IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`United States Court of Appeals
`Fifth Circuit
`
`F I L E D
`October 9, 2009
`
`No. 08-10477
`
`Charles R. Fulbruge III
`Clerk
`
`A M, by and through her Parents and Guardians Richard Dale McAllum Jr. and
`Shelby Voda McAllum; A T, by and through her Parents and Guardians Darrell
`Ray Thomas and Joni Ann Thomas; M T, by and through her Parents and
`Guardians Darrell Ray Thomas and Joni Ann Thomas
`
`v.
`
`Plaintiffs - Appellants
`
`PAUL ELLIOTT CASH, in his official capacity as Principal of Burleson High
`School; BOARD OF TRUSTEES OF BURLESON INDEPENDENT SCHOOL
`DISTRICT
`
`Defendants - Appellees
`
`Appeal from the United States District Court
`for the Northern District of Texas
`
`Before GARWOOD, DENNIS, and PRADO, Circuit Judges.
`DENNIS, Circuit Judge:
`Plaintiffs are current and former students of Burleson High School, located
`in Burleson, Texas. In response to previous incidents, the high school adopted
`a policy prohibiting the display of the Confederate flag on school grounds. When
`plaintiffs A.M. and A.T. came to school at the beginning of the spring 2006
`semester carrying purses adorned with large images of the Confederate battle
`flag, administrators required them to cease carrying the purses (giving them the
`option of leaving the purses in the administrative offices until school ended for
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`

`
`the day, or to have someone come and pick the purses up from the school). The
`girls voluntarily went home for the day rather than comply with the demand.
`Plaintiffs then brought the instant action, seeking damages and permanent
`injunctive relief on grounds, inter alia, that the policy and its enforcement
`abridges the right to free speech and expression guaranteed by the First and
`Fourteenth Amendments of the United States Constitution. The district court
`granted summary judgment to defendants, based primarily on its conclusion
`that the ban is permissible under the Supreme Court’s decision in Tinker v. Des
`Moines Independent Community School District, 393 U.S. 503 (1969). For the
`reasons set forth below, we affirm.
`I. BACKGROUND
`The school district’s dress code states that “there will be no tolerance for
`clothing or accessories that ha[ve] inappropriate symbolism, especially that
`which discriminates against other students based on race, religion, or sex.”
`Supplementing this district-wide policy, Burleson High School (“BHS”) has a
`policy, enacted during the 2002-2003 academic year, that prohibits the visible
`display of the Confederate flag on the school’s campus. This policy followed
`racial strife among students at the school, some of which centered on students’
`display of the Confederate flag.
`At the beginning of the spring semester in January 2006, plaintiffs A.M.
`and A.T. came to school carrying purses bearing large images of the Confederate
`battle flag. That same day, a teacher referred the girls to the administration for
`discipline pursuant to the policy against visible displays of the Confederate flag.
`Administrators, treating the purses like any other dress code violation, gave
`A.M. and A.T. the options of leaving their purses in the front office until school
`let out or having someone come to the school to retrieve the purses. Choosing
`neither option, the girls chose to go home for the remainder of the day. A.M. and
`A.T. were not suspended, and officials took no other disciplinary action against
`them.
`
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`The girls subsequently appealed the policy prohibiting displays of the
`Confederate flag using the school district’s internal administrative procedures.
`The first step, referred to as a “Level I” appeal, was an appeal to defendant BHS
`principal Paul Elliott Cash. Cash explained the history of the policy, noted the
`past incidences of racial tension and violence on the campus, detailed infra, and
`concluded that “the number of incidents would be higher but for the restriction
`on visible displays of the Confederate flag.” Cash therefore denied the Level I
`appeal. A.M. and A.T. then pursued a “Level II” appeal, which was heard by
`district superintendent Mark Jackson.
` Jackson agreed with Cash’s
`determination, reasoning that “if I did not enforce the Confederate flag ban, then
`the number and types of confrontational incidents on campus would increase
`dramatically, resulting in material interference and substantial disruption of the
`educational environment.” Accordingly, Jackson denied the Level II appeal.
`Cash’s affidavit and the affidavit of the preceding principal, Mark
`Crummel, document the history of racial tension and hostility at BHS. This
`evidence is largely uncontroverted. BHS has approximately 2,300 students. At
`all relevant times, less than sixty of those students were African-American.
`Cash reviewed the school’s disciplinary records and averred that during the
`2002-2003 school year, there were 35 reported incidences of race-related
`problems. The next year brought one referral based on a student’s use of a racial
`epithet against another student. During the 2004-2005 school year, there were
`ten referrals involving racial incidents. One of these incidents involved a
`student who drew a Confederate flag in his notebook accompanied by the
`statement “No niggers; subject to hanging.” Finally, during the 2005-2006 school
`year (the year in which A.M. and A.T. brought their purses), there were seven
`race-related referrals. One involved a student who drew a noose and made
`comments about hanging minorities. Cash noted that these numbers likely do
`not represent the full extent of race-related incidents as many invariably go
`unnoticed by administrators and unreported by students. For example, it was
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`apparently common to find racially hostile graffiti in the restrooms, but this
`rarely resulted in disciplinary referrals because the offending student could not
`be
`identified.
` This racial hostility occasionally resulted
`in physical
`confrontations. During the 2002-2003 school year, there was a fight in the lobby
`area of the gymnasium prior to the start of a basketball game between BHS
`students and supporters of a predominantly African-American high school. The
`local police were called and “had to assist in restoring order.” This prompted
`increased police presence at future athletic events.
`Also during the 2002-2003 school year, a BHS student “shoved a
`Confederate Flag in the face of several members” of another high school’s all-
`black girls volleyball team as they walked through the BHS hallways. According
`to Crummel, this incident caused tension and required Crummel, who was then
`the principal at BHS, to apologize on behalf of the school. Thereafter, BHS
`students attempted to display the flag at athletic events, prompting BHS
`administration and staff to “intervene.” The same school year (2002-2003),
`supporters of a predominantly African-American school left BHS during a
`sporting event because a BHS student waived the flag from his pick-up truck in
`front of them. This caused the state high school athletics governing body to view
`the display of the flag at BHS events as a racial insult and a means of
`intimidation, and led to the consideration of sanctions against BHS because the
`school was “identified [as] having a reputation . . . as being openly hostile to
`African-Americans; if not simply racist.” That year, some white BHS students
`also waved a Confederate flag in the direction of a group of fellow African-
`American students as they waited for the bus. According to Crummel, the staff
`viewed this “as an attempt to intimidate our African-American students.”
`Following these incidents, during the 2002-2003 school year, BHS instituted the
`ban on visible displays of the Confederate flag. 1
`
` Plaintiffs have not offered evidence refuting that these incidents occurred. Rather,
`1
`they aver only that they did not know about the incidents, and have provided the affidavit of
`
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`During the 2005-2006 school year, administrators found graffiti in a boys
`restroom containing racial epithets
`(which was apparently common)
`accompanied by a drawing of the Confederate battle flag. On Martin Luther
`King, Jr. Day in 2006 -- less than a month after A.M. and A.T. carried their
`purses to school -- a homemade Confederate battle flag was raised on the BHS
`flagpole and graffiti representing the flag was drawn on the sidewalk below. In
`December 2006, the following academic year, a white BHS student attempted to
`wrap his belt around an African-American student’s neck while using racial
`epithets and threatening to hang him. That school year also saw three
`disciplinary referrals of students who used racial epithets.
`A.M. has averred that her purse did not cause a disruption and that she
`had never heard of the 2002 incident involving the display of the flag in front of
`an opposing team. A.M. also states that she has seen numerous violations of the
`dress code, including sexually crude t-shirts, clothing promoting drug and
`alcohol use, and clothing identifiable with a particular ethnic or social group
`(e.g., Mexican flag t-shirts, t-shirts with Malcolm X, or rainbow belts) that she
`claims violates the dress code yet did not result in discipline against the
`students. As to her purse, A.M. asserts that her ancestors fought in the Civil
`War and that the “flag is a venerated symbol of my ancestry, a symbol of my
`Christian religious faith, and a symbol of the South, a symbol of American
`history and a political symbol, to me, of limited government and resistance to
`unconstitutional authority.” She further claims that there has not been a “single
`fight related to the racial abuse,” and states that “[m]ore importantly none of
`this stuff is related to our purses or even to the Confederate flag.”
`Like A.M., A.T. states that she is “upset that [BHS] has tried to link the
`harmless carrying of my Confederate purse with racial intimidation and
`
`a school security guard who stated that, although he had no personal knowledge of the
`volleyball incident, there was no recollection of the event among students and faculty
`members.
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`violation of the rights of other students” and that the flag for her represents a
`symbol of patriotism, faith, and family. A.T. has also noticed a lack of
`enforcement of the dress code and specifically mentions displays of the Mexican
`flag, the Canadian flag, Malcolm X, a male student who wears female makeup
`and clothing, and sexually offensive t-shirts. She claims she had no connection
`to the Martin Luther King, Jr. Day incident and the graffiti in the bathroom.
`According to her, “Many students support my right to carry my purse, even
`students who don’t care much for the Confederate flag.”
`Plaintiffs filed the instant action in the United States District Court for
`the Northern District of Texas on February 9, 2007. Their amended verified
`complaint asserts five claims under federal and state law. Under 42 U.S.C. §
`1983, plaintiffs allege: (1) that the ban on Confederate symbols as enforced
`against plaintiffs abridged their rights under the First and Fourteenth
`Amendments to freedom of speech and expression; (2) that the school’s dress
`code violates their due process rights under the Fourteenth Amendment because
`it is vague and overbroad; (3) that defendants have deprived plaintiffs of the
`equal protection of the laws guaranteed by the Fourteenth Amendment by
`enforcing the dress code against them “while allowing other students to wear
`attire with politically, racially and ethnically provocative symbols”; and (4) that
`plaintiffs’ ability to display pride in their heritage is a protected right under the
`Ninth Amendment and has been infringed by defendants’ actions. Under Texas
`2
`law, plaintiffs assert that defendants have violated the free speech protections
`of the Texas Constitution. Plaintiffs prayed for relief in the form of a judgment
`3
`declaring defendants have violated their constitutional rights, an order that
`their student records be expunged, an award of damages and costs, and the
`
` The district court granted defendants’ motion to dismiss this claim pursuant to Rule
`2
`12(b)(6). Plaintiffs do not appeal that decision.
`
` Although the district court granted summary judgment to defendants on this state-
`3
`law claim, plaintiffs have not appealed this ruling.
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`issuance of a permanent injunction prohibiting defendants from further violating
`these rights.
`Thereafter, plaintiffs moved for a preliminary injunction prohibiting the
`continued enforcement of the ban on displays of the Confederate flag at BHS.
`The district court denied the motion, concluding that plaintiffs failed to show a
`likelihood of success on the merits. Analyzing defendants’ actions under the
`standard established in Tinker v. Des Moines Independent Community School
`District, 393 U.S. 503 (1969), the district court found that defendants reasonably
`concluded that the prohibited speech (i.e., visible displays of the Confederate
`battle flag) was imposed to prevent an anticipated substantial and material
`disruption of the educational process at BHS. Specifically, the district court
`noted that defendants could reach this decision based on the historical
`atmosphere of racial hostility at BHS as well as the problems caused by
`displaying the Confederate battle flag in the past. Plaintiffs argued that the
`Tinker standard was not met because there is no evidence that the Confederate
`battle flag itself caused disruptions of the degree required to show that their
`display would cause disruption. The district court found this argument
`unpersuasive, reasoning that the prior incidents and the flag’s dual meaning
`were sufficient to meet the Tinker standard. As to plaintiffs’ due process and
`equal protection claims, the district court found that plaintiffs would not be able
`to show that the policy was so vague as to violate due process and otherwise
`found that these claims simply reiterated their meritless First Amendment
`arguments.
`Defendants moved for summary judgment on all of plaintiffs’ claims.
`Relying heavily on the reasons stated in its order denying preliminary injunctive
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`relief, the district court granted summary judgment to defendants. Plaintiffs
`4
`timely appealed.
`
`II. STANDARD OF REVIEW
`This court reviews a district court’s grant of summary judgment de novo,
`applying the same standard as the district court. Turner v. Baylor Richardson
`Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary
`judgment only if “the pleadings, the discovery and disclosure materials on file,
`and any affidavits show that there is no genuine issue as to any material fact
`and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
`56(c). On a motion for summary judgment, the court must view the facts in the
`light most favorable to the non-moving party and draw all reasonable inferences
`in its favor. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th
`Cir. 2004). In reviewing the evidence, the court must therefore “refrain from
`making credibility determinations or weighing the evidence.” Turner, 476 F.3d
`at 343.
`
`A.
`
`III. DISCUSSION
`Free Speech and Expression
`It is axiomatic that students do not “shed their constitutional rights to
`freedom or speech or expression at the schoolhouse gate.” Tinker, 393 U.S. at
`504. Despite this well-established principle, school officials nonetheless retain
`some “authority, consistent with fundamental constitutional safeguards, to
`prescribe and control conduct in the schools.” Id. Recognizing the tension
`between these interests, the Supreme Court in Tinker held that school officials
`may prohibit student speech and expression upon showing “facts which might
`reasonably have led school authorities to forecast [that the proscribed speech
`would cause] substantial disruption of or material interference with school
`
` The district court’s order granting summary judgment also addressed evidentiary and
`4
`discovery-related motions made by the plaintiffs (the court denied the motions). Plaintiffs do
`not contest these rulings on appeal.
`
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`activities.” Id. at 514. School officials “must be able to show that [their]
`action[s] [were] caused by something more than a mere desire to avoid the
`discomfort and unpleasantness that always accompany an unpopular viewpoint.”
`Id. at 508.
`Tinker involved a group of students who planned to wear armbands at
`school as a means of protesting the Vietnam War. Learning of the plan in
`advance, the school district adopted a policy of suspending students who, upon
`request of administrators, refused to remove their armbands. The plaintiff-
`students were suspended when they wore their armbands and refused to comply
`with a request to remove them. Applying the above standard to the facts of the
`case, the Supreme Court held that the school district failed to meet its burden
`because “the record fails to yield evidence that the school authorities had reason
`to anticipate that the wearing of armbands would substantially interfere with
`the work of the school or impinge upon the rights of other students.” Id. at 509.
`The school district offered no evidence to prove that its policy was motivated by
`a desire to avoid the type of material disruption that would support a ban on
`speech: “Clearly the prohibition of expression of one particular opinion, at least
`without evidence that it is necessary to avoid material and substantial
`interference with schoolwork or discipline, is not constitutionally permissible.”
`Id. at 510.
`This court has further elaborated on Tinker’s material disruption
`standard. Although school officials may prohibit speech based on a forecast that
`the prohibited speech will lead to a material disruption, the proscription cannot
`be based on the officials’ mere expectation that the speech will cause such a
`disruption. Officials must base their decisions “on fact, not intuition, that the
`expected disruption would probably result from the exercise of the constitutional
`right and that foregoing such exercise would tend to make the expected
`disruption substantially less probable or less severe.” Butts v. Dallas Indep. Sch.
`Dist., 436 F.2d 728, 731 (5th Cir. 1971); see also id. at 732 (“[T]here must be
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`some inquiry, and establishment of substantial fact, to buttress the
`determination.”); Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 970 (5th
`Cir. 1972) (“[T]he board cannot rely on ipse dixit to demonstrate the ‘material
`and substantial’ interference with school discipline.”). While school officials
`must offer facts to support their proscription of student speech, this is not a
`“difficult burden,” Shanley, 462 F.2d at 970, and “their decisions will govern” if
`they are “within the range where reasonable minds will differ,” Butts, 436 F.2d
`at 732.
`Applying the Tinker standard to the instant case, defendants reasonably
`anticipated that visible displays of the Confederate flag would cause substantial
`disruption of or material interference with school activities. As an initial matter,
`plaintiffs agree that some view the Confederate flag in certain circumstances as
`a symbol of racism and intolerance, regardless of whatever other meanings may
`be associated with it. There is ample, uncontroverted evidence that elements of
`5
`the BHS student body have continually manifested racial hostility and tension.
`This tension has become evident in the various events described above, including
`racially hostile graffiti and vandalism, multiple disciplinary referrals involving
`racial epithets, and a physical confrontation between white BHS students and
`the African-American students of another high school. Some of these events
`included the use of the Confederate flag, including the incident in which a white
`BHS student waved the flag in the direction of an opposing school’s
`
` This concession comports with other courts’ views of the meanings associated with
`5
`the Confederate flag. See, e.g., Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249 (11th
`Cir. 2003) (observing that the Confederate flag has multiple “emotionally charged” meanings,
`and is viewed by some as a symbol of white supremacy and racism, even if others view it as
`a symbol of heritage); United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001) (per
`curiam) (“It is the sincerely held view of many Americans, of all races, that the confederate
`flag is a symbol of racial separation and oppression. And, unfortunately, as uncomfortable as
`it is to admit, there are still those today who affirm allegiance to the confederate flag precisely
`because, for them, the flag is identified with racial separation. Because there are citizens who
`not only continue to hold separatist views, but who revere the confederate flag precisely for
`its symbolism of those views, it is not an irrational inference that one who displays the
`confederate flag may harbor racial bias against African-Americans.”).
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`predominantly African-American volleyball team. As recently as spring 2006,
`Confederate flags were flown over the flagpole on Martin Luther King Jr. Day
`and a white student simulated the lynching of an African-American student.
`Even if these events do not rise to the level of a “substantial disruption” under
`Tinker (thus justifying the ban based on past actual disruption), they serve as
`a factual basis for administrators’ forecast that disruptions might occur if
`students were allowed to display racially charged symbols such as the
`Confederate flag.
`Other circuits, applying Tinker, have held that administrators may
`prohibit the display of the Confederate flag in light of racial hostility and tension
`at their schools. In Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008), the Sixth Circuit
`held that a prohibition on clothing bearing the Confederate flag did not violate
`students’ rights in light of “racial tensions” among students, evidenced by racist
`graffiti, graffiti containing general and specific threats against students, and
`physical altercations between white and African-American students. Id. at 565.
`Similarly, in Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d
`243 (3d Cir. 2002), the Third Circuit held that a policy prohibiting students’
`possession of the Confederate flag was not facially overbroad because “[t]he
`history of racial difficulties [at the school] provide a substantial basis for
`legitimately fearing disruptions from the kind of speech prohibited by the
`policy.” Id. at 262. This history, as in the instant case, included overt displays
`of the Confederate flag. See id. at 247-48. And the Eleventh Circuit upheld a
`prohibition on displaying the Confederate flag because there was “evidence of
`racial tensions existing at the school,” as well as “testimony regarding fights
`which appeared to be racially based.” Scott v. Sch. Bd. of Alachua County, 324
`F.3d 1246, 1249 (11th Cir. 2003). 6
`
` The Eighth and Tenth Circuits have also concluded that prohibitions on the
`6
`Confederate flag did not infringe on students’ rights of free speech and expression, although
`those cases involved physical altercations directly involving the Confederate flag, among other
`events demonstrating racial hostility. See B.W.A. v. Farmington R.-7 Sch. Dist., 554 F.3d 734,
`
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`Plaintiffs nonetheless argue that defendants must do more than offer
`evidence that racial tension exists at the school. Rather, they contend there
`must be a direct connection between the prohibited speech and anticipated
`disruption, shown by evidence that the Confederate flag has actually caused
`disruptions in the past. Plaintiffs are only partially correct, insofar as Tinker
`does require a connection between the proscribed speech and the expected
`disruption. Without this connection, there would be no justification for
`prohibiting the otherwise protected speech. See Tinker, 393 U.S. at 508.
`However, plaintiffs read Tinker too narrowly, effectively requiring school officials
`to wait for the speech to cause disruption before acting. This directly
`contradicts Tinker’s holding that administrators may proscribe speech if there
`are facts “which might reasonably have led school authorities to forecast
`substantial disruption of or material interference with school activities.” See id.
`at 513 (emphasis added); see also Shanley, 462 F.2d at 970 (“It is not necessary
`that the school administration stay a reasonable exercise of restraint ‘until
`disruption actually occur[s].’” (alteration in original) (quoting Butts, 436 F.2d at
`731)). Here, the racially inflammatory meaning associated with the Confederate
`flag and the evidence of racial tension at BHS establish that defendants
`reasonably forecast that the proscribed speech might cause substantial
`disruption of school activities.
`The Sixth and Tenth Circuits have expressly rejected the narrow
`interpretation of Tinker that plaintiffs advance here. The Sixth Circuit noted
`that the plaintiffs’ interpretation “would place ‘school officials . . . between the
`proverbial rock and a hard place: either they allow the disruption to occur, or
`they are guilty of a constitutional violation.’” Barr, 538 F.3d at 565 (alteration
`in original) (quoting Lowery v. Everhard, 497 F.3d 584, 596 (6th Cir. 2001)).
`Because Tinker permits school officials to act based on the potential for
`
`739 (8th Cir. 2009); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1326, 1366 (10th
`Cir. 2000).
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`disruption, the appropriate “inquiry, then, is whether the school reasonably
`forecast that the Confederate flag would cause material and substantial
`disruption to schoolwork and school discipline.” Id. We also agree with the
`Tenth Circuit’s observation that “‘[t]he fact that a full-fledged brawl had not yet
`broken out over the Confederate flag does not mean that the district was
`required to sit and wait for one. In this case, the district had a reasonable basis
`for forecasting disruption from display of such items at school, and its
`prohibition was therefore permissible.’” West, 206 F.3d at 1366-67 (quoting West
`v. Derby Unified Sch. Dist., 23 F. Supp. 2d 1223, 1233 (D. Kan. 1998)). 7
`Despite these decisions, plaintiffs argue that most courts have required
`a direct connection between the Confederate flag and past disruptions. In
`support of this argument, they cite to decisions finding that bans on the
`Confederate flag do not violate students’ First Amendments rights where the
`flag actually caused past disruptions. See West, 206 F.3d at 1362-63 (upholding
`a school policy prohibiting the wearing or possession of items with the
`Confederate flag because, in addition to other incidents of racial tension, there
`were “several verbal confrontations” between groups of students wearing
`Confederate flag and Malcolm X t-shirts); Melton v. Young, 465 F.2d 1332, 1333-
`34 (6th Cir. 1972) (upholding a school policy prohibiting Confederate flags on
`campus following community-wide racial disturbances involving the flag);
`Phillips v. Anderson County Sch. Dist. Five, 987 F. Supp. 488, 492-93 (D.S.C.
`1997) (upholding the suspension of a student for wearing a jacket bearing the
`Confederate flag in light of prior incidents “of racial tension directly caused or
`escalated by the presence of Confederate Flag clothing, . . . as well as incidents
`of racial disputes”). Contrary to plaintiffs’ assertion, however, these cases do not
`stand for the proposition that schools may not prohibit the display of the
`Confederate flag unless it has actually caused past disruptions. Rather, they
`
` Plaintiffs argue we should instead follow the Sixth Circuit’s decision in Castorina ex
`7
`rel. Rewt v. Madison County School Board, 246 F.3d 536 (5th Cir. 2001).
`
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`reflect the principle that administrators will usually meet their burden under
`Tinker by showing that the proscribed speech has in fact been disruptive in the
`past. See Shanley, 462 F.2d at 970; see also Newsom v. Albemarle County Sch.
`Bd., 354 F.3d 249, 259 n.7 (4th Cir. 2003). But Tinker does not require a
`showing of past disruption; administrators can also meet their burden by
`establishing that they had a reasonable expectation, grounded in fact, that the
`proscribed speech would probably result in disruption. See Butts, 436 F.2d at
`731; see also Doninger v. Neihoff, 527 F.3d 41, 51 (2d Cir. 2008); Lowery v.
`Euverard, 497 F.3d 584, 596 (6th Cir. 2007); LaVine v. Blaine Sch. Dist., 257
`F.3d 981, 987 (9th Cir. 2001). While it is possible for administrators to fail to
`meet this burden in the absence of past disruptions, see Castorina v. Madison
`County Sch. Bd., 246 F.3d 536, 543-44 (6th Cir. 2001), the racial tension and
`hostility at the school justified defendants’ ban on visible displays of the
`Confederate flag in this case.
`Accordingly, we hold the district court did not err in granting summary
`judgment to defendants on plaintiffs’ free speech and expression claim.
`B.
`Due Process
`Plaintiffs next argue that the school district’s dress code, particularly its
`use of the term “inappropriate symbolism,” is unconstitutionally vague because
`students do not have adequate notice of what clothing is prohibited. We
`disagree.
`“A law is unconstitutionally vague if it (1) fails to provide those targeted
`by the statute a reasonable opportunity to know what conduct is prohibited, or
`(2) is so indefinite that it allows arbitrary and discriminatory enforcement.”
`Women’s Medical Ctr. of N.W. Houston v. Bell, 248 F.3d 411, 421 (2001) (citing
`Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). Students may
`challenge school policies based on their alleged vagueness, but the Supreme
`Court has held that the standards for determining vagueness apply differently
`in the school context:
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`We have recognized that ‘maintaining security and order in the
`schools requires a certain degree of flexibility in school disciplinary
`procedures, and we have respected the value of preserving the
`informality of the student-teacher relationship.’ Given the school’s
`need to be able to impose disciplinary sanctions for a wide range of
`unanticipated conduct disruptive of the educational process, the
`school disciplinary rules need not be as detailed as a criminal code
`which imposes criminal sanctions.
`
`Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (quoting New Jersey
`v. T.L.O., 469 U.S. 325, 340 (1985)).
`The student in Fraser was given two days’ suspension for delivering a
`sexually explicit speech at a school assembly. Id. at 678-79. The school
`maintained a policy prohibiting “[c]onduct which materially and substantially
`interferes with the educational process,” which expressly included “obscene”
`speech, and teachers had warned the student prior to his speech that it was
`“‘inappropriate’” and that he might face “‘severe consequences’” if he delivered
`it. Id. at 678. The Supreme Court quickly rejected the student’s claim that the
`policy was unconstitutionally vague, finding his argument “wholly without
`merit.” The Court reasoned that the policy and warnings gave him adequate
`notice that he might be punished for giving the speech, particularly given school
`officials’ discretion to develop school policies and the fact that the student
`received a relatively light sanction. Id. at 686.
`Turning to the instant case, defendants could enact policies that permitted
`enough flexibility to deal with “a wide range of unanticipated conduct,” and the
`policy at issue here was not more vague than the prohibition in Fraser against
`“obscene” speech. Plaintiffs here -- like the student in Fraser -- were given a
`warning that the particular speech at issue would give rise to discipline, via a
`policy specifically prohibiting visible displays of the Confederate battle flag.
`Finally, plaintiffs were never suspended; they only voluntarily chose to go home
`for the day rather than leave their purses in the school’s front office or have a
`parent retrieve them. Just as in Fraser, this light sanction militates against
`
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`their vagueness claim. Thus, the district court properly granted summary
`judgment to defendants on this due process claim.8
`C.
`Equal Protection
`Plaintiffs argue that defendants violated their rights to equal protection
`because they were disciplined under the dress code for their Confederate flag
`purses while other students who wore clothing with “inappropriate symbolism”
`were not. The district court granted summary judgment to defendants on this
`claim because they have not provided evidence that the ban was enforced
`unequally and because the prohibition on the flag was justified under Tinker.
`Under the equal protection clause, strict scrutiny applies to classifications
`that infringe on a fundamental right (such as the right to free speech and
`expression) or involve a protected classification. See Ma