NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
`File Name: 07a0145n.06
`Filed: February 21, 2007
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`No. 06-5982
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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` On Appeal from the United States
`) District Court for the Eastern
`) District of Tennessee
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`D.B., A MINOR, BY AND THROUGH
`HIS PARENT AND GUARDIAN,
`SHARON BROGDON;
`R.W. AND C.W., BOTH MINORS, BY
`AND THROUGH THEIR PARENT
`AND GUARDIAN, ROGER WHITE,
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`Plaintiffs-Appellants,
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`v.
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`
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`STEVE LAFON, IN HIS INDIVIDUAL AND
`OFFICIAL CAPACITY AS
`PRINCIPAL OF WILLIAM BLOUNT
`HIGH SCHOOL;
`ALVIN HORD, IN HIS OFFICIAL CAPACITY
`AS DIRECTOR OF SCHOOLS;
`BLOUNT COUNTY SCHOOL BOARD,
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`Defendants-Appellees.
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`Before: DAUGHTREY and COOK, Circuit Judges; and WEBER, District Judge.1
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`PER CURIAM.
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`Plaintiffs/Appellants Sharon Brogdon and Roger White bring this appeal on behalf of their
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`respective minor children, identified as “D.B.,” “C.W.” and “R.W.,” from a district court order
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`denying their motion for preliminary injunction. For the reasons stated below, we AFFIRM.
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`1
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`The Honorable Herman J. Weber, Senior United States District Judge for the Southern District of Ohio, sitting by designation.
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`I.
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`On March 2, 2006, the plaintiffs brought suit under 42 U.S.C. § 1983 against the director and
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`school board of Blount County Schools and the principal of William Blount High School, alleging
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`that the defendants violated the First and Fourteenth Amendment rights of the plaintiffs’ minor
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`children by prohibiting students from wearing clothing that depicts the Confederate battle flag. In
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`addition to the complaint’s prayer for relief, the plaintiffs filed a separate motion for preliminary
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`injunction and temporary restraining order.
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`On May 4, 2006, the district court held a hearing on the preliminary injunction motion. The
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`parties presented no witnesses, the plaintiffs instead relying upon affidavits submitted as attachments
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`to their complaint, and the defendants upon affidavits submitted in opposition to the motion. In its
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`subsequent order denying the plaintiffs’ motion, the court made findings of fact, set forth as follows
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`in pertinent part:
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`The Blount County Board of Education has adopted a dress code that
`applies to all high school students. That dress code prohibits students
`from wearing certain items, including the following:
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`f. clothing which exhibits written, pictorial, or
`implied references to illegal substances, drugs or
`alcohol, negative slogans, vulgarities, or causes
`disruption to the educational process; wearing apparel
`that is sexually suggestive or that features crude or
`vulgar commercial lettering or printing and/or pictures
`that depict drugs,
`tobacco, alcohol beverages,
`racial/ethnic slurs or gang affiliation . . .
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`The ban at issue in this case was imposed pursuant to the provision
`prohibiting clothing that “causes disruption to the educational
`process.”
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`. . . [P]laintiffs allege that on May 30, 2005, during the 2004-05
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`school year, they, along with the other students at William Blount
`High School, were informed that depictions of the confederate battle
`flag on students’ clothing would be considered a violation of the
`school’s dress code, even though such depictions were not previously
`considered violations. On September 1, 2005, during the 2005-06
`school year, despite the prohibition and “to express pride in his
`southern heritage,” plaintiff D.B. wore a shirt depicting the
`confederate battle flag, two dogs, and the words “Guarding our
`Southern Heritage.” He was allegedly confronted by defendant
`LaFon [sic], the school’s principal, who reminded D.B. about the ban,
`told him to turn his shirt inside out or take it off, and threatened him
`with suspension if he refused. A similar incident involving plaintiff
`C.W. allegedly occurred on January 13, 2006. There is no evidence
`whether plaintiff R.W. had a similar experience.
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`Plaintiffs allege that William Blount High School permits other
`expressions “of political or controversial significance,” and [that]
`there have been no disruptions resulting from the depiction of the
`confederate battle flag . . . Plaintiffs D.B. and C.W. also explain in
`their [affidavits] that they have seen other students wearing foreign
`flags, Malcolm X symbols, and political slogans.
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`Defendants have responded in opposition . . . and have included two
`affidavits. In the first affidavit, defendant LaFon [sic] explains that
`defendant Hord [the director of Blount County Schools] directed him
`to apply the dress code without viewpoint discrimination and that
`during the 2005-06 school year there were “over 452 documented
`violations of the dress code policy . . . 23 of which involved the
`wearing of the ‘Confederate flag’ by students.” Defendant LaFon
`[sic] goes on to explain that while “there have been no reported
`incidents of students wearing clothing emblazoned with Malcolm X
`words or caricatures[ ] or international flags[,] [t]here have been
`numerous non-documented incidents of violations . . . beyond those
`documented.”
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`In the second affidavit, defendant Hord . . . describes racial tensions
`at William Blount High School. According to the affidavit, on
`February 22, 2005, there was a “physical altercation between a white
`student and an African-American student,” which resulted in a civil
`rights complaint against the school system. On April 7, 2005,
`defendant Hord requested that the school be locked down with the
`presence of sheriff’s deputies “due to threats of violence against
`African-American students.”
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`For the remainder of the 2004-05 school year, defendant Hord
`explains that sheriff’s deputies remained at the school, and there were
`“multiple racially motivated threats and physical altercations” that
`resulted in suspensions and civil rights complaints and a civil lawsuit
`that alleges the school system is “a racially hostile educational
`environment.” During the 2005-06 school year, two more racial
`harassment complaints were made to the board of education. Based
`upon those events, defendant Hord concluded that “the wearing of the
`‘Confederate flag’ by students during school hours has a significant
`disruptive effect on the proper education environment of the students
`at the Blount County high school.”
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`(R.22-24, citations omitted).
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`Applying the balancing test for injunctive relief set forth in Nightclubs, Inc. v. City of
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`Paducah, 202 F.3d 884, 888 (6 Cir. 2000), to the facts before it, the district court concluded that
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`the plaintiffs could not demonstrate a substantial likelihood of success on the merits. On June 30,
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`2006, the court entered an order denying the motion for preliminary injunction. The plaintiffs filed
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`this timely appeal.
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`II.
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`A district court’s decision to grant or to deny a motion for preliminary injunction is reviewed
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`for abuse of discretion. Jones v. City of Monroe, 341 F.3d 474, 476 (6 Cir. 2003). The lower
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`court’s determination will be disturbed only if that court relied upon clearly erroneous findings of
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`fact, improperly applied the governing law, or used an erroneous legal standard. City of Paducah,
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`202 F.3d at 888. Under that standard, the district court’s legal conclusions are reviewed de novo and
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`its factual findings for clear error. Taubman v. Webfeats, 319 F.3d 770, 774 (6 Cir. 2003). A
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`factual finding is clearly erroneous “when the reviewing court is left with the definite and firm
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`conviction that a mistake has been made.” United States v. Smith, 263 F.3d 571, 581 (6 Cir. 2001).
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`In determining the appropriateness of the requested injunctive relief, the district court applied
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`the correct four factor balancing test: 1) whether the plaintiff has established a substantial likelihood
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`or probability of success on the merits; 2) whether there is a threat of irreparable harm to the
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`plaintiff; 3) whether issuance of the injunction would cause substantial harm to others; and 4)
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`whether the public interest would be served by granting injunctive relief. City of Paducah, 202 F.3d
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`at 888. In the context of First Amendment violations, the “likelihood of success” factor frequently
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`is determinative. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6 Cir. 1998), cert. denied,
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`526 U.S. 1087 (1999).
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`Under case law applicable to free speech claims, “the loss of First Amendment freedoms, for
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`even minimal periods of time,” is presumed to constitute irreparable harm. Elrod v. Burns, 427 U.S.
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`347, 373 (1976). Such protection extends to public school students, who do not “shed their
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`constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des
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`Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Nevertheless, “the First Amendment
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`rights of students in public schools are not automatically coextensive with the rights of adults in
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`other settings, and must be applied in light of the special characteristics of the school environment.”
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`West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10 Cir.), cert. denied, 531 U.S. 825
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`(2000). Schools need not tolerate student speech deemed inconsistent with the educational mission
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`even if similar speech would not be subject to censor outside the school setting. Hazelwood Sch.
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`Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988). Still, schools may not punish “silent, passive
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`expression of opinion, unaccompanied by any disorder or disturbance” attributable to such
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`expression, and “undifferentiated fear or apprehension of disturbance is not enough to overcome the
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`right to freedom of expression.” Tinker, 393 U.S. at 508.
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`The wearing of clothing depicting the Confederate flag as an expression of pride in one’s
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`southern heritage constitutes speech governed by the First Amendment. Castorina v. Madison
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`County Sch. Bd., 246 F.3d 536, 540 (6 Cir. 2001). Nevertheless, school officials may ban what
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`otherwise would be protected speech where “engaging in the forbidden conduct would ‘materially
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`and substantially interfere with the requirements of appropriate discipline in the operation of the
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`school’.” Tinker, 393 U.S. at 509. On the other hand, even where past racial incidents justify a ban,
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`schools may not impose “a view-point specific ban on [some] racially divisive symbols and not
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`others.” Castorina, 246 F.3d at 544. A school’s refusal to bar the wearing of apparel depicting
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`Malcolm X symbols along with clothing depicting the Confederate flag “gives the appearance of a
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`targeted ban.” Id. at 541.
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`III.
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`The plaintiffs assert that the district court erroneously found that the defendants “had reason
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`to believe that a student’s display of the Confederate flag might cause disruption.” (R.31, emphasis
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`in original). Given Blount High School’s recent history of racial tensions as recited in the record,
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`however, the court’s finding to that effect was not clearly erroneous. Even without evidence that
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`Confederate flag displays had been the direct cause of past disruptions, school officials reasonably
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`could surmise that such displays posed a substantial risk of provoking problems in the incendiary
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`atmosphere then existing. “In this case, the district had a reasonable basis for forecasting disruption
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`from display of such items at school.” See Derby Unified Sch. Dist., 206 F.3d at 1366; see also
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`Castorina, 246 F.3d at 542 [suggesting that undisputed evidence of past racially-motivated violence
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`or threats in a particular school district could justify a conclusion that “display of the Confederate
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`flag” in such schools might have a “significant disruptive effect”], 543-44 [“a school board may ban
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`racially divisive symbols when there has been actual racially motivated violence and when the policy
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`is enforced without viewpoint discrimination”].
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`The plaintiffs’ assertion that the district court’s ruling “requires a presumption that the
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`Confederate flag is per se ‘racially divisive’” and in essence rises “to the level of judicially noticed
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`fact” does not alter this result. While the district court here did not comment explicitly on the
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`Confederate flag’s inherent racial divisiveness, other federal appellate courts have. According to the
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`Eleventh Circuit, for example, “[i]t is . . . clear that the primary effect of the [Confederate] flag . .
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`. is to remind citizens, albeit offensively to some, of a controversial era in American history.”
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`NAACP v. Hunt, 891 F.2d 1555, 1564 (11 Cir. 1990). Another circuit court has observed that “[i]t
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`is common knowledge that public reaction to and the debate over . . . the Confederate [b]attle flag
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`. . . has been virtually exclusively in relation to . . . whether or to what extent this symbolism extols
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`or excuses slavery, racial oppression or resistance to racial equality.” Briggs v. State of Mississippi,
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`331 F.3d 499, 506 (5 Cir. 2003), cert. denied, 540 U.S. 1108 (2004). Indeed, this Circuit also has
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`implicitly acknowledged that the Confederate flag qualifies as a “controversial racial and political
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`symbol[ ].” Castorina, 246 F.3d at 542. Accordingly, even if some recognition of the flag’s racially
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`divisive nature is implicit in the district court’s finding, that finding is not rendered clearly erroneous
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`thereby.
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`The plaintiffs’ assertion that they proved an “[a]bsence of [d]isorder [a]ssociated with the
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`Confederate [f]lag” is not dispositive of that factual issue. Even assuming that no students’ wearing
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`of that symbol had caused a disruptive incident in the past, the district court nonetheless reasonably
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`could conclude that displays of the Confederate flag would be likely to lead to unrest in the future.
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`Such a determination is not erroneous as either a factual finding or a legal conclusion.
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`The plaintiffs also argue that the district court erroneously failed to find that the defendants
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`enforced the dress code in a viewpoint-specific manner. Plaintiffs cite three examples said to impel
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`this conclusion. First, relying on their affidavits as establishing that the school district regularly
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`failed to discipline students wearing Malcolm X symbols or other national flags, the plaintiffs urge
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`that the evidence compels a factual conclusion that the Confederate battle flag was the only political
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`symbol targeted by the defendants for dress code enforcement. The district court’s finding that this
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`evidence did not prove viewpoint discrimination, however, was not clearly erroneous. The evidence
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`indicates that wearing of the Confederate flag accounted for only 23 of 452 instances of dress code
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`violations documented since August of 2005. The plaintiffs presented no evidence showing how
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`frequently or conspicuously other political symbols were worn by students, or even that school
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`officials were aware of the presence of clothing depicting those other political symbols. Evidence
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`presented by the defendants tends to suggest that they were not. In light of evidence of numerous
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`other dress code violations that had not been documented, the district court’s speculation that “other
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`instances of dress code violations . . . involv[ing] a variety of symbols[ ]” may have been “resolved
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`informally” also does not constitute clear error.
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`The plaintiffs also contend that the district court’s analysis is internally inconsistent and
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`therefore clearly erroneous. Specifically, the plaintiffs argue that the district court cannot logically
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`conclude that school officials detected and eliminated visible depictions of Confederate flags so
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`quickly as to avert any possible disruptions caused thereby, yet failed to notice clothing depicting
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`Malcolm X symbols and international flags. Because no such inconsistency seems inherent, however
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`– both absent proof of how frequently and conspicuously such other symbols appeared relative to
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`the frequency and conspicuousness of depictions of the Confederate battle flag, and in light of
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`possible justification for differentiating among certain symbols – no clear error finding is warranted
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`on that basis.
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`Finally, the plaintiffs point to uncontroverted evidence that the Confederate flag was the only
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`symbol specifically mentioned by the defendants when announcing the ban. This presents a closer
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`call, as the fact that the Confederate flag apparently was singled out in this way does bolster the
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`plaintiffs’ position. Given the clear error standard of review, however, the appellate court has no
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`basis for disrupting the district court’s conclusion that, without more, school officials’ citing of that
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`sole example does not prove they intended to ban only the Confederate battle flag, and not other
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`symbols. The district court’s conclusion that the plaintiffs “have not produced sufficient evidence
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`to show that the school’s policy probably imposes ‘a viewpoint-specific ban on [some] racially
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`divisive symbols but not others” thus is not clearly erroneous.
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`The plaintiffs also contend that the district court erred in analyzing their motion under the
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`premise that “[s]chool officials may ban racially divisive symbols when there has been actual racially
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`motivated violence and when the policy is enforced without viewpoint discrimination.” (R. 25).
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`They urge that such standard is inconsistent with the one set out in Tinker and utilized by this Court
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`in Castorina. They further argue that as a result of applying an incorrect standard, the district court
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`drew erroneous legal conclusions about the school district’s authority to ban the wearing of the
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`Confederate battle flag.
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`Ironically, the language thus singled out by Plaintiffs appears almost verbatim in Castorina,
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`246 F.3d at 543-44. Neither is that language inconsistent with Tinker. Under Tinker, “to justify
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`prohibition of a particular expression of opinion,” a school district must be able to show only “that
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`its action was caused by something more than a mere desire to avoid the discomfort and
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`unpleasantness that always accompany an unpopular viewpoint,” but rather, “that the school
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`authorities had reason to anticipate that the wearing of [the banned imagery] would substantially
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`interfere with the work of the school or would impinge upon the rights of other students,” 393 U.S.
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`at 509, including the right “to be secure and to be let alone.” Id. at 508.
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`Recognizing that the Tinker decision does not require that the banned form of expression
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`itself actually have been the source of past disruptions, subsequent appellate court decisions
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`considering school bans on expression have focused on whether the banned conduct would likely
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`trigger disturbances such as those experienced in the past. See, e.g., Castorina, 246 F.3d at 542;
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`Melton v. Young, 465 F.2d 1332 (6 Cir. 1972), cert. denied, 411 U.S. 951 (1973). Although Melton
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`differs in that the record there contained evidence that the Confederate flag in fact had been a factor
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`in past unrest, see 465 F.2d at 1333, 1335, nothing in Melton or Tinker requires evidence of a
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`preexisting incident of the banned symbol evoking disruption. To the contrary, “[t]he fact that a full-
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`fledged brawl ha[s] not yet broken out over the Confederate flag does not mean that [a school]
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`district [i]s required to sit and wait for one.” West, 206 F.3d at 1366 (quoting with favor West v.
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`Derby Unified Sch. Dist. No. 260, 23 F. Supp.2d 1223, 1233 (D. Kan. 1998)).
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`Unlike the record in Tinker, the record in this case evidences ample reason for school
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`officials to anticipate disruption resulting from the wearing of the banned symbol. During the prior
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`academic year, Blount High School had been the scene of racial tension, intimidation and violence
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`to such an extent that law enforcement officials were brought in to maintain order, and the school
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`was defending against lawsuits depicting it as a racially hostile educational environment. As
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`discussed above, the district court had a sound factual basis for finding that defendants “had reason
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`to believe that a student’s display of the Confederate flag might cause disruption.” Reviewing the
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`district court’s analysis de novo, we conclude that neither the legal standard applied nor the legal
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`conclusions drawn were erroneous.
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`The plaintiffs further argue that the district court erred by assigning them the burden of proof
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`with respect to the four-part balancing test for acquiring preliminary injunctive relief. Although the
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`plaintiffs correctly observe that the defendants would bear the burden at trial of establishing that the
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`Confederate flag ban does not violate the Constitution, it remains the plaintiffs who bear the burden
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`of establishing the need for a preliminary injunction. Connection Distrib., 154 F.3d at 288. The
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`district court appears properly to have required the defendants to show that the ban was justified in
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`light of past racial disturbances at the school, and properly to have found that the defendants
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`sustained that burden. Having failed to respond with evidence sufficient to prove that such ban was
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`enforced in a viewpoint-specific manner, however, the plaintiffs did not sustain their burden of
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`proving that they were likely to succeed on the merits. We therefore AFFIRM the district court’s
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`denial of the motion for preliminary injunction.