IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10477

A M, by and through her Parents and Guardians Richard Dale McAllum Jr. and

Shelby Voda McAllum; A T, by and through her Parents and Guardians Darrell

Ray Thomas and Joni Ann Thomas; M T, by and through her Parents and

Guardians Darrell Ray Thomas and Joni Ann Thomas

Plaintiffs - Appellants

v.

PAUL ELLIOTT CASH, in his official capacity as Principal of Burleson High

School; BOARD OF TRUSTEES OF BURLESON INDEPENDENT SCHOOL

DISTRICT

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

Before GARWOOD, DENNIS, and PRADO, Circuit Judges.

DENNIS, Circuit Judge:

Plaintiffs are current and former students of Burleson High School, located

in Burleson, Texas. In response to previous incidents, the high school adopted

a policy prohibiting the display of the Confederate flag on school grounds. When

plaintiffs A.M. and A.T. came to school at the beginning of the spring 2006

semester carrying purses adorned with large images of the Confederate battle

flag, administrators required them to cease carrying the purses (giving them the

option of leaving the purses in the administrative offices until school ended for

United States Court of Appeals

Fifth Circuit

F I L E D

October 9, 2009

Charles R. Fulbruge III

Clerk
2

the day, or to have someone come and pick the purses up from the school). The

girls voluntarily went home for the day rather than comply with the demand.

Plaintiffs then brought the instant action, seeking damages and permanent

injunctive relief on grounds, inter alia, that the policy and its enforcement

abridges the right to free speech and expression guaranteed by the First and

Fourteenth Amendments of the United States Constitution. The district court

granted summary judgment to defendants, based primarily on its conclusion

that the ban is permissible under the Supreme Court’s decision in Tinker v. Des

Moines Independent Community School District, 393 U.S. 503 (1969). For the

reasons set forth below, we affirm. 

I. BACKGROUND

The school district’s dress code states that “there will be no tolerance for

clothing or accessories that ha[ve] inappropriate symbolism, especially that

which discriminates against other students based on race, religion, or sex.”

Supplementing this district-wide policy, Burleson High School (“BHS”) has a

policy, enacted during the 2002-2003 academic year, that prohibits the visible

display of the Confederate flag on the school’s campus. This policy followed

racial strife among students at the school, some of which centered on students’

display of the Confederate flag. 

At the beginning of the spring semester in January 2006, plaintiffs A.M.

and A.T. came to school carrying purses bearing large images of the Confederate

battle flag. That same day, a teacher referred the girls to the administration for

discipline pursuant to the policy against visible displays of the Confederate flag.

Administrators, treating the purses like any other dress code violation, gave

A.M. and A.T. the options of leaving their purses in the front office until school

let out or having someone come to the school to retrieve the purses. Choosing

neither option, the girls chose to go home for the remainder of the day. A.M. and

A.T. were not suspended, and officials took no other disciplinary action against

them. 
3

The girls subsequently appealed the policy prohibiting displays of the

Confederate flag using the school district’s internal administrative procedures.

The first step, referred to as a “Level I” appeal, was an appeal to defendant BHS

principal Paul Elliott Cash. Cash explained the history of the policy, noted the

past incidences of racial tension and violence on the campus, detailed infra, and

concluded that “the number of incidents would be higher but for the restriction

on visible displays of the Confederate flag.” Cash therefore denied the Level I

appeal. A.M. and A.T. then pursued a “Level II” appeal, which was heard by

district superintendent Mark Jackson. Jackson agreed with Cash’s

determination, reasoning that “if I did not enforce the Confederate flag ban, then

the number and types of confrontational incidents on campus would increase

dramatically, resulting in material interference and substantial disruption of the

educational environment.” Accordingly, Jackson denied the Level II appeal. 

Cash’s affidavit and the affidavit of the preceding principal, Mark

Crummel, document the history of racial tension and hostility at BHS. This

evidence is largely uncontroverted. BHS has approximately 2,300 students. At

all relevant times, less than sixty of those students were African-American.

Cash reviewed the school’s disciplinary records and averred that during the

2002-2003 school year, there were 35 reported incidences of race-related

problems. The next year brought one referral based on a student’s use of a racial

epithet against another student. During the 2004-2005 school year, there were

ten referrals involving racial incidents. One of these incidents involved a

student who drew a Confederate flag in his notebook accompanied by the

statement “No niggers; subject to hanging.” Finally, during the 2005-2006 school

year (the year in which A.M. and A.T. brought their purses), there were seven

race-related referrals. One involved a student who drew a noose and made

comments about hanging minorities. Cash noted that these numbers likely do

not represent the full extent of race-related incidents as many invariably go

unnoticed by administrators and unreported by students. For example, it was
 Plaintiffs have not offered evidence refuting that these incidents occurred. Rather, 1

they aver only that they did not know about the incidents, and have provided the affidavit of

4

apparently common to find racially hostile graffiti in the restrooms, but this

rarely resulted in disciplinary referrals because the offending student could not

be identified. This racial hostility occasionally resulted in physical

confrontations. During the 2002-2003 school year, there was a fight in the lobby

area of the gymnasium prior to the start of a basketball game between BHS

students and supporters of a predominantly African-American high school. The

local police were called and “had to assist in restoring order.” This prompted

increased police presence at future athletic events. 

Also during the 2002-2003 school year, a BHS student “shoved a

Confederate Flag in the face of several members” of another high school’s allblack girls volleyball team as they walked through the BHS hallways. According

to Crummel, this incident caused tension and required Crummel, who was then

the principal at BHS, to apologize on behalf of the school. Thereafter, BHS

students attempted to display the flag at athletic events, prompting BHS

administration and staff to “intervene.” The same school year (2002-2003),

supporters of a predominantly African-American school left BHS during a

sporting event because a BHS student waived the flag from his pick-up truck in

front of them. This caused the state high school athletics governing body to view

the display of the flag at BHS events as a racial insult and a means of

intimidation, and led to the consideration of sanctions against BHS because the

school was “identified [as] having a reputation . . . as being openly hostile to

African-Americans; if not simply racist.” That year, some white BHS students

also waved a Confederate flag in the direction of a group of fellow AfricanAmerican students as they waited for the bus. According to Crummel, the staff

viewed this “as an attempt to intimidate our African-American students.”

Following these incidents, during the 2002-2003 school year, BHS instituted the

ban on visible displays of the Confederate flag.1
a school security guard who stated that, although he had no personal knowledge of the

volleyball incident, there was no recollection of the event among students and faculty

members. 

5

During the 2005-2006 school year, administrators found graffiti in a boys

restroom containing racial epithets (which was apparently common)

accompanied by a drawing of the Confederate battle flag. On Martin Luther

King, Jr. Day in 2006 -- less than a month after A.M. and A.T. carried their

purses to school -- a homemade Confederate battle flag was raised on the BHS

flagpole and graffiti representing the flag was drawn on the sidewalk below. In

December 2006, the following academic year, a white BHS student attempted to

wrap his belt around an African-American student’s neck while using racial

epithets and threatening to hang him. That school year also saw three

disciplinary referrals of students who used racial epithets. 

A.M. has averred that her purse did not cause a disruption and that she

had never heard of the 2002 incident involving the display of the flag in front of

an opposing team. A.M. also states that she has seen numerous violations of the

dress code, including sexually crude t-shirts, clothing promoting drug and

alcohol use, and clothing identifiable with a particular ethnic or social group

(e.g., Mexican flag t-shirts, t-shirts with Malcolm X, or rainbow belts) that she

claims violates the dress code yet did not result in discipline against the

students. As to her purse, A.M. asserts that her ancestors fought in the Civil

War and that the “flag is a venerated symbol of my ancestry, a symbol of my

Christian religious faith, and a symbol of the South, a symbol of American

history and a political symbol, to me, of limited government and resistance to

unconstitutional authority.” She further claims that there has not been a “single

fight related to the racial abuse,” and states that “[m]ore importantly none of

this stuff is related to our purses or even to the Confederate flag.”

Like A.M., A.T. states that she is “upset that [BHS] has tried to link the

harmless carrying of my Confederate purse with racial intimidation and
 The district court granted defendants’ motion to dismiss this claim pursuant to Rule 2

12(b)(6). Plaintiffs do not appeal that decision. 

 Although the district court granted summary judgment to defendants on this state- 3

law claim, plaintiffs have not appealed this ruling.

6

violation of the rights of other students” and that the flag for her represents a

symbol of patriotism, faith, and family. A.T. has also noticed a lack of

enforcement of the dress code and specifically mentions displays of the Mexican

flag, the Canadian flag, Malcolm X, a male student who wears female makeup

and clothing, and sexually offensive t-shirts. She claims she had no connection

to the Martin Luther King, Jr. Day incident and the graffiti in the bathroom.

According to her, “Many students support my right to carry my purse, even

students who don’t care much for the Confederate flag.” 

Plaintiffs filed the instant action in the United States District Court for

the Northern District of Texas on February 9, 2007. Their amended verified

complaint asserts five claims under federal and state law. Under 42 U.S.C. §

1983, plaintiffs allege: (1) that the ban on Confederate symbols as enforced

against plaintiffs abridged their rights under the First and Fourteenth

Amendments to freedom of speech and expression; (2) that the school’s dress

code violates their due process rights under the Fourteenth Amendment because

it is vague and overbroad; (3) that defendants have deprived plaintiffs of the

equal protection of the laws guaranteed by the Fourteenth Amendment by

enforcing the dress code against them “while allowing other students to wear

attire with politically, racially and ethnically provocative symbols”; and (4) that

plaintiffs’ ability to display pride in their heritage is a protected right under the

Ninth Amendment and has been infringed by defendants’ actions. Under Texas 2

law, plaintiffs assert that defendants have violated the free speech protections

of the Texas Constitution. Plaintiffs prayed for relief in the form of a judgment 3

declaring defendants have violated their constitutional rights, an order that

their student records be expunged, an award of damages and costs, and the
7

issuance of a permanent injunction prohibiting defendants from further violating

these rights. 

Thereafter, plaintiffs moved for a preliminary injunction prohibiting the

continued enforcement of the ban on displays of the Confederate flag at BHS.

The district court denied the motion, concluding that plaintiffs failed to show a

likelihood of success on the merits. Analyzing defendants’ actions under the

standard established in Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969), the district court found that defendants reasonably

concluded that the prohibited speech (i.e., visible displays of the Confederate

battle flag) was imposed to prevent an anticipated substantial and material

disruption of the educational process at BHS. Specifically, the district court

noted that defendants could reach this decision based on the historical

atmosphere of racial hostility at BHS as well as the problems caused by

displaying the Confederate battle flag in the past. Plaintiffs argued that the

Tinker standard was not met because there is no evidence that the Confederate

battle flag itself caused disruptions of the degree required to show that their

display would cause disruption. The district court found this argument

unpersuasive, reasoning that the prior incidents and the flag’s dual meaning

were sufficient to meet the Tinker standard. As to plaintiffs’ due process and

equal protection claims, the district court found that plaintiffs would not be able

to show that the policy was so vague as to violate due process and otherwise

found that these claims simply reiterated their meritless First Amendment

arguments. 

Defendants moved for summary judgment on all of plaintiffs’ claims.

Relying heavily on the reasons stated in its order denying preliminary injunctive
The district court’s order granting summary judgment also addressed evidentiary and 4

discovery-related motions made by the plaintiffs (the court denied the motions). Plaintiffs do

not contest these rulings on appeal.

8

relief, the district court granted summary judgment to defendants. Plaintiffs

4

timely appealed. 

II. STANDARD OF REVIEW

This court reviews a district court’s grant of summary judgment de novo,

applying the same standard as the district court. Turner v. Baylor Richardson

Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary

judgment only 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). On a motion for summary judgment, the court must view the facts in the

light most favorable to the non-moving party and draw all reasonable inferences

in its favor. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th

Cir. 2004). In reviewing the evidence, the court must therefore “refrain from

making credibility determinations or weighing the evidence.” Turner, 476 F.3d

at 343.

III. DISCUSSION

A. Free Speech and Expression

It is axiomatic that students do not “shed their constitutional rights to

freedom or speech or expression at the schoolhouse gate.” Tinker, 393 U.S. at

504. Despite this well-established principle, school officials nonetheless retain

some “authority, consistent with fundamental constitutional safeguards, to

prescribe and control conduct in the schools.” Id. Recognizing the tension

between these interests, the Supreme Court in Tinker held that school officials

may prohibit student speech and expression upon showing “facts which might

reasonably have led school authorities to forecast [that the proscribed speech

would cause] substantial disruption of or material interference with school
9

activities.” Id. at 514. School officials “must be able to show that [their]

action[s] [were] caused by something more than a mere desire to avoid the

discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Id. at 508.

Tinker involved a group of students who planned to wear armbands at

school as a means of protesting the Vietnam War. Learning of the plan in

advance, the school district adopted a policy of suspending students who, upon

request of administrators, refused to remove their armbands. The plaintiffstudents were suspended when they wore their armbands and refused to comply

with a request to remove them. Applying the above standard to the facts of the

case, the Supreme Court held that the school district failed to meet its burden

because “the record fails to yield evidence that the school authorities had reason

to anticipate that the wearing of armbands would substantially interfere with

the work of the school or impinge upon the rights of other students.” Id. at 509.

The school district offered no evidence to prove that its policy was motivated by

a desire to avoid the type of material disruption that would support a ban on

speech: “Clearly the prohibition of expression of one particular opinion, at least

without evidence that it is necessary to avoid material and substantial

interference with schoolwork or discipline, is not constitutionally permissible.”

Id. at 510.

This court has further elaborated on Tinker’s material disruption

standard. Although school officials may prohibit speech based on a forecast that

the prohibited speech will lead to a material disruption, the proscription cannot

be based on the officials’ mere expectation that the speech will cause such a

disruption. Officials must base their decisions “on fact, not intuition, that the

expected disruption would probably result from the exercise of the constitutional

right and that foregoing such exercise would tend to make the expected

disruption substantially less probable or less severe.” Butts v. Dallas Indep. Sch.

Dist., 436 F.2d 728, 731 (5th Cir. 1971); see also id. at 732 (“[T]here must be
 This concession comports with other courts’ views of the meanings associated with

5

the Confederate flag. See, e.g., Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249 (11th

Cir. 2003) (observing that the Confederate flag has multiple “emotionally charged” meanings,

and is viewed by some as a symbol of white supremacy and racism, even if others view it as

a symbol of heritage); United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001) (per

curiam) (“It is the sincerely held view of many Americans, of all races, that the confederate

flag is a symbol of racial separation and oppression. And, unfortunately, as uncomfortable as

it is to admit, there are still those today who affirm allegiance to the confederate flag precisely

because, for them, the flag is identified with racial separation. Because there are citizens who

not only continue to hold separatist views, but who revere the confederate flag precisely for

its symbolism of those views, it is not an irrational inference that one who displays the

confederate flag may harbor racial bias against African-Americans.”). 

10

some inquiry, and establishment of substantial fact, to buttress the

determination.”); Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 970 (5th

Cir. 1972) (“[T]he board cannot rely on ipse dixit to demonstrate the ‘material

and substantial’ interference with school discipline.”). While school officials

must offer facts to support their proscription of student speech, this is not a

“difficult burden,” Shanley, 462 F.2d at 970, and “their decisions will govern” if

they are “within the range where reasonable minds will differ,” Butts, 436 F.2d

at 732. 

Applying the Tinker standard to the instant case, defendants reasonably

anticipated that visible displays of the Confederate flag would cause substantial

disruption of or material interference with school activities. As an initial matter,

plaintiffs agree that some view the Confederate flag in certain circumstances as

a symbol of racism and intolerance, regardless of whatever other meanings may

be associated with it. There is ample, uncontroverted evidence that elements of 5

the BHS student body have continually manifested racial hostility and tension.

This tension has become evident in the various events described above, including

racially hostile graffiti and vandalism, multiple disciplinary referrals involving

racial epithets, and a physical confrontation between white BHS students and

the African-American students of another high school. Some of these events

included the use of the Confederate flag, including the incident in which a white

BHS student waved the flag in the direction of an opposing school’s
 The Eighth and Tenth Circuits have also concluded that prohibitions on the 6

Confederate flag did not infringe on students’ rights of free speech and expression, although

those cases involved physical altercations directly involving the Confederate flag, among other

events demonstrating racial hostility. See B.W.A. v. Farmington R.-7 Sch. Dist., 554 F.3d 734,

11

predominantly African-American volleyball team. As recently as spring 2006,

Confederate flags were flown over the flagpole on Martin Luther King Jr. Day

and a white student simulated the lynching of an African-American student.

Even if these events do not rise to the level of a “substantial disruption” under

Tinker (thus justifying the ban based on past actual disruption), they serve as

a factual basis for administrators’ forecast that disruptions might occur if

students were allowed to display racially charged symbols such as the

Confederate flag. 

Other circuits, applying Tinker, have held that administrators may

prohibit the display of the Confederate flag in light of racial hostility and tension

at their schools. In Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008), the Sixth Circuit

held that a prohibition on clothing bearing the Confederate flag did not violate

students’ rights in light of “racial tensions” among students, evidenced by racist

graffiti, graffiti containing general and specific threats against students, and

physical altercations between white and African-American students. Id. at 565.

Similarly, in Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d

243 (3d Cir. 2002), the Third Circuit held that a policy prohibiting students’

possession of the Confederate flag was not facially overbroad because “[t]he

history of racial difficulties [at the school] provide a substantial basis for

legitimately fearing disruptions from the kind of speech prohibited by the

policy.” Id. at 262. This history, as in the instant case, included overt displays

of the Confederate flag. See id. at 247-48. And the Eleventh Circuit upheld a

prohibition on displaying the Confederate flag because there was “evidence of

racial tensions existing at the school,” as well as “testimony regarding fights

which appeared to be racially based.” Scott v. Sch. Bd. of Alachua County, 324

F.3d 1246, 1249 (11th Cir. 2003).6
739 (8th Cir. 2009); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1326, 1366 (10th

Cir. 2000). 

12

Plaintiffs nonetheless argue that defendants must do more than offer

evidence that racial tension exists at the school. Rather, they contend there

must be a direct connection between the prohibited speech and anticipated

disruption, shown by evidence that the Confederate flag has actually caused

disruptions in the past. Plaintiffs are only partially correct, insofar as Tinker

does require a connection between the proscribed speech and the expected

disruption. Without this connection, there would be no justification for

prohibiting the otherwise protected speech. See Tinker, 393 U.S. at 508.

However, plaintiffs read Tinker too narrowly, effectively requiring school officials

to wait for the speech to cause disruption before acting. This directly

contradicts Tinker’s holding that administrators may proscribe speech if there

are facts “which might reasonably have led school authorities to forecast

substantial disruption of or material interference with school activities.” See id.

at 513 (emphasis added); see also Shanley, 462 F.2d at 970 (“It is not necessary

that the school administration stay a reasonable exercise of restraint ‘until

disruption actually occur[s].’” (alteration in original) (quoting Butts, 436 F.2d at

731)). Here, the racially inflammatory meaning associated with the Confederate

flag and the evidence of racial tension at BHS establish that defendants

reasonably forecast that the proscribed speech might cause substantial

disruption of school activities.

The Sixth and Tenth Circuits have expressly rejected the narrow

interpretation of Tinker that plaintiffs advance here. The Sixth Circuit noted

that the plaintiffs’ interpretation “would place ‘school officials . . . between the

proverbial rock and a hard place: either they allow the disruption to occur, or

they are guilty of a constitutional violation.’” Barr, 538 F.3d at 565 (alteration

in original) (quoting Lowery v. Everhard, 497 F.3d 584, 596 (6th Cir. 2001)).

Because Tinker permits school officials to act based on the potential for
 Plaintiffs argue we should instead follow the Sixth Circuit’s decision in Castorina ex 7

rel. Rewt v. Madison County School Board, 246 F.3d 536 (5th Cir. 2001). 

13

disruption, the appropriate “inquiry, then, is whether the school reasonably

forecast that the Confederate flag would cause material and substantial

disruption to schoolwork and school discipline.” Id. We also agree with the

Tenth Circuit’s observation that “‘[t]he fact that a full-fledged brawl had not yet

broken out over the Confederate flag does not mean that the district was

required to sit and wait for one. In this case, the district had a reasonable basis

for forecasting disruption from display of such items at school, and its

prohibition was therefore permissible.’” West, 206 F.3d at 1366-67 (quoting West

v. Derby Unified Sch. Dist., 23 F. Supp. 2d 1223, 1233 (D. Kan. 1998)).7

Despite these decisions, plaintiffs argue that most courts have required

a direct connection between the Confederate flag and past disruptions. In

support of this argument, they cite to decisions finding that bans on the

Confederate flag do not violate students’ First Amendments rights where the

flag actually caused past disruptions. See West, 206 F.3d at 1362-63 (upholding

a school policy prohibiting the wearing or possession of items with the

Confederate flag because, in addition to other incidents of racial tension, there

were “several verbal confrontations” between groups of students wearing

Confederate flag and Malcolm X t-shirts); Melton v. Young, 465 F.2d 1332, 1333-

34 (6th Cir. 1972) (upholding a school policy prohibiting Confederate flags on

campus following community-wide racial disturbances involving the flag);

Phillips v. Anderson County Sch. Dist. Five, 987 F. Supp. 488, 492-93 (D.S.C.

1997) (upholding the suspension of a student for wearing a jacket bearing the

Confederate flag in light of prior incidents “of racial tension directly caused or

escalated by the presence of Confederate Flag clothing, . . . as well as incidents

of racial disputes”). Contrary to plaintiffs’ assertion, however, these cases do not

stand for the proposition that schools may not prohibit the display of the

Confederate flag unless it has actually caused past disruptions. Rather, they
14

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. See Shanley, 462 F.2d at 970; see also Newsom v. Albemarle County Sch.

Bd., 354 F.3d 249, 259 n.7 (4th Cir. 2003). But Tinker does not require a

showing of past disruption; administrators can also meet their burden by

establishing that they had a reasonable expectation, grounded in fact, that the

proscribed speech would probably result in disruption. See Butts, 436 F.2d at

731; see also Doninger v. Neihoff, 527 F.3d 41, 51 (2d Cir. 2008); Lowery v.

Euverard, 497 F.3d 584, 596 (6th Cir. 2007); LaVine v. Blaine Sch. Dist., 257

F.3d 981, 987 (9th Cir. 2001). While it is possible for administrators to fail to

meet this burden in the absence of past disruptions, see Castorina v. Madison

County Sch. Bd., 246 F.3d 536, 543-44 (6th Cir. 2001), the racial tension and

hostility at the school justified defendants’ ban on visible displays of the

Confederate flag in this case.

Accordingly, we hold the district court did not err in granting summary

judgment to defendants on plaintiffs’ free speech and expression claim. 

B. Due Process

Plaintiffs next argue that the school district’s dress code, particularly its

use of the term “inappropriate symbolism,” is unconstitutionally vague because

students do not have adequate notice of what clothing is prohibited. We

disagree.

“A law is unconstitutionally vague if it (1) fails to provide those targeted

by the statute a reasonable opportunity to know what conduct is prohibited, or

(2) is so indefinite that it allows arbitrary and discriminatory enforcement.”

Women’s Medical Ctr. of N.W. Houston v. Bell, 248 F.3d 411, 421 (2001) (citing

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). Students may

challenge school policies based on their alleged vagueness, but the Supreme

Court has held that the standards for determining vagueness apply differently

in the school context:
15

We have recognized that ‘maintaining security and order in the

schools requires a certain degree of flexibility in school disciplinary

procedures, and we have respected the value of preserving the

informality of the student-teacher relationship.’ Given 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. 

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (quoting New Jersey

v. T.L.O., 469 U.S. 325, 340 (1985)). 

The student in Fraser was given two days’ suspension for delivering a

sexually explicit speech at a school assembly. Id. at 678-79. The school

maintained a policy prohibiting “[c]onduct which materially and substantially

interferes with the educational process,” which expressly included “obscene”

speech, and teachers had warned the student prior to his speech that it was

“‘inappropriate’” and that he might face “‘severe consequences’” if he delivered

it. Id. at 678. The Supreme Court quickly rejected the student’s claim that the

policy was unconstitutionally vague, finding his argument “wholly without

merit.” The Court reasoned that the policy and warnings gave him adequate

notice that he might be punished for giving the speech, particularly given school

officials’ discretion to develop school policies and the fact that the student

received a relatively light sanction. Id. at 686. 

Turning to the instant case, defendants could enact policies that permitted

enough flexibility to deal with “a wide range of unanticipated conduct,” and the

policy at issue here was not more vague than the prohibition in Fraser against

“obscene” speech. Plaintiffs here -- like the student in Fraser -- were given a

warning that the particular speech at issue would give rise to discipline, via a

policy specifically prohibiting visible displays of the Confederate battle flag.

Finally, plaintiffs were never suspended; they only voluntarily chose to go home

for the day rather than leave their purses in the school’s front office or have a

parent retrieve them. Just as in Fraser, this light sanction militates against
 Plaintiffs have also claimed that the dress code violates due process because it is 8

“overbroad,” presumably referring to the overbreadth doctrine under the First Amendment as

incorporated by the Fourteenth Amendment Due Process Clause. See Hersh v. United States,

553 F.3d 743, 762 (5th Cir. 2008). However, plaintiffs have failed to offer any argument as to

the policy’s alleged overbreadth and have therefore waived this claim. See United States v.

Miranda, 248 F.3d 434, 444 (5th Cir. 2001).

 We note that plaintiffs’ equal protection claim largely mirrors their claim that

9

defendants have impermissibly burdened their rights to free speech and expression. “It is

generally unnecessary to analyze laws which burden of the exercise of First Amendment rights

by a class of persons under the equal protection guarantee, because the substantive

guarantees of the Amendment serve as the strongest protection against the limitation of these

rights. Laws which classify persons in their exercise of these rights will have to meet strict

tests for constitutionality without need to resort to the equal protection clause. Should the

laws survive substantive review under the specific guarantees they are also likely to be upheld

under an equal protection analysis . . . .” 4 Rotunda & Nowak, Treatise on Constitutional Law:

16

their vagueness claim. Thus, the district court properly granted summary

judgment to defendants on this due process claim.8

C. Equal Protection

Plaintiffs argue that defendants violated their rights to equal protection

because they were disciplined under the dress code for their Confederate flag

purses while other students who wore clothing with “inappropriate symbolism”

were not. The district court granted summary judgment to defendants on this

claim because they have not provided evidence that the ban was enforced

unequally and because the prohibition on the flag was justified under Tinker. 

Under the equal protection clause, strict scrutiny applies to classifications

that infringe on a fundamental right (such as the right to free speech and

expression) or involve a protected classification. See Mass. Bd. of Retirement v.

Murgia, 427 U.S. 307, 312 & n.4 (1976) (“[E]qual protection analysis requires

strict scrutiny of a legislative classification only when the classification

impermissibly interferes with the exercise of a fundamental right or operates to

the peculiar disadvantage of a suspect class,” such as alienage, race, or

ancestry). For the reasons stated above, plaintiffs have not shown that the

defendants’ policy infringed their fundamental rights, nor have plaintiffs alleged

that they have been treated differently based on a protected classification. 

9
Substance and Procedure § 18.40, at 389 (4th ed. 2008).

17

Thus, plaintiffs’ rights to equal protection have been violated only if the

policy is not “rationally related to a legitimate government purpose.” See City

of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); Lyng v. Int’l Union, UAW, 485 U.S.

360, 370 (1988). The dress code and the ban on visible displays of the

Confederate flag undoubtedly satisfy the deferential rational-basis standard,

“which is the most relaxed and tolerant form of judicial scrutiny under the Equal

Protection Clause.” Stanglin, 490 U.S. at 26. The Supreme Court has

“repeatedly emphasized the need for affirming the comprehensive authority of

the States and of school officials, consistent with fundamental constitutional

safeguards, to prescribe and control conduct in the schools.” Tinker, 393 U.S. at

507. Thus, there is a legitimate governmental interest in maintaining discipline

and order in the public schools. Cunningham v. Beavers, 858 F.2d 269, 273 (5th

Cir. 1988); Ingraham v. Wright, 252 F.2d 909, 916 (5th Cir. 1976) (en banc), aff’d,

430 U.S. 651 (1977). Because school officials reasonably anticipated that

displays of the Confederate flag would cause substantial disruption of or

material interference with school activities, we conclude the policy was

rationally related to the legitimate interest in maintaining school discipline and

order. Accordingly, the district court did not err in granting summary judgment

to defendants on this claim. 

IV. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district

court. 
18

GARWOOD, Circuit Judge, concurring.

I concur, and append these remarks to reflect my understanding of the

contours of our holdings herein.

As Judge Dennis well explains, the evidence here adequately shows

sufficient incidents of actual disruption at BHS arising from student display of

the Confederate flag in the context of racial hostility and tension there. His

opinion correctly notes that the challenged policies followed and were in

response to incidents of “racial strife among students at the school, some of

which centered on students’ display of the Confederate flag,” such as, for

example, when BHS students shoved a Confederate flag in the face of several

members of another high school’s all black girls’ volleyball team as they walked

through the BHS hallways. Accordingly, there is no need to opine on whether

some generally assumed racially inflammatory meaning associated with the

Confederate flag together with evidence of racial tension at BHS would alone

suffice to sustain the instant ban on students wearing the flag at the school.

Any such ruminations would be essentially dicta. Moreover, there is no evidence

of actual or reasonably foreseeable disruption from BHS student wearing or

display of other symbols on clothing identifiable with any particular group or

cause. Nor is there any evidence that the school administrators acted out of

personal disagreement with or hostility to the ideas that the Confederate flag

symbolized to them, or otherwise for reasons apart from concern for the danger

that student display of the flag at school, in the BHS context, unreasonably

risked, as the evidence adequately showed, provoking disruption, including

racial physical confrontations, there. I do not read the opinion as subscribing to

the questionable idea that governmental actors may restrict display of the

Confederate flag on the basis of a general assumption that “some” who display

that flag “may” harbor racial bias or belief in racial separation.