`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
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`No.:
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`3:06-CV-75
`(VARLAN/SHIRLEY)
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`D.B., a minor, by and through his parent
`and guardian, SHARON BROGDON,
`R.W. and C.W., both minors, by and through
`their parent and guardian ROGER WHITE,
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`Plaintiffs,
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`v.
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`STEVE LAFON, in his individual and
`official capacity; ALVIN HORD, in his
`official capacity, and BLOUNT COUNTY
`SCHOOL BOARD,
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`Defendants.
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`MEMORANDUM OPINION
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`Plaintiffs, three students at William Blount High School in Blount County, Tennessee,
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`allege defendants, Blount County school officials, are violating plaintiffs’ First and
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`Fourteenth Amendment rights by prohibiting them from wearing clothing depicting the
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`confederate battle flag.
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`This civil action is now before the Court for consideration of plaintiffs’ motion for
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`preliminary injunction and temporary restraining order [Doc. 3]. Plaintiffs seek an order
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`enjoining defendants “to cease interfering with [p]laintiffs’ and other students’
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`constitutionally[-]protected right to express themselves through attire that reflects their
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`political beliefs.” Doc. 3 at 4. Plaintiffs argue, inter alia, that a preliminary injunction is
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`appropriate because there is a substantial likelihood that plaintiffs will prevail on the merits.
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`See id. at 8-9. Specifically, plaintiffs argue that the ban is unjustified because defendants
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`have failed to identify any disruption at the high school caused by depictions of the flag; and
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`even if such disruptions may be shown, defendants are engaging in viewpoint discrimination
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`because they have banned depictions of the confederate battle flag but not certain other
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`political symbols, such as Malcolm X symbols and foreign national flags. See id.
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`Defendants respond in opposition to the motion by pointing to two facts. First,
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`defendants state that during the 2004-05 school year, William Blount High School
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`experienced a number of racially motivated incidents directed against African-American
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`students, including fighting and threats, that resulted in a school lockdown involving law
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`enforcement, as well as complaints of racial harassment to the board of education and federal
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`officials. See Doc. 7-3. Second, defendants state that there have been 452 dress code
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`violations, 23 of which involved the confederate battle flag, but there have been no reports
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`of violations involving “Malcolm X words . . . or international flags.” See Doc. 7-2 at 2.
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`The issues have been briefed thoroughly by both sides, and the Court heard oral
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`argument on May 4, 2006. Thus, the motion now is ripe for disposition. For the reasons
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`discussed herein, the Court will deny plaintiffs’ motion for preliminary injunction and
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`temporary restraining order.
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`2
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`I.
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`Relevant Facts1
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`The Blount County Board of Education has adopted a dress code that applies to all
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`high school students. See Doc. 7-3 at 5. That dress code prohibits students from wearing
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`certain items, including the following:
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`f. 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
`. . . .
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`Id. The ban at issue in this case was imposed pursuant to the provision prohibiting clothing
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`that “causes disruption to the educational process.” Id. at 3.
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`This action was initiated by the three plaintiffs with the filing of their complaint on
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`March 2, 2006. See Doc. 1. In the complaint, plaintiffs allege that on May 30, 2005, during
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`the 2004-05 school year, they, along with the other students at William Blount High School,
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`were informed that depictions of the confederate battle flag on students’ clothing would be
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`considered a violation of the school’s dress code, even though such depictions were not
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`previously considered violations. See id. at 3-4. On September 1, 2005, during the 2005-06
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`school year, despite the prohibition and “to express pride in his southern heritage,” plaintiff
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`D.B. wore a shirt depicting the confederate battle flag, two dogs, and the words “Guarding
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`1 These facts are drawn from the parties’ respective pleadings, briefs, and exhibits. See Docs.
`1, 3, 7, 15. Prior to and at the outset of the hearing on the instant motion conducted on May 4, 2006,
`the Court specifically invited both parties to present additional evidence if either party thought it was
`necessary. Both parties, however, declined by indicating that they would rely only on the facts
`contained in their respective briefs and exhibits.
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`3
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`
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`our Southern Heritage.” See id. at 4. He was allegedly confronted by defendant LaFon, the
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`school’s principal, who reminded D.B. about the ban, told him to turn his shirt inside out or
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`take it off, and threatened him with suspension if he refused. See id. A similar incident
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`involving plaintiff C.W. allegedly occurred on January 13, 2006. See id. There is no
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`evidence whether plaintiff R.W. had a similar experience.
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`Plaintiffs allege that William Blount High School permits other expressions “of
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`political or controversial significance,” and there have been no disruptions resulting from the
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`depiction of the confederate battle flag, but nevertheless defendants implemented the ban.
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`See id. at 4-5. Plaintiffs D.B. and C.W. also explain in their declarations that they have seen
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`other students wearing foreign flags, Malcolm X symbols, and political slogans. Docs. 1-2,
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`1-3. Consequently, plaintiffs allege violations of free speech, equal protection, and due
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`process, and seek injunctive relief, a declaratory judgment, and damages. See id. at 5-8.
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`At the same time the complaint was filed, plaintiffs filed the instant motion. See Doc.
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`3. Defendants have responded in opposition to the motion and have included two affidavits.
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`See Doc. 7. In the first affidavit, defendant LaFon explains that defendant Hord directed him
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`to apply the dress code without viewpoint discrimination and that during the 2005-06 school
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`year there were “over 452 documented violations of the dress code policy . . ., twenty-three
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`(23) of which involved the wearing of the ‘Confederate flag’ by students.” Doc. 7-2 at 2.
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`Defendant LaFon goes on to explain that while “there have been no reported incidents of
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`students wearing clothing emblazoned with Malcolm X words or caricatures[] or
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`4
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`
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`international flags[,] [t]here have been numerous non-documented incidents of violations .
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`. . beyond those documented.” Id.
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`In the second affidavit, defendant Hord, the director of Blount County Schools,
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`describes racial tensions at William Blount High School. See Doc. 7-3 at 2-3. According
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`to the affidavit, on February 22, 2005, there was a “physical altercation between a white
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`student and an African-American student,” which resulted in a civil rights complaint against
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`the school system. Id. at 2. On April 7, 2005, defendant Hord requested that the school be
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`locked down with the presence of sheriff’s deputies “due to threats of violence against
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`African-American students.” Id. at 3.
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`For the remainder of the 2004-05 school year, defendant Hord explains that sheriff’s
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`deputies remained at the school, and there were “multiple racially motivated threats and
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`physical altercations” that resulted in suspensions and civil rights complaints and a civil
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`lawsuit that alleges the school system is “a racially hostile educational environment.” Id. at
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`2, 3. During the 2005-06 school year, two more racial harassment complaints were made to
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`the board of education. Based upon those events, defendant Hord concluded that “the
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`wearing of the ‘Confederate flag’ by students during school hours has a significant disruptive
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`effect on the proper education environment of the students at the Blount County high
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`school.” Id. at 3.
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`5
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`
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`II.
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`Discussion
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`A.
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`Standard for Relief
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`A party seeking a temporary restraining or preliminary injunction order bears the
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`burden2 of establishing four factors, which the Court must balance: (1) irreparable harm to
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`movant if such an order is not entered; (2) likelihood of harm to others if such an order is
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`entered; (3) movant’s substantial likelihood of success on the merits; and (4) the impact on
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`the public interest by entry of such an order. See Nightclubs, Inc. v. City of Paducha, 202
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`F.3d 884, 887 (6th Cir. 2000); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.
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`1998) (citing Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996), cert. denied, 519
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`U.S. 807 (1996)).
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`When a party seeks a preliminary injunction on the basis of a potential First
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`Amendment violation, the likelihood of success on the merits factor is often determinative.
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`Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). With regard to the
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`irreparable harm factor, courts have long recognized that “the loss of First Amendment
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`freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
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`2 Plaintiffs contend that defendants bear the burden of disproving plaintiffs’ allegations of
`a constitutional violation, and defendants’ failure to satisfy that burden results in plaintiffs’
`satisfaction of their burden to show a substantial likelihood of success on the merits. See Doc. 15
`at 9 (citing Castorina v. Madison County Sch. Bd., 246 F.3d 536, 543-44 (6th Cir. 2001)).
`Castorina, however, did not so state. Instead, plaintiff bears the burden of establishing the need for
`a preliminary injunction. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
`A plaintiff would satisfy that burden, in part, by showing a substantial likelihood of success on the
`merits. See id. A plaintiff establishes that he or she has a substantial likelihood of success on the
`merits by showing that the policy in question is probably unconstitutional. See id. (citing
`Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991)).
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`6
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`Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality), quoted in Connection Distrib. Co., 154
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`F.3d at 288. Therefore, to the extent a plaintiff can establish a substantial likelihood of
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`success on the merits of the First Amendment claim, that plaintiff has also established the
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`possibility of irreparable injury. See Dayton Area Visually Impaired Persons, Inc. v. Fisher,
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`70 F.3d 1474, 1490 (6th Cir. 1995), quoted in Connection Distrib. Co., 154 F.3d at 288. The
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`same is true with regard to the public interest factor, because the public interest always lies
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`with protection of a party’s constitutional rights. See G & V Lounge, Inc. v. Michigan Liquor
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`Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). See also Fisher, 70 F.3d at 1490.
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`Furthermore, an examination of harm to the parties also requires a consideration of the
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`merits, since the harm to a party resulting from imposition (or not) of an injunction is related
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`to whether the conduct subject to the injunction is unconstitutional (or not). See Connection
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`Distrib. Co., 154 F.3d at 288.
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`In this case, for the reasons just discussed, the likelihood of success on the merits
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`factor is determinative, and consideration of that factor will be the focus of the remainder of
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`this discussion. Accordingly, the crucial inquiry for the Court is whether the policy in
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`question is likely to be found unconstitutional. See Connection Distrib. Co., 154 F.2d at 288
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`(citing Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991)).
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`B.
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`Constitutionality of Confederate Battle Flag Prohibition
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`Students do not “shed their constitutional rights to freedom of speech or expression
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`at the schoolhouse gate.” Tinker v. Des Moines Indep. Sch. Dist. No. 403, 393 U.S. 503, 506
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`(1969). Equally important, however, “the [Supreme] Court has repeatedly emphasized the
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`7
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`need for affirming the comprehensive authority of the States and of school officials,
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`consistent with fundamental constitutional safeguards, to prescribe and control conduct in
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`the schools.” Id. at 507. Thus, school officials may not punish “silent, passive expression
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`of opinion, unaccompanied by any disorder or disturbance.” Id. at 508.
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`School officials may ban racially divisive symbols when there has been actual racially
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`motivated violence and when the policy is enforced without viewpoint discrimination. See
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`West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000), discussed in
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`Castorina v. Madison County Sch. Bd., 246 F.3d 536, 543-44 (6th Cir. 2001). On the other
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`hand, even if there has been racial violence that justifies a ban on racially divisive symbols,
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`school officials may not enforce “a viewpoint-specific ban on [some] racially divisive
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`symbols and not others.” Castorina v. Madison County Sch. Bd., 246 F.3d 536, 544 (6th Cir.
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`2001).
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`In light of those principles, a plaintiff would demonstrate a substantial likelihood of
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`success on the merits if he or she can show that the prohibited expression is probably not
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`accompanied “by any disorder or disturbance.” Tinker v. Des Moines Indep. Sch. Dist. No.
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`403, 393 U.S. 503, 508 (1969); Melton v. Young, 465 F.2d 1332, 1335 (6th Cir. 1975). See
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`Connection Distrib. Co., 154 F.2d at 288 (citing Congregation Lubavitch, 923 F.2d at 460).
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`Even if a plaintiff failed to satisfy that burden, however, he or she could also demonstrate a
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`likelihood of success on the merits by showing that the school’s policy probably imposes “a
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`viewpoint-specific ban on [some] racially divisive symbols and not others,” see Castorina
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`v. Madison County Sch. Bd., 246 F.3d 536, 544 (6th Cir. 2001). In this case, plaintiffs argue
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`8
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`that they can show both that displays of the confederate battle flag are unaccompanied by any
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`disruption and also that the ban is viewpoint-specific. See Doc. 3. On the other hand,
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`defendants argue that such displays are accompanied by disruption and the ban is not
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`viewpoint-specific. See Doc. 7. Thus, the Court will address both issues.
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`i.
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` Any Disorder or Disturbance
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`Turning first to plaintiffs’ argument that displaying the confederate battle flag on
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`students’ clothing was not accompanied by “any disorder or disturbance,” defendants point
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`to racial tensions that resulted in several disruptions during the school year before the ban
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`was made explicit to the students at a school assembly. See Doc. 7-3. Plaintiffs respond,
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`however, that defendants have failed to “make any connection between the [c]onfederate
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`[battle] flag and any incident of racially motivated violence or threats,” because the incidents
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`cited by defendants were not the direct result of displays of the confederate flag. See Doc.
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`15 at 2. Furthermore, plaintiffs argue that such a connection is only established where a
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`causal relationship between the prohibited expression and the disruption is shown. See Doc.
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`3 at 7 (arguing “that without a showing of disruption as a result of the students’ wearing T-
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`shirts displaying the flag, their suspension must be struck down.” (citation omitted)
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`(emphasis added)).
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`Plaintiffs, however, require too much. In Tinker, the Supreme Court struck down a
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`ban on black armbands because it was based upon nothing more than “undifferentiated fear
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`or apprehension of disturbance,” since there had been no disruptions either before or after
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`the students displayed their armbands. Tinker, 393 U.S. at 508. Nowhere does Tinker
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`9
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`require a direct causal relationship between the expression and the disruption. Instead,
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`Tinker requires school officials to show that “engaging in the forbidden conduct would
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`‘materially and substantially interfere with the requirements of appropriate discipline in the
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`operation of the school.’” Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.
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`1966)). More precisely, the Tinker Court was looking for “evidence that the school
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`authorities had reason to anticipate that the wearing of the armbands would substantially
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`interfere with the work of the school or impinge upon the rights of other students.” Id.
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`(emphasis added).
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`In West v. Derby Unified School District No. 260, a middle school student was
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`suspended after drawing a confederate battle flag in violation of the school’s racial
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`harassment policy, which was implemented following “incidents of racial tension.” 206 F.2d
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`at 1361. In Melton v. Young, at the beginning of the 1969 academic year, “the student body
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`became racially polarized,” which required police involvement, and administrators responded
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`by appointing a committee that specifically concluded that the confederate battle flag caused
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`the disruption, which resulted in a ban. 465 F.2d at 1333.
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`Applying Tinker, the Tenth Circuit, in West, held, “The evidence in this case,
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`however, reveals that based upon recent past events, Derby School District officials had
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`reason to believe that a student’s display of the Confederate flag might cause disruption and
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`interfere with the rights of other students to be secure and let alone.” West, 206 F.3d at 1366
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`10
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`(citing Tinker, 393 U.S. at 508) (emphasis added).3 Likewise, the Sixth Circuit, in Melton,
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`applied Tinker in the same way, although with stronger facts, “finding that the history of
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`racial unrest [in Melton] amounted to a material disruption at the school and that the
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`committee’s specific findings showed that there was more than ‘an undifferentiated fear or
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`apprehension of disturbance.’” Castorina, 246 F.3d at 544 (quoting Melton, 465 F.2d at
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`1334-35) (emphasis added).
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`While the facts of the present case are not as strong as those in Melton – because the
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`Court does not have the specific finding of a committee or the prevalence of confederate
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`battle flags – nor are they as weak as those in Tinker – since the Court does have the history
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`of racial unrest at the school. Instead, the Court is faced with a case somewhat more akin to
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`West, in which there is “actual racially motivated violence” directed at African-American
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`students. Castorina, 246 F.3d at 543 (characterizing the facts in West).
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`Here, the Court has evidence of a number of racially motivated incidents, including
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`physical altercations between Caucasian and African-American students, racially motivated
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`threats against African-American students, and civil rights complaints, which created a
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`racially tense and charged atmosphere. See Doc. 7-3 at 2-3. At one point, defendant Hord
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`locked down the school and called sheriff's deputies as a result of threats against
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`African-American students. See id. at 3. In that atmosphere, the Court is hard-pressed to
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`3 In Castorina, the Sixth Circuit characterized the decision in West by saying it “merely
`demonstrates that a school board may ban racially divisive symbols when there has been actual
`racially motivated violence . . . .” Castorina, 246 F.3d at 543 (emphasis added).
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`11
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`conclude that defendants banned displays of the confederate battle flag based on nothing
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`more than “undifferentiated fear or apprehension of disturbance.” Tinker, 393 U.S. at 508.
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`Instead, based on the evidence before the Court at this early stage, it appears more
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`likely that defendants had “reason to believe that a student’s display of the Confederate flag
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`might cause disruption and interfere with the rights of other students to be secure and let
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`alone.” West, 206 F.3d at 1366 (citing Tinker, 393 U.S. at 508) (emphasis added). See also
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`Castorina, 246 F.3d at 543 (characterizing the facts in West). Thus, plaintiffs have failed to
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`demonstrate that the prohibited expression is probably not accompanied “by any disorder or
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`disturbance.” Tinker, 393 U.S. at 508; Melton, 465 F.2d at 1335. See Connection Distrib.
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`Co., 154 F.2d at 288 (citing Congregation Lubavitch, 923 F.2d at 460).
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`ii.
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`Viewpoint-Specific Ban
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`Turning to the argument that the ban is viewpoint discriminatory, plaintiffs point to
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`defendant LaFon’s affidavit reporting 23 disciplinary instances involving confederate battle
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`flag symbols and no reports of disciplinary instances involving symbols of Malcolm X or
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`international flags. See Doc. 7-2 at 2. Plaintiffs contend that those figures demonstrate that
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`the dress code is enforced against the confederate battle flag, but not against other political
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`symbols. See Doc. 15 at 4. Plaintiffs also point to the school assembly when school officials
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`explicitly stated the ban applied to the confederate battle flag, but did not mention other
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`symbols. See id. at 5. Finally, plaintiffs, in their own affidavits, claim that they have seen
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`students wearing Malcolm X symbols, foreign national flags, and political slogans. See
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`Docs. 1-2 at 2; 1-3 at 2.
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`12
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`First, plaintiffs’ argument over-emphasizes the significance of the dress code
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`violations reported in the LaFon affidavit. Defendant LaFon stated that there were 452
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`reported dress code violations, 23 of which involved displays of the confederate battle flag,
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`and that there were no reported dress code violations involving displays of “Malcolm X
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`words or caricatures, or international flags.” Doc. 7-2 at 2. Significantly, defendant LaFon
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`went on to state, “There have been numerous non-documented incidents of violations of the
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`dress code beyond those documented.” Id. In other words, there may be other instances of
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`dress code violations, which may involve a variety of symbols, that were resolved informally.
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`Nevertheless, plaintiffs assume that defendant LaFon’s affidavit establishes that defendants
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`only single out displays of the confederate battle flag for disciplinary action. The Court
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`declines to make that same assumption without more facts.
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`Second, based upon the present record, the Court cannot attach the significance to the
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`school assembly that plaintiffs suggest in their argument that it establishes viewpoint
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`discrimination. Plaintiffs contend that the assembly demonstrates that school officials were
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`targeting displays of the confederate battle flag, and not other symbols, as violations of the
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`dress code. See Doc. 15 at 4. Their complaint, however, only states that school
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`administrators informed students at that assembly that depictions of confederate battle flags
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`on students’ clothing would be prohibited. See Doc. 1 at 3. Based only on this allegation
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`from the complaint, plaintiffs assume school administrators were only banning the
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`confederate battle flag, and not other symbols. But without more facts, the Court is unable
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`to distinguish between plaintiffs’ interpretation and other possible interpretations of school
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`officials’ statements at the school assembly.
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`Third, plaintiffs’ claims to have seen other students wearing other political symbols
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`are not sufficient to show a viewpoint discrimination, because such claims do not tell us how
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`those symbols are treated under the dress code. Plaintiffs claim to have seen other students
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`wearing certain symbols; but importantly, they fail to explain whether such displays were
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`sanctioned or even seen by school officials, which would explain whether school officials
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`were targeting some symbols but not others. See Docs. 1-2 at 2; 1-3 at 2. Nevertheless,
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`plaintiffs conclude that, because they saw some students wearing certain symbols, there must
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`be a viewpoint-specific ban. See Doc. 15 at 4. The Court cannot reach a similar conclusion
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`without more than plaintiffs’ general claims, because claiming to have seen other students
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`wearing a particular symbol is not the same as demonstrating that school officials “refus[ed]
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`to bar the wearing of this apparel along with the [c]onfederate [battle] flag[,] [which] gives
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`the appearance of a targeted ban, something that the Supreme Court has routinely struck
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`down as a violation of the First Amendment.” Castorina, 246 F.3d at 541 (citations omitted).
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`Overall, while plaintiffs have pointed to some evidence that defendants are enforcing
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`the dress code against displays of the confederate battle flag, they have not produced
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`sufficient evidence to show that the school’s policy probably imposes “a viewpoint-specific
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`ban on [some] racially divisive symbols and not others.” See Castorina v. Madison County
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`Sch. Bd., 246 F.3d 536, 544 (6th Cir. 2001).
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`III. Conclusion
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`In summary, for the reasons discussed herein, plaintiffs have not presented evidence
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`sufficient to establish a substantial likelihood of success on the merits. Accordingly, the
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`motion for a preliminary injunction will be denied.
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`ORDER ACCORDINGLY.
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`s/ Thomas A. Varlan
`UNITED STATES DISTRICT JUDGE
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