RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`File Name: 08a0305p.06
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`DEREK BARR; ROGER CRAIG WHITE and CHRIS
`WHITE, by and through their parent and guardian
`ROGER WHITE,
`
`Plaintiffs-Appellants,
`
`v.
`
`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; and THE BLOUNT COUNTY SCHOOL BOARD,
`Defendants-Appellees.
`
`X---->,--------N
`
`No. 07-5743
`
`Appeal from the United States District Court
`for the Eastern District of Tennessee at Knoxville.
`No. 06-00075—Thomas A. Varlan, District Judge.
`
`Argued: April 22, 2008
`
`Decided and Filed: August 20, 2008
`Before: MOORE and CLAY, Circuit Judges; SCHWARZER, District Judge.*
`_________________
`COUNSEL
`ARGUED: Van R. Irion, LAW OFFICES OF VAN R. IRION, Knoxville, Tennessee, for
`Appellants. LaJuana G. Atkins, CRAWFORD, CRAWFORD & NEWTON, Maryville, Tennessee,
`for Appellees. ON BRIEF: Van R. Irion, LAW OFFICES OF VAN R. IRION, Knoxville,
`Tennessee, for Appellants. LaJuana G. Atkins, Norman H. Newton, Jr., CRAWFORD,
`CRAWFORD & NEWTON, Maryville, Tennessee, Robert N. Goddard, GODDARD & GAMBLE,
`Maryville, Tennessee, Gary M. Prince, O’NEIL, PARKER & WILLIAMSON, Knoxville,
`Tennessee, for Appellees.
`
`*The Honorable William W Schwarzer, United States District Judge for the Northern District of California,
`sitting by designation.
`
`1
`
`

`
`No. 07-5743
`
`Barr et al. v. Lafon, et al.
`
`Page 2
`
`_________________
`OPINION
`_________________
`KAREN NELSON MOORE, Circuit Judge. Derek Barr, Roger Craig White, and Chris
`Nicole White (“Plaintiffs-Appellants”), students at William Blount High School (“the school”) in
`Blount County, Tennessee, would like to express their southern heritage by wearing clothing
`depicting the Confederate flag at school. They appeal the district court’s grant of summary
`judgment to the principal of their school, Steven Lafon (“Lafon”), the director of the Blount County
`schools, Alvin Hord (“Hord”), and the Blount County School Board1 on their First Amendment,
`Equal Protection Clause, and Due Process Clause claims.
`I. FACTS AND PROCEDURE
`
`A. Factual Background
`1. Written Dress Code
`The Blount County Board of Education issued a dress code on December 4, 2003 in
`recognition of “the effect that student dress and grooming have upon student behavior and learning.”
`Joint Appendix (“J.A.”) at 155 (Hord Aff. Ex. 1 at 1). Among other prohibitions, the dress code bars
`middle- and high-school students from wearing during the school day:
`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 . . . .
`J.A. at 156 (Hord Aff. Ex. 1 at ¶ 4(f)) (emphasis added). On the first day of the 2005-2006 school
`year, in keeping with school policy, students attended a meeting at which they received a “[p]lanner”
`containing an agenda and school rules. Students’ home-room teachers reviewed the planner with
`them, and the school asked both parents and students to sign a page of the planner indicating that
`they had read the policy. J.A. at 102 (Lafon Dep. at 26:19-27:7).
`2. Announcement of the Ban on Clothing Displaying the Confederate Flag
`At an assembly for the freshman class in August 2005, Principal Lafon told the class that
`“they would not be allowed to have Rebel flags or symbols of [the] Rebel flag on their clothing, or
`anything else that was a disruption to the school.” J.A. at 102 (Lafon Dep. at 28:10-12). Lafon
`testified at his deposition that he did not mention any other flags as similarly banned because there
`were not “any other flags at that point that were causing disruption or that we knew had caused a
`disruption in the previous year.” J.A. at 102 (Lafon Dep. at 28:17-23). Lafon told the students that
`“in general . . . anything that is a disruption to the school learning environment would not be
`tolerated.” J.A. at 103 (Lafon Dep. at 29:5-9).
`
`1Plaintiffs-Appellants brought suit against Lafon in his individual and official capacities. Plaintiffs-Appellants
`brought suit against Hord only in his official capacity. Defendants-Appellees are collectively referred to as “the Board”
`throughout the opinion.
`
`

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`No. 07-5743
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`Barr et al. v. Lafon, et al.
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`Page 3
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`3. Rationale for the Ban on the Confederate Flag and Racially Divisive Symbols
`According to Hord, racial tensions at the school comprised the context for the clothing ban.
`Relevant incidents included racist graffiti that made general threats against the lives of African-
`Americans, graffiti containing “hit lists” of specific students’ names, physical altercations between
`African-American and white students, and a police lockdown at the school. J.A. at 53-54 (Hord Aff.
`3/10/06 at ¶¶ 3-4); J.A. at 111, 113-14, 115-16 (Hord Dep. at 17-18, 25-31, 36-39). Hord attests that
`“[b]ased upon the aforementioned incidents, the wearing of the ‘Confederate flag’ by students
`during school hours has a significant disruptive effect on the proper educational environment of the
`students at the Blount County high school.” J.A. at 54 (Hord Aff. 3/10/06 at ¶ 5). Of the
`approximately 1,750 students attending the school, less than ten percent are African-American. J.A.
`at 153 (Hord Aff. 4/3/07 at ¶ 10).
`a. February 22, 2005 Altercation and other Altercations
`Both sides in the instant case cite an incident that occurred on February 22, 2005 as the
`catalyst of heightened racial tension in the school. Barr recounted his observation of the incident.
`According to Barr, the incident involved a physical altercation at a basketball game in the gym,
`between an African-American student (whose name Barr did not know) and a Caucasian student
`named J.H. J.A. at 235 (Barr Dep. at 8:12-20). Barr did not remember exactly what the argument
`was about. J.A. at 235 (Barr Dep. at 8:21-23). Barr indicated that a third “racist” white student
`named C.P.“didn’t like what the African-American kid was saying, and they got into it.” J.A. at
`235-36 (Barr Dep. at 8:24-9:3). The African-American student rounded up a group of friends, and
`Barr joined a “couple of other kids . . . because [J.H.] was our friend and we didn’t want to see him
`getting jumped by anybody.” J.A. at 236 (Barr Dep. at 9:3-9). Before a physical altercation began,
`“the teachers and everybody got down there and split them up and everything like that and told them
`to go to class. And from then on there was a tight racist thing going on in the school.” J.A. at 236
`(Barr Dep. at 9:10-13). Barr testified that by “tight racist thing,” he meant that the African-
`American students “tried to find anything they could to get” Caucasian students “in trouble.” J.A.
`at 236 (Barr Dep. at 9:15-20).
`The incident resulted in the parent of the African-American student involved in the February
`22 altercation, whom the school suspended, filing a complaint with the Office of Civil Rights
`(“OCR”) at the Department of Education alleging that the complainant’s son received harsher
`discipline than a white student who did not receive a suspension. J.A. at 111 (Hord Dep. at 17-18);
`J.A. at 289 (OCR Letter at 1). OCR investigated the incident and concluded “that the witnesses did
`not substantiate the allegations that Student #2 [a Caucasian student] engaged in fighting. All
`witnesses stated that Student #2 had not pushed back when Student #1 pushed him into the
`bleachers.” J.A. at 291 (OCR Letter at 3).2 Furthermore, OCR concluded although “[t]he
`complainant reported that the two [Caucasian] HHS students threatened, used racial slurs or
`intimidating conduct (noose gestures) against [her son, African-American] Student #1[,] . . . that
`allegation was not corroborated by witnesses.” Id.
`In addition to the February 22 incident, Hord attests that the school experienced “multiple
`racially motivated threats and physical altercations,” but Hord does not specifically describe other
`
`2The OCR report states that Student #2 attended Heritage High School and not William Blount High School.
`J.A. at 289 (OCR Letter at 1). Both Heritage and William Blount High Schools, however, lie within the Blount County
`School District and both are subject to the district’s policies regarding discrimination and harassment. J.A. at 290 (OCR
`Letter at 2). OCR did not find material to its investigation the fact that students #1 and #2 attended different high
`schools. Moreover, it is possible that OCR received misinformation from William Blount High School regarding which
`high school Student #2 attended. Barr’s testimony at deposition implies that all students involved in the February 22
`altercation attended William Blount High School. JA. at 70-71 (Barr. Dep. at 8:4-9:22).
`
`

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`No. 07-5743
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`Barr et al. v. Lafon, et al.
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`Page 4
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`physical altercations. J.A. at 53 (Hord Aff. 3/10/06 at ¶ 3(b)). Hord mentioned at his deposition an
`incident in January 2005 involving a mixed-race step team that he believed contributed to racial
`tensions at the school. J.A. at 111 (17:7-16).
`b. Racist Graffiti and “Hit Lists”
`In the spring of 2005, the school experienced multiple incidents of racist graffiti and graffiti
`containing “hit lists” with students’ names. On March 23, 2005, School Resource Officer and
`Deputy Sheriff Joe Crisp investigated graffiti in the girls’ restroom after an Assistant Principal at
`the school contacted him. J.A. at 183 (Crisp Aff. at ¶ 2). He did not take pictures because the
`custodians had painted over the graffiti before he arrived; however, he filed an incident report with
`the Sheriff’s Office. J.A. at 183 (Crisp Aff. at ¶ 2). According to his report, the Assistant Principal
`told him that the phrase “all niggers must die” was accompanied by a list with future victims’ names.
`J.A. at 188 (Incident Report).
`Another incident involving racist graffiti occurred on April 1, 2005; the principal of the
`school contacted Crisp to ask him to investigate racial remarks on a restroom stall. J.A. at 183
`(Crisp Aff. at ¶ 3). Crisp took pictures, J.A. at 377-384 (Photographs), and filed an incident report.
`J.A. at 183 (Crisp Aff. at ¶ 3); J.A. at 191 (Incident Report). Four days later, on April 5, 2005, Crisp
`took photographs of graffiti in a boys’ restroom, J.A. at 202; the graffiti stated: “All niggers will
`still die on 4-13-05[.] It’s time for a new revolution[.] KKK.” J.A. at 184 (Crisp Aff. at ¶ 4); J.A.
`at 386 (Crisp Aff. Ex. 4). Deputy Sheriff Andy Waters took photographs of the graffiti in a boys
`restroom in the vocational wing of the school. J.A. at 392-411 (Photographs); J.A. at 206
`(Investigative Report). The graffiti included the scrawled statements: “The South Will Rise Again,”
`J.A. at 398-99 (Waters Aff. Ex. 2), and “Niggers ‘Hang em,’” written above a drawing of a noose
`next to the Confederate flag. J.A. at 404-09 (Waters Aff. Ex. 2).
`The graffiti included a “hit list” with students’ names. J.A. at 113-14 (Hord Dep. at 25-31);
`J.A. at 367 (Crisp Aff. at ¶ 2); J.A. at 369-72 (Crisp Aff. Ex. 1). Hord testified that he was not
`certain whether all the names on the list were those of minority students. J.A. at 114 (Hord Dep. at
`29). Deputy Sheriff David Henderson stated in his report that the graffiti threatened “rednecks” as
`well as African-Americans. J.A. at 231 (Henderson Report). Plaintiff-Appellant Barr testified that
`the list was on paper and was shown to various students. J.A. at 238 (Barr Dep. at 11:19-24). Barr
`testified that “it wasn’t just Caucasian kids doing it.” J.A. at 238 (Barr Dep. at 11:7-8). He testified
`that he knew “a lot” of the people on the list, some Caucasian and some African-American. J.A. at
`239 (Barr Dep. at 12:2-7).
`c. Lockdown
`After a meeting with representatives from the Sheriff’s Department and an FBI agent, Hord
`decided to implement a lockdown at the school in early April 20053 to “be proactive” and “show
`that the school [was] secure and it [was] safe and we [were] interested in keeping it that way.” J.A.
`at 54 (Hord Aff. 3/10/06 at ¶ 4); J.A. at 115 (Hord Dep. at 36:20-22); J.A. at 117-18 (Hord Dep. at
`44:24-45:2) (reiterating the need to demonstrate that the school was safe and free of guns). Hord
`pointed out that there had been “threats to bring guns, to hang people, to do all of this stuff. I had
`been accused by some people of not taking this serious[ly].” J.A. at 115 (Hord Dep. at 36:17-19).
`One parent Hord remembered in particular, John Cleveland, called Hord because his daughter had
`been called racially derogatory names, threatened because of her race, and “exposed to being taunted
`by the [Rebel] flag or something to that nature.” J.A. at 116 (Hord Dep. at 40:4-7, 20). Hord was
`concerned about violence. J.A. at 116 (Hord Dep. at 37:15-16).
`
`3Lafon was a teacher at the school at this time; he assumed the principalship in the summer of 2005. J.A. at
`97 (Lafon Dep. at 6:18-20); J.A. at 120 (Hord Dep. at 53:21-25).
`
`

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`No. 07-5743
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`Barr et al. v. Lafon, et al.
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`Page 5
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`The Sheriff’s Office “maintained a continued presence,” J.A. at 228 (Henderson Aff. at ¶ 3),
`at the school on April 7-8, 2005. The office assigned “approximately 40-50 officers” “to secure”
`the high school and “investigate racial incidents.” J.A. at 228 (Henderson Aff. at ¶ 3). Officer
`Waters “checked purses and backpacks at the school entrance as part of the security assigned” to the
`school. J.A. at 204 (Waters Aff. at ¶ 3). “The investigation did not reveal any suspects for the
`graffiti, racial threats[,] or racial slurs.” J.A. at 184 (Crisp Aff. at ¶ 5). One student, J.H., “was
`charged and delivered to the Blount County Juvenile Detention Center after he admitted that he
`stated that he and his friends were going to bring a gun to school and kill all African American
`students and other people they did not like.” J.A. at 184 (Crisp Aff. at ¶ 5).
`d. Hord’s Conclusions Regarding the Disruptive Effect of the Confederate Flag
`Hord attests that in making the decision to ban the Confederate flag and other “racially
`divisive symbols,” he “relied upon numerous conversations with students and parents of students
`which revealed that students were taunted by the Confederate flag and were fearful for their safety
`as a result of the racial tensions at William Blount High School.” J.A. at 152 (Hord Aff. 4/3/07 at
`¶ 5). Hord further attests that “[t]he parents’ and the students’ fears were evidenced by a dramatic
`increase in absenteeism during the time of racial tension prior to the lockdown and the ban.” Id.
`Hord characterized the Confederate flag as both offensive and disruptive: “I think when that
`offense becomes something that you have to deal with day-in and day-out [] it is disruptive to what
`our normal process is, yes.” J.A. at 115 (Hord Dep. at 34:6-8); see also J.A. at 112 (Hord Dep. at
`21:7-16). Hord believed that student offense as a result of the flag would lead to disruption. J.A.
`at 122-23 (Hord Dep. at 64:18-65:2). Hord stated that he was not banning the Confederate flag
`because it was a “racist symbol”: he based the continued ban on the events that began in January
`2005 and information that he continues to gain
`that says to me, when you have it, you have disruption, you have—you have
`interference with the learning process. And you have hurt feelings and you have
`people that are offended and it is something that we have to deal with. My primary
`purpose is to take us forward instructionally and that prohibits that and you’re
`worried about the insecurity and safety and all of those things rather than the
`instruction process.
`J.A. at 115 (Hord Dep. at 33:5-16). Lafon believed that were the ban lifted, the Confederate flag
`“would be a source of confrontation and a symbol that would cause unrest with the student body.”
`J.A. at 99 (Lafon Dep. at 14: 19-20). Lafon also believed that the presence of the flag would lead
`to racially motivated physical altercations. J.A. at 99 (Lafon Dep. at 14:23-24). Hord, however,
`stated in his deposition that he intended “at this point” to keep the ban in place, even if appearances
`of the Confederate flag (despite the ban) did not cause disruption. J.A. at 121 (Hord Dep. at 59:9-
`60:10).
`
`4. Enforcement of the Ban on Racially Divisive Symbols
`According to Lafon, between August 2005 and March 2006, the school witnessed “over 452
`documented violations of the dress code policy . . . twenty-three (23) of which involved the wearing
`of the ‘Confederate flag’ by students.” J.A. at 51 (Lafon Aff. at ¶ 4). Plaintiff-Appellant Barr
`declares:
`On or about September 1, 2005, to express pride in my southern heritage, I wore a
`T-shirt to school bearing a small image of the Confederate flag, a picture of two
`dogs, and the words “Guarding our Southern Heritage” on the back. I was
`confronted by Defendant Lafon. Prior to my encounter with Mr. Lafon, no student
`or teacher had commented on my shirt that day. I was informed by Mr. Lafon that
`
`

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`No. 07-5743
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`Barr et al. v. Lafon, et al.
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`Page 6
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`items displaying the Confederate flag were banned at William Blount High School.
`Defendant Lafon informed me that I had to turn the shirt inside out or take it off.
`Lafon informed me that if I refused to remove the shirt I would be suspended from
`school.
`J.A. at 26-27 (Barr Decl. at ¶ 4). Plaintiff-Appellant Chris White declares that she “wore a shirt with
`an image of the Confederate flag to school” in January 2006. J.A. at 24 (Chris White Decl. at ¶ 4).4
`A teacher told Chris White “that the shirt violated school policy because of the image of the flag.”
`J.A. at 24-25 (Chris White Decl. at ¶ 4). The teacher told Chris White “to cover the shirt with a
`jacket for the rest of the day or return home and be suspended.” J.A. at 25 (Chris White Decl. at
`¶ 4). We note that the declarations of Derek Barr and Chris White contained in the joint appendix
`are unsigned.
`B. Procedural Background
`On February 21, 2007, a panel of this court affirmed the district court’s denial of Plaintiffs-
`Appellants’ motion for a preliminary injunction in an unpublished opinion. D.B. ex rel. Brogdon
`v. Lafon, 217 F. App’x 518 (6th Cir. 2007) (unpublished) (per curiam). Plaintiffs-Appellants filed
`a motion for summary judgment as to their Equal Protection Clause claim on February 10, 2007.
`The Board filed a motion for summary judgment on April 5, 2007. In an oral ruling on May 24,
`2007, the district court denied Plaintiffs-Appellants’ motion for summary judgment and granted the
`Board’s motion, which it treated as addressing all of the claims in the Complaint (First Amendment,
`Equal Protection, and Due Process). J.A. at 33-44. The district court formally entered judgment in
`a one-page order on May 31, 2007, dismissing the case with prejudice.
`II. ANALYSIS
`
`A. Standard of Review
`We review de novo the district court’s grant of summary judgment to the school. Clay v.
`United Parcel Serv., Inc., 501 F.3d 695, 700 (6th Cir. 2007) (citing Wright v. Murray Guard, Inc.,
`455 F.3d 702, 706 (6th Cir. 2006)). Summary judgment for the school is appropriate “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). In contrast, “[s]ummary judgment is inappropriate when the evidence raises
`a genuine issue about a material fact, ‘that is, if the evidence is such that a reasonable jury could
`return a verdict for the nonmoving party.’” Wright, 455 F.3d at 706 (quoting Anderson v. Liberty
`Lobby, Inc., 477 U.S. 242, 248 (1986)). We “view all evidence in the light most favorable to the
`nonmoving party.” Clay, 501 F.3d at 701. We must determine “whether the evidence presents a
`sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
`must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. We do not “weigh the evidence
`and determine the truth of the matter but [rather we] determine whether there is a genuine issue for
`trial.” May v. Franklin County Comm’rs, 437 F.3d 579, 583 (6th Cir. 2006) (quoting Anderson, 477
`U.S. at 249). “[T]here can be ‘no genuine issue as to any material fact’” when the nonmoving party
`has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that
`
`4The declaration is titled “Declaration of C.W.” We assume that the declaration is by Plaintiff-Appellant Chris
`Nicole White and not Plaintiff-Appellant Roger Craig White because the declaration in one sentence refers to the author
`of the declaration in the third person, rather than the first person, using the pronoun “she.” J.A. at 25 (Chris White Decl.
`at ¶ 4). In addition, the caption for the district court opinion in this case referred to Plaintiffs-Appellants as D.B., R.W.,
`and C.W. We therefore deduce that R.W. referred to Roger Craig White and C.W. to Chris Nicole White. J.A. at 45
`(5/31/2007 Order).
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`Barr et al. v. Lafon, et al.
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`Page 7
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`party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
`477 U.S. 317, 322-23 (1986).
`Plaintiffs-Appellants also appeal the district court’s denial of their motion for summary
`judgment. “Although the denial of a motion for summary judgment is usually an interlocutory order
`that is not immediately appealable, where ‘an appeal from a denial of summary judgment is
`presented in tandem with a grant of summary judgment, this court has jurisdiction to review the
`propriety of the district court’s denial of summary judgment.’” Tenn. ex rel. Wireless Income
`Props., LLC v. City of Chattanooga, 403 F.3d 392, 395 (6th Cir. 2005) (quotations omitted).
`Because the district court denied Plaintiffs-Appellants’ motion for summary judgment “‘on purely
`legal grounds’ . . . [and not] based on the finding of a genuine issue of material fact,” we review the
`district court’s denial de novo. Id. at 395-96 (quoting McMullen v. Meijer, Inc., 355 F.3d 485, 489
`(6th Cir. 2004)). We review de novo decisions on mixed questions of law and fact. Wolfe v. Perry,
`412 F.3d 707, 716 (6th Cir. 2005).
`B. Plaintiffs-Appellants’ First Amendment Claim
`1. Precedent Relevant to Student Speech in Public Schools
`Plaintiffs-Appellants’ claims lead us to wrestle with a most difficult question: how to
`balance some students’ rights to free speech with “the rights of other students to be secure and to
`be let alone,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969), taking into
`account the authority of school officials to maintain the discipline and learning environment
`necessary to accomplish the school’s educational mission. The district court granted the Board’s
`motion for summary judgment on Plaintiffs-Appellants’ First Amendment and Equal Protection
`claims because the Confederate flag did not need to have caused a disruption in the past in order for
`school officials to ban it when (1) there were racially motivated incidents at the school that caused
`tension among the student body and (2) such a ban was not implemented in a viewpoint-
`discriminatory manner. J.A. at 35 (Tr. at 92:17-23); J.A. at 38 (Tr. at 95:6-9); J.A. at 41 (Tr. at 98:3-
`14). We affirm the district court’s grant of summary judgment to the Board.
`The Supreme Court has made “clear that students do not ‘shed their constitutional rights to
`freedom of speech or expression at the schoolhouse gate.’” Morse v. Frederick, ---U.S.---, 127 S.
`Ct. 2618, 2622 (2007) (quoting Tinker, 393 U.S. at 506). “[T]he constitutional rights of students in
`public school are not automatically coextensive with the rights of adults in other settings,” Bethel
`Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and courts must apply the rights of students
`“in light of the special characteristics of the school environment.” Hazelwood Sch. Dist. v.
`Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker, 393 U.S. at 506).
`In Tinker, the Court considered whether a public school district violated high-school and
`junior-high-school students’ First Amendment rights when the district suspended students who had
`worn black armbands to school as an expression of their opposition to the Vietnam War. The school
`had implemented a ban on the wearing of armbands after learning of some students’ plans to protest
`the war by wearing black armbands during the holiday season in December 1965. The Court
`determined that because “the wearing of armbands . . . was entirely divorced from actually or
`potentially disruptive conduct by those participating in it,” the wearing of the armbands “was closely
`akin to ‘pure speech.’” Tinker, 393 U.S. at 505-06. The Court also determined that there existed
`no evidence that the suspended students’ protest interfered “with the rights of other students to be
`secure and to be let alone” and, accordingly, that the case did “not concern speech or action that
`intrude[d] upon the work of the schools or the rights of other students.” Id. at 508. The Court
`concluded that the school’s ban on armbands was motivated by “an urgent wish to avoid the
`controversy which might result from the expression.” Id. at 510. Because of the absence of
`“evidence that the school authorities had reason to anticipate that the wearing of the armbands would
`
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`substantially interfere with the work of the school or impinge upon the rights of other students,” the
`Court reversed the en banc court of appeals decision below affirming the district court’s dismissal
`of the plaintiffs-students’ complaint. Id. at 509, 514.
`In two subsequent cases, the Court qualified when the Tinker standard should be applied and
`clarified that schools did not in every situation need to justify regulation of student speech on the
`basis that the speech would “materially and substantially interfere with the requirements of
`appropriate discipline in the operation of the school.” Tinker, 393 U.S. at 509 (quotation omitted).
`In Bethel School District No. 403 v. Fraser, the Court considered whether a public high school
`infringed upon a student’s free-speech rights when the school suspended the student for violating
`a school policy that prohibited “the use of obscene, profane language or gestures.” 478 U.S. at 678.
`The suspended student had given a speech at a school-sponsored assembly, in support of another
`student’s candidacy for elective office, which employed “an elaborate, graphic, and explicit sexual
`metaphor.” Id. at 677-78. The Court noted “[t]he marked distinction between the political
`‘message’ of the armbands in Tinker and the sexual content of the respondent’s speech in [Fraser],”
`id. at 680, and observed that prior Court decisions had allowed limitations on speech in the interest
`of protecting children, especially those in captive audiences, from sexually explicit, vulgar, and
`offensive spoken language. Id. at 684. Accordingly, the Court held that “schools, as instruments
`of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed
`in a school that tolerates lewd, indecent, or offensive speech and conduct such as . . . Fraser’s . . .
`plainly offensive [speech.]” Id. at 683.
`Hazelwood School District v. Kuhlmeier involved a suit brought by former staff members
`of a high-school newspaper who argued that the school principal violated their First Amendment
`rights when he deleted two pages of the newspaper containing articles discussing students’
`experiences of pregnancy and the effect of divorce on students. The Court concluded that because
`the school lent its name and resources to the newspaper, the Tinker standard did not apply to the
`case. Hazelwood, 484 U.S. at 272-73. The Court held “that educators do not offend the First
`Amendment by exercising editorial control over the style and content of student speech in school-
`sponsored expressive activities so long as their actions are reasonably related to legitimate
`pedagogical concerns.” Id. at 273.
`The above trilogy of cases yields three principles: (1) under Fraser, a school may
`categorically prohibit vulgar, lewd, indecent, or plainly offensive student speech,5 Fraser, 478 U.S.
`at 683-85; Hazelwood, 484 U.S. at 272 n.4; (2) under Hazelwood, a school has limited authority to
`censor school-sponsored student speech in a manner consistent with pedagogical concerns, 484 U.S.
`at 273; and (3) the Tinker standard applies to all other student speech and allows regulation only
`when the school reasonably believes that the speech will substantially and materially interfere with
`schoolwork or discipline, 393 U.S. at 513. Guiles, 461 F.3d at 325; Harper v. Poway Unified Sch.
`Dist., 445 F.3d 1166, 1176-77 (9th Cir. 2006), vacated on other grounds, --- U.S. ---,127 S. Ct. 1484
`(2007); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001); see also Castorina ex
`rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536, 540 (6th Cir. 2001).
`Tinker governs the instant case because by wearing clothing depicting images of the
`Confederate flag students engage in pure speech not sponsored by the school. Castorina, 246 F.3d
`at 539-40. Hazelwood does not apply to the instant case “because no one would reasonably believe
`that [Plaintiffs-Appellants’ clothing] bore the school’s imprimatur.” Morse, 127 S. Ct. at 2627.
`Therefore, our inquiry in this case is whether the ban on clothing depicting the Confederate flag “is
`
`5“Plainly offensive” speech, proscribable under Fraser, “should not be read to encompass any speech that could
`fit under some definition of ‘offensive,’ . . . [as] much political and religious speech might be perceived as offensive to
`some.” Morse, 127 S. Ct. at 2629.
`
`

`
`No. 07-5743
`
`Barr et al. v. Lafon, et al.
`
`Page 9
`
`necessary to avoid material and substantial interference with schoolwork or discipline.” Tinker, 393
`U.S. at 511.
`The Court’s most recent student-speech case, Morse v. Frederick, does not modify our
`application of the Tinker standard to the instant case. Morse affirmed that “schools may regulate
`some speech even though the government could not censor similar speech outside the school” and
`that the rule stated in Tinker “is not the only basis for restricting student speech.” 127 S. Ct. at 2627
`(internal quotation omitted). The Morse decision, however, resulted in a narrow holding: a public
`school may prohibit student speech at school or at a school-sponsored event during school hours that
`the school “reasonably view[s] as promoting illegal drug use.” Id. at 2629. Justice Alito’s
`concurrence states that he joins the majority opinion “on the understanding that (a) it goes no further
`than to hold that a public school may restrict speech that a reasonable observer would interpret as
`advocating illegal drug use and (b) it provides no support for any restriction of speech that can
`plausibly be interpreted as commenting on any political or social issue.” Id. at 2636 (Alito, J.,
`concurring). Justice Alito also makes clear that he joins the majority only insofar as “the opinion
`does not hold that the special characteristics of the public schools necessarily justify any other
`speech restrictions” beyond those articulated in Tinker, Fraser, and Hazelwood. Id. at 2637.
`2. Analysis under Tinker of the Ban on Clothing Depicting the Confederate Flag
`As an initial matter, we must consider Plaintiffs-Appellants’ argument that much of the
`evidence presented by the Board, and relied upon by the district court, was hearsay. Plaintiffs-
`Appellants Br. at 33-37; Reply Br. at 17-21. As the Board notes, however, Plaintiffs-Appellants do
`not specify in their brief which evidence they consider to be hearsay; rather, Plaintiffs-Appellants
`refer us to documents filed at the district court level. Plaintiffs-Appellants Br. at 33 n.6. Well-
`established law in this Circuit holds that “a party is not allowed to incorporate by reference into its
`appellate brief the documents and pleadings filed in the district court.” Thomas M. Cooley Law Sch.
`v. Am. Bar Ass’n, 459 F.3d 705, 710 (6th Cir. 2006) (citing Northland Ins. Co. v. Stewart Title Guar.
`Co., 327 F.3d 448, 452 (6th Cir.2003)), cert. denied, --- U.S. ---, 127 S. Ct. 985 (2007). Therefore,
`we are left with only Plaintiffs-Appellants’ allegation that “[m]ost of the defendants’ evidence in
`the case at bar consists of hearsay statements that were