PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`CANDICE MICHELLE HARDWICK, by
`and through her Parents and
`Guardians Daryl Lewis Hardwick
`and Priscilla Lea Hardwick,
`Plaintiff-Appellant,
`v.
`MARTHA HEYWARD, in her
`individual capacity and in her
`official capacity as Principal of
`Latta Middle School; GEORGE H.
`LIEBENROOD, JR., in his individual
`capacity and in his official
`capacity as Principal of Latta High
`School; BOARD OF TRUSTEES OF
`LATTA SCHOOL DISTRICT DILLON
`COUNTY NO. 3,
`Defendants-Appellees.
`
`No. 12-1445
`
`Appeal from the United States District Court
`for the District of South Carolina, at Florence.
`Terry L. Wooten, District Judge.
`(4:06-cv-01042-TLW)
`
`Argued: January 30, 2013
`
`Decided: March 25, 2013
`
`Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`HARDWICK v. HEYWARD
`
`Affirmed by published opinion. Judge Shedd wrote the opin-
`ion, in which Judge Niemeyer and Judge Agee joined.
`
`COUNSEL
`
`ARGUED: Frederick Daniel Taylor, STALLINGS, BUSH &
`RANDALL, PC, Suffolk, Virginia, for Appellant. Vinton D.
`Lide, LIDE & PAULEY, LLC, Lexington, South Carolina,
`for Appellees. ON BRIEF: Kirk D. Lyons, SOUTHERN
`LEGAL RESOURCE CENTER, INC., Black Mountain,
`North Carolina; Lourie A. Salley, III, Lexington, South Caro-
`lina, for Appellant. Michael S. Pauley, LIDE & PAULEY,
`LLC, Lexington, South Carolina; Vernie L. Williams,
`CHILDS & HALLIGAN, Columbia, South Carolina, for
`Appellees.
`
`OPINION
`
`SHEDD, Circuit Judge:
`
`On multiple occasions at Latta Middle School and Latta
`High School in Latta, South Carolina, school officials prohib-
`ited Candice Hardwick from wearing and on one occasion
`punished her for wearing Confederate flag1 shirts at school.
`Candice Hardwick, by and through her parents, brought this
`action against the school principals and the school board pur-
`suant to 42 U.S.C. § 1983, alleging violations of her First
`Amendment right to free speech and expression and her Four-
`teenth Amendment rights to due process and equal protection.
`The district court granted summary judgment to the defen-
`dants, and Candice Hardwick now appeals. Because we con-
`
`1Throughout this opinion, we refer to the Confederate battle flag simply
`as the "Confederate flag." We refer to other Confederate flags by their
`specific names.
`
`

`
`HARDWICK v. HEYWARD
`
`3
`
`clude that the school officials complied with the requirements
`for regulating student speech as established in Tinker v. Des
`Moines Independent Community School District, 393 U.S.
`503 (1969), and that the school dress codes and their enforce-
`ment did not violate the Fourteenth Amendment, we affirm.
`
`I.
`
`We review the facts in the light most favorable to Candice
`Hardwick, the nonmoving party. See Laing v. Fed. Express
`Corp., 703 F.3d 713, 714 (4th Cir. 2013).
`
`A.
`
`Candice Hardwick grew up in Dillon County, South Caro-
`lina. She attended Latta Middle School during the 2002-03
`and 2003-04 school years before attending Latta High School
`during the 2004-05 and 2005-06 school years. Both schools
`are located in Latta, a town of about 1,400 people. These
`schools are part of the Latta School District,2 which had a stu-
`dent population of approximately 1,600 students, almost
`equally divided between whites and African-Americans, dur-
`ing the time Candice attended Latta schools.
`
`Latta Middle School and Latta High School have dress
`codes that regulate what clothing students may wear at school.
`The relevant portion of the middle school policy states, "Gen-
`erally, student dress is considered appropriate as long as it
`does not distract others, interfere with the instructional pro-
`grams, or otherwise cause disruption." J.A. 38. The policy
`then provides "some examples that are judged to be inappro-
`priate or distracting in the educational setting," which
`includes "clothing that displays profane language, drugs,
`tobacco, or alcohol advertisements, sexual innuendoes or any-
`thing else deemed to be offensive." J.A. 39. Similarly, the rel-
`evant part of the high school policy provides that "students
`
`2The district is also known as Dillon County School District 3.
`
`

`
`4
`
`HARDWICK v. HEYWARD
`
`are to come to school in a neat and clean manner each day.
`Dress is casual, but some styles, which may be appropriate
`outside of school, are clearly inappropriate for school. Stu-
`dents may not wear the following:
`.
`.
`. Shirts with
`obscene/derogatory sayings." J.A. 45.
`
`Starting during the 2002-03 school year at the middle
`school, school officials on multiple occasions forced Candice
`to remove Confederate flag shirts and on one occasion pun-
`ished her for wearing those shirts. The first incident came in
`early 2003, when Martha Heyward, principal of the middle
`school, required Candice to remove her "Southern Chicks"
`shirt, which displayed the Confederate flag. See J.A. 46.
`
`More incidents occurred during the 2003-04 school year.
`On one occasion in January 2004, a teacher required Candice
`to cover up a "Dixie Angels" shirt, which displayed the Con-
`federate flag. See J.A. 47. In early February, Heyward
`removed Candice from class for wearing a "Southern Girls"
`shirt, which, like the previous two shirts, displayed the Con-
`federate flag. See J.A. 48. Then in mid-February, Candice was
`sent to the school office and forced to change shirts when she
`wore a shirt honoring "Black Confederates" that displayed a
`Confederate flag and a picture of the 1st Louisiana Native
`Guards, a Confederate regiment consisting mostly of free
`African-Americans. See J.A. 49. Shortly after this incident,
`Heyward refused to let Candice wear what Candice labeled a
`"protest shirt," which displayed the American flag with the
`words "Old Glory" above the flag and "Flew over legalized
`slavery for 90 years!" underneath it. See J.A. 50. In late Feb-
`ruary, when Candice wore a shirt with a picture of Robert E.
`Lee and the Confederate flag, Candice refused to change
`shirts and was given in-school suspension. See J.A. 51.
`Finally, in March, Candice was forced to change a "Girls
`Rule" shirt that, like her other shirts, displayed the Confeder-
`ate flag. See J.A. 52.
`
`

`
`HARDWICK v. HEYWARD
`
`5
`
`After this series of incidents, Candice’s parents sent John
`Kirby, the superintendent of the school district, a letter stating
`that Candice’s clothing was approved by them and reflected
`Candice’s family heritage and religious beliefs. Harold Korn-
`blut, the chairman of the school board, responded to this let-
`ter, explaining that based on a long history of racial tension
`and the potential for different interpretations of the meaning
`of the Confederate flag, school officials could prohibit cloth-
`ing that contained images of that flag. At some time during
`this exchange of letters, Candice wore a shirt at school after
`school hours that said "Offended by School Censorship of
`Southern Heritage," resulting in a school official yelling at
`her. See J.A. 89.3
`
`When Candice began high school in the 2004-05 school
`year, the controversy over her Confederate flag shirts contin-
`ued. Candice’s parents and Kornblut again exchanged letters
`in the fall of 2004. Candice’s parents asked Kornblut to
`reconsider the school board’s position that Candice could not
`wear Confederate flag shirts at school. Kornblut’s response
`reaffirmed the school board’s position that such clothing was
`likely to cause a disruption at school and was thus prohibited.
`
`In May of that school year, George Liebenrood, principal
`of the high school, removed Candice from class for wearing
`a shirt that read "Daddy’s Little Redneck" and displayed the
`Confederate flag. See J.A. 99. In Liebenrood’s presence, Can-
`dice then produced four more "protest shirts," each of which
`Liebenrood prohibited Candice from wearing: (1) a shirt say-
`ing "Jesus and the Confederate Battle Flag: Banned from Our
`Schools but Forever in Our Hearts" that displayed the first
`Confederate national flag, commonly known as the "Stars and
`Bars," the Bonnie Blue flag, the third Confederate national flag,4
`
`3Although this shirt does not display a Confederate flag as clearly as
`some of the other shirts that Candice wore, the lettering has the red, white,
`and blue coloring of the Confederate flag and resembles the familiar diag-
`onal cross of the flag.
`4This flag is a white banner with the Confederate battle flag in the
`upper-left-hand corner, which has the censor symbol over it as depicted on
`this shirt, and a vertical red stripe on the far right side of the flag.
`
`

`
`6
`
`HARDWICK v. HEYWARD
`
`and a Confederate battle flag with the censor symbol over it,
`see J.A. 100; (2) a shirt saying "Honorary Member of the FBI:
`Federal Bigot Institutions," see J.A. 101; (3) a shirt saying
`"Our School Supports Freedom of Speech for All (Except
`Southerners)," see J.A. 102; and (4) a shirt saying "Public
`Schools Should Educate Not Discriminate Against Southern
`Heritage," see J.A. 103.5
`
`Candice’s conflict with school officials continued in the
`2005-06 school year. At the beginning of that school year,
`Candice wore a shirt with a picture of the South Carolina
`State House grounds that included the Confederate flag,
`which flies on the State House grounds. See J.A. 104. Candice
`wore this shirt "for several days" before Liebenrood learned
`of it, at which time he made her change shirts. J.A. 24. This
`was the last time Candice wore a Confederate flag shirt at
`school.
`
`After a final attempt in the spring of 2006 to have the
`school board change its position on the acceptability of Con-
`federate flag shirts at school, Candice, by and through her par-
`ents, filed this action pursuant to 42 U.S.C. § 1983 against
`Heyward, Liebenrood, and the Board of Trustees of the Latta
`School District. Candice claimed that her First Amendment
`right to free speech and expression was violated because she
`was not allowed to wear the Confederate flag shirts or protest
`shirts; that her Fourteenth Amendment right to due process
`was violated because the schools’ dress codes are overbroad
`and vague; and that her Fourteenth Amendment right to equal
`protection was violated because the school officials specifi-
`cally targeted her Confederate flag shirts while not punishing
`other racially themed shirts.
`
`The defendants filed a motion for summary judgment, and
`
`5The lettering on these last three so-called protest shirts is the same style
`as the lettering on the "Offended by School Censorship of Southern Heri-
`tage" shirt. See supra note 3.
`
`

`
`HARDWICK v. HEYWARD
`
`7
`
`the affidavits and depositions of the school officials filed with
`this motion reveal the basis on which the school officials pro-
`hibited Candice from wearing her Confederate flag shirts and
`protest shirts. For generations before integration in the 1970-
`71 school year, whites and African-Americans in Latta had
`"lived culturally and financially separate [lives]," and integra-
`tion "made life in [Latta] drastically different." J.A. 124.
`Although school officials have recognized an improvement in
`race relations since integration,6 they also stated that "there
`has always been, and continues to be, an underlying, mostly
`unspoken, prejudice between [Latta’s] white and black stu-
`dents." J.A. 132–33.
`
`Various racial incidents in Latta schools illustrate this racial
`tension. For instance, in the mid-1980s, a white student and
`an African-American student attended the prom together,
`causing "small groups of whites and blacks . . . to stir up trou-
`ble," which included white students wearing Confederate flag
`apparel and African-American students wearing Malcolm X
`apparel. J.A. 128. Less than a decade later in the early 1990s,
`the Confederate flag again caused commotion when a student
`drove through the school parking lot with a Confederate flag
`on his truck. Then, in the mid-1990s, two high school students
`burned one of the historic African-American churches in the
`area. The Confederate flag caused more "issues" and created
`a "very tense" situation between white and African-American
`students during the debate in 2000 over whether the flag
`should continue flying on the State House dome.7 J.A. 502.
`
`More recent examples that occurred during or after Can-
`dice’s time at the middle school and high school demonstrate
`
`6For example, Latta High School no longer has separate proms and
`homecoming queens for whites and African-Americans, both of which
`existed until the 1980s.
`7The Confederate flag flew atop the State House dome from the early
`1960s until 2000, when it was moved to its current location on a thirty-
`foot flagpole near the Confederate monument on the State House grounds.
`
`

`
`8
`
`HARDWICK v. HEYWARD
`
`continued racial tension in Latta schools. Heyward described
`an incident involving a Confederate flag that led to a disrup-
`tion of a classroom in which the teacher had to calm the class
`down in response to the flag. Another incident involving the
`Confederate flag took place in 2009, when a student wore a
`Confederate flag belt buckle, prompting another student who
`saw the belt buckle to say, "If you don’t take that belt off,
`we’re going to take it off of you." J.A. 503.
`
`B.
`
`In 2009, the district court granted summary judgment to the
`defendants on Candice’s First Amendment claim based on the
`Confederate flag shirts and on her Fourteenth Amendment
`equal protection and due process claims. Hardwick ex rel.
`Hardwick v. Heyward, 674 F. Supp. 2d 725 (D.S.C. 2009).
`Candice appealed, but we concluded that we lacked jurisdic-
`tion because the district court’s opinion did not address all of
`Candice’s claims—specifically, her claims related to the pro-
`test shirts—making the appeal "interlocutory in nature." C.H.
`ex rel. Hardwick v. Heyward, 404 F. App’x 765, 768 (4th Cir.
`2010) (per curiam) (quoting Am. Canoe Ass’n v. Murphy
`Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003)). We therefore
`dismissed the appeal and remanded the case for further pro-
`ceedings. Id.
`
`On remand, the district court granted summary judgment to
`the defendants on Candice’s First Amendment claim based on
`the protest shirts and reaffirmed its previous grant of sum-
`mary judgment to the defendants on Candice’s Fourteenth
`Amendment claims, thereby disposing of all claims in this case.8
`Hardwick ex rel. Hardwick v. Heyward, 2012 WL 761249
`(D.S.C. Mar. 8, 2012). Candice timely appealed, and we have
`jurisdiction pursuant to 28 U.S.C. § 1291.
`
`8Additionally, the district court concluded that the individual defen-
`dants, Heyward and Liebenrood, were entitled to qualified immunity.
`Because we conclude that Candice’s constitutional rights were not vio-
`lated, we do not address the qualified immunity issue.
`
`

`
`HARDWICK v. HEYWARD
`
`9
`
`II.
`
`We review a grant of summary judgment de novo, "apply-
`ing the same legal standards as the district court." Pueschel v.
`Peters, 577 F.3d 558, 563 (4th Cir. 2009). Summary judgment
`should be granted if "there is no genuine dispute as to any
`material fact and the movant is entitled to judgment as a mat-
`ter of law," based on the "materials in the record, including
`depositions, documents, electronically stored information,
`affidavits or declarations, stipulations (including those made
`for purposes of the motion only), admissions, interrogatory
`answers, or other materials." Fed. R. Civ. P. 56. At this stage,
`we must view all evidence in the light most favorable to the
`nonmoving party. Rowzie v. Allstate Ins. Co., 556 F.3d 165,
`167 (4th Cir. 2009). In conducting our review, we do not
`"weigh the evidence," but rather we only determine "whether
`there is a genuine issue for trial." Gray v. Spillman, 925 F.2d
`90, 95 (4th Cir. 1991); see also Anderson v. Liberty Lobby,
`Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations,
`the weighing of the evidence, and the drawing of legitimate
`inferences from the facts are jury functions, not those of a
`judge, whether he is ruling on a motion for summary judg-
`ment or for a directed verdict.").
`
`On appeal, Candice challenges the district court’s decision
`to grant summary judgment to the defendants on both her
`First and Fourteenth Amendment claims. We address each in
`turn.
`
`III.
`
`We turn first to Candice’s claim that the defendants vio-
`lated her First Amendment right to free speech and expression
`by refusing to let her wear Confederate flag shirts and protest
`shirts.
`
`A.
`
`We start with the fundamental principle that the First
`Amendment prohibits Congress and, through the Fourteenth
`
`

`
`10
`
`HARDWICK v. HEYWARD
`
`Amendment, the states from "abridging the freedom of
`speech." U.S. Const. amend. I; Gitlow v. New York, 268 U.S.
`652, 666 (1925). Although students do not "shed their consti-
`tutional rights to freedom of speech or expression at the
`schoolhouse gate," Tinker, 393 U.S. at 506, "the constitutional
`rights of students in public school are not automatically coex-
`tensive with the rights of adults in other settings," Bethel Sch.
`Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986); see also
`Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988).
`
`The Supreme Court’s landmark decision in Tinker v. Des
`Moines Independent Community School District established
`the basic framework governing student speech.9 In that case,
`a group of students wore black armbands to school to protest
`the Vietnam War, and school officials, pursuant to the policy
`they adopted once they learned of the plan to wear armbands,
`suspended the students. Tinker, 393 U.S. at 504. Interpreting
`the First Amendment "in light of the special characteristics of
`the school environment," id. at 506, the Court held that school
`officials may prohibit or punish student speech that would
`"‘materially and substantially interfer[e] with the require-
`ments of appropriate discipline in the operation of the school’
`[or] collid[e] with the rights of others." Id. at 513 (quoting
`Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). School
`officials may regulate such speech even before it occurs, as
`long as they can point to "facts which might reasonably have
`led [them] to forecast" such a disruption. Tinker, 393 U.S. at
`514. School officials may not, however, punish speech based
`on only an "undifferentiated fear or apprehension of distur-
`bance" or "a mere desire to avoid the discomfort and unpleas-
`
`9We have indicated that Tinker does not apply to "a neutral time, place,
`and manner restriction" that a school imposes. See Glover v. Cole, 762
`F.2d 1197, 1203 (4th Cir. 1985); see also Canady v. Bossier Parish Sch.
`Bd., 240 F.3d 437, 443 (5th Cir. 2001) (applying the framework of United
`States v. O’Brien, 391 U.S. 367 (1968), to a content-neutral regulation of
`speech). The dress codes in the Latta schools are not content neutral, so
`in our review of the framework of student-speech law, we do not consider
`this issue.
`
`

`
`HARDWICK v. HEYWARD
`
`11
`
`antness that always accompany an unpopular viewpoint." Id.
`at 508, 509.
`
`Applying these principles to the facts of Tinker, the Court
`held that suspending the students violated their First Amend-
`ment rights. The school officials had no "reason to anticipate
`that the wearing of the armbands would substantially interfere
`with the work of the school or impinge upon the rights of
`other students." Id. at 509. Instead, their decision appeared
`"based upon an urgent wish to avoid the controversy which
`might result from the [students’] expression." Id. at 510. Thus,
`the suspensions could not pass constitutional muster. Id. at
`514.
`
`Although Tinker provides the basic constitutional frame-
`work for reviewing student speech, the Supreme Court has
`created three exceptions to Tinker in which school officials
`may regulate student speech without undertaking Tinker’s
`substantial-disruption analysis. First, school officials can
`"prohibit the use of vulgar and offensive terms" as part of
`their role in teaching students the "fundamental values of
`‘habits and manners of civility’ essential to a democratic soci-
`ety." Fraser, 478 U.S. at 683, 681.10 Second, school officials
`have greater latitude to regulate student speech when the
`school "lend[s] its name and resources to the dissemination of
`student expression" such that "students, parents, and members
`of the public might reasonably perceive [that student expres-
`sion] to bear the imprimatur of the school." Kuhlmeier, 484
`U.S. at 272–73, 271. Third, school officials can regulate stu-
`dent speech that can plausibly be interpreted as promoting
`
`10In interpreting Fraser, we have stated, "When speech in school falls
`within the lewd, vulgar, and plainly offensive rubric, it can be said that
`Fraser limits the form and manner of speech, but does not address the
`content of the message." Newsom ex rel. Newsom v. Albemarle Cnty. Sch.
`Bd., 354 F.3d 249, 256 (4th Cir. 2003). Because we do not rely on Fraser,
`the line between the manner of speech and the content of speech is of no
`import here.
`
`

`
`12
`
`HARDWICK v. HEYWARD
`
`illegal drugs because of "the dangers of illegal drug use."
`Morse v. Frederick, 551 U.S. 393, 410 (2007).11
`
`B.
`
`Like other student-speech cases, we have recognized that
`the legal question raised by students’ desire to have poten-
`tially controversial items, such as Confederate flag apparel, in
`schools is "not frivolous." Crosby by Crosby v. Holsinger,
`
`11Although we briefly mentioned Morse in Kowalski v. Berkeley County
`Schools, 652 F.3d 565, 571 (4th Cir. 2011), we have not expressly dis-
`cussed how Morse fits into the student-speech framework. Other circuits,
`however, have addressed this issue.
`The Sixth Circuit has interpreted Morse as creating a new, additional
`framework for analyzing student speech. In Defoe ex rel. Defoe v. Spiva,
`625 F.3d 324, 338–41 (6th Cir. 2010) (Rogers, J., concurring), a majority
`of the panel interpreted Morse as allowing courts not to apply Tinker’s
`substantial-disruption test but instead to follow another "mode of analy-
`sis." The court in Defoe ex rel. Defoe treated schools’ interest in "reducing
`racial tension" as comparable to the interest in Morse of preventing illegal-
`drug use. Id. at 340. Based on this conclusion, the court held that the
`school officials’ decision to ban the Confederate flag, a "racially hostile"
`symbol, did not violate the First Amendment. Id. at 340–41.
`We disagree with the Sixth Circuit’s interpretation of Morse and believe
`that, based on the Court’s clear emphasis in Morse on the danger of
`illegal-drug use, the better interpretation of that case is that it is simply
`another exception to Tinker, just as Fraser and Kuhlmeier are. See, e.g.,
`K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., ___ F.3d ___, 2013 WL
`915059, at *5 (3d Cir. 2013) (including Morse as one of "several narrow
`categories of speech that a school may restrict even without the threat of
`substantial disruption" (internal quotation mark omitted)); Morgan v.
`Swanson, 659 F.3d 359, 387 (5th Cir. 2011) (en banc) (characterizing Fra-
`ser, Kuhlmeier, and Morse as "the exceptions to Tinker’s general rule");
`Doninger v. Niehoff, 642 F.3d 334, 344–45 (2d Cir. 2011) (including
`Morse with Fraser and Kuhlmeier in listing caveats to Tinker); B.W.A. v.
`Farmington R-7 Sch. Dist., 554 F.3d 734, 741 (8th Cir. 2009) (calling
`Morse a "narrow holding" and applying Tinker). While the Supreme Court
`is free to create exceptions to or even abandon Tinker’s substantial-
`disruption test, we must continue to adhere to the Tinker test in cases that
`do not fall within any exceptions that the Supreme Court has created until
`the Court directs otherwise.
`
`

`
`HARDWICK v. HEYWARD
`
`13
`
`816 F.2d 162, 164 (4th Cir. 1987). The seriousness of this
`issue rises from the tension between students’ right to free
`speech and school officials’ need to control the educational
`environment. As the Sixth Circuit has aptly stated:
`
`[O]n the one hand we are faced with the exercise of
`the fundamental constitutional right to freedom of
`speech, and on the other with the oft conflicting, but
`equally important, need to maintain decorum in our
`public schools so that the learning process may be
`carried out in an orderly manner.
`
`Melton v. Young, 465 F.2d 1332, 1334 (6th Cir. 1972); see
`also Barr v. Lafon, 538 F.3d 554, 562 (6th Cir. 2008) (observ-
`ing that a student-speech case raised "a most difficult ques-
`tion").
`
`Despite having addressed student speech in other contexts,
`we have not yet addressed the wearing of Confederate flag
`apparel in schools under the Supreme Court’s student-speech
`framework.12 We have, however, had occasion to consider
`various interpretations of the Confederate flag, albeit in other
`contexts. Although we have recognized that for some people,
`the Confederate flag is "a symbolic acknowledgment of pride
`in Southern heritage and ideals of independence," Sons of
`Confederate Veterans, Inc. ex rel. Griffin v. Comm’r of Va.
`Dep’t of Motor Vehicles, 288 F.3d 610, 624 (4th Cir. 2002),
`we have also acknowledged that for other people, it "is a sym-
`bol of racial separation and oppression." United States v.
`Blanding, 250 F.3d 858, 861 (4th Cir. 2001); see also Dixon
`v. Coburg Dairy, Inc., 369 F.3d 811, 814 n.2 (4th Cir. 2004)
`
`12District courts in this circuit have addressed this issue, including a
`case brought by another South Carolina student. See Phillips v. Anderson
`Cnty. Sch. Dist. Five, 987 F. Supp. 488 (D.S.C. 1997) (granting summary
`judgment to the school officials because they had a reasonable basis for
`determining that a Confederate flag jacket would cause a substantial dis-
`ruption at school).
`
`

`
`14
`
`HARDWICK v. HEYWARD
`
`(en banc) (recognizing the "heated debate" in South Carolina
`over the flag on top of the State House dome); Scott v. Sch.
`Bd. of Alachua Cnty., 324 F.3d 1246, 1248–49 (11th Cir.
`2003) (noting that one expert planned to testify that the Con-
`federate flag was "a historical symbol embodying the philo-
`sophical and political principals of a decentralized form of
`government" and another expert planned to testify that the
`flag "represented approval of white supremacy").
`
`Other circuits have faced student-speech cases involving
`the Confederate flag that were similar to this case. In many of
`these cases, other circuits have upheld school officials’ deci-
`sions to prohibit the Confederate flag at school because past
`racially charged incidents allowed the officials to predict that
`the Confederate flag would disrupt the schools. See Defoe ex
`rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel.
`McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v.
`Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009);
`Barr, 538 F.3d 554; Scott, 324 F.3d 1246; West v. Derby Uni-
`fied Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Mel-
`ton, 465 F.2d 1332.
`
`Of course, prohibiting students from having the Confeder-
`ate flag at school is not automatically constitutional. For
`instance, in Castorina ex rel. Rewt v. Madison County School
`Board, 246 F.3d 536 (6th Cir. 2001), the Sixth Circuit
`reversed the district court’s grant of summary judgment to the
`school officials. The court noted the lack of evidence suggest-
`ing that a ban on the Confederate flag was needed to prevent
`disruptions and emphasized
`that
`the Confederate flag
`appeared to have been specifically targeted by school offi-
`cials, who let other potentially divisive racial symbols go
`unpunished. Id. at 540–44.
`
`Notwithstanding the attention these cases may have
`received because of the subject matter of the students’ speech,
`a close reading of these cases shows that they are simply
`student-speech cases, based on the fact that the courts under-
`
`

`
`HARDWICK v. HEYWARD
`
`15
`
`took the analysis set forth in Tinker and its progeny. See, e.g.,
`Barr, 538 F.3d at 564–69; Castorina ex rel. Rewt, 246 F.3d
`at 540–44; West, 206 F.3d at 1365–67. We agree that a
`student-speech case about the Confederate flag is merely a
`student-speech case and therefore, in a legal sense, no differ-
`ent than other student-speech cases that we have decided. See,
`e.g., Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565 (4th Cir.
`2011); Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd.,
`354 F.3d 249 (4th Cir. 2003). Thus, despite the attention the
`Confederate flag may attract or the emotions that it may
`cause, this case is, at its core, a student-speech case governed
`by Tinker and other applicable Supreme Court precedent.13 Cf.
`United States v. Currence, 446 F.3d 554, 558–59 (4th Cir.
`2006) (observing that the parties’ focus on whether the search
`of a bicycle’s handlebars was analogous to the search of a
`car’s interior as then-permitted by New York v. Belton, 453
`U.S. 454 (1981), misconstrued the real issue, which was the
`more general rule of Chimel v. California, 395 U.S. 752
`(1969)).
`
`C.
`
`With this background in mind, we now turn to Candice’s
`specific First Amendment claims.
`
`1.
`
`We begin with Candice’s First Amendment claim based on
`
`13In its analysis, the district court thoroughly surveyed student-speech
`cases involving the Confederate flag from various federal courts around
`the country. Based on its survey, the district court thoughtfully drew six
`"relevant principles for applying the Tinker standard to a school prohibi-
`tion on Confederate symbols." Hardwick ex rel. Hardwick, 674 F. Supp.
`2d at 733. Our reading of these cases from other courts suggests that the
`principles for which they stand are not limited to student-speech cases
`involving the Confederate flag. Rather, they are interpretations of Tinker
`that, under the right factual scenario, would apply in any student-speech
`case.
`
`

`
`16
`
`HARDWICK v. HEYWARD
`
`her Confederate flag shirts. Before beginning our legal analy-
`sis, however, we first must determine which shirts are prop-
`erly labeled as Confederate flag shirts and which are properly
`labeled as protest shirts.
`
`Some shirts are easily classified as Confederate flag shirts.
`The "Southern Chicks," "Dixie Angels," "Southern Girls,"
`"Black Confederates," Robert E. Lee, "Girls Rule," "Daddy’s
`Little Redneck," and State House grounds shirts all clearly
`display the Confederate flag, and Candice does not dispute
`their characterization as Confederate flag shirts.
`
`Candice disagrees, however, with the district court’s classi-
`fication of five other shirts as Confederate flag shirts: the
`"Jesus and the Confederate Battle Flag: Banned from Our
`Schools but Forever in Our Hearts," "Offended by School
`Censorship of Southern Heritage," "Honorary Member of the
`FBI: Federal Bigot Institutions," "Our School Supports Free-
`dom of Speech for All (Except Southerners)," and "Public
`Schools Should Educate Not Discriminate Against Southern
`Heritage" shirts. We disagree with Candice, and we consider
`these shirts to be Confederate flag shirts. First, the "Jesus and
`the Confederate Battle Flag: Banned from Our Schools but
`Forever in Our Hearts" shirt includes a censored Confederate
`flag (that is, a Confederate flag with a red circle around it
`with a red diagonal line across the diameter of the circle), as
`well as the first Confederate national flag, the third Confeder-
`ate national flag, and the Bonnie Blue flag, which are three
`other recognizable Confederate symbols. This shirt is there-
`fore a Confederate flag shirt. As for the other four shirts, their
`lettering reveals a Confederate flag. The red, white, and blue
`coloring, in a diagonal cross, unmistakably represents the
`Confederate flag. These shirts are also thus properly consid-
`ered Confederate flag shirts.
`
`The record contains ample evidence from which the school
`officials could reasonably forecast that all of these Confeder-
`ate flag shirts "would materially and substantially disrupt the
`
`

`
`HARDWICK v. HEYWARD
`
`17
`
`work and discipline of the school." Tinker, 393 U.S. at 513.
`Latta is a small Southern town in which whites and African-
`Americans were segregated, including in school, for more
`than a century. When the schools were finally integrated in
`the 1970-71 school year, the presence of racial tension was
`understandable. Over the past four decades, this tension has
`diminished, but it has not completely disappeared, as numer-
`ous incidents illustrate.
`
`For example, the Confederate flag itself has caused prob-
`lems in Latta schools on multiple occasions, including the
`prom incident from the mid-1980s, the truck in the parking lot
`in the early 1990s, the debate over the flag on the State House
`dome in 2000, the classroom disruption that Heyward
`described, and the belt buckle in 2009.14
`
`Racial tension in Latta was not limited to incidents involv-
`ing the Confederate flag. A nonflag-related example of such
`tension was the burning of an African-American church by
`two high school students. Cf. West, 206 F.3d at 1362 (consid-
`ering off-campus occurrences when evaluating whether
`school officials could reasonably predict that the Confederate
`flag would cause a substantial disruption at school).
`
`These incidents, some involving the Confederate flag and
`some not, demonstrate that continued racial tension exi