` Case 3:07-cv-00272-N Document 31 Filed 07/10/07 Page 1 of 15 PageID 417
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`Civil Action No. 3:07-CV-0272-N
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`§§
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`§§
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`§
`§
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`§§
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`§
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`A.M., et al.,
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`Plaintiffs,
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`v.
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`PAUL ELLIOTT CASH, et al.,
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`Defendants.
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`ORDER
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`Plaintiffs A.M., Richard Dale McAllum, Shelby Voda McCallum, A.T., Darrell Ray
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`Thomas, and Joni Ann Thomas (collectively, “Plaintiffs”) filed a Motion for Preliminary
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`Injunction [13] on April 9, 2007. Because the Court concludes that Plaintiffs are unlikely
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`to succeed on the merits of their First and Fourteenth Amendment claims, the Court denies
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`the motion.
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`I. ORIGINS OF THE CASE
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`This case arises from an incident in which Burleson High School (“BHS”) officials
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`enforced the BHS dress code against plaintiffs A.M. and A.T.,1 both students at BHS, by
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`requiring them to stop carrying purses bearing the images of the Confederate battle flag.2
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`1 Plaintiffs A.M. and A.T. are the minor children of the other named plaintiffs and are
`designated by their initials. After the filing of the motion for preliminary injunction,
`additional plaintiff M.T. intervened, and A.M. and A.T. have graduated.
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`2 The Confederate battle flag, or St. Andrew’s Cross, was not the official flag of the
`Confederate States of America. See Coleman v. Miller, 885 F. Supp 1561, 1564 (N.D. Ga.
`1995) (noting the difference between the “Confederate national flag, also known as the ‘Stars
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`ORDER – PAGE 1
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`Plaintiffs filed this suit seeking damages and declaratory and injunctive relief, arguing that
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`BHS’s enforcement of the dress code violates A.M. and A.T.’s constitutional rights under
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`the First and Fourteenth Amendments.
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`A. Racial Hostilities at BHS
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`The Burleson Independent School District, of which BHS is a part, has adopted a
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`uniform dress code that applies to all students at BHS. The dress code states that “there will
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`be no tolerance for clothing or accessories that has inappropriate symbolism, especially that
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`which discriminates against other students based on race, religion, or sex.” App’x to Pls.’
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`Mot. for Prelim. Inj., at 19. Recent history of racial hostility at BHS, coupled with the overt
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`use of the Confederate battle flag as a symbol of that hostility, has led the school to interpret
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`this language to prohibit the display of the Confederate battle flag.
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`As shown in the preliminary injunction record, Burleson ISD first began experiencing
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`noticeable racial tensions during the 2002-2003 academic year when a student at BHS
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`waived the Confederate battle flag in the face of an African-American athlete from a rival
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`school. As a result of the incident, the principal of BHS met with members of the opposing
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`and Bars’” and the Confederate battle flag carried by Confederate troops during the civil war,
`which “depict[ed] a blue St. Andrew’s cross on a red field.”). During the last half of the
`Twentieth Century, however, it became more associated in the public mind with the
`Confederacy than the official flag. See Tyler T. Ochoa, Patent and Copyright Term
`Extension and the Constitution: A Historical Perspective, 49 J. COPYRIGHT SOC’Y AM. 19,
`125 (2001) (explaining that the Confederate battle flag is “more familiar” than the Stars and
`Bars); Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment
`Approach, 75 TEMP. L. REV. 539, 601 (discussing the “revival of interest in Confederate
`symbolism during the 1950's,” as well as the incorporation of the Confederate battle flag into
`many southern state flags as an expression of state pride).
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`ORDER – PAGE 2
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`team, as well as with the principal of the school, to apologize for the BHS student’s behavior.
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`Following this incident, displays of the Confederate battle flag by BHS students continued
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`at athletic events. According to BHS officials, these displays were apparently used as a
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`means of racial intimidation, as the displays occurred only in situations where the opposing
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`team was predominantly African-American.
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`Displays of the Confederate battle flag occurred both on and off campus throughout
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`the 2002-2003 academic year. At times, such displays provoked violence between BHS
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`students and African-American students from other schools. For instance, at an athletic event
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`during the 2002-2003 school year, a fight broke out between BHS students and students from
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`a predominantly African-American school.
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`Furthermore, as a result of the evident racial hostilities between BHS students and
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`students from predominantly African-American schools, the issue of race relations was raised
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`at a district University Interscholastic League (“UIL”) meeting. Specifically, attendees of
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`the meeting noted that BHS had a reputation within the district as being openly hostile to
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`African-Americans, as evidenced by the display of the Confederate battle flag during athletic
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`events.
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`BHS has continued to experience racial hostilities, both before and after the incident
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`in which BHS enforced the dress code against A.M. and A.T. According to BHS, racial
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`hostilities, including the use of racial slurs and other incidents involving the Confederate
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`battle flag, have continued since the beginning of the 2004-2005 school year. For example,
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`on the day following the incident with A.M. and A.T. – Martin Luther King Day –
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`ORDER – PAGE 3
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`unidentified students raised the Confederate battle flag on the BHS flag pole and spray
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`painted a symbol resembling the Confederate battle flag’s “stars and bars” on the concrete
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`near the pole. Additionally, a variety of racially hostile graffiti has appeared in the boys’
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`bathroom at BHS, including the phrases “the South will rise again” and “the white man
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`marches on.”
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`B. BHS’s Enforcement of the Dress Code Against A.M. and A.T.
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`On the first day of school in January of 2006, A.M. and A.T. came to school carrying
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`purses bearing the images of the Confederate battle flag. According to Plaintiffs, A.M. and
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`A.T. wore their purses as an expression of pride in their Southern heritage and did not intend
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`to make any sort of racial statement by the display. A.M. and A.T. were referred to the
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`campus administration for appropriate action pursuant to the prohibition of Confederate
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`battle flag displays. Although the school gave both students the opportunity to call home and
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`have their purses retrieved, or to leave the purses in the office and retrieve them at the end
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`of the day, both students opted to go home for the day, refusing to relinquish the purses.
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`They were not suspended.
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`Plaintiffs appealed the prohibition on displays of the Confederate battle flag to the
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`principal of BHS, to the Superintendent, and to the Burleson ISD Board of Trustees. These
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`appeals were denied. Plaintiffs then filed suit in this Court, and now move for the Court to
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`issue a preliminary injunction enjoining BHS from enforcing the Confederate battle flag
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`prohibition.
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`ORDER – PAGE 4
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`

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`II. STANDARD FOR PRELIMINARY INJUNCTION
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`The decision to grant or deny a preliminary injunction lies within the sound discretion
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`of the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618,
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`621 (5th Cir. 1985). A preliminary injunction is an extraordinary and drastic remedy, not
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`to be granted routinely, but only when the movant, by a clear showing, carries the burden of
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`persuasion. Harris County v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir.
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`1999). To obtain a preliminary injunction, the movant must establish the following: (1) a
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`substantial likelihood that the movant will ultimately prevail on the merits; (2) a substantial
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`threat that the movant will suffer irreparable injury if the preliminary injunction is denied;
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`(3) that the potential injury to the movant outweighs whatever damage the proposed
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`injunction may cause the opposing party; and (4) that granting the preliminary injunction will
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`not disserve the public interest. Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 464 (5th
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`Cir. 2003).3
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`III. PLAINTIFFS ARE NOT LIKELY TO SUCCEED
`ON THEIR FIRST AMENDMENT CLAIM
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`A special body of jurisprudence surrounds First Amendment disputes arising in public
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`school settings. High school students, like all Americans, enjoy the freedoms afforded by
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`the First Amendment. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506
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`(1969) (“It can hardly be argued that teachers and students shed their constitutional rights to
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`freedom of speech or expression at the schoolhouse gate.”). However, “the constitutional
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`3Because the Court finds that Plaintiffs fail to show a likelihood of success on the
`merits, it does not reach the other three factors.
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`ORDER – PAGE 5
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`rights of students are not automatically coextensive with the rights of adults in other
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`settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). Rather, the special
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`characteristics of the school environment require a balancing of the students’ interest in free
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`expression with the corresponding interest of furthering the educational mission of the
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`schools. See id. at 681 (“The undoubted freedom to advocate unpopular and controversial
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`views in schools and classrooms must be balanced against the society’s countervailing
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`interest in teaching students the boundaries of socially appropriate behavior.”). Stated
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`otherwise, “a school need not tolerate student speech that is inconsistent with its basic
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`educational mission, even if similar speech would not be subject to censor outside the school
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`setting.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (internal citations
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`and quotations omitted). Accordingly, the Supreme Court has held that “school officials may
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`impose reasonable restrictions on the speech of students, teachers, and other members of the
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`school community.” Id. at 267.
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`The Fifth Circuit has identified four categories of school regulations aimed at student
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`speech, each falling under a different standard of review. Porter v. Ascension Parish Sch.
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`Bd., 393 F.3d 608, 615 n.16 (5th Cir. 2004). These categories are: (1) school regulations
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`directed at specific student viewpoints; (2) school regulations governing student expression
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`involving lewd, vulgar, obscene or offensive speech; (3) school regulations governing
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`student speech related to school-sponsored activities; and (4) school regulations that are
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`viewpoint neutral and fall into none of the previous three categories. Because the Court
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`concludes that BHS’s prohibition on displays of the Confederate battle flag falls into the first
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`ORDER – PAGE 6
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`category, which governs viewpoint-specific regulations, the Court will not analyze the
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`regulation under the latter three categories.4
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`Viewpoint-specific regulations are governed by the standard set forth by the Supreme
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`Court in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Under
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`Tinker, “school officials may regulate student speech when they can demonstrate that such
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`speech would ‘substantially interfere with the work of the school or impinge on the rights of
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`other students.’” Porter, 393 F.3d at 615 (quoting Tinker, 393 U.S. at 508). School
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`authorities, however, are not required to wait until disorder occurs before imposing
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`regulations on speech. West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th
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`Cir. 2000) (“The fact that a full-fledged brawl had not yet broken out over the Confederate
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`flag does not mean that the [school] district was required to sit and wait for one [before
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`enacting a prohibition on display of Confederate flags].”); Phillips v. Anderson County Sch.
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`4 Defendants argue that the Supreme Court’s decision in Fraser, which allows schools
`to prohibit obscene and offensive language without a showing of substantial disruption, is
`also applicable because the Confederate Flag is an “offensive” symbol of racism and its
`display is inconsistent with Burleson ISD’s mission to promote racial harmony. In a recent
`decision, however, the Supreme Court clarified the scope of Fraser, explaining that Fraser
`“should not be read to encompass any speech that could fit under some definition of
`‘offensive,’” because “after all, much political and religious speech might be perceived as
`offensive to some.” Moore v. Frederick, __ U.S. __, 2007 WL 1804317, at *10 (June 25,
`2007). The Court, therefore, will analyze BHS’s regulation under the viewpoint-specific
`analysis set forth in Tinker. Furthermore, this approach is consistent with the approach taken
`by numerous other courts that have applied Tinker to regulations involving the Confederate
`battle flag. See D.B. ex rel. Brogdon v. Lafon, 217 F. App’x 518, 522-24 (6th Cir. 2007);
`Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 252-58 (3d Cir. 2002); West
`v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1365-67 (10th Cir. 2000); Melton v.
`Young, 465 F.2d 1332, 1335 (6th Cir. 1972); Phillips v. Anderson County Sch. Dist. Five,
`987 F. Supp. 488, 492-93 (D.S.C. 1997).
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`ORDER – PAGE 7
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`

`

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`Dist. Five, 987 F. Supp. 488, 492 (D.S.C. 1997) (“School authorities, however, are not
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`required to wait until disorder or invasion occurs.” (citing Quarterman v. Byrd, 453 F.2d 54,
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`58 (4th Cir. 1971))). Although mere speculation that disruption will occur is not enough to
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`support a viewpoint-specific regulation, courts have generally sustained such regulations
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`when school authorities can “demonstrate . . . facts which might reasonably [support] a
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`forecast [of] substantial disruption of or material interference with school activities.” Tinker,
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`393 U.S. at 514; see, e.g., D.B. ex rel. Brogdon v. Lafon, 217 F. App’x 518, 523-24, 2007
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`WL 541594, at *4 (6th Cir. 2007); Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249
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`(11th Cir. 2003); West, 206 F.3d at 1366-67; Phillips, 987 F. Supp. at 493.
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`The Court finds that BHS has satisfied the Tinker standard. BHS authorities contend
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`that they reasonably anticipated, based upon the ongoing racial hostilities and the use of the
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`Confederate battle flag as a symbol of that hostility, that a substantial and material disruption
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`of the educational process would result if they continued to allow unregulated display of the
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`Confederate battle flag. This was a reasonable conclusion. BHS experienced a series of
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`racial incidents prior to the imposition of the Confederate battle flag ban, at least one of
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`which directly involved use of that flag as a means of intimidation. Other incidents included
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`hostile confrontations between BHS students and African-American students from rival
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`schools and at least one fight occurred at a high school sporting event. In fact, the racial
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`tensions were severe enough to warrant discussion at a UIL meeting, in which concern was
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`expressed over BHS students’ overt use of the Confederate battle flag as a racist symbol at
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`sporting events. Thus, based upon these facts, BHS authorities had a reasonable basis for
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`ORDER – PAGE 8
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`concluding that display of the Confederate battle flag would cause serious disruption.5 See,
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`e.g., D.B. ex rel. Brogdon, 217 F. App’x at 523 (“Even without evidence that Confederate
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`Flag displays had been the direct cause of past disruptions, school officials reasonably could
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`surmise that such displays posed a substantial risk of provoking problems in the [racially
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`hostile] atmosphere then existing.”); West, 206 F.3d at 1367 (“The history of racial tension
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`in the district made administrators’ and parents’ concerns about future substantial disruptions
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`from possession of Confederate flag symbols at school reasonable.”). Furthermore, in light
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`of the ongoing racial hostility at the school, it is not the Court’s place to second-guess this
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`decision. See Scott, 324 F.3d at 1247 (“Short of a constitutional violation based on a school
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`administrator’s unsubstantiated infringement on a student’s speech or other expressions, this
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`Court will not interfere with the administration of a school.”); West v. Derby Unified Sch.
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`Dist. No. 260, 23 F. Supp. 2d 1223, 1232 (D. Kan. 1998) (“Moreover, ‘the determination of
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`what manner of speech in the classroom or in school assembly is appropriate properly rests
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`with the school board.’” (quoting Fraser, 478 U.S. at 683)), aff’d, 206 F.3d 1358 (10th Cir.
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`2000).
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`Plaintiffs do not dispute the occurrence of any of the cited incidents. Rather, Plaintiffs
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`assert that the prior disruptions caused by display of the Confederate battle flag, even when
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`5 Thus, Plaintiffs’ reliance on Castorina v. Madison County Sch. Bd., 246 F.3d 536
`(5th Cir. 2001) is misplaced. BHS has demonstrated a history of racial hostility and
`intimidation involving the Confederate battle flag that was lacking in Castorina. See
`Castorina, 246 F.3d at 542 (“Viewing the facts in the light most favorable to the students,
`the school has banned only certain racial viewpoints without any showing of disruption.”).
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`ORDER – PAGE 9
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`

`

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`accompanied by racial hostility, are insufficient for BHS authorities to reasonably conclude
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`that the nonaggressive and nonintimidating display of the Confederate battle flag as an
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`expression of pride in Southern heritage would cause disruption. Specifically, Plaintiffs
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`argue that the prior incidents relied on by BHS authorities to support the regulation are
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`insufficient because they did not result from the peaceful display of the Confederate battle
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`flag as an expression of ancestral pride, but rather its misuse as a symbol of racism and white
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`supremacy. In this sense, Plaintiffs claim, the prior incidents referred to by BHS do not
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`constitute disruptions caused by similar speech; therefore, the prior incidents are insufficient
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`to support the “well-founded expectation of disruption” called for under Tinker. Pls.’ Reply
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`to Defs.’ Resp. to Mot. for Prelim. Inj., at 4 (quoting Saxe v. State Coll. Area Sch. Dist., 240
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`F.3d 200, 212 (3rd Cir. 2001)). This argument is unavailing.
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`A.M. and A.T.’s subjective intent to display the Confederate battle flag as an
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`expression of pride in their Southern heritage, rather than as a symbol of racism, is not
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`dispositive. The Court recognizes that the Confederate battle flag has a dual meaning. To
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`some it is simply a historical symbol of Southern heritage that signifies ancestral pride and
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`respect. However, to many others, it remains a symbol of oppression, racial subordination,
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`and slavery.6 Regardless of A.M. and A.T.’s intent in displaying the Confederate battle flag,
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`6 See D.B. ex rel. Brogdon, 217 F. App’x at 524 (“[E]ven if some recognition of the
`flag’s racially divisive nature is implicit in the district court’s finding, that finding is not
`rendered clearly erroneous thereby.”); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 824 (4th
`Cir. 2004) (“Unfortunately, to its supporters at the time of its creation as well as some
`proponents today, the Confederate flag undeniably represented, and represents, support for
`slavery, belief in Blacks as an inferior class, and opposition to the Republic. . . . Indeed,
`many offended by the Confederate flag find more current connections to oppression as the
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`ORDER – PAGE 10
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`

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`it is certainly within reason to assume that some would take the display as an expression of
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`racial animus and prejudice. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 823 (4th Cir.
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`2004) (“Because there are citizens who not only continue to hold separatist views, but who
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`revere the confederate flag precisely for its symbolism of [racial separation], it is not an
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`irrational inference that one who displays the confederate flag may harbor racial bias against
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`African-Americans.” (emphasis in original)). Thus, given the recent history of racial hostility
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`at BHS, particularly in light of the overt use of the flag as a racist symbol by some BHS
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`students, BHS authorities had a reasonable basis for concluding that display of the
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`Confederate battle flag would cause significant disruption, regardless of the specific
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`individual’s intent in displaying it. See Denno v. Sch. Bd. of Volusia County, Fla., 218 F.3d
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`1267, 1274 n.6 (11th Cir. 2000) (stating that the student’s innocuous intent in displaying the
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`Confederate battle flag is not dispositive; rather, “[t]he more relevant factor is that the school
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`official might reasonably think that other students would perceive the display as racist or
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`uncivil”). Accordingly, Plaintiffs have failed to demonstrate that they are likely to succeed
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`flag became an unfortunate symbol of the South’s resistance to integration and equality from
`the late 1940s to the 1960s.”); Briggs v. Mississippi, 331 F.3d 499, 506 (5th Cir. 2003) (“It
`is common knowledge that public reaction to and debate over the flying of the Confederate
`Battle flag, or its being a part of a state flag, has been virtually exclusively in relation to its
`symbolism of the Confederacy and the valor of its troops and whether and to what extent this
`symbolism extols or excuses slavery, racial oppression and resistance to racial equality.”);
`Castorina, 246 F.3d at 542 (implicitly recognizing that the Confederate battle flag is a
`“controversial and racial political symbol”); West, 23 F. Supp. 2d at 1233 (“[I]t is a fact that
`the Confederate flag was adopted by those in America whose purpose was to preserve a
`system that permitted the enslavement of African-Americans. To many . . . displaying this
`flag today represents an expression of continuing contempt for the rights of African-
`Americans to participate fully and equally in American society.”).
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`ORDER – PAGE 11
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`on the merits of their First Amendment claim and the Court therefore denies the Plaintiffs’
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`motion for preliminary injunction with regard to that claim.7
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`IV. PLAINTIFFS ARE NOT LIKELY TO SUCCEED
`ON THEIR FOURTEENTH AMENDMENT CLAIMS
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`Plaintiffs also assert that enforcement of the BHS dress code violates A.M. and A.T.’s
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`Fourteenth Amendment rights to due process and to equal protection of the laws. Plaintiffs
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`have failed to demonstrate that they are likely to succeed on the merits of these claims; the
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`Court therefore denies the Plaintiffs’ motion for preliminary injunction.
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`A. Due Process Claim
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`Plaintiffs assert that enforcement of BHS’s dress code violates A.M. and A.T.’s
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`Fourteenth Amendment right to due process of law because the dress code is
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`unconstitutionally vague and leaves enforcement to the unbridled discretion of school
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`authorities. The BHS dress code would be unconstitutionally vague if a reasonable student
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`of ordinary intelligence who read the policy could not understand what conduct the policy
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`prohibited. West, 206 F.3d at 1368 (citing Broaderick v. Oklahoma, 413 U.S. 601, 608
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`(1973)). The Supreme Court has recognized, however, that “given the school’s need to be
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`7 The Court notes that its analysis of Plaintiffs’ First Amendment claim is consistent
`with the conclusions of other courts that have addressed similar challenges to a school’s ban
`on the display of the Confederate battle flag. The Court merely follows the majority of these
`courts in deferring to the school officials’ determination regarding the potential disruptivenss
`of the Confederate battle flag when those officials have a reasonable basis for that
`determination. See, e.g., D.B. ex rel. Brogdon v. Lafon, 217 F. App’x 518, 523-24, 2007 WL
`541594, at *4 (6th Cir. 2007); Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249
`(11th Cir. 2003); Melton v. Young, 465 F.2d 1332, 1335 (6th Cir. 1972); West, 206 F.3d at
`1366-67; Phillips, 987 F. Supp. at 493.
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`ORDER – PAGE 12
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`able to impose disciplinary sanction for a wide range of unanticipated conduct disruptive of
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`the educational process . . . school disciplinary rules need not be as detailed as a criminal
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`code which imposes criminal sanctions.” Fraser, 478 U.S. at 686; see also Murray v. W.
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`Baton Rouge Parish Sch. Bd., 472 F.2d 438, 442 (5th Cir. 1973) (recognizing that “school
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`disciplinary codes cannot be drawn with the same precision as criminal codes and that some
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`degree of discretion must, of necessity, be left to public school officials to determine what
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`forms of misbehavior should be sanctioned.”).
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`Plaintiffs do not claim that BHS’s dress code fails to give students fair notice of what
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`clothing is or is not allowed, nor do they claim that A.M. and A.T. were unaware that the
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`policy prohibited display of the Confederate battle flag. Rather, Plaintiffs assert that the BHS
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`dress code provides school officials unfettered discretion to determine what is prohibited by
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`the policy, such that school authorities may suppress only those viewpoints with which they
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`disagree. The Court construes this argument as another assertion that BHS’s policy
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`prohibiting display of the Confederate battle flag is a viewpoint-specific regulation. As
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`previously discussed, however, in the school context, viewpoint-specific regulations are
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`permissible if the school can demonstrate facts providing a reasonable basis for concluding
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`that the regulated speech may cause substantial disruption, even if the regulation would be
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`impermissible outside the school setting. Tinker, 393 U.S. at 514. Where, as here, the school
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`district has met the Tinker standard, a viewpoint specific regulation is justified. Thus,
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`Plaintiffs have failed to demonstrate a likelihood of success on their Fourteenth Amendment
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`ORDER – PAGE 13
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`due process claim and the Court denies the Plaintiffs’ motion for preliminary injunction with
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`respect to that claim.
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`B. Equal Protection Claim
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`Plaintiffs also argue that BHS authorities have violated A.T. and A.M’s Fourteenth
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`Amendment right to equal protection by discriminating against students who wish to express
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`pride in their Southern heritage by displaying the Confederate battle flag. According to
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`Plaintiffs, BHS authorities have not prohibited the display of other controversial racial and
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`political symbols, such as the swastika, nor have they enforced the dress code against
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`students who display such symbols. However, Plaintiffs have not demonstrated that they are
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`likely to succeed on the merits of this claim either.
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`First, BHS authorities submitted affidavits demonstrating that the dress code is, to the
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`best of their ability, consistently applied and uniformly enforced against students who violate
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`the policy. Plaintiffs allege that school authorities failed to require one student to stop
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`wearing a jacket with a swastika patch. While this creates a contested fact issue, it is not
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`enough to demonstrate that Plaintiffs are likely to succeed on the merits of their claim.
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`Second, the Court notes that Plaintiffs’ equal protection argument is essentially one
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`of viewpoint discrimination prohibited by the First Amendment. As previously discussed,
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`BHS has shown that the prohibition on Confederate battle flags is justified under Tinker;
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`therefore the school may prohibit the Confederate battle flag even though such speech would
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`be protected outside the school environment. See West, 23 F. Supp. 2d at 1235-36.
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`Furthermore, Plaintiffs’ have not alleged, nor have they provided any evidence to show, that
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`ORDER – PAGE 14
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` Case 3:07-cv-00272-N Document 31 Filed 07/10/07 Page 15 of 15 PageID 431
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`other controversial symbols have caused significant disruption at BHS. See Phillips, 987 F.
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`Supp. at 494. Accordingly, Plaintiffs have failed to show a likelihood of success on the
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`merits, and the Court denies Plaintiffs’ motion for preliminary injunction with respect to their
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`equal protection claim.
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`CONCLUSION
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`This Court was not elected to run the Burleson Independent School District. Nor is
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`this Court charged with deciding whether the display of the Confederate battle flag at BHS
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`would be so disruptive that it should be prohibited. Rather, this Court’s limited role is to
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`determine whether those persons actually charged with such duties acted outside their
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`considerable discretion. Based on the recent history at BHS, as shown in the preliminary
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`injunction record, the Court finds that the school officials acted within the discretion
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`permitted them under the First and Fourteenth Amendments. The Court therefore denies the
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`Plaintiffs’ motion for preliminary injunction.
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`Signed July 10, 2007.
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`_________________________________
`David C. Godbey
`United States District Judge
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`ORDER – PAGE 15
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