                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 07a0145n.06
                                 Filed: February 21, 2007

                                                                 No. 06-5982

                                      UNITED STATES COURT OF APPEALS
                                           FOR THE SIXTH CIRCUIT


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,                                                )
                                                                                 )
                     Plaintiffs-Appellants,                                      )
                                                                                 ) On Appeal from the United States
v.                                                                               ) District Court for the Eastern
                                                                                 ) District of Tennessee
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,                                                 )
                                                                                 )
                     Defendants-Appellees.                                       )


Before: DAUGHTREY and COOK, Circuit Judges; and WEBER, District Judge.1


PER CURIAM.

       Plaintiffs/Appellants Sharon Brogdon and Roger White bring this appeal on behalf of their

respective minor children, identified as “D.B.,” “C.W.” and “R.W.,” from a district court order

denying their motion for preliminary injunction. For the reasons stated below, we AFFIRM.



       1
           The H onorable Herm an J. W eber, Senior U nited States D istrict Judge for the Southern D istrict of O hio, sitting by designation.
                                                  I.

        On March 2, 2006, the plaintiffs brought suit under 42 U.S.C. § 1983 against the director and

school board of Blount County Schools and the principal of William Blount High School, alleging

that the defendants violated the First and Fourteenth Amendment rights of the plaintiffs’ minor

children by prohibiting students from wearing clothing that depicts the Confederate battle flag. In

addition to the complaint’s prayer for relief, the plaintiffs filed a separate motion for preliminary

injunction and temporary restraining order.

        On May 4, 2006, the district court held a hearing on the preliminary injunction motion. The

parties presented no witnesses, the plaintiffs instead relying upon affidavits submitted as attachments

to their complaint, and the defendants upon affidavits submitted in opposition to the motion. In its

subsequent order denying the plaintiffs’ motion, the court made findings of fact, set forth as follows

in pertinent part:

                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:

                       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 . . .

                The ban at issue in this case was imposed pursuant to the provision
                prohibiting clothing that “causes disruption to the educational
                process.”

                . . . [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.

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.

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.”

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.”


                                   3
               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.”

(R.22-24, citations omitted).

       Applying the balancing test for injunctive relief set forth in Nightclubs, Inc. v. City of

Paducah, 202 F.3d 884, 888 (6th Cir. 2000), to the facts before it, the district court concluded that

the plaintiffs could not demonstrate a substantial likelihood of success on the merits. On June 30,

2006, the court entered an order denying the motion for preliminary injunction. The plaintiffs filed

this timely appeal.

                                                  II.

       A district court’s decision to grant or to deny a motion for preliminary injunction is reviewed

for abuse of discretion. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003). The lower

court’s determination will be disturbed only if that court relied upon clearly erroneous findings of

fact, improperly applied the governing law, or used an erroneous legal standard. City of Paducah,

202 F.3d at 888. Under that standard, the district court’s legal conclusions are reviewed de novo and

its factual findings for clear error. Taubman v. Webfeats, 319 F.3d 770, 774 (6th Cir. 2003). A

factual finding is clearly erroneous “when the reviewing court is left with the definite and firm

conviction that a mistake has been made.” United States v. Smith, 263 F.3d 571, 581 (6th Cir. 2001).

       In determining the appropriateness of the requested injunctive relief, the district court applied


                                                  4
the correct four factor balancing test: 1) whether the plaintiff has established a substantial likelihood

or probability of success on the merits; 2) whether there is a threat of irreparable harm to the

plaintiff; 3) whether issuance of the injunction would cause substantial harm to others; and 4)

whether the public interest would be served by granting injunctive relief. City of Paducah, 202 F.3d

at 888. In the context of First Amendment violations, the “likelihood of success” factor frequently

is determinative. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), cert. denied,

526 U.S. 1087 (1999).

        Under case law applicable to free speech claims, “the loss of First Amendment freedoms, for

even minimal periods of time,” is presumed to constitute irreparable harm. Elrod v. Burns, 427 U.S.

347, 373 (1976). Such protection extends to public school students, who do not “shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Nevertheless, “the First Amendment

rights of students in public schools are not automatically coextensive with the rights of adults in

other settings, and must be applied in light of the special characteristics of the school environment.”

West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th Cir.), cert. denied, 531 U.S. 825

(2000). Schools need not tolerate student speech deemed inconsistent with the educational mission

even if similar speech would not be subject to censor outside the school setting. Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988). Still, schools may not punish “silent, passive

expression of opinion, unaccompanied by any disorder or disturbance” attributable to such

expression, and “undifferentiated fear or apprehension of disturbance is not enough to overcome the

right to freedom of expression.” Tinker, 393 U.S. at 508.

        The wearing of clothing depicting the Confederate flag as an expression of pride in one’s


                                                   5
southern heritage constitutes speech governed by the First Amendment. Castorina v. Madison

County Sch. Bd., 246 F.3d 536, 540 (6th Cir. 2001). Nevertheless, school officials may ban what

otherwise would be protected speech where “engaging in the forbidden conduct would ‘materially

and substantially interfere with the requirements of appropriate discipline in the operation of the

school’.” Tinker, 393 U.S. at 509. On the other hand, even where past racial incidents justify a ban,

schools may not impose “a view-point specific ban on [some] racially divisive symbols and not

others.” Castorina, 246 F.3d at 544. A school’s refusal to bar the wearing of apparel depicting

Malcolm X symbols along with clothing depicting the Confederate flag “gives the appearance of a

targeted ban.” Id. at 541.

                                                 III.

       The plaintiffs assert that the district court erroneously found that the defendants “had reason

to believe that a student’s display of the Confederate flag might cause disruption.” (R.31, emphasis

in original). Given Blount High School’s recent history of racial tensions as recited in the record,

however, the court’s finding to that effect was not clearly erroneous. Even without evidence that

Confederate flag displays had been the direct cause of past disruptions, school officials reasonably

could surmise that such displays posed a substantial risk of provoking problems in the incendiary

atmosphere then existing. “In this case, the district had a reasonable basis for forecasting disruption

from display of such items at school.” See Derby Unified Sch. Dist., 206 F.3d at 1366; see also

Castorina, 246 F.3d at 542 [suggesting that undisputed evidence of past racially-motivated violence

or threats in a particular school district could justify a conclusion that “display of the Confederate

flag” in such schools might have a “significant disruptive effect”], 543-44 [“a school board may ban

racially divisive symbols when there has been actual racially motivated violence and when the policy


                                                  6
is enforced without viewpoint discrimination”].

        The plaintiffs’ assertion that the district court’s ruling “requires a presumption that the

Confederate flag is per se ‘racially divisive’” and in essence rises “to the level of judicially noticed

fact” does not alter this result. While the district court here did not comment explicitly on the

Confederate flag’s inherent racial divisiveness, other federal appellate courts have. According to the

Eleventh Circuit, for example, “[i]t is . . . clear that the primary effect of the [Confederate] flag . .

. is to remind citizens, albeit offensively to some, of a controversial era in American history.”

NAACP v. Hunt, 891 F.2d 1555, 1564 (11th Cir. 1990). Another circuit court has observed that “[i]t

is common knowledge that public reaction to and the debate over . . . the Confederate [b]attle flag

. . . has been virtually exclusively in relation to . . . whether or to what extent this symbolism extols

or excuses slavery, racial oppression or resistance to racial equality.” Briggs v. State of Mississippi,

331 F.3d 499, 506 (5th Cir. 2003), cert. denied, 540 U.S. 1108 (2004). Indeed, this Circuit also has

implicitly acknowledged that the Confederate flag qualifies as a “controversial racial and political

symbol[ ].” Castorina, 246 F.3d at 542. Accordingly, even if some recognition of the flag’s racially

divisive nature is implicit in the district court’s finding, that finding is not rendered clearly erroneous

thereby.

        The plaintiffs’ assertion that they proved an “[a]bsence of [d]isorder [a]ssociated with the

Confederate [f]lag” is not dispositive of that factual issue. Even assuming that no students’ wearing

of that symbol had caused a disruptive incident in the past, the district court nonetheless reasonably

could conclude that displays of the Confederate flag would be likely to lead to unrest in the future.

Such a determination is not erroneous as either a factual finding or a legal conclusion.

        The plaintiffs also argue that the district court erroneously failed to find that the defendants


                                                    7
enforced the dress code in a viewpoint-specific manner. Plaintiffs cite three examples said to impel

this conclusion. First, relying on their affidavits as establishing that the school district regularly

failed to discipline students wearing Malcolm X symbols or other national flags, the plaintiffs urge

that the evidence compels a factual conclusion that the Confederate battle flag was the only political

symbol targeted by the defendants for dress code enforcement. The district court’s finding that this

evidence did not prove viewpoint discrimination, however, was not clearly erroneous. The evidence

indicates that wearing of the Confederate flag accounted for only 23 of 452 instances of dress code

violations documented since August of 2005. The plaintiffs presented no evidence showing how

frequently or conspicuously other political symbols were worn by students, or even that school

officials were aware of the presence of clothing depicting those other political symbols. Evidence

presented by the defendants tends to suggest that they were not. In light of evidence of numerous

other dress code violations that had not been documented, the district court’s speculation that “other

instances of dress code violations . . . involv[ing] a variety of symbols[ ]” may have been “resolved

informally” also does not constitute clear error.

       The plaintiffs also contend that the district court’s analysis is internally inconsistent and

therefore clearly erroneous. Specifically, the plaintiffs argue that the district court cannot logically

conclude that school officials detected and eliminated visible depictions of Confederate flags so

quickly as to avert any possible disruptions caused thereby, yet failed to notice clothing depicting

Malcolm X symbols and international flags. Because no such inconsistency seems inherent, however

– both absent proof of how frequently and conspicuously such other symbols appeared relative to

the frequency and conspicuousness of depictions of the Confederate battle flag, and in light of

possible justification for differentiating among certain symbols – no clear error finding is warranted


                                                    8
on that basis.

        Finally, the plaintiffs point to uncontroverted evidence that the Confederate flag was the only

symbol specifically mentioned by the defendants when announcing the ban. This presents a closer

call, as the fact that the Confederate flag apparently was singled out in this way does bolster the

plaintiffs’ position. Given the clear error standard of review, however, the appellate court has no

basis for disrupting the district court’s conclusion that, without more, school officials’ citing of that

sole example does not prove they intended to ban only the Confederate battle flag, and not other

symbols. The district court’s conclusion that the plaintiffs “have not produced sufficient evidence

to show that the school’s policy probably imposes ‘a viewpoint-specific ban on [some] racially

divisive symbols but not others” thus is not clearly erroneous.

        The plaintiffs also contend that the district court erred in analyzing their motion under the

premise that “[s]chool officials may ban racially divisive symbols when there has been actual racially

motivated violence and when the policy is enforced without viewpoint discrimination.” (R. 25).

They urge that such standard is inconsistent with the one set out in Tinker and utilized by this Court

in Castorina. They further argue that as a result of applying an incorrect standard, the district court

drew erroneous legal conclusions about the school district’s authority to ban the wearing of the

Confederate battle flag.

        Ironically, the language thus singled out by Plaintiffs appears almost verbatim in Castorina,

246 F.3d at 543-44. Neither is that language inconsistent with Tinker. Under Tinker, “to justify

prohibition of a particular expression of opinion,” a school district must be able to show only “that

its action was caused by something more than a mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular viewpoint,” but rather, “that the school


                                                   9
authorities had reason to anticipate that the wearing of [the banned imagery] would substantially

interfere with the work of the school or would impinge upon the rights of other students,” 393 U.S.

at 509, including the right “to be secure and to be let alone.” Id. at 508.

       Recognizing that the Tinker decision does not require that the banned form of expression

itself actually have been the source of past disruptions, subsequent appellate court decisions

considering school bans on expression have focused on whether the banned conduct would likely

trigger disturbances such as those experienced in the past. See, e.g., Castorina, 246 F.3d at 542;

Melton v. Young, 465 F.2d 1332 (6th Cir. 1972), cert. denied, 411 U.S. 951 (1973). Although Melton

differs in that the record there contained evidence that the Confederate flag in fact had been a factor

in past unrest, see 465 F.2d at 1333, 1335, nothing in Melton or Tinker requires evidence of a

preexisting incident of the banned symbol evoking disruption. To the contrary, “[t]he fact that a full-

fledged brawl ha[s] not yet broken out over the Confederate flag does not mean that [a school]

district [i]s required to sit and wait for one.” West, 206 F.3d at 1366 (quoting with favor West v.

Derby Unified Sch. Dist. No. 260, 23 F. Supp.2d 1223, 1233 (D. Kan. 1998)).

       Unlike the record in Tinker, the record in this case evidences ample reason for school

officials to anticipate disruption resulting from the wearing of the banned symbol. During the prior

academic year, Blount High School had been the scene of racial tension, intimidation and violence

to such an extent that law enforcement officials were brought in to maintain order, and the school

was defending against lawsuits depicting it as a racially hostile educational environment. As

discussed above, the district court had a sound factual basis for finding that defendants “had reason

to believe that a student’s display of the Confederate flag might cause disruption.” Reviewing the

district court’s analysis de novo, we conclude that neither the legal standard applied nor the legal


                                                 10
conclusions drawn were erroneous.

       The plaintiffs further argue that the district court erred by assigning them the burden of proof

with respect to the four-part balancing test for acquiring preliminary injunctive relief. Although the

plaintiffs correctly observe that the defendants would bear the burden at trial of establishing that the

Confederate flag ban does not violate the Constitution, it remains the plaintiffs who bear the burden

of establishing the need for a preliminary injunction. Connection Distrib., 154 F.3d at 288. The

district court appears properly to have required the defendants to show that the ban was justified in

light of past racial disturbances at the school, and properly to have found that the defendants

sustained that burden. Having failed to respond with evidence sufficient to prove that such ban was

enforced in a viewpoint-specific manner, however, the plaintiffs did not sustain their burden of

proving that they were likely to succeed on the merits. We therefore AFFIRM the district court’s

denial of the motion for preliminary injunction.
