711 F.3d 426 (4th Cir. 2013), 12-1445, Hardwick ex rel. Hardwick v. Heyward

Docket Nº:12-1445.
Citation:711 F.3d 426
Opinion Judge:SHEDD, Circuit Judge:
Party Name:Candice Michelle HARDWICK, by and through her Parents and Guardians Daryl Lewis HARDWICK and Priscilla Lea Hardwick, Plaintiff-Appellant, v. Martha HEYWARD, in her individual capacity and in her official capacity as Principal of Latta Middle School; George H. Liebenrood, Jr., in his individual capacity and in his official capacity as Principal of L
Attorney:Frederick Daniel Taylor, Stallings, Bush & Randall, PC, Suffolk, Virginia, for Appellant. Vinton D. Lide, Lide & Pauley, LLC, Lexington, South Carolina, for Appellees. Kirk D. Lyons, Southern Legal Resource Center, Inc., Black Mountain, North Carolina; Lourie A. Salley, III, Lexington, South Caro...
Judge Panel:Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge NIEMEYER and Judge AGEE joined.
Case Date:March 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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711 F.3d 426 (4th Cir. 2013)

Candice Michelle HARDWICK, by and through her Parents and Guardians Daryl Lewis HARDWICK and Priscilla Lea Hardwick, Plaintiff-Appellant,

v.

Martha HEYWARD, in her individual capacity and in her official capacity as Principal of Latta Middle School; George H. Liebenrood, Jr., in his individual capacity and in his official capacity as Principal of Latta High School; Board of Trustees of Latta School District Dillon County No. 3, Defendants-Appellees.

No. 12-1445.

United States Court of Appeals, Fourth Circuit.

March 25, 2013

Argued: Jan. 30, 2013.

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ARGUED:

Frederick Daniel Taylor, Stallings, Bush & Randall, PC, Suffolk, Virginia, for Appellant.

Vinton D. Lide, Lide & Pauley, LLC, Lexington, South Carolina, for Appellees.

ON BRIEF:

Kirk D. Lyons, Southern Legal Resource Center, Inc., Black Mountain, North Carolina; Lourie A. Salley, III, Lexington, South Carolina, for Appellant.

Michael S. Pauley, Lide & Pauley, LLC, Lexington,

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South Carolina; Vernie L. Williams, Childs & Halligan, Columbia, South Carolina, for Appellees.

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge NIEMEYER and Judge AGEE joined.

OPINION

SHEDD, Circuit Judge:

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 flag 1 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 conclude 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, 89 S.Ct. 733, 21 L.Ed.2d 731 (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 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

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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.

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 and a Confederate battle flag with

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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 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]...

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