek Barr and Chris White contained in the joint appendix
are unsigned.
B. Procedural Background
On February 21, 2007, a panel of this court affirmed the district court’s denial of Plaintiffs-
Appellants’ motion for a preliminary injunction in an unpublished opinion. D.B. ex rel. Brogdon
v. Lafon, 217 F. App’x 518 (6th Cir. 2007) (unpublished) (per curiam). Plaintiffs-Appellants filed
a motion for summary judgment as to their Equal Protection Clause claim on February 10, 2007.
The Board filed a motion for summary judgment on April 5, 2007. In an oral ruling on May 24,
2007, the district court denied Plaintiffs-Appellants’ motion for summary judgment and granted the
Board’s motion, which it treated as addressing all of the claims in the Complaint (First Amendment,
Equal Protection, and Due Process). J.A. at 33-44. The district court formally entered judgment in
a one-page order on May 31, 2007, dismissing the case with prejudice.
II. ANALYSIS
A. Standard of Review
We review de novo the district court’s grant of summary judgment to the school. Clay v.
United Parcel Serv., Inc., 501 F.3d 695, 700 (6th Cir. 2007) (citing Wright v. Murray Guard, Inc.,
455 F.3d 702, 706 (6th Cir. 2006)). Summary judgment for the school is appropriate “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). In contrast, “[s]ummary judgment is inappropriate when the evidence raises
a genuine issue about a material fact, ‘that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Wright, 455 F.3d at 706 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). We “view all evidence in the light most favorable to the
nonmoving party.” Clay, 501 F.3d at 701. We must determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. We do not “weigh the evidence
and determine the truth of the matter but [rather we] determine whether there is a genuine issue for
trial.” May v. Franklin County Comm’rs, 437 F.3d 579, 583 (6th Cir. 2006) (quoting Anderson, 477
U.S. at 249). “[T]here can be ‘no genuine issue as to any material fact’” when the nonmoving party
has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that
4
The declaration is titled “Declaration of C.W.” We assume that the declaration is by Plaintiff-Appellant Chris
Nicole White and not Plaintiff-Appellant Roger Craig White because the declaration in one sentence refers to the author
of the declaration in the third person, rather than the first person, using the pronoun “she.” J.A. at 25 (Chris White Decl.
at ¶ 4). In addition, the caption for the district court opinion in this case referred to Plaintiffs-Appellants as D.B., R.W.,
and C.W. We therefore deduce that R.W. referred to Roger Craig White and C.W. to Chris Nicole White. J.A. at 45
(5/31/2007 Order).
No. 07-5743 Barr et al. v. Lafon, et al. Page 7
party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
Plaintiffs-Appellants also appeal the district court’s denial of their motion for summary
judgment. “Although the denial of a motion for summary judgment is usually an interlocutory order
that is not immediately appealable, where ‘an appeal from a denial of summary judgment is
presented in tandem with a grant of summary judgment, this court has jurisdiction to review the
propriety of the district court’s denial of summary judgment.’” Tenn. ex rel. Wireless Income
Props., LLC v. City of Chattanooga, 403 F.3d 392, 395 (6th Cir. 2005) (quotations omitted).
Because the district court denied Plaintiffs-Appellants’ motion for summary judgment “‘on purely
legal grounds’ . . . [and not] based on the finding of a genuine issue of material fact,” we review the
district court’s denial de novo. Id. at 395-96 (quoting McMullen v. Meijer, Inc., 355 F.3d 485, 489
(6th Cir. 2004)). We review de novo decisions on mixed questions of law and fact. Wolfe v. Perry,
412 F.3d 707, 716 (6th Cir. 2005).
B. Plaintiffs-Appellants’ First Amendment Claim
1. Precedent Relevant to Student Speech in Public Schools
Plaintiffs-Appellants’ claims lead us to wrestle with a most difficult question: how to
balance some students’ rights to free speech with “the rights of other students to be secure and to
be let alone,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969), taking into
account the authority of school officials to maintain the discipline and learning environment
necessary to accomplish the school’s educational mission. The district court granted the Board’s
motion for summary judgment on Plaintiffs-Appellants’ First Amendment and Equal Protection
claims because the Confederate flag did not need to have caused a disruption in the past in order for
school officials to ban it when (1) there were racially motivated incidents at the school that caused
tension among the student body and (2) such a ban was not implemented in a viewpoint-
discriminatory manner. J.A. at 35 (Tr. at 92:17-23); J.A. at 38 (Tr. at 95:6-9); J.A. at 41 (Tr. at 98:3-
14). We affirm the district court’s grant of summary judgment to the Board.
The Supreme Court has made “clear that students do not ‘shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.’” Morse v. Frederick, ---U.S.---, 127 S.
Ct. 2618, 2622 (2007) (quoting Tinker, 393 U.S. at 506). “[T]he constitutional rights of students in
public school are not automatically coextensive with the rights of adults in other settings,” Bethel
Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and courts must apply the rights of students
“in light of the special characteristics of the school environment.” Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker, 393 U.S. at 506).
In Tinker, the Court considered whether a public school district violated high-school and
junior-high-school students’ First Amendment rights when the district suspended students who had
worn black armbands to school as an expression of their opposition to the Vietnam War. The school
had implemented a ban on the wearing of armbands after learning of some students’ plans to protest
the war by wearing black armbands during the holiday season in December 1965. The Court
determined that because “the wearing of armbands . . . was entirely divorced from actually or
potentially disruptive conduct by those participating in it,” the wearing of the armbands “was closely
akin to ‘pure speech.’” Tinker, 393 U.S. at 505-06. The Court also determined that there existed
no evidence that the suspended students’ protest interfered “with the rights of other students to be
secure and to be let alone” and, accordingly, that the case did “not concern speech or action that
intrude[d] upon the work of the schools or the rights of other students.” Id. at 508. The Court
concluded that the school’s ban on armbands was motivated by “an urgent wish to avoid the
controversy which might result from the expression.” Id. at 510. Because of the absence of
“evidence that the school authorities had reason to anticipate that the wearing of the armbands would
No. 07-5743 Barr et al. v. Lafon, et al. Page 8
substantially interfere with the work of the school or impinge upon the rights of other students,” the
Court reversed the en banc court of appeals decision below affirming the district court’s dismissal
of the plaintiffs-students’ complaint. Id. at 509, 514.
In two subsequent cases, the Court qualified when the Tinker standard should be applied and
clarified that schools did not in every situation need to justify regulation of student speech on the
basis that the speech would “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” Tinker, 393 U.S. at 509 (quotation omitted).
In Bethel School District No. 403 v. Fraser, the Court considered whether a public high school
infringed upon a student’s free-speech rights when the school suspended the student for violating
a school policy that prohibited “the use of obscene, profane language or gestures.” 478 U.S. at 678.
The suspended student had given a speech at a school-sponsored assembly, in support of another
student’s candidacy for elective office, which employed “an elaborate, graphic, and explicit sexual
metaphor.” Id. at 677-78. The Court noted “[t]he marked distinction between the political
‘message’ of the armbands in Tinker and the sexual content of the respondent’s speech in [Fraser],”
id. at 680, and observed that prior Court decisions had allowed limitations on speech in the interest
of protecting children, especially those in captive audiences, from sexually explicit, vulgar, and
offensive spoken language. Id. at 684. Accordingly, the Court held that “schools, as instruments
of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed
in a school that tolerates lewd, indecent, or offensive speech and conduct such as . . . Fraser’s . . .
plainly offensive [speech.]” Id. at 683.
Hazelwood School District v. Kuhlmeier involved a suit brought by former staff members
of a high-school newspaper who argued that the school principal violated their First Amendment
rights when he deleted two pages of the newspaper containing articles discussing students’
experiences of pregnancy and the effect of divorce on students. The Court concluded that because
the school lent its name and resources to the newspaper, the Tinker standard did not apply to the
case. Hazelwood, 484 U.S. at 272-73. The Court held “that educators do not offend the First
Amendment by exercising editorial control over the style and content of student speech in school-
sponsored expressive activities so long as their actions are reasonably related to legitimate
pedagogical concerns.” Id. at 273.
The above trilogy of cases yields three principles: (1) under Fraser, a school may
categorically prohibit vulgar, lewd, indecent, or plainly offensive student speech,5 Fraser, 478 U.S.
at 683-85; Hazelwood, 484 U.S. at 272 n.4; (2) under Hazelwood, a school has limited authority to
censor school-sponsored student speech in a manner consistent with pedagogical concerns, 484 U.S.
at 273; and (3) the Tinker standard applies to all other student speech and allows regulation only
when the school reasonably believes that the speech will substantially and materially interfere with
schoolwork or discipline, 393 U.S. at 513. Guiles, 461 F.3d at 325; Harper v. Poway Unified Sch.
Dist., 445 F.3d 1166, 1176-77 (9th Cir. 2006), vacated on other grounds, --- U.S. ---,127 S. Ct. 1484
(2007); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001); see also Castorina ex
rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536, 540 (6th Cir. 2001).
Tinker governs the instant case because by wearing clothing depicting images of the
Confederate flag students engage in pure speech not sponsored by the school. Castorina, 246 F.3d
at 539-40. Hazelwood does not apply to the instant case “because no one would reasonably believe
that [Plaintiffs-Appellants’ clothing] bore the school’s imprimatur.” Morse, 127 S. Ct. at 2627.
Therefore, our inquiry in this case is whether the ban on clothing depicting the Confederate flag “is
5
“Plainly offensive” speech, proscribable under Fraser, “should not be read to encompass any speech that could
fit under some definition of ‘offensive,’ . . . [as] much political and religious speech might be perceived as offensive to
some.” Morse, 127 S. Ct. at 2629.
No. 07-5743 Barr et al. v. Lafon, et al. Page 9
necessary to avoid material and substantial interference with schoolwork or discipline.” Tinker, 393
U.S. at 511.
The Court’s most recent student-speech case, Morse v. Frederick, does not modify our
application of the Tinker standard to the instant case. Morse affirmed that “schools may regulate
some speech even though the government could not censor similar speech outside the school” and
that the rule stated in Tinker “is not the only basis for restricting student speech.” 127 S. Ct. at 2627
(internal quotation omitted). The Morse decision, however, resulted in a narrow holding: a public
school may prohibit student speech at school or at a school-sponsored event during school hours that
the school “reasonably view[s] as promoting illegal drug use.” Id. at 2629. Justice Alito’s
concurrence states that he joins the majority opinion “on the understanding that (a) it goes no further
than to hold that a public school may restrict speech that a reasonable observer would interpret as
advocating illegal drug use and (b) it provides no support for any restriction of speech that can
plausibly be interpreted as commenting on any political or social issue.” Id. at 2636 (Alito, J.,
concurring). Justice Alito also makes clear that he joins the majority only insofar as “the opinion
does not hold that the special characteristics of the public schools necessarily justify any other
speech restrictions” beyond those articulated in Tinker, Fraser, and Hazelwood. Id. at 2637.
2. Analysis under Tinker of the Ban on Clothing Depicting the Confederate Flag
As an initial matter, we must consider Plaintiffs-Appellants’ argument that much of the
evidence presented by the Board, and relied upon by the district court, was hearsay. Plaintiffs-
Appellants Br. at 33-37; Reply Br. at 17-21. As the Board notes, however, Plaintiffs-Appellants do
not specify in their brief which evidence they consider to be hearsay; rather, Plaintiffs-Appellants
refer us to documents filed at the district court level. Plaintiffs-Appellants Br. at 33 n.6. Well-
established law in this Circuit holds that “a party is not allowed to incorporate by reference into its
appellate brief the documents and pleadings filed in the district court.” Thomas M. Cooley Law Sch.
v. Am. Bar Ass’n, 459 F.3d 705, 710 (6th Cir. 2006) (citing Northland Ins. Co. v. Stewart Title Guar.
Co., 327 F.3d 448, 452 (6th Cir.2003)), cert. denied, --- U.S. ---, 127 S. Ct. 985 (2007). Therefore,
we are left with only Plaintiffs-Appellants’ allegation that “[m]ost of the defendants’ evidence in
the case at bar consists of hearsay statements that were [inappropriately] considered ‘for its[] effect
upon the listener.’” Plaintiffs-Appellants Br. at 34. Because Plaintiffs-Appellants do not specify
to which pieces of evidence they are referring, we have no basis upon which to conclude that the
district court abused its discretion when it found that “in the record before the Court many of the
declarants do, in fact, testify as to occurrences and incidents of which they have personal knowledge
as that term would be defined and understood pursuant to the Federal Rules of Evidence.” J.A. 39
(5/24/07 Hr’g Tr. at 96:19-22). See United States v. Khalil, 279 F.3d 358, 363 (6th Cir. 2002)
(holding that “all evidentiary rulings of the district court, including its determination of whether
testimony is inadmissible hearsay, are reviewed for abuse of discretion”).
Plaintiffs-Appellants argue that there is no evidence “that the Confederate flag ever caused
any disruption at the school,” even when worn by students during the ban. Plaintiffs-Appellants Br.
at 28. Plaintiffs-Appellants’ contention that the Confederate flag itself had to cause disruption in
the past for the school to justify the ban, however, “misapplies the Tinker standard.” Lowery v.
Euverard, 497 F.3d 584, 591 (6th Cir. 2007). “Tinker does not require disruption to have actually
occurred.” Id. at 593. Rather than evaluating competing claims about whether disruption occurred
in the past, we “must evaluate the circumstances to determine if [the school’s] forecast of substantial
disruption was reasonable.” Id. The rationale for this standard lies in the fact that requiring
evidence of disruption caused by the banned speech would place “school officials . . . between the
proverbial rock and hard place: either they allow disruption to occur, or they are guilty of a
constitutional violation.” Id. at 596. “Recognizing that the Tinker decision does not require that the
banned form of expression itself actually have been the source of past disruptions, subsequent
appellate court decisions considering school bans on expression have focused on whether the banned
No. 07-5743 Barr et al. v. Lafon, et al. Page 10
conduct would likely trigger disturbances such as those experienced in the past.” Brogdon, 217 F.
App’x at 525 (citing Castorina, 246 F.3d at 542; Melton v. Young, 465 F.2d 1332 (6th Cir. 1972),
cert. denied, 411 U.S. 951 (1973)). Our inquiry, then, is whether the school reasonably forecast that
the Confederate flag would cause material and substantial disruption to schoolwork and school
discipline.
Plaintiffs-Appellants further challenge the alleged high level of racial tension at the school,
no matter the cause. In particular, Plaintiffs-Appellants allege that “[t]he racial graffiti referred to
by the defendants as proof of ‘racial tension’ actually caused absolutely no disruptions, implying
that racial tension is not as high as claimed.” Plaintiffs-Appellants Br. at 29. Were Plaintiffs-
Appellants correct and the record showed minimal evidence of prior disruption related to racial
tension, then we would likely conclude that the school had little basis for anticipating disruption
caused by images of the Confederate flag. But the evidence on the record belies Plaintiffs-
Appellants’ argument.
In deposing Hord, the attorney for Plaintiffs-Appellants tried to show that racist graffiti had
not specifically caused disruption. When asked if he knew if any classes had been disrupted as a
result of the graffiti, Hord stated that “[t]he only disruption I think it does have is that just by the fact
that a Principal and teachers if they have those kids they are pulling kids out questioning them there,
they are trying to get to the bottom of it. So in that sense it is a disruption, but I don’t know
specifically here is the class, here is the kids, that kind of thing.” J.A. at 114 (Hord Dep. at 31:15-
21). Hord stated that he did not know whether any fights resulted from the graffiti or “hit lists.”
J.A. at 114 (Hord Dep. at 31:3-12). We are wary of concluding, however, that the racist graffiti had
to cause violent disruption to the school for the school reasonably to forecast that images of the
Confederate flag would cause disruption within the meaning of Tinker. There is no requirement that
disruption under Tinker be violent. Hord presents uncontested testimony that investigation of the
graffiti disrupted classes. Furthermore, the racist graffiti was violent in character: the graffiti
contained examples of the most demeaning racial slurs, accompanied by threats against the lives of
African-Americans generally, an image of a noose next to that of a Confederate flag, and “hit lists”
containing specific students’ names. One might plausibly argue that such racist graffiti containing
violent threats is inherently disruptive to a school environment. We do not need to reach such a
conclusion today, however, because Hord presented evidence that the racist graffiti including the
hit lists produced secondary disruptions. “There was a lot of school disruption because of the hit
lists, parents coming to school, parents calling me, calling the administrator, calling people in the
Central office and it was time consuming.” J.A. at 114 (Hord Dep. at 30:24-31:2). Hord also gave
unrefuted deposition testimony that fear of racial violence caused an increase in absenteeism among
African-American students, the epitome of disruption in the educational process.
Perhaps the most compelling evidence of the racial tension that existed at the school
immediately prior to the clothing ban comes from Plaintiffs-Appellants’ own deposition testimony.
Barr stated that he felt “friction” and “racially related tension” in the school in the spring of 2005.
J.A. at 240 (Barr Dep. at 13:11, 13). He said he could “feel the intensity” as “people walk[ed] by.”
J.A. at 240 (13:8-9). Craig White, another student bringing this suit, conceded in his deposition that
his Confederate flag clothing could “create disruptive behavior” at school if others found his
clothing “offensive.” J.A. at 261 (R. Craig White Dep. at 8:11-14).
The instant case can be distinguished from Tinker. In Tinker there were no facts in the
record that would “reasonably have led school authorities to forecast substantial disruption of or
material interference with school activities, and no disturbances or disorders on the school premises
in fact occurred” as a result of students wearing black armbands in protest of the Vietnam War. 393
U.S. at 514. The facts in this case, however, even when viewed in a light most favorable to
Plaintiffs-Appellants, indicate that school officials could reasonably forecast that permitting students
to wear clothing depicting the Confederate flag would cause disruptions to the school environment.
No. 07-5743 Barr et al. v. Lafon, et al. Page 11
In contrast to the dearth of evidence on the record in Tinker, the record in the instant case contains
evidence of racial violence, threats, and tensions: a fight between an African-American and a white
student on February 22;6 a complaint filed with OCR alleging that following a racially motivated
altercation, the school punished an African-American student more harshly than a white student in
the district was punished; racist graffiti containing racial slurs and generalized threats against the
lives of African-Americans; “hit lists” containing student names; unspecified race-related physical
fights during the 2004-2005 school year; a fear-motivated increase in absenteeism among African-
American students; and a school “lockdown” in April 2005 that the school implemented because of
a breakdown in student discipline and the threat of race-related violence. Notably, a particularly
egregious example of racist graffiti depicted the Confederate flag next to a drawing of a noose, just
below a general threat to the lives of African-Americans that contained a racial slur. J.A. at 406-09
(Waters Aff. Ex. 2). That graffiti exemplifies how school officials reasonably concluded that the
connection between the symbolism of the Confederate flag and racial tensions at the school meant
that the Confederate flag would likely have a disruptive effect on the school. Under Tinker, we hold
that the school reasonably forecast that clothing bearing images of the Confederate flag would
disrupt schoolwork and school discipline.
We do not find persuasive Plaintiffs-Appellants’ argument that the Board has “repeatedly
admitted that prevention of disruption is not [its] only motive.” Appellant Br. at 27. Hord
acknowledges that the disruption he anticipates arising from displays of the Confederate flag directly
correlates with the offense the flag poses to some students. Hord stated at deposition: “I think when
that offense becomes something that you have to deal with day-in and day-out [then] it is disruptive
to what our normal process is, yes.” J.A. at 115 (Hord Dep. at 34: 6-8). That Hord determined the
Confederate flag to be offensive to African-American and other students, however, does not negate
his reasonable belief that the flag was also disruptive and would cause substantial and material
interference with schoolwork and school discipline. This is not a case in which the school acted
upon “undifferentiated fear or apprehension of disturbance.” Tinker, 393 U.S. at 508. The school
did not merely find the Confederate flag offensive to some students but rather found that in a context
of high racial tensions, race-related altercations, and threats of violence, the flag would disrupt the
school’s educational process.
That there exists a relationship between the offensiveness of the Confederate flag, in the eyes
of some students, and its disruptive potential does not change our holding. We note that our decision
evinces greater sensitivity to the effect of the regulated speech on its student audience than that
ordinarily accorded to the targets of speech in our general First Amendment jurisprudence. First
Amendment standards applicable to student speech in public schools, however, are unique, and
courts accord more weight in the school setting to the educational authority of the school in
attending to all students’ psychological and developmental needs. Unlike in Tinker, Plaintiffs-
Appellants’ free-speech rights “colli[de] with the rights of other students to be secure and to be let
alone.” Tinker, 393 U.S. at 508. The fact of this collision would almost certainly not be enough to
justify government regulation of the speech, if the parties in this case were adults in a public forum.
“If there is a bedrock principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989) (holding that prosecution of defendant
for burning an American flag during a protest rally violated the defendant’s right to free expression
under the First Amendment). We caution, however, that our decision today does not establish a
precedent justifying a school’s ban on student speech merely because other students find that speech
6
Although the record does not make clear whether the fight occurred between a student who was attending
William Blount High School and a student who was attending Heritage High School or between two William Blount
students, there is no doubt that the fight occurred at William Blount High School. We therefore determine that in the
context of other evidence of racial tensions at the school, the fight supports the school’s reasonable forecast that students
wearing clothing with the Confederate flag would disrupt the educational process.
No. 07-5743 Barr et al. v. Lafon, et al. Page 12
offensive: we simply hold that the school’s dress code as applied to ban the Confederate flag is
constitutional because of the disruptive potential of the flag in a school where racial tension is high
and serious racially motivated incidents, such as physical altercations or threats of violence, have
occurred.
Our holding that the school in the circumstances of this case reasonably forecast the
disruptive effect of the Confederate flag accords with precedent in our circuit as well as our sister
circuits. In Melton v. Young, 465 F.2d 1332 (6th Cir. 1972), cert. denied, 411 U.S. 951 (1973), we
held that the suspension of a student for violating a high-school code of conduct banning displays
of the Confederate flag and the Confederate soldier, as well as the song “Dixie,” did not violate the
student’s rights under the First or Fourteenth Amendments. Evidence on the record showed that
during the 1969-1970 academic year, the school that implemented the ban had become “racially
polarized as a result of continuing controversy over the use of the Confederate flag and the song
Dixie at various school functions.” Id. at 1333. Racial tension in the school disrupted classes and
led school authorities “to call for police assistance amid several confrontations and also to close the
school for the purpose of restoring order and calming tensions.” Id. The evidence in Melton
supporting the school’s rationale for the ban is, in two respects, stronger than that in the instant case:
past disruptive conflict in the school had centered on the Confederate flag and disruption had led
authorities not only to “lockdown” the school but to actually close it. Nevertheless, as we noted
above, “Tinker does not require school officials to wait until the horse has left the barn before
closing the door.” Lowery, 497 F.3d at 591-92. In another sense, despite the fact that the displays
of the Confederate flag did not themselves apparently instigate racial conflict, the evidence
supporting the ban in the instant case is stronger than in Melton because racial tension had produced
physical confrontations and threats against students’ lives. In sum, the holding in Melton supports
our decision that a school may reasonably forecast that the Confederate flag would cause substantial
and material disruption of a school when the school had recently experienced intense racial conflict.
Furthermore, the record in the instant case closely parallels that in West v. Derby Unified
School District No. 260, 206 F.3d 1358 (10th Cir. 2000). In West, a middle-school assistant
principal had suspended a student who had drawn a Confederate flag on a sheet of paper during a
class, in violation of a school’s racial-harassment policy that prohibited students from possessing
written material “that is racially divisive or creates ill will or hatred.” Id. at 1361. The policy listed
the Confederate flag as an example of the banned material. Id. In the three years prior to the
incident, the school at issue had experienced “verbal confrontations . . . between black and white
students”; white students wearing clothing depicting the Confederate flag and black students
wearing clothing invoking the ideology of Malcolm X; the circulation of racist materials among
students by non-student members of the Aryan Nation and Ku Klux Klan; “graffiti stating such
things as ‘KKK’ (Ku Klux Klan), ‘KKKK’ (Ku Klux Klan Killer), and ‘Die Nigger’”; “reports of
racial incidents on school buses and at football games”; and “[a]t least one fight . . . as a result of
a student wearing a Confederate flag headband.” Id. at 1362. The Tenth Circuit concluded that
“[t]he evidence . . . reveals that based upon recent events, [the school district] officials had reason
to believe that a student’s display of the Confederate flag might cause disruption and interfere with
the rights of other students to be secure and let alone.” Id. at 1366.
Just as in West, in the instant case the school based its clothing ban on the existence of racial
tension, threatening graffiti, reports of racially motivated confrontations, and at least one fight. The
only potentially significant difference between the records in the two cases is that the February 22,
2005 fight in the instant case did not involve an image of the Confederate flag. Given binding
precedent in the Sixth Circuit interpreting Tinker, however, we do not think any difference between
the record in the instant case and that in West is significant enough to distinguish West. Indeed, we
No. 07-5743 Barr et al. v. Lafon, et al. Page 13
find West consistent 7with our decision in Melton and, therefore, consider West to constitute
persuasive precedent.
3. Alleged Viewpoint Discrimination
Plaintiffs-Appellants argue that the ban on clothing depicting racially divisive symbols, and
specifically the ban on the Confederate flag, discriminates on the basis of viewpoint and
unconstitutionally suppresses particular ideas. Plaintiffs-Appellants Br. at 19-26. In Tinker, the
Supreme Court rested its holding striking down the defendant school’s ban on armbands on the
finding that “the action of the school authorities appear[ed] to have been based upon an urgent wish
to avoid the controversy which might result from the expression” rather than from reasonable
“anticipat[ion] that the wearing of the armbands would substantially interfere with the work of the
school or impinge upon the rights of other students.” Id. at 509-10. The Court proceeded to observe
in dicta, however, that its decision also reflected the Court’s concern “that the school authorities did
not purport to prohibit the wearing of all symbols of political or controversial significance.” Id. at
510. There existed evidence that some students at the school wore buttons related to political
campaigns as well as the Iron Cross, a Nazi symbol, and that the school did not ban these symbols.
Id. at 510-11. Significantly, the Court in Tinker did not hold that a viewpoint-discriminatory rule
in the schools would necessarily be unconstitutional; such a rule would still be constitutional if it
met the disruption standard outlined in the opinion. Specifically, the Court concluded its paragraph
discussing the viewpoint-discriminatory character of the ban on armbands with the following
statement: “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 511 (emphasis added).
7
The Eleventh Circuit has upheld school districts’ bans on the display of the Confederate flag under both Tinker
and Fraser. Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249 (11th Cir.), cert. denied, 540 U.S. 824 (2003);
White v. Nichols, No. 02-01712-CV-P-NE, 2006 WL 1594213, at *2 (11th Cir. June 12, 2006); see also Denno v. Sch.
Bd. of Volusia County, 218 F.3d 1267, 1275-78 (11th Cir.) (affirming the dismissal of plaintiff students’ 42 U.S.C.
§ 1983 claim against school administrators in their individual capacities because it was not clearly established that the
school would violate students’ First Amendment rights by banning the Confederate flag and affirming the dismissal of
§ 1983 claims against the school because plaintiffs had not created a genuine issue of material fact that school
administrators possessed final-decisionmaking authority or that a custom or practice of banning the Confederate flag
existed), cert. denied, 531 U.S. 958 (2000). Although the Eleventh Circuit’s decisions do not conflict with our holding
today, we decline to consider these decisions persuasive precedent because we disagree that a display of the Confederate
flag constitutes vulgar or “plainly offensive” speech under Fraser, 478 U.S. at 683. Rather, the display of the
Confederate flag by a student constitutes political speech that is protected under the First Amendment and may only be
regulated if a school meets the Tinker standard.
The Third Circuit’s decision in Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir.
2002), cert. denied, 538 U.S. 1033 (2003), is readily distinguishable. In Sypniewski, the Third Circuit considered a
challenge to the application of a racial-harassment policy, analogous to that at issue in West, to ban a T-shirt featuring
a joke by comedian Jeff Foxworthy giving the “Top 10 reasons you might be a Redneck Sports Fan.” Id. at 249-50. The
Third Circuit reversed a district court decision denying the plaintiff students a preliminary injunction against the policy
as enforced to ban the Foxworthy T-shirt. In finding that the plaintiffs had a likelihood of success regarding their claim
that the as-applied ban violated their rights under the First Amendment, the Third Circuit distinguished Sypniewski from
cases including West and Melton that upheld the ban on the Confederate flag: “Plaintiffs have not challenged a ban on
the Confederate flag; they challenge the banning of a T-shirt that bore no Confederate flag and had no similarly
disruptive history.” Id. at 254. The Sypniewski opinion explained: “There is no suggestion in the record that any part
of the Confederate flag clothing other than the flag itself was seen as a provocative and offensive symbol. In short, there
is little if any history of the use of the word ‘redneck’ itself that would support its ban.” Id. at 256.
A final Fifth Circuit decision regarding the Confederate flag in public schools similarly does not conflict with
our holding but is inapplicable because of its distinct procedural history. In Augustus v. School Board of Escambia
County, 507 F.2d 152, 158 (5th Cir. 1975), the Fifth Circuit held that a district court had the authority categorically to
ban the use of the Confederate flag as a symbol in a school, if necessary to implement a court order to desegregate the
school. The Fifth Circuit further held, however, that the school had overstepped its authority in implementing a
categorical ban without determining “whether an injunction against the misuse of flags and symbols would be preferable
to a complete prohibition.” Id. at 158-59.
No. 07-5743 Barr et al. v. Lafon, et al. Page 14
Our precedent interpreting the status of viewpoint-discriminatory school rules under Tinker
is complicated. The code of conduct at issue in Melton explicitly prohibited images of the
Confederate flag, the Confederate soldier, and the song “Dixie.” 465 F.2d at 1333-34. The code
did not prohibit symbols that might have been similarly controversial at a newly integrated public
high school during the time-period in question: the late 1960s and early 1970s. Id. Thus, one could
characterize the ban at issue in Melton as viewpoint discriminatory because it prohibited symbols
that some people might perceive as celebrating Southern heritage, or even white supremacy, but did
not prohibit symbols perceived as celebrating the North’s defeat of the South in the Civil War, racial
equality, or black power. We upheld the ban, however, regardless of any viewpoint discrimination
because it met the disruption standard set forth in Tinker. Melton, 465 F.2d at 1335. Indeed, the
Melton opinion does not address any argument by the plaintiffs in that case regarding viewpoint
discrimination.
A subsequent Sixth Circuit decision, Castorina v. Madison County School Board, took the
view that “even if there has been racial violence that necessitates a ban on racially divisive symbols,
the school does not have the authority to enforce a viewpoint-specific ban on [some] racially
sensitive symbols and not others.” 246 F.3d at 544. Castorina reversed and remanded a district
court’s grant of summary judgment to a defendant school board because the plaintiff students had
created a genuine issue of material fact regarding whether the school banned clothing with images
of the Confederate flag but did not ban the wearing of clothing with images of or allusions to
“Malcolm X and the Black Muslim movement.” Id. at 541. The statement in Castorina that a
viewpoint-discriminatory clothing ban would be unconstitutional is in tension with our decision in
Melton upholding the constitutionality of such a ban under Tinker’s substantial-and-material-
disruption standard.
Although one panel of this circuit cannot overrule a prior panel, Salmi v. Sec’y of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6TH CIR. R. 206(c), an intervening Supreme Court
decision gave the Castorina panel authority to modify the holding in Melton. The Castorina panel
based its holding regarding the unconstitutionality of viewpoint-discriminatory clothing bans on
Tinker and two other Supreme Court decisions: Police Department of City of Chicago v. Mosley,
408 U.S. 92 (1972), decided two months before our decision in Melton, and Rosenberger v. Rector
and Visitors of the University of Virginia, 515 U.S. 819, 828-29 (1995), decided over a decade after
Melton. Castorina, 246 F.3d at 542. To the extent that Castorina rested its holding on Rosenberger,
decided after Melton, the Castorina panel had the authority to modify the Melton panel’s
interpretation of Tinker. In Rosenberger, the Court considered a university’s denial of student-
activity funds to a student newspaper that would otherwise be eligible for funds but for the fact that
the newspaper “promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate
reality.” 515 U.S. at 825-27. The Court held that because the University had opened the student-
activity funds as a limited public forum (in a conceptual rather than spatial sense), the University
could not discriminate on the basis of viewpoint. Id. at 828-30. Therefore, once the University
allowed the disbursement of funds to groups discussing religion as a subject matter, the university
could not deny funds to “those student journalistic efforts with religious editorial viewpoints.” Id.
at 831, 837. Castorina applied the principles set forth in Rosenberger to the high-school setting,
holding that schools’ regulation of student speech must be consistent with both the Tinker standard
and Rosenberger’s prohibition on viewpoint discrimination. Accordingly, we cannot affirm the
grant of summary judgment to the school if Plaintiffs-Appellants have created a genuine issue of
material fact that the school implemented the clothing ban in a viewpoint-discriminatory manner.
Plaintiffs-Appellants argue that the school engages in viewpoint discrimination by banning
racially divisive symbols but not racially inclusive symbols. Plaintiffs-Appellants Br. at 19-22. The
Board argues that it enforces a facially neutral ban on racially divisive symbols in a non-
discriminatory manner. Defendant-Appellee Br. at 34. In Rosenberger, the Supreme Court
illuminated the often imprecise distinction between content-based and viewpoint-discriminatory
No. 07-5743 Barr et al. v. Lafon, et al. Page 15
restrictions on speech. “The necessities of confining a forum to the limited and legitimate purposes
for which it was created may justify the State in reserving it for certain groups or for the discussion
of certain topics.” Rosenberger, 515 U.S. at 829. “Once it has opened a limited forum, however,
the State must respect the lawful boundaries it has itself set.” Id. “The State may not exclude
speech where its distinction is not ‘reasonable in light of the purpose served by the forum,’ . . . nor
may it discriminate against speech on the basis of its viewpoint.” Id. (quotation omitted). Thus, the
Court “observe[s] a distinction between, on the one hand, content discrimination, which may be
permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint
discrimination, which is presumed impermissible when directed against speech otherwise within the
forum’s limitations.” Id. at 829-30.
The two sides in this litigation have presented competing paradigms for what we should view
as constituting content-based and viewpoint-based regulations on speech, in the circumstances of
this case. Plaintiffs-Appellants suggest that the school may restrict student speech regarding race
as a general topic, but may not ban racially divisive speech while allowing racially inclusive speech.
By contrast, the school suggests that the restriction on racially divisive clothing is a permissible
content-based restriction and that our inquiry should be whether the clothing ban is enforced in a
viewpoint-discriminatory manner.
We agree with the school. As an initial matter, Plaintiffs-Appellants’ suggested definition
of “content” in this case is so abstract as to approach absurdity. Considering the salience of race to
our nation’s history and contemporary political and social debates, any public school would
seriously hamper its ability to foster thoughtful and responsible citizens by prohibiting all student
speech and expression about any topic dealing with race. Moreover, we find Plaintiffs-Appellants’
effort to redefine “content” and “viewpoint” to be a red herring. In R.A.V. v. City of St. Paul, 505
U.S. 377 (1992), the Supreme Court explained that a blanket ban on the use of “odious racial
epithets” by “proponents of all views” constitutes mere content-based regulation, while a ban on the
use of racial slurs by one group of speakers but not “those speakers’ opponents” constitutes
viewpoint-discrimination. Id. at 391. Applying this distinction to the instant case, it is clear that the
school’s ban on disruptive speech does not engage in viewpoint discrimination. The school bans
all symbols which “cause[] disruption to the educational process,” regardless of whether the
disruption arises because of a student’s racial animus, or for another reason entirely. J.A. at 156
(Hord Aff. Ex. 1 at ¶ 4(f)). Indeed, based on the record in this case, there is no evidence that the ban
on disruptive symbols would not have been applied equally to a student displaying a Confederate
flag in solidarity with hate groups, and another who displayed a Confederate flag in a circle with a
line drawn through it. Thus, there is no indication that the school permits “one side of a debate to
fight freestyle, while requiring the other to follow Marquis of Queensberry rules.” R.A.V., 505 U.S.
at 392. Both proponents of racial tolerance and proponents of racial hatred are forbidden to display
the Confederate flag.
Furthermore, although the restriction on racially intolerant but not racially tolerant messages
may be unconstitutional as applied to adults acting in a public forum, R.A.V., 505 U.S. at 391-94,
the same is not true in the public schools. “Public education must prepare pupils for citizenship in
the Republic. . . . It must inculcate the habits and manners of civility as values in themselves
conducive to happiness and as indispensable to the practice of self-government in the community
and the nation.” Fraser, 478 U.S. at 681 (quoting C. BEARD & M. BEARD, NEW BASIC HISTORY OF
THE UNITED STATES 228 (1968)). Given the extensive Supreme Court precedent affirming the
unique mission of public education and holding that the free-speech rights of public-school students
are not coextensive with those of adults, we believe that the exclusion of racially divisive symbols
in a school that has experienced intense racial tensions is a permissible content-based restriction.
The critical question, therefore, is whether the school has enforced its facially neutral, written dress
code banning racially divisive symbols in a viewpoint-discriminatory manner.
No. 07-5743 Barr et al. v. Lafon, et al. Page 16
Plaintiff-Appellant Barr stated that it was not until after the “hit list incidents” that the school
began enforcing a ban on clothing depicting the Confederate flag, and prior to that time Barr had
worn such clothing. J.A. at 243 (Barr Dep. at 16:11-19). Hord confirmed this understanding of the
dress code’s enforcement. J.A. at 110 (Hord Dep. at 13:6-21) (noting that the policy was not really
enforced until the “hit lists” appeared on the restroom walls and the “racial graffiti, threats,
complaints from parents, [and] a lot of racial tension.”).8 That the school only began rigorously to
enforce the dress code following the “hit lists,” however, does not mean it did so in a viewpoint-
discriminatory manner. Lafon attests that he has complied with Hord’s direction “to apply the
provisions of the dress code evenly without viewpoint discrimination.” J.A. at 51 (Lafon Aff. at
¶ 4).
The school specifically identified the Confederate flag as subject to enforcement as a
violation of the dress code, but also intended the ban to apply to other racially divisive symbols that
could reasonably be expected to cause disruption in the school. Hord attests: “In banning racially
divisive symbols, I specifically included the Confederate [f]lag because it had been disruptive;
however, the Principal of William Blount High School was instructed to ban any racially divisive
symbols or flags that caused disruption or was likely to cause disruption.” J.A. at 153 (Hord Aff.
4/3/07 at ¶ 8); see also J.A. at 110 (Hord Dep. at 15:12-18); J.A. at 98 (Lafon Dep. at 9: 11-17).
While the school has specifically and explicitly banned the Confederate flag as a result of racial
tension in the schools, J.A. at 110 (Hord Dep. at 14: 15-19), the school has not yet done so with
respect to other political symbols because of an alleged absence of necessity. In other words, the
school alleges that because other symbols have not yet caused a disruption, they have not been
explicitly banned. J.A. at 110 (Hord Dep. at 14:24-15:4). Thus, Hord attests that he expects Lafon
to enforce a ban on any other flag “[i]f it became disruptive and it proved to be.” J.A. at 110 (Hord
Dep. at 15:8) (emphasis added). Hord reiterated at deposition that under the policy, Lafon would
enforce a ban against any flag that “became disruptive and offensive to a group to the point [at
which] it was disruptive.” J.A. at 122 (Hord Dep. at 62:13-15). Thus, for example, while the school
does not currently ban the Canadian flag, “[i]f it became disruptive, if there is someone there that
had a deep conceded problem with the Canadian flag and [would] fight you over it, it would become
something that we [would] need to deal with.” J.A. at 122 (Hord Dep. at 63:12-15). Plaintiffs-
Appellants have produced no evidence suggesting that the school did not have a policy of applying
the ban to all disruptive, racially divisive symbols and not just the Confederate flag.
On the one hand, the evidence on the record that the school has explicitly and prospectively
banned the Confederate flag but has not done the same with respect to other symbols supports
Plaintiffs-Appellants’ argument that the enforcement of the dress code is viewpoint discriminatory.
The evidence is uncontested that at the opening assembly of the 2005-2006 school year, Lafon
announced only that the dress code’s prohibition applied to the Confederate flag and did not
specifically cite any other flags or symbols as similarly prohibited. In Castorina, we held that the
First Amendment prohibited not only the kind of “formally targeted ban” present in Tinker but also
“a facially neutral policy that is enforced . . . in a content-specific manner.” Castorina, 246 F.3d at
542. One could argue that the school’s announcement that the Confederate flag fell within the dress
code’s prohibition chilled the expression of students who desired to wear emblems of the
Confederate flag, whereas students desiring to wear racially divisive symbols other than the
Confederate flag were free to test the boundaries of the dress code. Those students’ speech would
be censored only after they wore a divisive symbol and not prospectively. Ultimately, however, we
decline to hold that the fact of Lafon’s announcement regarding the Confederate flag alone
demonstrates that the school enforces the ban on racially divisive symbols in a viewpoint-
8
Hord added that sporting events and after-school activities were an exception. J.A. at 116 (Hord Dep. at 38:25-
39:5). In those environments, “the flag has not been banned because of the magnitude of being able to ban it.” J.A. at
116 (Hord Dep. at 39:1-5).
No. 07-5743 Barr et al. v. Lafon, et al. Page 17
discriminatory manner. The school required all students to take home a planner containing a copy
of the school rules, including the dress code’s ban on racially divisive symbols, and to have their
parents sign a page of the planner attesting that the students had read it. J.A. at 102 (Lafon Dep at
27:3-7). Lafon’s announcement that the Confederate flag lay within the scope of the ban did not
narrow its breadth but rather clarified that the ban covered at least one symbol that students had
previously worn on their clothing. We cannot require that, every time a school official explains a
policy restricting students’ speech, the official must offer a comprehensive list of the applications
of the policy so as to avoid a finding that the official enforced the policy in a viewpoint-
discriminatory manner.
Were there evidence that the school in practice enforced the dress code against the
Confederate flag but not against other racially divisive symbols, we would need to reverse the grant
of summary judgment for the school. But Plaintiffs-Appellants have produced no more than “a
scintilla of evidence” that the school fails to enforce the dress code against racially divisive symbols
other than the Confederate flag. Anderson, 477 U.S. at 252. Both parties construe Malcolm X
iconography as the ideological counterpoint to the Confederate flag, and thus we would have to
reverse the grant of summary judgment were there evidence on the record that the school failed to
enforce the dress code to prohibit clothing with Malcolm X iconography. In contrast to Castorina,
246 F.3d at 541-42, in which there existed a genuine issue of material fact regarding whether the
school refused to ban apparel celebrating Malcolm X, there is no similar issue of fact in the instant
case. Lafon attests that other flags and symbols would fall under the ban “if they are disruptive. . . .
a Malcolm X shirt or some national flag, Mexican flag might possibly be, different things from that
standpoint that whatever would cause a disruption.” J.A. at 101 (Lafon Dep. at 22: 20, 22-25).
Lafon attests, however, that “[t]here have been no reported incidents of students wearing clothing
emblazoned with Malcolm X words or caricatures, or international flags.” J.A. at 51 (Lafon Aff.
at ¶ 4).
Plaintiffs-Appellants have not produced evidence disputing Lafon’s testimony that would
create a genuine issue of material fact regarding discriminatory enforcement of the dress code. Barr
declares in his affidavit that he has seen other students wear clothing depicting Malcolm X and
national flags during the 2005-2006 school year. J.A. at 27 (Barr Aff. at ¶ 9). Barr’s declaration in
the joint appendix is not signed. Furthermore, Barr stated at deposition that when he saw students,
“[o]nce or twice,” wearing clothing like a Malcolm X shirt, he told “teachers” and “it came to a
stop.”9 J.A. at 247 (Barr Dep. at 40:4-14). Barr affirmed that, as far as he knew, the same penalties
for wearing Confederate flag clothing applied to wearing the other types of potentially disruptive
clothing and he “never saw it enforced any differently.” J.A. at 248 (Barr Dep. at 41:8-12).10 Chris
White’s declaration states that “[o]n several occasions during the 2005-2006 school year [she] ha[d]
seen other students . . . wear clothing that depicted foreign national flags, Malcolm X symbols, and
political slogans.” J.A. at 25 (C.W. Decl. at ¶ 9). Chris White testified at deposition, however, that
she was not aware of students wearing Malcolm X clothing, and was “not really sure” whether she
had seen students wearing national flags on their clothing but thought she had seen “Canadian flags
and Mexican flags.” J.A. at 255-56 (Chris White Dep. at 9:20-10:1). Chris White’s declaration in
the joint appendix is neither dated nor signed, and thus we cannot consider the declaration to create
a factual issue when it contradicts her own deposition testimony. See Reid v. Sears, Roebuck & Co.,
9
At some point in time (it is not clear from the record), Barr asked students to sign a petition “requesting that
the students be allowed to wear Confederate clothing.” J.A. at 244 (Barr Dep. at 22:20-23). It is not clear what
happened to the petition, or whether it was presented to any school authority.
10
Later in his testimony, however, Barr stated that he “didn’t like [sic] actually see [students] disciplined” for
wearing Malcolm X clothing. J.A. at 297 (Barr Dep. at 56:5-6). That Barr did not see the students disciplined, however,
does not negate the fact that he was aware of school policy enforcing the dress code against the wearing of clothing
celebrating Malcolm X.
No. 07-5743 Barr et al. v. Lafon, et al. Page 18
790 F.2d 453, 460 (6th Cir. 1986). Lastly, Craig White also testified at deposition that he wasn’t
aware of students wearing Malcolm X clothing or foreign national flags. J.A. at 260 (R. Craig White
Dep. at 7:7-15). Thus, Plaintiffs-Appellants have not created a genuine issue of material fact that
the school enforced the dress code’s prohibitions against the Confederate flag but not against
clothing with Malcolm X iconography. Accordingly, under Tinker and its progeny in the Sixth
Circuit—Melton and Castorina—we affirm the district court’s grant of summary judgment to the
school with respect to Plaintiffs-Appellants’ First Amendment claim.
C. Plaintiffs-Appellants’ Equal Protection Claim
In the circumstances of this case, our analysis of Plaintiffs-Appellants’ Equal Protection
claim is essentially the same as our analysis of Plaintiffs-Appellants’ First Amendment claim. See
R.A.V., 505 U.S. at 384 n.4 (noting that the Supreme “Court itself has occasionally fused the First
Amendment into the Equal Protection Clause . . . with the acknowledgment . . . that the First
Amendment underlies its analysis”). Because the distinction between the wearing of racially
divisive and racially inclusive symbols pertains to “expressive conduct within the protection of the
First Amendment,” this provision of the school’s dress code “must be [narrowly] tailored to serve
a substantial governmental interest.” Mosley, 408 U.S. at 99, 101. The government interest in this
case—the school’s mission to educate its students in a learning environment conducive to fostering
both knowledge and democratic responsibility—is undeniably a substantial one. The question of
whether the dress code’s ban on racially divisive symbols is narrowly tailored to that purpose asks
us to inquire whether the ban meets the standard set forth in Tinker. As we have demonstrated
above, the evidence on the record establishes that the school enforces the dress code in a viewpoint-
neutral manner to ban those racially divisive symbols that the school reasonably forecasts will
substantially and materially disrupt schoolwork and school discipline. We therefore hold that the
dress code’s ban on racially divisive symbols is narrowly tailored to the state and the school’s
substantial interest in educating students, and we affirm the district court’s grant of summary
judgment to Defendants-Appellees on Plaintiffs-Appellants’ Equal Protection claim.
We reject Plaintiffs-Appellants’ argument that the instant case is analogous to the Supreme
Court’s decision in Police Department of City of Chicago v. Mosley. In Mosley, the Court
invalidated a city ordinance that placed geographic and temporal restrictions on picketing outside
a school but exempted peaceful labor picketing. 408 U.S. at 92-94. The Court concluded that the
ordinance’s content-based restriction on speech could be upheld only if necessary to serve a
substantial government interest in a narrowly tailored manner. Id. at 98-99. The Court further
determined that the ordinance was not narrowly tailored to the city’s “interest in preventing
disruption by the . . . excesses of some nonlabor picketing” because it targeted “both peaceful and
violent [nonlabor] picketing.” Id. at 101-02. The school argues that Mosley is not applicable
because it involved a challenge to a facially discriminatory rather than a facially neutral regulation
on speech. But that is not the critical distinction between the cases; as stated above, we apply strict
scrutiny under the Equal Protection Clause to a statute infringing on speech protected by the First
Amendment, whether plaintiffs bring a facial or as-applied challenge. The dispositive distinction
between Mosley and the instant case is that Mosley involved adult speech in a public forum, while
the instant case involves student speech in a public school, which is a limited public forum. Thus,
Tinker sets the guiding standard for the instant case while that was not true of Mosley.
Plaintiffs-Appellants argue that under Mosley, the school needs to show that the Confederate
flag is “clearly more disruptive” than other flags. Plaintiffs-Appellants Br. at 16 (quoting Mosley,
408 U.S. at 100). Plaintiffs-Appellants argue further that the determination must be made on an
individualized basis. Plaintiffs-Appellants Br. at 16-18. These arguments do not advance our
resolution of Plaintiffs-Appellants’ Equal Protection claim. By complying with the Tinker standard,
the school has already shown that the Confederate flag and other racially divisive symbols have a
far greater disruptive effect than symbols not similarly prohibited. Moreover, under Tinker,
No. 07-5743 Barr et al. v. Lafon, et al. Page 19
individualized analysis of each student’s clothing every day, see Plaintiffs-Appellants Br. at 16 and
Reply Br. at 11, would be unnecessary in a school environment in which school officials reasonably
believe that depictions on clothing of an object, such as the Confederate flag, would cause
disruptions. See Lowery, 497 F.3d at 591-92 (holding that under the Tinker standard a school does
not need to wait until a disruption has actually occurred before regulating student speech).
D. Plaintiffs-Appellants’ Due Process Claim
The district court did not analyze the Due Process claim explicitly but granted summary
judgment to the Board on this claim. Plaintiffs-Appellants did not argue due process (substantive
or procedural) in their summary judgment motion, mentioned it once (without analysis) in their
opening brief for this court, Plaintiffs-Appellants Br. at 14, and devoted two pages to it in their
Reply brief, Reply Br. at 10-11 (arguing that the procedural-due-process elements “align themselves
with the requirements of Mosley,” which conducts an equal-protection analysis). “[A]n issue is
deemed forfeited on appeal if it is merely mentioned and not developed.” United States v. Clark,
469 F.3d 568, 570 (6th Cir. 2006) (citing United States v. Reed, 167 F.3d 984, 993 (6th Cir.1999),
cert. denied, 528 U.S. 897 (1999)); S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d
553, 564-65 (6th Cir. 2007) (citing Reed, 167 F.3d at 993). Therefore, because Plaintiffs-Appellants
failed to develop adequately this issue in their opening brief, we do not consider it.
III. CONCLUSION
Because we conclude that the school reasonably forecast that images of the Confederate flag
would substantially and materially disrupt the school environment, we AFFIRM the grant of
summary judgment to the Board with respect to Plaintiffs-Appellants’ First Amendment claim.
Furthermore, because we conclude that the dress code’s ban on racially divisive symbols, as
enforced against the Confederate flag, is narrowly tailored to a substantial government interest, we
AFFIRM the grant of summary judgment to the Board with respect to Plaintiffs-Appellants’ Equal
Protection claim. Lastly, Plaintiffs-Appellants have forfeited their Due Process claim, and we
AFFIRM the grant of summary judgment with respect to this claim.