Candice Michelle Hardwick v. Marth Heywood

On multiple occasions at Latta Middle School and Latta

High School in Latta, South Carolina, school officials prohibited

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 pursuant

to 42 U.S.C. § 1983, alleging violations of her First

Amendment right to free speech and expression and her Fourteenth

Amendment rights to due process and equal protection.



The district court granted summary judgment to the defendants,

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.



2 HARDWICK v. HEYWARD



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 enforcement

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 Carolina.

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 student

population of approximately 1,600 students, almost

equally divided between whites and African-Americans, during

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, "Generally,

student dress is considered appropriate as long as it

does not distract others, interfere with the instructional programs,

or otherwise cause disruption." J.A. 38. The policy

then provides "some examples that are judged to be inappropriate

or distracting in the educational setting," which

includes "clothing that displays profane language, drugs,

tobacco, or alcohol advertisements, sexual innuendoes or anything

else deemed to be offensive." J.A. 39. Similarly, the relevant

part of the high school policy provides that "students

2The district is also known as Dillon County School District 3.



HARDWICK v. HEYWARD 3



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. Students

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 punished

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 Confederate

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 Confederate

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 February,

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 Confederate

flag. See J.A. 52.



4 HARDWICK v. HEYWARD



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 Kornblut,

the chairman of the school board, responded to this letter,

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 clothing

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 continued.

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, Candice

then produced four more "protest shirts," each of which

Liebenrood prohibited Candice from wearing: (1) a shirt saying

"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 diagonal

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.



HARDWICK v. HEYWARD 5



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 Confederate

flag shirts at school, Candice, by and through her parents,

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 specifically

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 Heritage"

shirt. See supra note 3.



6 HARDWICK v. HEYWARD



the affidavits and depositions of the school officials filed with

this motion reveal the basis on which the school officials prohibited

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 integration

"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 students."

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 trouble,"

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 Candice'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 thirtyfoot

flagpole near the Confederate monument on the State House grounds.



HARDWICK v. HEYWARD 7



continued racial tension in Latta schools. Heyward described

an incident involving a Confederate flag that led to a disruption

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 jurisdiction

because the district court's opinion did not address all of

Candice's claims—specifically, her claims related to the protest

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 proceedings.



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 summary

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 defendants,

Heyward and Liebenrood, were entitled to qualified immunity.

Because we conclude that Candice's constitutional rights were not violated,

we do not address the qualified immunity issue.



8 HARDWICK v. HEYWARD



II.



We review a grant of summary judgment de novo, "applying

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 matter

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 judgment

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 violated

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



HARDWICK v. HEYWARD 9



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 constitutional

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 coextensive

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 requirements

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 disturbance"

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.



10 HARDWICK v. HEYWARD



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 Amendment

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 framework

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 society."

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 expression]

to bear the imprimatur of the school." Kuhlmeier, 484

U.S. at 272–73, 271. Third, school officials can regulate student

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.



HARDWICK v. HEYWARD 11



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 potentially

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 discussed

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 analysis."



The court in Defoe ex rel. Defoe treated schools' interest in "reducing

racial tension" as comparable to the interest in Morse of preventing illegaldrug

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 Fraser,

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 substantialdisruption

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.



12 HARDWICK v. HEYWARD



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) (observing

that a student-speech case raised "a most difficult question").

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 symbol

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 disruption

at school).



HARDWICK v. HEYWARD 13



(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 Confederate

flag was "a historical symbol embodying the philosophical

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' decisions

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 Unified

Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton,

465 F.2d 1332.



Of course, prohibiting students from having the Confederate

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 suggesting

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 officials,

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-



14 HARDWICK v. HEYWARD



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 different

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 prohibition

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.



HARDWICK v. HEYWARD 15



her Confederate flag shirts. Before beginning our legal analysis,

however, we first must determine which shirts are properly

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 classification

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 Freedom

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 Confederate

national flag, and the Bonnie Blue flag, which are three

other recognizable Confederate symbols. This shirt is therefore

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 considered

Confederate flag shirts.



The record contains ample evidence from which the school

officials could reasonably forecast that all of these Confederate

flag shirts "would materially and substantially disrupt the



16 HARDWICK v. HEYWARD



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 numerous

incidents illustrate.



For example, the Confederate flag itself has caused problems

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 involving

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 (considering

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 exists in

Latta schools. Taken together, they tell a story of a community

and its schools that, although making progress in race

relations, are not immune from incidents of racial conflict.



14Because the belt-buckle incident took place after her dispute with

school officials about Confederate flag shirts, Candice contends that we

cannot consider this incident when evaluating the school officials' decision

to ban the Confederate flag shirts and protest shirts.



We disagree. Although we do not rely solely on this incident to uphold

the school officials' decision, we cannot turn a blind eye to the fact that

the incident occurred because it provides strong support for the reasonableness

of the school officials' determination that the Confederate flag

was likely to cause a substantial disruption at school.



HARDWICK v. HEYWARD 17



Although the incidents caused by the Confederate flag are

enough on their own to justify the decision of the school officials

to prohibit the Confederate flag shirts, when combined

with other racially charged incidents, they provide overwhelming

support for the conclusion that the Confederate flag

shirts "would materially and substantially disrupt the work

and discipline of the school." Tinker, 393 U.S. at 513; see also

Defoe, 625 F.3d at 335 ("Tinker does not require that displays

of the Confederate flag in fact cause substantial disruption or

interference, but rather that school officials reasonably forecasted

that such displays could cause substantial disruption or

materially interfere with the learning environment." (citing

Tinker, 393 U.S. at 514)); A.M. ex rel. McAllum, 585 F.3d at

224 (observing that cases such as Melton and Phillips v.

Anderson County School District Five, 987 F. Supp. 488

(D.S.C. 1997), "do not stand for the proposition that schools

may not prohibit the display of the Confederate flag unless it

has actually caused past disruptions" but instead "reflect the

principle that administrators will usually meet their burden

under Tinker by showing that the proscribed speech has in

fact been disruptive in the past").



In arguing that her shirts were not likely to cause a disruption,

Candice points to the disciplinary records at the middle

school and the high school, which she claims contain only a

few incidents of racial disputes or fights. See J.A. 559–687.

Notably, these records do contain racially charged incidents,

indicating that at least some racial tension still exists. See,

e.g., J.A. 564 (noting that a student was punished for an altercation

that started after one student was called a "cracker");

J.A. 565 (noting that a student was punished for calling

African-American students "n------").



But putting aside these examples, the disciplinary records

represent only a short period of time, from 2004 to 2007. The

school officials pointed to multiple incidents of racial tension

over the past few decades. That some of these incidents may

be almost thirty years old does not mean that the school offi-



18 HARDWICK v. HEYWARD



cials could not consider them in conjunction with more recent

incidents. In considering the history of a town that has experienced

slavery and segregation, incidents from even thirty

years ago are not so far removed from the present as to be

irrelevant to determining the atmosphere of Latta schools. For

the school officials to consider the full picture when determining

what might cause a disruption at school, they can consider

the causes of the types of incidents that they are trying to prevent

from recurring. Therefore, that recent racially charged

incidents are fewer in number or severity than such incidents

from the more distant past does not prevent the school officials

from considering older incidents when determining

whether, based on the current school environment, a substantial

disruption is likely to occur.



Related to her reliance on the alleged lack of racially

charged incidents in the schools' disciplinary records, Candice

contends that her shirts never caused any disruption and

were merely a "silent, peaceable display" of the Confederate

flag that even drew positive remarks from some students.

Appellant's Br. at 29. Even assuming that Candice's shirts

never caused a disruption, her argument misses the mark.

That her shirts never caused a disruption is not the issue;

rather, the issue is whether school officials could reasonably

forecast a disruption because of her shirts. See Tinker, 393

U.S. at 513–14. As we have noted, "a public school has the

power to act to prevent problems before they occur, and the

school is not limited to prohibiting and punishing conduct

only after it has caused a disturbance." Newsom ex rel. Newsom,

354 F.3d at 259 n.7. We have already concluded that the

school officials met their burden of showing that they could

predict that a substantial disruption might occur.

Similarly, Candice's intent that her Confederate flag shirts

be only a symbol of her heritage and religious faith is irrelevant.

Again, the proper focus is whether school officials could

predict that the Confederate flag shirts would cause a disruption.

See Tinker, 393 U.S. at 513–14; see also B.W.A. v. Far-



HARDWICK v. HEYWARD 19



mington R-7 Sch. Dist., 508 F. Supp. 2d 740, 749 (E.D. Mo.

2007) ("[T]he plaintiff's interpretation of the Confederate

flag's meaning is largely irrelevant because courts recognize

that it is racially divisive in nature." (citing Briggs v. Mississippi,

331 F.3d 499, 506 (5th Cir. 2003)).



Because school officials are far more intimately involved

with running schools than federal courts are, "[i]t is axiomatic

that federal courts should not lightly interfere with the day-today

operation of schools." Augustus v. Sch. Bd. of Escambia

Cnty., Fla., 507 F.2d 152, 155 (5th Cir. 1975); see also

Epperson v. Arkansas, 393 U.S. 97, 104 (1968) ("Judicial

interposition in the operation of the public school system of

the Nation raises problems requiring care and restraint."). As

long as school officials reasonably forecast a substantial disruption,

they may act to prevent that disruption without violating

a student's constitutional rights, and we will not second

guess their reasonable decisions. See Tinker, 393 U.S. at

513–14. Here, multiple incidents of racial tension in Latta

schools and the potential for such vastly different views

among students about the meaning of the Confederate flag

provide a sufficient basis to justify the school officials' conclusion

that the Confederate flag shirts would cause a substantial

disruption. Therefore, Candice's First Amendment right

was not violated by the school officials when they refused to

allow her to wear the Confederate flag shirts at school.



2.



We now turn to Candice's First Amendment claim based

on the protest shirt. Like the Confederate flag shirts, we conclude

that the school officials reasonably predicted that the

protest shirt was likely to cause a substantial disruption.

Based on our determination that many of Candice's socalled

protest shirts were in fact Confederate flag shirts, only

one shirt can properly be classified as a protest shirt: the shirt



20 HARDWICK v. HEYWARD



displaying the American flag with "Old Glory" above the flag

and "Flew over legalized slavery for 90 years!" underneath it.

Whether the shirt makes a true statement is not a factor in

our analysis. As long as a student's speech is likely to cause

a substantial disruption, school officials can prohibit or punish

the speech. See id.



The protest shirt was undoubtedly likely to cause such a

disruption. It explicitly broadcast the fact that African-

Americans were slaves for part of American history, just as

the Confederate flag does for some people when they see it.

The same students who would be upset by the Confederate

flag shirts would likely be equally upset by this protest shirt.

Thus, any disruptions that the Confederate flag shirts might

cause could just as easily be caused by Candice's protest shirt.

The school officials are therefore justified in relying on the

same past incidents of racial tension that allowed them to prohibit

the Confederate flag shirts to prohibit this protest shirt.

Accordingly, Candice's First Amendment right was not violated

when the school officials did not allow her to wear the

protest shirt.



IV.



We next address Candice's Fourteenth Amendment claims

that the schools' dress codes are unconstitutionally overbroad

and vague, violating her right to due process, and that they are

not viewpoint neutral, violating her right to equal protection.



A.



We begin with Candice's facial challenge to the dress

codes on the basis that they violate due process because they

are unconstitutionally overbroad and vague.



1.



First, we consider Candice's claim that the dress codes are

unconstitutionally overbroad. Although the Supreme Court



HARDWICK v. HEYWARD 21



has counseled that "[f]acial challenges are disfavored," Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442,

450 (2008), one such challenge that is permitted is an overbreadth

challenge. This doctrine allows a person to whom a

law could be constitutionally applied to challenge the constitutionality

of the law because the "statute's very existence

may cause others not before the court to refrain from constitutionally

protected speech or expression." Broadrick v. Oklahoma,

413 U.S. 601, 612 (1973); see also New York v.

Ferber, 458 U.S. 747, 767–69 (1982).



Under the overbreadth doctrine, "a law should not be invalidated

for overbreadth unless it reaches a substantial number

of impermissible applications." Ferber, 458 U.S. at 771. To

prevail on an overbreadth claim, a plaintiff "must demonstrate

that a regulation's overbreadth is 'not only . . . real, but substantial

as well, judged in relation to the [challenged regulation's]

plainly legitimate sweep,' and also that no 'limiting

construction' or 'partial invalidation' could 'remove the

seeming threat or deterrence to constitutionally protected

expression.'" Newsom ex rel. Newsom, 354 F.3d at 258 (quoting

Broadrick, 413 U.S. at 613, 615) (alterations in original).



The public-school context of this overbreadth challenge

raises additional considerations. First, "[b]ecause of the duties

and responsibilities of the public elementary and secondary

schools, the overbreadth doctrine warrants a more hesitant

application in [the public school] setting than in other contexts."



Id. (quoting Sypniewski v. Warren Hills Reg'l Bd. of

Educ., 307 F.3d 243, 259 (3d Cir. 2002)) (alterations in original).

Second, "[g]iven the school's need to be able to impose

disciplinary sanctions for a wide range of unanticipated conduct

disruptive of the educational process, the school disciplinary

rules need not be as detailed as a criminal code which

imposes criminal sanctions." Fraser, 478 U.S. at 686.

Under these legal standards, the dress codes are not overbroad.



The middle school dress code prohibits clothes that



22 HARDWICK v. HEYWARD



would "cause disruption" or "be offensive," thereby incorporating

the standards of both Tinker and Fraser. J.A. 38, 39.

The high school dress code bans "[s]hirts with

obscene/derogatory sayings," which tracks Fraser. J.A. 45.

Because the dress codes are guided by Tinker and Fraser,

"there is no real danger that [they] compromise[ ] the First

Amendment rights of other . . . students," B.W.A., 508 F.

Supp. 2d at 750–51, while at the same time giving school officials

the needed "degree of flexibility in school disciplinary

procedures," New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).



Reinforcing our conclusion that the dress codes are not

overbroad is the collection of photographs of other clothing

that Liebenrood has found to have violated the high school's

dress code. See J.A. 295–375. This clothing includes shirts

that are sexually suggestive, promote alcohol use, and promote

violence, all of which school officials could constitutionally

prohibit under Tinker or Fraser. These examples of

prohibited clothing indicate that the school officials construe

the dress codes in a way that does not violate students' rights.

See West, 206 F.3d at 1368 (considering how school officials

construed the school policy in determining whether the policy

was overbroad). Therefore, the dress codes are not overbroad,

and Candice's due process right was not violated.



2.



We next examine whether the dress codes are unconstitutionally

vague and thus violate due process. A law is unconstitutionally

vague if "it fails to establish standards for the

[government] and public that are sufficient to guard against

the arbitrary deprivation of liberty interests." City of Chicago

v. Morales, 527 U.S. 41, 52 (1999). A law will fail to establish

these standards if "ordinary people can[not] understand

what conduct is prohibited." Kolender v. Lawson, 461 U.S.

352, 357 (1983). Just as the overbreadth doctrine is designed

to prevent self-censorship because of fear of a law's enforcement,

the vagueness doctrine similarly ensures that a law does



HARDWICK v. HEYWARD 23



not "deter constitutionally protected and socially desirable

conduct." United States v. Nat'l Dairy Prods. Corp., 372 U.S.

29, 36 (1963). Furthermore, the doctrine also protects against

"arbitrary and discriminatory enforcement" of the law. Morales,

527 U.S. at 56.



Despite the concerns about vague laws, school officials

have greater leeway when crafting school policy than legislatures

do in adopting criminal statutes because of the need of

school officials to respond to "a wide range of unanticipated

conduct disruptive of the educational process." Fraser, 478

U.S. at 686; see also Sypniewski, 307 F.3d at 260 ("[T]he

demands of public secondary and elementary school discipline

are such that it is inappropriate to expect the same level

of precision in drafting school disciplinary policies as is

expected of legislative bodies crafting criminal restrictions.").

Here, nothing about the dress codes is so vague that Candice

was unable to conform her speech to the required standards.



Again, the dress codes are guided by Tinker and

Fraser, and they are as specific as the dress code in Fraser

that the Supreme Court upheld when the student challenged

that dress code on due process grounds. See Fraser, 478 U.S.

at 678. Furthermore, the school officials explicitly informed

Candice on multiple occasions that Confederate flag shirts

were not permitted under the dress codes. The dress codes

were therefore interpreted by the school officials for Candice

in the specific context of her shirts. Nothing in the record

plausibly supports any claim that she was unaware of this prohibition

on Confederate flag apparel. See A.M. ex rel. McAllum,

585 F.3d at 225 (holding that students' due process rights

were not violated when the students "were given a warning

that the particular speech at issue would give rise to discipline").

Thus, the dress codes, both as written and as applied

to Confederate flag clothing, are not unconstitutionally vague,

and Candice's right to due process was not violated.



24 HARDWICK v. HEYWARD



B.



Finally, we address Candice's claim that her right to equal

protection was violated because the dress codes are not viewpoint

neutral.



The Equal Protection Clause of the Fourteenth Amendment

provides, "No State shall . . . deny to any person within its

jurisdiction the equal protection of the laws." U.S. Const.

amend. XIV, § 1. This clause is "essentially a direction that

all persons similarly situated should be treated alike." City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). When an alleged equal protection violation is based

on a First Amendment claim, we "fuse[ ] the First Amendment

into the Equal Protection Clause." R.A.V. v. City of St.

Paul, Minn., 505 U.S. 377, 384–85 n.4 (1992); see also Barr,

538 F.3d at 575–76.



The Supreme Court has not expressly discussed the relationship

between viewpoint discrimination and student

speech, but several cases are relevant on this issue. First, in

Tinker, the Court called "relevant" the fact that school officials

targeted speech about the Vietnam War but "did not purport

to prohibit the wearing of all symbols of political or

controversial significance." Tinker, 393 U.S. at 510. Despite

this fact, the Court in Tinker based its holding on the fact that

the school officials could not predict that a substantial disruption

was likely to occur. See id. at 514. Such a prediction

would be a "constitutionally valid reason[ ] to regulate [the

students'] speech." Id. at 511. Without such a reason for

school officials to regulate speech, however, "students are

entitled to freedom of expression of their views." Id. Tinker

therefore stands for the proposition that school officials may

not target a specific viewpoint unless they can predict that that

speech would be likely to cause a substantial disruption. Id.

("[T]he prohibition of expression of one particular opinion, at

least without evidence that it is necessary to avoid material



HARDWICK v. HEYWARD 25



and substantial interference with schoolwork or discipline, is

not constitutionally permissible.").



Over two decades after Tinker, the Court decided Rosenberger

v. Rector & Visitors of University of Virginia, 515 U.S.

819 (1995). In that case about the funding for an independent

student newspaper with a religious perspective at a university,

the Court wrote, "In the realm of private speech or expression,

government regulation may not favor one speaker over

another." Id. at 828. Such viewpoint discrimination is "an

egregious form of content discrimination," and "[t]he government

must abstain from regulating speech when the specific

motivating ideology or the opinion or perspective of the

speaker is the rationale for the restriction." Id. at 829.



Other circuits are split on the extent to which Rosenberger

alters the analysis of Tinker. Elementary and secondary

schools are undoubtedly different than colleges, universities,

and public discourse generally, and this distinction results in

different legal standards in some instances. See Hosty v. Carter,

412 F.3d 731, 740–41 (7th Cir. 2005) (en banc) (Evans,

J., dissenting); see also Sypniewski, 307 F.3d at 267 ("[T]the

public school setting is fundamentally different from other

contexts, including the university setting. Primary and secondary

school officials stand in a unique relationship with

respect to their students, most of whom are minors." (internal

footnote omitted)). On one side of this issue, the Sixth Circuit

has held "that schools' regulation of student speech must be

consistent with both the Tinker standard and Rosenberger's

prohibition on viewpoint discrimination." Barr, 538 F.3d at

571. On the other side, the Fifth Circuit has held, "No matter

how 'axiomatic' the generalized rule against viewpoint discrimination

may be, we cannot neglect that this case arises in

the public schools, a special First Amendment context, which

admits of no categorical prohibition on viewpoint discrimination."

Morgan v. Swanson, 659 F.3d 359, 379 (5th Cir. 2011)

(en banc) (internal footnotes omitted). The Eighth and Ninth

Circuits have agreed with the Fifth Circuit's position. See



26 HARDWICK v. HEYWARD



B.W.A, 554 F.3d at 740; Harper v. Poway Unified Sch. Dist.,

445 F.3d 1166, 1184–85 (9th Cir. 2006) cert. granted, judgment

vacated sub nom. Harper ex rel. Harper v. Poway Unified

Sch. Dist., 549 U.S. 1262 (2007).



We need not decide in this case the relationship between

Tinker and Rosenberger. Assuming that a school dress code

must be viewpoint neutral on its face and in its enforcement,

the record here indicates that these requirements are met.



First, both dress codes are viewpoint neutral. The middle

school policy prohibits clothing that would "distract others,

interfere with the instructional programs, or otherwise cause

disruption. . . . [or] that displays profane language, drugs,

tobacco, or alcohol advertisements, sexual innuendoes or anything

else deemed to be offensive," while the high school policy

forbids "[s]hirts with obscene/derogatory sayings," J.A.

39, 45. Neither policy targets the Confederate flag or any

other specific viewpoint, so each policy is viewpoint neutral.



Second, both dress codes are enforced in a viewpointneutral

manner. The record contains pictures of many shirts

that Liebenrood required students to remove because they violated

the dress code, including two Malcolm X shirts, see J.A.

348, 374, thereby undermining Candice's claim that the

school officials "did not evenhandedly ban all race sensitive

symbols," Appellant's Br. at 47. The school officials indicated

that all racial symbols are banned under the dress codes. See

J.A. 133, 523.



Candice's contention that school officials did not punish

students for wearing other racially themed shirts is insufficient

to defeat summary judgment. See J.A. 28, 155. At most,

the evidence on which she relies proves that "various students

'got away'" with wearing clothes that violated the dress

codes. Defoe ex rel. Defoe, 625 F.3d at 337. By her own

admission, Candice "got away" with wearing at least one

Confederate flag shirt when she wore the South Carolina State

House grounds shirt "for several days" without being required



HARDWICK v. HEYWARD 27



to change shirts because the shirt had not been "brought to

[Liebenrood's] attention." J.A. 24–25. That some students—

including Candice—avoided detection when wearing

clothes that violated the dress codes is not evidence that the

dress codes were enforced in a viewpoint-discriminatory manner;

rather, it is, without more, simply evidence that the dress

codes were not always enforced stringently. Given that Candice's

Confederate flag shirt and other racially themed shirts

all escaped notice, this lack of enforcement was not based on

any viewpoint discrimination, and Candice's position that the

dress codes were enforced in a viewpoint-discriminatory manner

is mere speculation. See Othentec Ltd. v. Phelan, 526 F.3d

135, 142 (4th Cir. 2008) (observing that a plaintiff's "allegations,

speculation, and inference are not enough to survive

summary judgment"). Candice's right to equal protection was

therefore not violated by the dress codes or their enforcement.



V.



Although students' expression of their views and opinions

is an important part of the educational process and receives

some First Amendment protection, the right of students to

speak in school is limited by the need for school officials to

ensure order, protect the rights of other students, and promote

the school's educational mission. When, as here, student

speech threatens to disrupt school, school officials may prohibit

or punish that speech. The Latta school officials therefore

did not violate Candice's First Amendment right when

they refused to allow her to wear Confederate flag shirts and

protest shirts at school, and the dress codes and their enforcement

did not infringe on Candice's Fourteenth Amendment

rights. Thus, the judgment of the district court is affirmed.



See: http://pacer.ca4.uscourts.gov/opinion.pdf/121445.P.pdf

AFFIRMED