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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`FLORENCE DIVISION
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`Civil Action No.: 4:06-cv-1042-TLW
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`CANDICE MICHELLE HARDWICK,
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`by and through her Parents and Guardians
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`DARYL LEWIS HARDWICK and
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`PRISCILLA LEA HARDWICK,
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`Plaintiff,
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`vs.
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`MARTHA HEYWARD in her individual
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`capacity as Principal of Latta Middle
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`School,
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`GEORGE H. LIEBENROOD, JR., in his
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`individual capacity as Principal of Latta
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`High School, and the
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`BOARD OF TRUSTEES OF LATTA
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`SCHOOL DISTRICT
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`(Dillon County No. 3),
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`Defendants.
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`____________________________________)
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`ORDER
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`The plaintiff, Candice Michelle Hardwick (“Hardwick” or “plaintiff”), by and through
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`her parents, Daryl Lewis Hardwick and Priscilla Lea Hardwick, instituted this lawsuit for
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`damages and injunctive relief against Martha Heyward, in her individual capacity as Principal of
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`Latta Middle School; George H. Liebenrood, Jr., in his individual capacity as Principal of Latta
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`High School; and the Board of Trustees of Latta School District (Dillon County No. 3)
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`(“defendants”), which is sued in its official capacity.1 The plaintiff alleges the defendants
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`violated her constitutional rights by restricting her wearing of clothing containing images of the
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`Confederate flag and what she describes in the First Amended Complaint as “protest” clothing.
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`In her First Amended Complaint, the plaintiff alleges the following causes of action: violation of
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`her First Amendment right to freedom of speech and expression; violation of her rights under the
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`South Carolina Constitution; violation of her Fourteenth Amendment right to due process of law;
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`violation of her Fourteenth Amendment right to equal protection under the law; and violation of
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`the reserved right to express heritage.2 (Am. Compl., Doc. # 18).
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` The defendants filed their first motion for summary judgment on June 8, 2009. (Doc. #
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`120). On September 8, 2009, this Court filed an Order granting the defendants’ motion for
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`summary judgment in which the Court concluded that the defendants did not violate the
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`plaintiff’s First Amendment rights by prohibiting her from wearing clothing displaying the
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`Confederate flag (“September 2009 Order”). Hardwick ex rel. Hardwick v. Heyward, 674 F.
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`Supp. 2d 725 (D.S.C. 2009) (Doc. # 150).
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`The plaintiff filed a notice of appeal. (Doc. # 156). On December 10, 2010, the United
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`States Court of Appeals for the Fourth Circuit issued an opinion dismissing the appeal and
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`1 In her initial complaint, the plaintiff names defendants Heyward and Liebenrood in their
`official and individual capacities. Compl. ¶¶ 1, 3-4 (Doc. # 1). Although the caption of her First
`Amended Complaint still suggests the lawsuit is against defendants Heyward and Liebenrood in
`both capacities, the body of the First Amended Complaint clearly indicates Hardwick is suing
`these defendants in their individual capacities only. Am Compl. ¶¶ 1, 3-4 (Doc. # 18).
`2 In her response to a motion to dismiss filed by the defendants, the plaintiff agreed to
`dismiss Count Five of her First Amended Complaint (violation of the reserved right to express
`heritage). (Doc. # 90). The plaintiff also agreed that her claims for declaratory and injunctive
`relief were moot. (Doc. # 90). In its Order denying the defendants’ motion to dismiss, the Court
`noted the plaintiff stipulated to the dismissal of Count Five and stipulated that her claims for
`declaratory and injunctive relief were moot. (Doc. # 104).
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`remanding the case. More specifically, the Fourth Circuit stated that “[a]lthough the district
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`court granted summary judgment on [the plaintiff]’s confederate flag clothing claims, it has not
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`yet ruled (or been asked to rule) on her protest clothing First Amendment damages claim.” C.H
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`ex rel. Hardwick v. Heyward, No. 09-2390, 2010 WL 5066024 (4th Cir. Dec. 10, 2010) (Doc. #
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`160). The Fourth Circuit also noted this Court may consider on remand whether any of the
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`plaintiff’s other causes of action involve protest clothing. Id. The Fourth Circuit therefore
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`characterized this Court’s September 2009 Order (Doc. # 150) as a partial grant of summary
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`judgment that is interlocutory in nature rather than a final judgment.
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`In light of the Fourth Circuit’s decision, this Court directed the plaintiff to file a
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`memorandum in support of her position “in relation to the claim(s) remanded back to this Court
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`. . . , specifically addressing the protest clothing First Amendment claim.” (Doc. # 162). On
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`March 15, 2011, the plaintiff filed her memorandum but noted that while she limited her brief to
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`addressing the protest clothing First Amendment claim, she also had a Fourteenth Amendment
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`protest clothing claim which she reserved the right to assert. (Doc. # 175). The Court entered an
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`Order on March 18, 2011, giving the plaintiff twenty days to file a memorandum which
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`addressed her protest clothing Fourteenth Amendment claim and giving the defendants thirty
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`days to then respond. (Doc. # 176). On April 7, 2011, the plaintiff filed a memorandum
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`addressing her protest clothing Fourteenth Amendment claim. (Doc. # 179). After being granted
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`an extension (Doc. # 183), the defendants, on May 13, 2011, filed their response in which they
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`indicate they are seeking summary judgment as to all of the plaintiff’s remaining claims. (Doc. #
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`185). The plaintiff filed a reply in which she asserted that the defendants should not be able to
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`turn their response into a motion for summary judgment. (Doc. # 189). On July 19, 2011, this
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`Court entered an Order concluding that the defendants’ response (Doc. # 185) is a motion for
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`summary judgment, that the Court would treat the plaintiff’s reply (Doc. # 189) as a response in
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`opposition, and giving the plaintiff fourteen days to submit any further response she wished to
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`file in opposition to the defendants’ motion. (Doc. # 192). On August 2, 2011, the plaintiff filed
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`an amended response in opposition to the defendants’ motion for summary judgment. (Doc. #
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`195). On August 11, 2011, the defendants filed a reply to the plaintiff’s response in opposition.
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`(Doc. # 198). A hearing on the defendants’ motion for summary judgment was held on
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`November 18, 2011. (Entry # 204). The Court has considered the applicable law, arguments of
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`counsel, and memoranda submitted. This motion is now ripe for disposition.
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`FACTS
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`Plaintiff Candice Michelle Hardwick was a student at Latta Middle School during the
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`2002-03 and 2003-04 school years and Latta High School during the 2004-05 and 2005-06
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`school years. (Am. Compl., Doc. # 18). Latta Middle School and Latta High School are located
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`in Dillon County, South Carolina and are part of Dillon School District Number Three, also
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`known as Latta School District. Defendant Martha Heyward (“Heyward”) was the principal of
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`Latta Middle School during the events in question, and defendant George H. Liebenrood, Jr.
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`(“Liebenrood”) was the principal of Latta High School. Defendant Board of Trustees of Latta
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`School District (Dillon County No. 3) (“Board of Trustees” or “Board”) is a “body politic and
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`corporate” that is amenable to suit under South Carolina law. See S.C. Code Ann. § 59-17-10.
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`The Board of Trustees has the authority to manage and control schools within Latta School
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`District. See S.C. Code Ann. § 59-19-10. The plaintiff asserts the Board has the “power to
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`formulate, implement, and interpret a dress code policy for all students.” Am. Compl. ¶ 5.
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`In the First Amended Complaint (“complaint”), the plaintiff alleges numerous incidents
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`when she was asked to cover up or remove shirts with depictions of the Confederate flag. One
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`such instance occurred in early 2003, and three more occurred in January and February 2004.
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`Am. Compl. ¶¶ 16-19.
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`The first incident involving what the plaintiff describes as a “protest” shirt allegedly
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`occurred in mid-February 2004. Am. Compl. ¶ 20. The plaintiff asserts Heyward denied her the
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`right to wear a protest shirt which contained an image of the United States flag and the words
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`“Old Glory Flew over legalized slavery for 90 years!” (a photo of the shirt is attached to the
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`plaintiff’s original complaint as Exhibit “H” (doc. # 1, attach. 2)). Id. Shortly after wearing this
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`protest shirt, Hardwick alleges she was sent to the office for refusing to change another t-shirt
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`containing the image of the Confederate flag. Id. ¶ 21. Hardwick’s mother allegedly was called
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`and, upon arriving at the school, spoke with the Latta School District Superintendent, Dr. John
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`Kirby, in support of her daughter’s actions. Id. According to the complaint, Hardwick received
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`in-school suspension for the rest of the day and was denied lunch. Id. In early March 2004, the
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`plaintiff asserts she was written up at Heyward’s direction for wearing a different shirt with the
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`Confederate flag on it, made to change the shirt, and threatened with removal from the track
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`team if she wore another Confederate shirt. Id. ¶ 22.
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`After this incident, Hardwick’s parents wrote a letter to Superintendent Kirby, dated
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`April 12, 2004, in which they indicated their belief that their daughter had a First Amendment
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`right to wear Confederate items (a copy of the letter is attached to the plaintiff’s original
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`complaint as Exhibit “L” (doc. # 1, attach. 3)). They requested that Kirby remove any
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`disciplinary record imposed relating to Hardwick’s wearing of Confederate clothing and
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`reconsider allowing students to wear clothing depicting the Confederate flag. The parents also
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`state in this letter that their daughter had worn shirts which “had no Confederate Battle flags on
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`them, but were pure protected political speech and banning them constitutes a clear violation of
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`the First Amendment.” Harold Kornblut, then Chairman of the Board of Trustees for Dillon
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`School District Three, responded to Hardwick’s parents (a copy of Kornblut’s letter, dated May
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`12, 2004, is attached to the plaintiff’s original complaint as Exhibit “N” (doc. # 1, attach. 5)).
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`Kornblut thanked the Hardwicks for the presentation of their concerns at the Latta School
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`District monthly board meeting. Kornblut also described past incidents of racial discord in the
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`school district and a recent incident that allegedly occurred when Liebenrood approached a
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`student wearing a shirt featuring a Confederate flag. Kornblut concluded that Heyward’s actions
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`at the middle school would remain undisturbed.
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`Around the time these letters were exchanged, Hardwick alleges she “was screamed at
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`and berated by a school administrator because [she] returned to school after hours wearing a
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`‘protest shirt’ that said: ‘Offended by School Censorship of Southern Heritage’” (a photo of the
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`shirt is attached to the plaintiff’s original complaint as Exhibit “M” (doc. # 1, attach. 3)). Am.
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`Compl. ¶ 26. This shirt does not contain a full or clear image of the Confederate flag but has
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`what could be discerned as a Confederate flag and its coloring superimposed on the lettering.
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`Hardwick’s parents, in a letter dated November 10, 2004, again requested Kornblut
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`consider the concerns outlined in their previous letter and requested he reconsider the decision
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`set forth in his responding letter (a copy of the November 10th letter is attached to the plaintiff’s
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`original complaint as Exhibit “O” (doc. # 1, attach. 5)). In a letter dated December 17, 2004,
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`Kornblut informed Hardwick’s parents that the Board of Trustees affirmed its earlier decision
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`upholding Heyward’s actions at the middle school and declined their request for a rehearing (a
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`copy of this letter is attached to the plaintiff’s original complaint as Exhibit “P” (doc. # 1, attach.
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`5)).
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`Several months after this exchange of letters, Hardwick allegedly wore a series of protest
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`shirts on a single day in May 2005. Am. Compl. ¶ 30. According to the complaint, she began
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`the day wearing a shirt containing the words “Daddy’s Little Redneck” and an image of a
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`Confederate hat with a Confederate flag on it (a photo of the shirt is attached to the plaintiff’s
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`original complaint as Exhibit “Q” (doc. # 1, attach. 5)). Id. Additionally, the shirt has an image
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`of the Confederate flag that can be discerned in the background behind the hat. Hardwick asserts
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`she was called out of class and made to change this shirt. Id. Hardwick allegedly then put on a
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`shirt with the words “Jesus and the Confederate Battle Flag, Banned from our Schools but
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`Forever in our Hearts” (a photo of the shirt is attached to the plaintiff’s original complaint as
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`Exhibit “R” (doc. # 1, attach. 6)). Id. The shirt contained the images of five flags, two of which
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`were crossed out by red circles with lines through them. Hardwick asserts she was instructed to
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`change this shirt. Id. She then allegedly proceeded to produce in succession three more shirts
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`she describes as protest shirts. Id. The first shirt contained the words “Honorary Member of the
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`Federal Bigot Institutions” and “FBI” in large lettering (a photo of the shirt is attached to the
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`plaintiff’s original complaint as Exhibit “S” (doc. # 1, attach. 6)). Id. The second shirt contained
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`the words “Our School Supports Freedom of Speech for All Except Southerners” (a photo of the
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`shirt is attached to the plaintiff’s original complaint as Exhibit “T” (doc. # 1, attach. 6)). Id. The
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`third shirt contained the words “Public School Should Educate Not Discriminate Against
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`Southern Heritage” (a photo of the shirt is attached to the plaintiff’s original complaint as Exhibit
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`“U” (doc. # 1, attach. 6)). Id. All three of these shirts had what could be discerned as a
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`Confederate flag and its coloring superimposed on the lettering. Hardwick asserts she was not
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`allowed to wear any of these shirts even though, in her view, none displayed the Confederate
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`flag. Id.
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`At the start of the 2005-2006 school year, Hardwick alleges she “wore a shirt for several
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`days, without incident or disruption, depicting the Confederate Monument and flag and the South
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`Carolina State House” (a photo of the shirt is attached to the plaintiff’s original complaint as
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`Exhibit “V” (doc. # 1, attach. 6)). Am. Compl. ¶ 31. When the shirt was brought to
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`Liebenrood’s attention, he allegedly took Hardwick out of class and made her change it. Id.
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`Hardwick alleges she complied but told Liebenrood he was violating her civil and constitutional
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`rights. Id.
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`In a letter dated August 26, 2005, counsel for the plaintiff requested to appear before the
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`Board of Trustees at its September 13, 2005 meeting (a copy of this letter is attached to the
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`plaintiff’s original complaint as Exhibit “W” (doc. # 1, attach. 6)). Kornblut responded that this
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`request to appear before the Board was denied because it would be inappropriate for the Board to
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`communicate directly with Hardwick’s legal counsel (a copy of this letter, dated September 8,
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`2005, is attached to the plaintiff’s original complaint as Exhibit “W-1” (doc. # 1, attach. 6)).
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`The plaintiff asserts her attorney sent a final letter dated February 10, 2006, attempting to
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`resolve the situation (a copy of this letter is attached to the plaintiff’s original complaint as
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`Exhibit “X” (doc. # 1, attach. 7)). Am. Compl. ¶ 33. In this letter, the attorney alleges that “the
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`school has even banned [Hardwick]’s attempts at legitimate dissent of [its] actions.” The
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`plaintiff’s attorney makes a similar allegation in a different letter dated February 24, 2006 (a
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`copy of this letter is attached to the plaintiff’s original complaint as Exhibit “Z” (doc. # 1, attach.
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`8)). The Board’s attorney responded to these letters by stating that the school “administration
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`has determined that the wearing of the Confederate flag and/or direct references to the
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`Confederate flag interfered with the orderly operations of their schools, i.e., disrupted the
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`educational environment” (a copy of this letter, dated March 24, 2006, is attached to the
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`plaintiff’s original complaint as Exhibit “Y” (doc. # 1, attach. 7)). The attorney directly
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`addresses the protest shirts to which the plaintiff’s attorney refers in his letters, asserting that the
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`school district does not ban such shirts unless they contain Confederate flags and that the
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`district’s position is it has not prohibited students from wearing such shirts. In closing, the
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`Board’s attorney reiterates that protest shirts not depicting the Confederate flag may be worn.
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`The plaintiff filed this lawsuit about a week after the date of this letter. (Doc. # 1).
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`In the First Amended Complaint, Hardwick asserts “[n]one of the protest shirts contained
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`the Confederate Battle flag and were apparently banned solely for their written content.” Am.
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`Compl. ¶ 37. She alleges that at the time of the First Amended Complaint’s filing, she had not
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`worn any Confederate flag or protest shirts since September 2005. Id. ¶ 35. However, later in
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`the complaint, Hardwick alleges she was told to change shirts when she wore the “Jesus and the
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`Confederate Battle Flag” shirt (Exhibit R) to school again after receiving the March 24, 2006
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`letter sent by the Board’s attorney and written up when a school official discovered she was
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`wearing a Confederate flag belt buckle. Id. ¶¶ 40.3-40.4.
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`SUMMARY JUDGMENT STANDARD
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`Pursuant to Federal Rule of Civil Procedure 56(a), the moving party is entitled to
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`summary judgment if the pleadings, responses to discovery, and the record reveal that “there is
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`no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” A genuine dispute of material fact exists “if the evidence is such that a reasonable jury
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`could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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`248 (1986). As the party seeking summary judgment, the moving party bears the initial
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`responsibility of informing this Court of the basis for its motion. See Celotex Corp. v. Catrett,
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`477 U.S. 317, 323 (1986). This requires that the moving party identify those portions of the
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`“pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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`affidavits, if any,” which it believes demonstrate the absence of a genuine dispute of material
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`fact. Celotex, 477 U.S. at 323; see also Anderson, 477 U.S. at 249.
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`Though the moving party bears this initial responsibility, the nonmoving party, must then
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`produce “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324;
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`see Fed R. Civ. P. 56(e). In satisfying this burden, the nonmoving party must offer more than a
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`mere “scintilla of evidence” that a genuine dispute of material fact exists, Anderson, 477 U.S. at
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`252, or that there is “some metaphysical doubt” as to material facts, Matsushita Elec. Indus. Co.
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`v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must produce
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`evidence on which a jury could reasonably find in their favor. See Matsushita, 475 U.S. at 587.
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`In considering a motion for summary judgment, this Court construes all facts and
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`reasonable inferences in the light most favorable to the nonmoving party. See Miltier v. Beorn,
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`896 F.2d 848, 852 (4th Cir. 1990). Summary judgment is proper “[w]here the record taken as a
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`whole could not lead a rational trier of fact to find for the non-moving party, there [being] no
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`genuine issue for trial.” Matsushita, 475 U.S. at 587 (1986) (internal quotations omitted).
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`a. Preservation of Claims Relating to Protest Clothing
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`DISCUSSION
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`In their motion for summary judgment (Doc. # 185), the defendants assert that the
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`plaintiff abandoned any and all claims related to protest clothing. In a previous Order denying
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`the plaintiff’s motion for a preliminary injunction, the Court noted that the defendants had agreed
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`to allow the plaintiff to wear some of the shirts she identified as protest shirts, specifically the
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`shirts depicted as Exhibits H, M, U, T, and K to the plaintiff’s original complaint.3 (Doc. # 60,
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`pp. 2-3 n.1). The Court thus indicated these shirts were not in dispute and not before the Court at
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`that time. The Court made a similar statement in its September 2009 Order granting partial
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`summary judgment to the defendants. (Doc. # 150, p. 4 n.3). The defendants now argue that by
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`not raising the protest clothing issue during the previous summary judgment proceeding, the
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`plaintiff abandoned any claims related to the protest clothing.
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`Federal Rule of Civil Procedure 56(a) provides that a party moving for summary
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`judgment is to identify each claim or defense—or the part of each claim or defense—on which
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`summary judgment is sought. In their previous motion for summary judgment (Doc. # 120), the
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`defendants presented no arguments in connection with the protest shirts. As a result, this Court
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`did not rule on the issue in its September 2009 Order. Further, the Court finds no basis under
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`Rule 56 or any of the other authority presented by the parties to impose an obligation on the
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`plaintiff to raise the issue in her response when the defendants have not moved for summary
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`3 Hardwick does not allege she wore the shirt depicted in Exhibit K but rather she alleges
`the shirt was worn by another student and this student was asked to cover up the shirt. Am.
`Compl. ¶ 23. No violation of Hardwick’s constitutional rights stemmed from another student
`wearing a shirt that he or she was asked to cover.
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`judgment on the issue in their motion. Therefore, the Court does not find that the plaintiff
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`abandoned or failed to preserve her claims relating to the protest clothing.
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`b. Violation of the Right to Freedom of Speech and Expression
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`The plaintiff’s primary allegation is that she possessed a right to wear the shirts described
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`in the First Amended Complaint as outlined and that her First and Fourteenth Amendment rights
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`to freedom of speech and expression were violated by school officials restricting her wearing of
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`these shirts. Am. Compl. The Court’s September 2009 Order granting partial summary
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`judgment to the defendants (Doc. # 150) dealt with this claim in connection with the shirts that
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`clearly depict a Confederate flag. This Order will address the remaining “protest” shirts or, more
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`specifically, those depicted in Exhibits H, M, R, S, T, and U to the plaintiff’s original complaint
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`(Doc. # 1).4 For the reasons set forth below, the restrictions the defendants allegedly imposed on
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`the plaintiff’s wearing of these shirts did not violate Hardwick’s First Amendment rights.
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`The First Amendment provides that “Congress shall make no law . . . abridging the
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`freedom of speech.” U.S. Const. Amend. I. Freedom of speech is a significant constitutional
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`right that can only be restricted in limited circumstances. Although “[t]he First Amendment
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`guarantees wide freedom in matters of adult public discourse[,] . . . [the Supreme Court has held]
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`the constitutional rights of students in public school are not automatically coextensive with the
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`rights of adults in other settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986)
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`(“Fraser”). For while students do not “shed their constitutional rights to freedom of speech or
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`4 The plaintiff argues the shirt shown in Exhibit V to her original complaint, which
`contains a depiction of the Confederate Monument and flag and the South Carolina State House,
`also should be considered a protest shirt. However, this shirt contains a clear image of the
`Confederate flag and is thus covered by this Court’s September 2009 Order which concluded the
`defendants had demonstrated a reasonable forecast of disruption in connection with such shirts.
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`expression at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
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`503, 506 (1969), teachers and school officials are also not compelled “‘to surrender control of
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`the American public school system to public school students,’” Fraser, 478 U.S. at 686 (quoting
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`Tinker, 393 U.S. at 526 (Black, J., dissenting)). As a result, under limited circumstances,
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`students may be prohibited from engaging in expressive conduct in school that the state could
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`not prohibit in other contexts. See Governor Wentworth Reg. Sch. Dist. v. Hendrickson, 421 F.
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`Supp. 2d 410, 419 (D.N.H. 2006) (“Hendrickson”). Courts are required to examine students’
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`alleged First Amendment violations “‘in light of the special characteristics of the school
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`environment.’” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker,
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`393 U.S. at 506) (“Kuhlmeier”).
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`In Tinker v. Des Moines Independent Community School District, the Supreme Court
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`addressed the constitutionality of school policies restricting students’ rights to free expression.
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`In this seminal decision, the Supreme Court held as unconstitutional a school district’s
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`prohibition of black armbands worn by students to exhibit opposition to United States
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`involvement in the Vietnam War. Tinker, 393 U.S. at 514. The Court reasoned that “[i]n the
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`absence of a specific showing of constitutionally valid reasons to regulate their speech, students
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`are entitled to freedom of expression of their views.” Id. at 511. Consequently, school officials
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`could impose a “prohibition of expression of one particular opinion” only if “necessary to avoid
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`material and substantial interference with schoolwork or discipline.” Id. Mere “undifferentiated
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`fear or apprehension of disturbance” is not enough. Id. at 508. Rather, school officials must
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`demonstrate facts or evidence “which might reasonably have led [them] to forecast substantial
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`disruption of or material interference with school activities.” Id. at 514; see also Quarterman v.
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`4:06-cv-01042-TLW Date Filed 03/08/12 Entry Number 208 Page 14 of 33
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`Byrd, 453 F.2d 54, 58 (4th Cir. 1971); Phillips v. Anderson Cnty. Sch. Dist. #5, 987 F. Supp.
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`488, 492 (D.S.C. 1997).
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`
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`Courts have not required school officials to wait until a disruption actually occurs before
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`prohibiting the student speech in question. See Quarterman, 453 F.2d at 58-59; B.W.A. v.
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`Farmington R-7 Sch. Dist., 508 F. Supp. 2d 740, 747 (E.D. Mo. 2007) (citing Chandler v.
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`McMinnville Sch. Dist., 978 F.2d 524, 529 (9th Cir. 1992)). School officials may take
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`reasonable measures to prevent incidents of disorder or disruption from occurring. See, e.g.,
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`Melton v. Young, 465 F.2d 1332, 1335 (6th Cir. 1972); Hendrickson, 421 F. Supp. at 421;
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`Phillips, 987 F. Supp. at 492. A critical issue in the analysis is thus whether school officials
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`“‘acted on what [they] reasonably believed to be actual evidence that the shirts [at issue] would
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`be disruptive.’” Hendrickson, 421 F. Supp. 2d at 421 (quoting Castorina v. Madison Cnty. Sch.
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`Bd., 246 F.3d 536, 545 (6th Cir. 2001) (Kennedy, J., concurring)).
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`
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`In a decision seventeen years after Tinker, Bethel School District No. 403 v. Fraser
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`(“Fraser”), the Supreme Court upheld a school district’s sanctioning of a student for delivering a
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`speech at a school assembly in which he employed “an elaborate, graphic, and explicit sexual
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`metaphor.” Fraser, 478 U.S. at 685. The sanction was upheld without the school district being
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`required to meet the standard described in Tinker. Id. at 677-86. While courts have not
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`completely agreed on the full impact of Fraser, there is a general consensus that Fraser allows a
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`school to regulate speech that is “vulgar,” “lewd,” and “plainly offensive” without needing to
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`demonstrate a reasonable forecast of disruption. See Fraser, 478 U.S. at 680-86; Kuhlmeier, 484
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`U.S. at 271-72 & n.4; Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 256 (4th Cir. 2003);
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`Chandler, 978 F.2d at 529.
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`4:06-cv-01042-TLW Date Filed 03/08/12 Entry Number 208 Page 15 of 33
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`1. Whether There is Sufficient Evidence the Defendants Restricted Hardwick’s
`Wearing of the Protest Shirts
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`The defendants assert that Hardwick presents insufficient evidence to create a genuine
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`dispute of fact over whether they actually prohibited her from wearing the protest shirts. In her
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`briefing, Hardwick cites portions of the First Amended Complaint (Doc. # 18), which is verified,
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`in support of her assertion that the alleged events involving the protest shirts occurred. See
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`Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (“[A] verified complaint is the equivalent
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`of an opposing affidavit for summary judgment purposes, when the allegations contained therein
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`are based on personal knowledge.”). Hardwick also refers to portions of her own deposition
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`testimony, which are consistent with the allegations in the First Amended Complaint. See
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`Hardwick Dep. p. 114 (describing February 2004 incident involving Exhibit H), p. 123
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`(describing May 2005 incident involving Exhibits R, S, T, and U) (Doc. 195, attach. 1).5
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`Additionally, in her response to the defendants’ motion for summary judgment, Hardwick cites
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`to a portion of Heyward’s deposition testimony where, according to Hardwick, Heyward testifies
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`she remembers an incident involving a protest shirt and remembers explaining to Hardwick’s
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`parents why the clothing was banned. (Doc. # 195, p. 20-21). However, on the pages of
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`Heyward’s deposition cited by Hardwick, Heyward testifies that “the only time . . . [she] asked
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`Ms. Hardwick to remove the shirt she was wearing, it was the Confederate flag.” Heyward Dep.
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`p. 32:23-25 (Doc. # 195, attach. 2). Heyward thus indicated that the only shirts she recalled
`
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`5 In her deposition testimony, Hardwick also describes an incident where she wore a
`protest shirt after school hours to track practice and received permission to return to school to
`pick up a Robert E. Lee shirt from the office. Hardwick Dep. p. 130-31 (Doc. # 195, attach. 1).
`She testifies she was disciplined by a school administrator for wearing the protest shirt while
`picking up the Robert E. Lee shirt. Id. Hardwick appears to be referring to the incident
`involving Exhibit M described in paragraph 26 of the First Amended Complaint.
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`15
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`4:06-cv-01042-TLW Date Filed 03/08/12 Entry Number 208 Page 16 of 33
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`restricting were those containing the Confederate flag. In regards to the facts of this case, as the
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`Court is required to do, the Court accepts the plaintiff’s version of the facts in analyzing the
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`summary judgment motion filed by the defendants. The Court finds the plaintiff’s asserted
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`evidence, including the verified First Amended Complaint and Hardwick’s deposition testimony,
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`is more than a mere scintilla. See Anderson, 477 U.S. at 252. However, for the reasons stated
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`below, summary judgment is granted in favor of the defendants.
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`2. Exhibit R
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`According to the First Amended Complaint and Hardwick’