Thomas Sypniewski, Jr.; Matthew Sypniewski; Brian Sypniewski v. Warren Hills Regional Board of Education

PRECEDENTIAL
Filed October 3, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3542
THOMAS SYPNIEWSKI, JR.;
MATTHEW SYPNIEWSKI; BRIAN SYPNIEWSKI
v.
WARREN HILLS REGIONAL BOARD OF EDUCATION;
PETER MERLUZZI, in his personal and official capacity as
Superintendent of the Warren Hills Regional Board of
Education; BETH GODETT, in her personal and official
capacity as Principal of the Warren Hills Regional High
School; RONALD GRIFFITH; PHILLIP CHALUPA, in their
personal and official capacity as Vice Principals of Warren
Hills Regional High School; ELIZABETH AMES; MARCY
MATLOSZ; RAY BUSCH; SUYLING HEURICH; JAMES T.
MOMARY; NANCY FALLEN; WILLIAM MILLER; BRADLEY
BRESLIN; SCOTT SCHANTZENBACH, in their official
capacity as members of the Warren Hills Regional
Board of Education
Matthew Sypniewski; Brian Sypniewski,
Appellants
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 01-cv-03061
(Honorable Mary Little Cooper)
Argued March 4, 2002
Before: SCIRICA and ROSENN, Circuit Judges,
and WARD, District Judge*
(Filed October 3, 2002)
GERALD WALPIN, ESQUIRE
(ARGUED)
Katten, Muchin, Zavis & Rosenman
575 Madison Avenue
New York, New York 10022
Attorney for Appellants
JAMES W. BROSCIOUS, ESQUIRE
(ARGUED)
Broscious, Glynn & Fischer
111 West Washington Avenue
P.O. Box 230
Washington, New Jersey 07882

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Attorney for Appellees
OPINION OF THE COURT
SCIRICA, Circuit Judge.
At issue is the constitutionality, both facially and as
applied, of a public school’s racial harassment policy
against a background of demonstrated racial hostility. The
specific issue is whether the public school’s policy violates
the First Amendment protection of students’ rights to free
expression.
I.
The Warren Hills School District’s racial harassment
policy was enacted in response to a pattern of disturbing
racial incidents. Shortly thereafter, Thomas Sypniewski was
suspended from school for wearing a "Jeff Foxworthy" T-
shirt inscribed with "redneck" jokes. Thomas Sypniewski
_________________________________________________________________
* The Honorable Robert J. Ward, United States District Judge for the
Southern District of New York, sitting by designation.
2
filed this lawsuit (together with his brothers Matthew and
Brian) mounting a facial and as applied challenge to the
constitutionality of the harassment policy and dress code.1
The Sypniewski brothers named as defendants: the
Warren Hills Regional Board of Education; Peter Merluzzi,
the superintendent of the board of education; Beth Godett,
the principal of the high school; Ronald Griffith and Philip
Chalupa, vice principals of the high school; and Elizabeth
Ames, Bradley Breslin, Ray Busch, Nancy Fallen, Suyling
Heurich, Marcy Matlosz, William Miller, James T. Momary,
and Scott Schantzenbach, all members of the board of
education.
Plaintiffs moved for a preliminary injunction against
further enforcement of the racial harassment policy. The
District Court denied the request for injunctive relief.
Plaintiffs have appealed.
a. Racial Hostility in the Warren Hills Schools.
The first racial incident cited by the District Court
occurred in October 1999 at the high school.2 A white
student dressed for Halloween "costume day" by wearing
overall jeans and a straw hat and appearing in black face.
He also wore a thick rope around his neck tied in a noose.
The student was sent home and suspended. Also during
that year, a high school student submitted a racial
harassment complaint based on several students’ wearing
shirts bearing the Confederate flag.

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The number of incidents grew during the 2000-2001
school year. Several students continued the practice of
_________________________________________________________________
1. Thomas Sypniewski was a student at the Warren Hills Regional High
School until June 15, 2001 (ten days before plaintiffs filed their
complaint), when he graduated. Brian Sypniewski was a student at the
Warren Hills Regional Middle School until June 2001. He entered the
high school in September 2001. Matthew Sypniewski is a student at the
high school and at the Warren County Technical School and is
scheduled to graduate in 2004.
2. The District Court’s opinion contains a comprehensive discussion of
the racial troubles in the Warren Hills School District. See Sypniewski v.
Warren Hills Reg. Bd. of Ed., No. 01-3061, 5-22 & 32-37 (D.N.J. Sept. 4,
2001)
3
wearing clothing displaying the Confederate flag. Some
formed a "gang-like" group known as "the Hicks," and
observed "White Power Wednesdays" by wearing
Confederate flag clothing. On Wednesday, September 20,
2000, a student walked down a main hallway in the high
school waving a large Confederate flag. The flag was
confiscated, but the student was not disciplined.
Several students complained about the flag waving
incident to Ronald Griffith, a vice principal of the Warren
Hills Regional High School. They also reported that some
students were telling racially offensive jokes and
disseminating racially offensive material downloaded from
the Internet. Griffith spoke to two students involved in the
events of September 20, who confirmed the existence of the
Hicks and White Power Wednesdays. One of these students
was suspended for possessing racially offensive materials.
Thomas Sypniewski acknowledges that he wore shirts
displaying Confederate flags to school. In an October 4,
2000 local newspaper article about the Confederate flag at
the high school, Thomas Sypniewski is pictured wearing a
T-shirt displaying the text, "Not only am I perfect, I’m a
Redneck too!" The word "redneck" is printed in such a way
that a Confederate flag shows through the letters. Whether
he was a member of the Hicks, however, is unclear. He
denies it. The District Court expressly declined to make a
finding on this issue. In any event, the record suggests he
was at least friendly with members of the Hicks, a group
that does not appear to have been formally organized. There
is no evidence that the other two Sypniewskis were
affiliated with the Hicks.
Vice Principal Griffith’s investigation of these incidents
revealed that the level of racial tension in the high school
was significant. Many students were deeply offended by the
actions of the Hicks and their friends. At least one student
reported he "felt like" responding violently. The District
Court also found the racial tension spilled over into the
classroom, displacing class lessons with discussions about

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racial relations. But neither Thomas Sypniewski nor the
word "redneck" was specifically mentioned by the students
Griffith interviewed.
4
On December 1, 2000, a white student recently enrolled
at the high school was harassed at home. Apparently in
response to this student’s association with several African-
American students, a large group of teenagers drove to his
house where they physically threatened the student and
called him a "nigger lover," among other expletives.
White Power Wednesdays continued. Some high school
students wore clothing bearing the Confederate flag
throughout the fall and winter. A student came to school
with a large Confederate flag draped over the back of his
truck. Numerous instances of racist graffiti were found on
school walls, some of which inspired hostile graffiti
responses. On one occasion, some students played a
dehumanizing, racist song from their trucks in the parking
lot. Near the end of the school year, a fight occurred
between a black student and a white student that resulted
in one student sustaining a concussion and requiring
stitches. And according to Superintendent Merluzzi, several
students continued to engage in other "racially harassing
behavior."
In short, the record clearly supports the District Court’s
finding that the Warren Hills public schools--particularly
the high school--were afflicted with pervasive racial
disturbances throughout the 2000-2001 school year.
b. The School Board’s Response.
The racial difficulties at the high school began to attract
the attention of the community early on. The school board
responded by placing the issue of Confederate flag clothing
on the agenda of its regularly scheduled meeting on
October 3, 2000. Several parents spoke on both sides of the
issue, including both Sypniewski parents, who spoke
against a proposed Confederate flag ban.
Superintendent Merluzzi also spoke at the meeting.
Expressing concern for the students’ free speech rights, he
stated his view that the problem was limited to a
sufficiently small number of students that it could be dealt
with without adopting policy changes such as banning the
Confederate flag. In particular, Merluzzi noted the existence
of a peer mediation program, which he thought adequate to
deal with many of the racial problems. The board of
5
education shared Merluzzi’s reluctance to implement a
formal policy at that time, and instead resolved to
investigate its options.

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On October 20, 2000, Timothy Downs, the school
district’s Peer Mediation Coordinator, issued an internal
report containing several findings concerning the racial
strife at the high school during the preceding month.3
Based in part on these findings, Downs reached a
conclusion different from that expressed by Superintendent
Merluzzi at the October 3, 2000 board meeting. The report
stated, "At this time this issue is too complex, involves too
many people, and is too controversial for Peer Mediation
Services." The report recommended that "[t]he wearing of
the Confederate flag for non instructional purposes should
be disallowed in the Warren Hills Regional School District."
By February 2001, after several months of continued
racial problems, including regular wearing of clothing
decorated with the Confederate flag and the off campus
incident of December 1, the school district changed its view
on the necessity of implementing a formal policy. According
to Superintendent Merluzzi, "It was the consensus of the
_________________________________________________________________
3. In particular, the report includes the following findings:
1. There is a sizable number of students, both minority and
majority, who feel offended, threatened, uncomfortable and
discriminated against by the displaying of the Confederate flag in
non teaching capacities.
2. There is strong evidence that a demonstration of "white power"
was the intention of the boy who displayed the flag[in the hallway
on September 20, 2000].
3. The students who consider themselves members of the clique
known as the "Hicks" share a common belief in prejudicial feelings
towards others.
4. The "Hicks" celebrate "White Wednesday" by wearing tee-shirts
as a symbol of solidarity. The shirts of choice have a representation
of the Confederate flag in some form or fashion.
5. One of the students involved in the flag demonstration
downloaded racially offensive literature from the internet from a web
site called "whitesonly.com" and distributed these materials to the
students in the school community.
6
Board of Education and myself that there had been
significant disruption in the school and that the minority
population was at significant risk from, not only verbal and
intimidating harassment but also, increasingly, the risk of
physical violence."
The school board researched racial harassment policies
that had been adopted by other school districts and
selected a policy that had passed constitutional muster
before the Court of Appeals for the Tenth Circuit. West v.
Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir.
2000). The adopted policy reads, in part:

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District employees and student(s) shall not racially
harass or intimidate other student(s) or employee(s) by
name calling, using racial or derogatory slurs, wearing
or possession of items depicting or implying racial
hatred or prejudice. District employees and students
shall not at school, on school property or at school
activities wear or have in their possession any written
material, either printed or in their own handwriting,
that is racially divisive or creates ill will or hatred.
(Examples: clothing, articles, material, publications or
any item that denotes Ku Klux Klan, Arayan [sic]
Nation-White Supremacy, Black Power, Confederate
flags or articles, Neo-Nazi or any other "hate" group.
This list is not intended to be all inclusive.)
As part of the instructional process, professional staff
may display and discuss divisive materials and/or
symbols when selected and used to enhance
knowledge, provided these topics are included in the
approved Warren Hills Regional Schools curriculum.
Said materials must be removed from display daily. 4
The board presented the proposed policy at its meeting
on February 20, 2001, and adopted it on March 6, for
implementation on March 13, 2001. As noted, racially
controversial incidents occurred until the end of the school
year, including at least one student wearing clothing
displaying the Confederate flag despite the ban.
_________________________________________________________________
4. The Warren Hills policy and the one at issue in West are substantively
identical except for the addition, in the Warren Hills policy, of the second
paragraph quoted.
7
c. The Jeff Foxworthy T-Shirt.
Each of the three Sypniewski boys owned a T-Shirt
featuring the humor of Jeff Foxworthy. Brian Sypniewski
had purchased the three shirts at Wal-Mart in September
1999. The T-Shirts contained the following text:
Top 10 reasons you might be a Redneck Sports Fan if
. . .
10. You’ve ever been shirtless at a freezing football
game.
9. Your carpet used to be part of a football field.
8. Your basketball hoop used to be a fishing net.
7. There’s a roll of duct tape in your golf bag.
6. You know the Hooter’s [sic] menu by heart.
5. Your mama is banned from the front row at

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wrestling matches.
4. Your bowling team has it’s [sic] own fight song.
3. You think the "Bud Bowl" is real.
2. You wear a baseball cap to bed.
1. You’ve ever told your bookie "I was just kidding."
The T-shirt is fairly representative of Foxworthy’s
"country humor." Foxworthy has produced several books
and compact discs with names such as, "You Might Be a
Redneck if," "Blue Collar Comedy Tour,""Games Rednecks
Play," and "Hick is Chic." His Internet website features a
"Redneck Joke of the Day." http://www.jefffoxworthy.com.
The term "redneck" appears throughout Foxworthy’s work.
Plaintiffs stress the mainstream appeal of Foxworthy’s
humor, noting he starred in his own situation comedy, the
"Jeff Foxworthy Show," on network television for two
seasons. Foxworthy also appeared on a television special
that featured President George W. Bush. He currently has
a syndicated radio show, "The Foxworthy Countdown,"
where he plays country music and tells jokes. He has been
featured on a line of greeting cards. And as noted, the T-
shirts worn by the Sypniewskis were purchased at Wal-
Mart.
8
Each of the Sypniewski boys had worn the shirt to their
respective schools5 several times during the 2000-2001
school year. Thomas had also worn his shirt several times
the previous year. There is no evidence that any student or
administrator objected to the T-shirt at any time, or that it
caused any disruption before the adoption of the racial
harassment policy.
On March 22, 2001, Thomas Sypniewski wore the T-shirt
to school for the first time after the implementation of the
harassment policy. He wore the shirt without incident until
last period of the day, when he was directed to Vice
Principal Griffith’s office by Neil Corley, a security guard at
the high school. What occurred at that time between
Thomas Sypniewski and Corley is disputed. In his report,
Corley stated, "Tommy said something to the effect ‘I’ve
been waiting all day for someone to notice.’ " Thomas
Sypniewski is quoted in the local newspaper as saying, "The
thought crossed my mind that this is going to piss people
off." Defendants contend these statements demonstrate that
Thomas Sypniewski intended wearing the shirt to be a
provocative act. Thomas Sypniewski denies making both
statements. Instead, he claims to have said to Corley, "This
is the last period of the day. I’ve been walking around all
day and now you’ve noticed" and intended to send no
message related to race. The District Court did not resolve
this factual dispute.

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Vice Principal Griffith told Thomas Sypniewski the shirt
violated the school dress code6--a policy that had been in
_________________________________________________________________
5. See note 1, supra.
6. The dress code provides:
Students also have the responsibility to dress appropriately and to
keep themselves, their clothes and their hair clean. School officials
may impose limitations on student participation in the regular
instructional program where there is evidence that inappropriate
dress causes disruption in the classroom and the lack of cleanliness
constitutes a health or safety hazard or disruption of the
educational program. The following is considered inappropriate for
school:
a) Clothing displaying or imprinted with nudity, vulgarity,
obscenity, profanity, double entendre pictures or slogans (including
9
place prior to disturbances that gave rise to the decision to
adopt the racial harassment policy. Vice Principal Griffith
stated he viewed the shirt as violating the code for several
reasons. The references to the Bud Bowl7 and Hooters
restaurant,8 he said, violated prohibitions on mentioning
alcohol and sexual innuendo. His primary concern,
however, was the appearance of the word "redneck" on the
shirt "because of the troubling history of racial tension at
our school and the possibility that the term ‘redneck’ would
incite some form of violence and at a minimum be offensive
and harassing to our minority population." Griffith gave
Thomas Sypniewski the option of turning the shirt inside
out. When Thomas refused, Griffith suspended him for
three days. Apparently wishing to refrain from imposing the
stiffer penalties associated with the racial harassment
policy, Vice Principal Griffith did not mention the
harassment policy as a basis for his action, even though he
viewed the shirt as prohibited by that policy as well.
_________________________________________________________________
those related to alcohol, drugs and tobacco), or portraying racial,
ethnic, or religious stereotyping.
b) Flip-flops, thongs, and other hazardous footwear.
c) Clothing which has been intentionally torn, cut, or ripped in a
fashion which displays the anatomy.
d) Spandex garments without additional outer clothing.
e) Any clothing deemed gang-related, including the way the
clothing is worn.
f) Gym-type apparel, clothing intended as undergarments worn as
outer garments, or see-through garments without appropriate
undergarments.

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g) Street coats, windbreakers, and head coverings worn in the
building. These items should be placed in lockers immediately upon
arrival. Exceptions for medical or religious reasons must be referred
to the principal.
h) Bare midriff clothing.
7. The Bud Bowl is a fictional football game between bottles of beer used
in a beer advertising campaign.
8. Hooters is a national restaurant chain that liberally employs sexuality
in its marketing.
10
The following day, Brian Sypniewski wore his Foxworthy
shirt to the middle school. The vice principal of the middle
school, Robert Griffin, told Brian he had spoken with
Superintendent Merluzzi, and that they had determined the
shirt was neither offensive nor in violation of the dress
code.
On March 26, 2001, Thomas Sypniewski appealed his
suspension to the board of education. The board denied the
appeal and upheld the suspension. As had Vice Principal
Griffith, the board based its decision on the dress code and
insubordination--not on the racial harassment policy.
Apparently referring to Brian Sypniewski’s wearing the shirt
without penalty, the board stated "in hindsight action
should have been taken with respect to this incident as
well."
As noted, some racially provocative behavior continued
through the end of the school year, despite implementation
of the racial harassment policy. Shortly after Thomas
Sypniewski graduated from the high school, he and his
brothers filed this lawsuit.
d. This Action.
In their complaint, plaintiffs sought to preliminarily
enjoin enforcement of both the racial harassment policy
and the dress code as unconstitutional restrictions on
students’ freedom of speech under the First and Fourteenth
Amendments to the Constitution, and under the New
Jersey Constitution, Article I, Section 6. They also sought
damages for actions taken against Thomas Sypniewski,
alleging unlawful suspension under both the United States
and New Jersey Constitutions, as well as claims for
defamation and "false light" under New Jersey law. The
District Court denied plaintiffs’ motion for a preliminary
injunction with respect to the racial harassment policy, but
found "the challenged portion of the Dress Code may not
satisfy constitutional standards and should therefore not be
enforced prospectively during the pendency of this litigation
against the wearing of clothing which violates the Racial
Harassment Policy." Sypniewski, No. 01-3061, at 75.
Plaintiffs have appealed the court’s order that the racial

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11
harassment policy is consistent with plaintiffs’--and other
students’--constitutional rights.9
Because this is an appeal from a denial of a motion for
preliminary injunction, our review is limited to the
prospective relief the District Court refused to grant.10
Thus, our sole concern is whether the Warren Hills School
District can continue constitutionally to enforce the racial
harassment policy. Because Thomas Sypniewski has
graduated and has left the reach of the school district’s
policies, he is not a party to this appeal.
II.
We employ a tripartite standard of review for refusals to
issue preliminary injunctions. We review the District
Court’s findings of fact for clear error. Legal conclusions are
assessed de novo. The ultimate decision to grant or deny
the injunction is reviewed for abuse of discretion.
Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160,
170 (3d Cir. 2001).
In determining the appropriateness of issuing a
preliminary injunction, four factors must be considered: "(1)
whether the movant has a reasonable probability of success
on the merits; (2) whether the movant will be irreparably
harmed by denying the injunction; (3) whether there will be
greater harm to the nonmoving party if the injunction is
granted; and (4) whether granting the injunction is in the
public interest." Id. at 171. The litigants have briefed in
depth only the first requirement: whether the Sypniewskis
have a reasonable probability of success on the merits.
Because this is the essential element at issue here, we will
focus our discussion on plaintiffs’ likelihood of success on
the merits of their constitutional claims.
_________________________________________________________________
9. The constitutionality of the dress code policy has not been raised on
appeal.
10. The order appealed is not a final order. Nonetheless, we have
jurisdiction over this appeal under 28 U.S.C. S 1292(a)(1), which grants
appellate jurisdiction over "[i]nterlocutory orders of the district courts of
the United States . . . granting, continuing, modifying, refusing, or
dissolving injunctions . . . ."
12
III.
Plaintiffs contest the constitutionality of the racial
harassment policy both facially and as applied. Contending
the policy is both unconstitutionally vague and overbroad
on its face, plaintiffs maintain it should be struck down in
its entirety. Because we are only concerned here with
prospective violations, plaintiffs’ challenge to the

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application of the policy to Thomas Sypniewski’s wearing
the shirt on March 22, 2001 is not before us. But plaintiffs
seek an injunction against further enforcement of the racial
harassment policy to ban the Foxworthy shirt, which both
Matthew and Brian--who remain in the school system--still
own.
a. Freedom of Speech in Public Schools.
The public school setting demands a special approach to
First Amendment disputes. Most students are minors, and
school administrators must have authority to provide and
facilitate education and to maintain order. 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 v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 507 (1969). On the other hand, "[i]t can hardly be
argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at
the schoolhouse gate." Id. at 506. Thus, students retain the
protections of the First Amendment, but the shape of these
rights in the public school setting may not always mirror
the contours of constitutional protections afforded in other
contexts.
In Tinker, school officials prevented a group of students
from wearing black armbands to express their opposition to
our country’s participation in the war in Vietnam. The
Court upheld the students’ right to do so because there was
"no evidence whatever of petitioners’ interference, actual or
nascent, with the schools’ work or of collision with the
rights of other students to be secure and to be left alone."
Id. at 508. Responding to the school authorities’ attempt to
justify their action by reason of a concern about the
13
possibility of the armbands’ creating a disturbance in
school, the Court held that "in our system, undifferentiated
fear or apprehension of disturbance is not enough to
overcome the right to freedom of expression." Id. By
contrast, "conduct by the student, in class or out of it,
which for any reason--whether it stems from time, place, or
type of behavior--materially disrupts classwork or involves
substantial disorder or invasion of the rights of others is, of
course, not immunized by the constitutional guarantee of
freedom of speech." Id. at 513. "As subsequent federal
cases have made clear, Tinker requires a specific and
significant fear of disruption, not just some remote
apprehension of disturbance." Saxe v. State Coll. Area Sch.
Dist., 240 F.3d 200, 211 (3d Cir. 2001). In sum,"if a school
can point to a well-founded expectation of disruption--
especially one based on past incidents arising out of similar
speech--the restriction may pass constitutional muster." Id.
at 212.
Following Tinker, the Supreme Court decided two other

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major cases implicating freedom of expression in public
schools. In Bethel School District No. 403 v. Fraser, 478 U.S.
675 (1986), a school disciplined a student for a student
government nominating speech filled with sexual metaphor
viewed by the school and the Court as lewd. The Court
upheld the school’s authority to do so because of"society’s
. . . interest in teaching students the boundaries of socially
appropriate behavior." Id. at 681. Schools are not prevented
by the First Amendment from encouraging the
"fundamental values of ‘habits and manners of civility,’ " id.
at 681, by "insisting that certain modes of expression are
inappropriate and subject to sanctions." Id. at 683. And
"[t]he determination of what manner of speech. . . is
inappropriate properly rests with the school board." Id. We
have interpreted Fraser as establishing that"there is no
First Amendment protection for ‘lewd,’ ‘vulgar,’ ‘indecent,’
and ‘plainly offensive’ speech in school.’ " Saxe, 240 F.3d at
213.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260
(1988), involved the authority of school officials to control
the content of a student newspaper. The Court upheld the
school’s deletion of an article from the newspaper primarily
14
because the newspaper was sponsored by the school.
"[E]ducators do not offend the First Amendment by
exercising editorial control over the style and content of
student speech in school-sponsored expressive activities so
long as their actions are reasonably related to legitimate
pedagogical concerns." Id. at 273.
Defendants do not contend the Foxworthy shirt contained
indecent language; nor was the shirt school-sponsored.
Accordingly, under Saxe, the shirt "is subject to Tinker’s
general rule: it may be regulated only if it would
substantially disrupt school operations or interfere with the
right of others." Saxe, 240 F.3d at 214. Like the armbands
at issue in Tinker, the wearing of the T-shirt was "akin to
‘pure speech," targeted for its expressive content. 393 U.S.
at 508.
b. Banning the Foxworthy T-shirt.
Several cases have addressed public schools’ attempts to
restrict displays of the Confederate flag under Tinker.
Where there have been racial problems involving the
Confederate flag, courts have found such bans
constitutional. See West, 206 F.3d at 1366; Melton v.
Young, 465 F.2d 1332, 1335 (6th Cir. 1972); Phillips v.
Anderson County Sch. Dist. 5, 987 F. Supp. 488, 493
(D.S.C. 1997). In the absence of such evidence, courts have
concluded that school authorities have failed to establish a
sufficient likelihood of disruption to support banning the
flag. See Castorina ex rel. Rewt v. Madison County Sch. Bd.,
246 F.3d 536, 542 (6th Cir. 2001) (reversing summary
judgment for school officials where there was no showing of
disruption); Denno v. Sch. Bd., 182 F.3d 780, 785 (11th Cir.

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1999) ("noting the absence of any facts in the complaint
that would suggest a reasonable fear of disruption"),
vacated and decided on separate grounds, 218 F.3d 1267
(2000).
Here, there is substantial evidence of prior disruption
related to the Confederate flag. The District Court’s factual
findings would likely support a ban of displays of the
Confederate flag under Tinker. The "comprehensive
authority of . . . school officials . . . to prescribe and control
conduct in the schools" would permit Warren Hills officials
15
to prohibit the display of symbols whose display has had
the purpose and effect of provoking disruption in school.
Tinker, 393 U.S. at 507. But Plaintiffs have not challenged
a ban on the Confederate flag; they challenge the banning
of a T-shirt that bore no Confederate flag and had no
similarly disruptive history. The evidence shows the
Foxworthy T-shirt was worn several times without incident.
On March 22, 2001, when Thomas Sypniewski wore the
shirt, it created no disruption in the high school for nearly
the entire day, until the last period, when he was sent to
Vice Principal Griffith’s office not because of disruption, but
because of the view of a security guard that the shirt might
violate the dress code or the racial harassment policy.
Furthermore, the day after Thomas Sypniewski’s
suspension, school officials determined the shirt was not
offensive when worn by Brian Sypniewski.
While the history of the Sypniewskis wearing the T-shirt
speaks strongly against a finding of likelihood of disruption,
it is not necessarily the case that school officials could
never regulate it. There may be other bases for a"well-
founded expectation of disruption." Saxe, 240 F.3d at 212.
If so, the school district had "the power to act to prevent
problems before they occurred; it was not limited to
prohibiting and punishing conduct only after it caused a
disturbance." West, 206 F.3d at 1367. In Saxe, we noted
that an expectation of disruption will most likely be "well-
founded" where there have been "past incidents arising out
of similar speech."11 240 F.3d at 212. There were, of course,
serious disruptive incidents in the Warren Hills schools
over the two years before the decision to ban the Foxworthy
T-shirt that justified banning a range of related expression.
But we must determine whether that range is broad enough
to encompass the Foxworthy T-shirt. The question is
whether those incidents involved sufficiently "similar"--or
_________________________________________________________________
11. While such evidence will most often be needed to show that an
expectation of disruption is well-founded, there may be cases in which
it is not required. The high school was likely justified in disciplining the
student dressed in black face, wearing a rope around his neck, whether
or not they could point to anything similar in the past. The Foxworthy
T-shirt, however, is clearly not in this category. It is essentially harmless
on its face.

-- 13 of 42 --

16
otherwise related--speech to permit an inference of
substantial disruption from the T-shirt.
Defendants contend the shirt was offensive--and
consequently potentially disruptive--because in the context
of the racial troubles in the Warren Hills schools, the word
"redneck" had come to connote racial intolerance. They
maintain the word "redneck" was directly associated with
the Hicks and with the ongoing racial harassment. They
also contend the word "redneck" is sufficiently related to
words and symbols associated with the racial hostilities
that the school authorities were entitled to expect that a
shirt bearing that word would disrupt school functions.
Defendants claim the word "redneck" was an identifier of
the Hicks, or an alternate name for the Hicks. If this is
correct, then one should analyze clothing bearing the word
"redneck" as one would clothing bearing the word "hick" or
the Confederate flag. All had become, on defendants’ view,
gang signifiers. As such, the school district believed it was
well within its rights to ban this clothing as a way of
limiting gang-like activity in the schools.12
At best, the evidence is conflicting with respect to the
direct association of the term "redneck" with the racial
hostility and the troublemakers. There is little doubt the
_________________________________________________________________
12. Plaintiffs maintain that even if the words and symbols were signifiers
of the Hicks, there is no direct evidence that their wearing the T-shirt
had or would cause any disruption. Such a showing, they argue, is
required to justify a ban. In support of this position, plaintiffs cite
Chalifoux v. New Caney Independent School District , 976 F. Supp. 659
(S.D. Tex. 1997), a case discussed favorably by this court in Saxe, 240
F.3d at 211-12. In Chalifoux, the school banned rosary beads as gang
symbols. Two students neither affiliated with nor identified as members
of the gang in question wore rosaries for religious purposes, but were
disciplined. The court found the students could not be prevented from
wearing the rosaries under those circumstances. 976 F. Supp. at 667.
The facts here are somewhat different. First, the rosaries at issue in
Chalifoux implicated the religious freedom of the plaintiffs. Id. at 665.
Second, in Chalifoux, it was clear that plaintiffs were not gang members,
and there was no reason for anyone to think otherwise. Id. at 663. The
record here does not reveal a similarly clear disassociation. See supra, at
4.
17
racial incidents involved a group known as "the Hicks."
Both Superintendent Merluzzi and Vice Principal Griffith
averred the group was also known as "the Rednecks." But
there is no other evidence of that label being used for the
Hicks. An editorial in the student newspaper, in October
2000, stated that Thomas Sypniewski associated the
Confederate flag "with the words ‘red-neck’ and ‘hick’ (a

-- 14 of 42 --

term by which he and his friends refer to themselves.)"
While this statement draws a connection between the two
terms, it seems to imply that only "hick" is the term by
which the students referred to themselves. At best the
reference is ambiguous. By contrast, the gang-like group is
called "the Hicks" in numerous references in the record.
More importantly, the District Court made no finding that
the group was ever known as the "Rednecks." Instead,
assuming the group was known only as the "Hicks," the
District Court relied on the relationship between the word
"redneck" and the word "hick" to find that "redneck" was
potentially disruptive. On this record, and in the absence of
a finding by the District Court, we see no basis for
concluding that the Hicks were also known as "the
Rednecks." Therefore, defendants have not established their
ability to ban the shirt as a gang or quasi-gang symbol.
Similarly, there is little or no evidence that the word
"redneck" had been used to harass or intimidate, or
otherwise to offend. Although on prior occasions, Thomas
Sypniewski wore a shirt on which the word "redneck"
appeared overlaid with the Confederate flag, the appearance
of the word on the T-shirt with a flag does not make the
word offensive. It is apparent from the record that students
wearing Confederate flag clothing wore a variety of
garments. Some may have displayed musicians, as did the
T-shirt at issue in Castorina. 246 F.3d at 538 (T-shirt with
Confederate flag and country music artist Hank Williams,
Jr.). But that alone would not make the musician into a
prohibited symbol. There is no suggestion in the record that
any part of the Confederate flag clothing other than the flag
itself was seen as a provocative and offensive symbol. In
short, there is little if any history of the use of the word
"redneck" itself that would support its ban.
Because of this, the District Court did not base its
decision on the history of the use of the word "redneck" in
18
Warren Hills schools. Instead, the District Court found
justification for its ban in its "similarity" to the word "hick"
and to the Confederate flag:
[T]he term "hick," which is a label for the group
responsible for such occurrences as White Power
Wednesdays, is quite similar to the term "redneck."
This similarity is the case even if Thomas understands
"hick" to mean a farmer as well as "redneck" to mean
"a non-sophisticated person who likes to work and play
in the outdoors" . . . . It also exists regardless of any
appropriate use of the term "redneck" in the general
culture. The Court further finds similarities between
the banned Confederate flag and the term "redneck" as
well, indicated, for instance, by German’s complaint
about a shirt with both the words "redneck" and a
Confederate flag. . . . These findings, given the
similarity between the Confederate flag and the term
"redneck," would also justify the banning of the term

-- 15 of 42 --

"redneck" as it appears on the Foxworthy T-shirt.
Given the past history at the High School and the
similarity between the word "redneck" and past
incidents, the Court concludes that Plaintiffs have not
demonstrated a sufficient probability of success as to
the prohibition of the Foxworthy T-shirt under the
Tinker substantial disruption standard. . . .
Sypniewski, No. 01-3061,at 68-70.
With respect to the word "hick," the District Court
focused on definitional similarity, noting that Webster’s
Third New International Dictionary defines a"redneck" as "a
white member of the Southern rural laboring class," and
defines a "hick" as "an awkward, rude, unsophisticated, or
provincial person." Id. at 68 n.23. It may be that, at least
in some of their uses, the words "redneck" and"hick" have
similar meanings. At least one thesaurus lists "hick" as a
synonym of "red-neck." Merriam-Webster Collegiate
Thesaurus. But that same thesaurus also lists"rustic,"
"bumpkin," "hillbilly," and "peasant," among others. Id.
There is no reason to believe that any of these terms might
cause a disturbance.
The offensiveness of "hick" in the present context derives
19
not from its meaning,13 but from its relationship to the
gang-like group, the Hicks. Other words do not necessarily
become offensive by being synonymous with such symbols.
A word might well become offensive if it also served as an
identifier of the Hicks (or a similar group), or as a promoter
of the Hicks’ disruptive behavior. Ultimately, then,
"redneck" and "hick" must be "similar" not definitionally,
but with respect to their associations with a disruptive
group and its disruptive behavior. This is a kind of
similarity that might support an inference of disruption.
Otherwise, we would be required to conclude that the
school could also ban "hillbilly," "peasant," and the like.
It could be argued that the synonymity of the words is
relevant insofar as they both imply, in certain of their uses,
racial intolerance and bigotry. The wearing of the
Foxworthy T-shirt, then, might be seen as a veiled
celebration of bigotry. But there is no evidence that
"redneck" had or has such a meaning in the Warren Hills
schools. The evidence reveals a history of unproblematic
use of the word, and that it was not associated to a
significant degree with the Hicks or with their behavior. The
most that could be said, given the District Court’s findings
on this issue, is that "redneck" might come to be offensive.
Yet this does not amount to a well-founded fear of
disturbance, but merely an undifferentiated fear or remote
apprehension of disturbance. See Tinker, 393 U.S. at 508.
It may be argued the school was entitled to conclude the
T-shirt was likely to lead to disruption because Thomas
Sypniewski’s wearing of the shirt amounted to a promotion

-- 16 of 42 --

of values consistent with the items and activities that had
caused racial unrest. Again, mere association is not
enough. Arguably, this reasoning could encompass country
music and any number of things identifiably "country." The
First Amendment would have little meaning if schools could
go that far.
Where a school seeks to suppress a term merely related
to an expression that has proven to be disruptive, it must
_________________________________________________________________
13. Both "hick" and "redneck" can be used disparagingly, of course. But
when they are used in this way, they offend the people labeled "hick" or
"redneck."
20
do more than simply point to a general association. It must
point to a particular and concrete basis for concluding that
the association is strong enough to give rise to well-founded
fear of genuine disruption in the form of substantially
interfering with school operations or with the rights of
others. In other words, it is not enough that speech is
generally similar to speech involved in past incidents of
disruption, it must be similar in the right way. Most
commonly, the prior speech will have carried an offensive or
provocative meaning, and the similar speech will have a
similar meaning. But this sense of "similarity" cannot
justify the ban here. The most plausible kind of similarity
that would permit such an inference would be that the
word "redneck" was akin to a gang symbol identifying the
Hicks, or clearly promoting their activities. But as
discussed, the record does not support such a conclusion,
and the District Court made no such finding. On this
record, therefore, plaintiffs have established a likelihood of
success on the merits of their First Amendment claim with
respect to the Foxworthy T-shirt. The District Court erred
in employing too broad a notion of "similarity"--a
conception that does not provide a sufficient basis for
permitting a "well-founded" inference of disruption.
In order to grant a preliminary injunction, the District
Court must also assess whether either party would suffer
irreparable injury as a result of granting or denying the
injunction, the balance of the hardships, and the public
interest.
Both sides have plausible claims for irreparable injury. A
student whose protected expression is stifled suffers an
injury that cannot be undone. And if the school is unable
to enforce a policy it needs to provide education and to
maintain discipline, the disruption of education or the
invasion of other students’ rights cannot be reversed. Both
kinds of injuries are substantial. Thus, neither the
irreparability of the injuries nor the balance of the injuries
modifies the outcome in any significant way. Finally, the
public interest demands respect for both constitutional
rights and effective education. For these reasons, the
likelihood of success on the merits determines the result of

-- 17 of 42 --

the analysis.
21
The District Court erred in denying the preliminary
injunction sought against enforcement of the racial
harassment policy to prohibit the wearing of the Foxworthy
T-shirt.
c. Facial Challenge to the Harassment Policy.
In addition to challenging the racial harassment policy as
applied to the Foxworthy T-shirt, plaintiffs maintain it
should be struck down in its entirety for several reasons.
First, plaintiffs argue the policy as a whole is facially
overbroad. A policy regulating expression can be struck
down entirely if it proscribes a significant amount of
constitutionally protected speech. Second, they contend the
policy is so vague as to be facially unconstitutional. A
sufficiently vague policy may fail to put students on fair
notice of what is prohibited and provides insufficient
standards for enforcement. Finally, plaintiffs maintain the
policy is unconstitutional insofar as it amounts to content-
based discrimination.
i. Overbreadth.
A regulation of speech14 may be struck down on its face
if its prohibitions are sufficiently overbroad--that is, if it
reaches too much expression that is protected by the
Constitution. The harassment policy can be found
unconstitutionally overbroad if "there is a ‘likelihood that
the statute’s very existence will inhibit free expression’ " to
a substantial extent. Saxe, 240 F.3d at 214 (quoting
Members of the City Council v. Taxpayers for Vincent , 466
U.S. 789, 799 (1984)).
In most cases, courts will not assess the constitutionality
of a provision apart from its particular applications. But
cases involving freedom of speech are frequently excepted
from this general rule. Los Angeles Police Dept. v. United
Reporting Publ’g Corp., 528 U.S. 32, 38 (1999). The
exception, however, is a narrow one:
_________________________________________________________________
14. While the harassment policy may be said to regulate conduct, it
clearly regulates speech, insofar as it specifically targets certain
expression.
22
Even though the challenge be based on the First
Amendment, the overbreadth doctrine is not casually
employed. "Because of the wide-reaching effects of
striking down a statute on its face at the request of one
whose own conduct may be punished despite the First
Amendment, we have recognized that the overbreadth
doctrine is ‘strong medicine’ and have employed it with

-- 18 of 42 --

hesitation, and then ‘only as a last resort.’ "
Id. at 39 (quoting New York v. Ferber , 458 U.S. 747, 769
(1982)). Accordingly, most cases alleging unconstitutional
enforcement of a public school’s disciplinary policies, like
other laws, "are best addressed when (and if) they arise,
rather than prophylactically through the disfavored
mechanism of a facial challenge." City of Chicago v.
Morales, 527 U.S. 41, 111 (1999) (Thomas, J., dissenting)).
For these reasons, courts will not strike down a regulation
as overbroad unless the overbreadth is "substantial in
relation to the [regulation’s] plainly legitimate sweep."
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
Furthermore, in response to an overbreadth challenge, a
policy can be struck down only if no reasonable limiting
construction is available that would render the policy
constitutional. Saxe, 240 F.3d at 215. "[E]very reasonable
construction must be resorted to, in order to save a statute
from unconstitutionality." Id. (quoting Stretton v.
Disciplinary Bd. of the Supreme Court, 944 F.2d 137, 144
(3d Cir. 1991)); see also Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.4
(1982). A court, however, "will not rewrite a . .. law to
conform it to constitutional requirements." Virginia v. Am.
Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988); Reno v.
ACLU, 521 U.S. 844, 884-85 (1997). Accordingly, we must
determine whether the relatively broad language of the
policy can reasonably be viewed narrowly enough to avoid
any overbreadth problem.
Because of the duties and responsibilities of the public
elementary and secondary schools, the overbreadth
doctrine warrants a more hesitant application in this
setting than in other contexts. There are important reasons
for this. First, Tinker acknowledges what common sense
tells us: a much broader "plainly legitimate" area of speech
23
can be regulated at school than outside school. Speech that
disrupts education, causes disorder, or inappropriately
interferes with other students’ rights may be proscribed or
regulated. 309 U.S. at 513. Everyday school discipline does
not depend on the necessity of a speech code. In the public
school setting, the First Amendment protects the
nondisruptive expression of ideas. It does not erect a shield
that handicaps the proper functioning of the public schools.15
This fact is also recognized by New Jersey law. By
statute, school authorities are required to "hold every pupil
accountable for disorderly conduct," and any student who
disobeys a school official may be subject "to punishment
and to suspension or expulsion from school." N.J. Stat.
Ann. S 18A:25-2, 37-2. Accordingly, expression that
constitutes "disorderly conduct" is proscribed by New
Jersey law and can result in discipline including
suspension. It is apparent, therefore, that most racially
hostile conduct could be regulated and punished even

-- 19 of 42 --

without a racial harassment speech code, so long as it is
disruptive.16 Though not generally necessary, more specific
provisions can serve an important purpose. A school might
conclude a generic policy would have less value in guiding
school children’s behavior. The broad authority to control
the conduct of students granted to school officials permits
a good deal of latitude in determining which policies will
best serve educational and disciplinary goals.
Also, the 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. Cf. Fraser, 478 U.S. at 686 ("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
_________________________________________________________________
15. The Supreme Court has recognized that schools have a "compelling
interest in having an undisrupted school session conducive to the
students’ learning." Grayned v. City of Rockford, 408 U.S. 104, 119
(1972).
16. As we discuss, even in the public school context, mere offensiveness
does not qualify as "disruptive" speech.
24
be as detailed as a criminal code which imposes criminal
sanctions.") (discussing vagueness). New Jersey Board of
Education regulations provide that "[e]ach district board of
education shall develop and implement a code of conduct
for establishing school standards and rules which define
acceptable student behavioral expectations and which
govern student behavior." N.J. Admin. Code tit. 6A S 16-5.1.
The Warren Hills code is typical in its generality, requiring
that students "at all times conduct themselves in a manner
that is cooperative, respectful, and responsive to staff and
administration." Warren Hills Regional High School
Student/Parent Handbook 2002-2003, at 19. The code
prohibits, among other behaviors, "abusive language,"
"[i]nsubordination," "disrespect towards a staff member or
other adult in the building," and "[a]ny unlisted offense to
be decided by an administrator." Id. at 20. Determining the
appropriate level of detail in a school disciplinary code is
largely left to school officials.
Yet there is another important consideration here.
Speech codes are disfavored under the First Amendment
because of their tendency to silence or interfere with
protected speech. See, e.g., Saxe, 240 F.3d at 207 ("This
sort of content- or viewpoint-based restriction is ordinarily
subject to the most exacting First Amendment scrutiny.");
Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1182-84
(1995); cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 391
(1992) (bias-motivated disorderly conduct statute). But for
the reasons discussed, public secondary and elementary
school administrators are granted more leeway than public

-- 20 of 42 --

colleges and universities or legislative bodies, e.g.,
municipalities, states, and Congress. Accordingly, a school
disciplinary policy will be struck down as overbroad only
after consideration of the special needs of school discipline
has been brought to bear together with the law’s general
hesitation to apply this "strong medicine."
We now turn to the challenged racial harassment policy.17
_________________________________________________________________
17. Here again is the relevant portion of the harassment policy:
District employees and student(s) shall not racially harass or
intimidate other student(s) or employee(s) by name calling, using
25
The Warren Hills Harassment Policy prohibits harassing or
intimidating utterances ("name calling" and"using racial or
derogatory slurs") as well as the display or even possession
of racially offensive material. Such materials can be banned
if they "depict[ ] or imply[ ] racial hatred or prejudice," if
they are "racially divisive," or if they "create[ ] ill will or
hatred."
Plaintiffs argue the unconstitutionality of the policy is
directly mandated by Saxe, in which this court found
overbroad a harassment policy plaintiffs maintain was
"substantially identical" to the one at issue here. But we
think the Warren Hills language is sufficiently different from18
_________________________________________________________________
racial or derogatory slurs, wearing or possession of items depicting
or implying racial hatred or prejudice. District employees and
students shall not at school, on school property or at school
activities wear or have in their possession any written material,
either printed or in their own handwriting, that is racially divisive or
creates ill will or hatred. (Examples: clothing, articles, material,
publications or any item that denotes Ku Klux Klan, Arayan [sic]
Nation-White Supremacy, Black Power, Confederate flags or articles,
Neo-Nazi or any other "hate" group. This list is not intended to be
all inclusive.)
18. Two paragraphs of the Saxe harassment policy are pertinent here:
Harassment means verbal or physical conduct based on one’s
actual or perceived race, religion, color, national origin, gender,
sexual orientation, disability, or other personal characteristics, and
which has the purpose or effect of substantially interfering with a
student’s educational performance or creating an intimidating,
hostile or offensive environment.
. . . .
Harassment can include any unwelcome verbal, written or
physical conduct which offends, denigrates or belittles an individual
because of any of the characteristics described above. Such conduct
includes, but is not limited to, unsolicited derogatory remarks,
jokes, demeaning comments or behaviors, slurs, mimicking, name

-- 21 of 42 --

calling, graffiti, innuendo, gestures, physical contact, stalking,
threatening, bullying, extorting or the display or circulation of
written material or pictures.
Saxe, 240 F.3d at 202-03.
26
--and narrower than--the language found by Saxe to be too
broad that the policy requires independent evaluation.19
Additionally, in Saxe, we noted the breadth of the policy’s
statement of purpose, which stated that "[m]embers of the
school community are expected to treat each other with
mutual respect" and that "[d]isrespect among members of
the school community is unacceptable behavior." 240 F.3d
at 217 n.12. These statements made clear that much more
was sought to be avoided than the kind of disruption that
justifies speech regulation under Tinker. 20 Here, the history
_________________________________________________________________
19. In Saxe, we focused on two portions of the disputed policy that do
not have identical siblings in the Warren Hills policy. First, the Saxe
policy restricted conduct "which has the purpose or effect of
substantially interfering with a student’s educational performance." We
noted that the "purpose" portion of that policy "ignores Tinker’s
requirement that a school must reasonably believe that speech will cause
actual, material disruption before prohibiting it." 240 F.3d at 217. The
Warren Hills policy contains no parallel language. Second, we found the
language prohibiting speech that "creat[es] an intimidating, hostile or
offensive environment" to encompass a substantial amount of protected
speech, finding nothing in the policy requiring any level of severity or
pervasiveness. Id. The language plaintiffs view as analogous here
prohibits speech that causes "racial hatred or ill will." These concepts
are similar, but it is not immediately apparent that the holding in Saxe
governs the language here.
Some of the language is, in fact, nearly identical. Both prohibit
harassment "by name calling" and by using"racial . . . slurs." But this
particular language was not analyzed in Saxe, and consequently was not
the basis for our concluding the policy was overbroad.
20. The defendant school board in Saxe has since adopted a modified
version of the harassment policy. The new policy contains a narrower
definition of harassment that includes references to disruption. The
relevant portion of policy, as now published on the district’s website,
provides:
The term "harassment" as used in the Policy means verbal, written,
graphic or physical conduct which does or is reasonably believed
under the totality of the circumstances to
1. substantially or materially interfere with a student’s or students’
educational performance; and/or
2. deny any student or students the benefits or opportunities
offered by the School District; and/or
27

-- 22 of 42 --

of racial hostility demonstrates the policy was intended to
address a particular and concrete set of problems involving
genuine disruption--not merely lack of mutual respect.
In any event, the policy here differs from Saxe not only in
language, but also in the circumstances it addresses. The
history of racial difficulties in Warren Hills provides a
substantial basis for legitimately fearing disruption from
the kind of speech prohibited by the policy. By contrast, in
Saxe, there was no evidence that the policy was adopted in
response to any particular events.21 The lack of a similar
history was at least partially responsible for our finding the
harassment policy in Saxe unconstitutional. We
distinguished West because the school district there had
"demonstrated a concrete threat of substantial disruption."
240 F.3d at 212. In the absence of such a history, the fear
of disruption is likely to be no more than "undifferentiated
_________________________________________________________________
3. substantially disrupt school operations or activities; and/or
4. contain lewd, vulgar or profane expression; and/or
5. create a hostile or abusive environment which is of such
pervasiveness and severity that it materially and adversely alters the
condition of a student’s or students’ educational environment, from
both an objective viewpoint and the subjective viewpoint of the
student at whom the harassment is directed.
The term "harassment" for purposes of this Policy does not mean
merely offensive expression, rudeness or discourtesy; nor does the
term "harassment" mean the legitimate exercise of constitutional
rights within the school setting. The School District recognizes there
is a right to express opinion, ideas and beliefs so long as such
expression is not lewd or profane or materially disruptive of school
operations or the rights of others.
http://www.scasd.k12.pa.us/policies/antiharassment.html (visited Aug.
7, 2002).
21. In Saxe, the school district did not defend the policy on the basis of
particular incidents that justified an increased expectation of disruption.
It was legally challenged as facially unconstitutional shortly after its
enactment by two students and their legal guardian who were concerned
that the broad language would prevent them from expressing their
religious views, especially their belief that homosexuality is sinful. Saxe,
240 F.3d at 203.
28
fear or apprehension of disturbance." The school district in
Saxe "fail[ed] to provide any particularized reason as to why
it anticipate[d] substantial disruption from the broad swath
of student speech prohibited under the Policy." Id. at 217.
By contrast, defendants here have presented substantial
evidence of disruption that constitutes a solid foundation
for fear of future disruption.

-- 23 of 42 --

Nonetheless, the language of the Warren Hills policy
appears to cover speech that is not subject to lawful
regulation under Tinker. Understood broadly, it seems likely
there will be a good deal of speech that creates"ill will" that
does not substantially interfere with the rights of other
students or with the operation of the school as an
educational institution. There may also be some
harassment "by name calling" that does not genuinely
threaten disruption. The question then is whether the
policy can reasonably be interpreted to avoid this apparent
constitutional problem.
The District Court employed an interpretation that read
a disruption requirement into the policy, requiring that the
offensive material be "such that the school has a specific
and well-founded fear that it will substantially disrupt or
interfere with the work of the school or the rights of other
students."22 Defendants contend the court’s interpretation
is unreasonable insofar as it amounts to "rewrit[ing] [the
policy] to conform it to constitutional requirements," Am.
_________________________________________________________________
22. The District Court read the policy as implying the following
requirements:
(1) wearing or possession of any written material
(2) that is either
(2a) racially divisive or
(2b) creates racial ill will or
(2c) creates racial hatred and that
(3) is such that the school has a specific and well-founded fear that
it will substantially disrupt or interfere with the work of the school
or the rights of other students.
Sypniewski, No. 01-3061, at 56.
29
Booksellers, 484 U.S. at 397, by adding a requirement not
found anywhere in the text of the policy.
We believe the District Court’s reading goes beyond the
scope of permissible interpretations of the policy. The text
provides no support for the added requirement. Nowhere is
disruption, or any like term, mentioned. Nor is there
language in the policy suggesting that school officials
should make an assessment of the kinds of disruptive
effects that can justify speech regulation under Tinker.23 As
written, the policy proscribes "name calling," "racial
prejudice," and "ill will," independent of any possible
disruption. Without a more substantial textual anchor, the
language cannot be stretched to include an independent
disruption requirement without rewriting the policy. We did

-- 24 of 42 --

not consider this kind of modification in Saxe , nor do we
know of any other court that has so modified a school
speech policy.
We look then to the text of the racial harassment policy
to determine whether the policy can be interpreted
sufficiently narrowly that it does not ban speech protected
under Tinker.24 The policy begins, "District employees and
_________________________________________________________________
23. Notably, the dress code, which the District Court found to exceed
constitutional limits, does contain language from which such a
requirement might arguably be drawn: "School officials may impose
limitations on student participation in the regular instructional program
where there is evidence that inappropriate dress causes disruption in the
classroom and the lack of cleanliness constitutes a health or safety
hazard or disruption of the education program." The District Court did
not assess the effect of this language, and we express no opinion on the
constitutionality of this code.
24. As noted, the challenged language was specifically upheld in the face
of a facial attack by the Court of Appeals for the Tenth Circuit in West.
The court there found the policy was sufficiently narrow because it:
permits the administrator to consider whether the student’s conduct
was willful, whether the student displayed the symbol in some
manner, and whether the conduct had the effect of creating ill will,
and the district does not interpret the policy to prohibit the use or
possession of such symbols for legitimate educational purposes.
206 F.3d at 1368.
30
student(s) shall not racially harass or intimidate other
student(s) or employee(s) by name calling, using racial or
derogatory slurs, wearing or possession of items depicting
or implying racial hatred or prejudice." On its face, it
appears the phrase "name calling" may be over broad. This
category would seem to include much expression that is
either relatively benign, or is protected political expression.
But the entire sentence makes clear that what is prohibited
is not (to take one of these categories) name calling in
general, but racial harassment or intimidation by name
calling. More benign forms of name calling are not included.
Intimidation of one student by another, including
intimidation by name calling, is the kind of behavior school
authorities are expected to control or prevent. There is no
constitutional right to be a bully. On the other hand,
confining prohibited speech to that which constitutes
"harassment" is not alone sufficient to ensure
constitutionality. In Saxe, we noted that"harassment,"
when targeted on the basis of its expressive content,
encompasses speech within the area protected by the First
Amendment. 240 F.3d at 209. We found the definition of
"harassment" employed there to be unconstitutionally
broad, in large part because it encompassed expression not
_________________________________________________________________

-- 25 of 42 --

Unlike the District Court’s interpretation, nothing in West amounts to
adding a requirement not supported in the policy’s text. The issue, then,
is not whether the interpretation is reasonable, but whether it is
sufficiently narrow to avoid substantial overbreadth.
By themselves, the limitations in West do not appear to exclude all
protected expression. Whether a student’s conduct is willful does not
necessarily alter its disruptive effects (although it may bear on the
fairness of sanction). Cf. Saxe, 240 F.3d at 216 (finding overbreadth in
policy that "punishes not only speech that actually causes disruption,
but also speech that merely intends to do so"). And even when a symbol
is actually displayed and actually causes ill will, it does not necessarily
follow that substantial disruption will result. Consequently, these
interpretive limitations do not provide a concrete basis for limiting
application of the policy to fit within the range of proscribable speech
delimited by Tinker. The question, then, is whether there are other bases
for limiting the scope of the policy so that it fits within constitutional
limits.
31
subject to regulation under Tinker. Id. at 216-17. Thus, in
this case, a particular form of harassment or intimidation
can be regulated by defendants only if it meets the
requirements of Tinker; that is, if the speech at issue gives
rise to a well-founded fear of disruption or interference with
the rights of others.
In assessing the likelihood of disruption of racially
provocative speech, the state of racial relations in the
school is particularly relevant. "Racial harassment or
intimidation by name calling" is more likely disruptive in
the Warren Hills schools than elsewhere. Certain kinds of
name calling--like racial slurs--will be especially likely to
disrupt. The policy separately speaks of "using racial or
derogatory slurs." So if "name calling" is to have any
independent effect, something broader must be meant by
"name calling" than "using racial or derogatory slurs." And
it is less clear that a run-of-the-mill insult made to a
person of a different race, for instance, will necessarily give
rise to a genuine concern of disruption.
Although mere offense is not a justification for
suppression of speech, schools are generally permitted to
step in and protect students from abuse. Even where
harassment by name calling does not involve a racial
component, and even where there is no special history of
disruption, prohibition accompanied by the threat of
sanction is--and has always been--a standard school
response. Students cannot hide behind the First
Amendment to protect their "right" to abuse and intimidate
other students at school. Outside the school context, of
course, much harassment by name calling (understood
broadly) is protected. But the First Amendment does not
interfere with basic school discipline. Consequently, in a
racially charged environment, a school may prevent racially
provocative harassment by name calling.25
_________________________________________________________________

-- 26 of 42 --

25. It is worth emphasizing again that our discussion here is limited to
the issue of overbreadth. It is enough for these purposes that the speech
regulated by the policy is speech the school can regulate. Plaintiffs argue
the policy, in focusing on racial speech, unconstitutionally picks out
certain disfavored speech for special sanction. This issue is discussed in
subsection III(c)(iii), infra.
32
More problematic is the phrase "creates ill will" in the
second sentence of the policy, which reads, "District
employees and students shall not at school, on school
property or at school activities wear or have in their
possession any written material, either printed or in their
own handwriting, that is racially divisive or creates ill will
or hatred." The focus of this phrase is entirely on the
reaction of listeners. But by itself, an idea’s generating ill
will is not a sufficient basis for suppressing its expression.
"The mere fact that expressive activity causes hurt feelings,
offense, or resentment does not render the expression
unprotected." R.A.V., 505 U.S. at 414 (White, J.,
concurring); see also Saxe, 240 F.3d at 215 ("The Supreme
Court has held time and again, both within and outside of
the school context, that the mere fact that someone might
take offense at the content of speech is not sufficient
justification for prohibiting it."). What is required is that the
school has a well-founded fear that the material at issue
"would substantially disrupt or interfere with the work of
the school or the rights of other students." Id. at 211. And
disruption for purposes of Tinker must be more than "the
discomfort and unpleasantness that always accompany an
unpopular viewpoint." Tinker, 393 U.S. at 509. As a general
matter, protecting expression that gives rise to ill will--and
nothing more--is at the core of the First Amendment.
It might be argued that "ill will" connotes something more
than mere offense--a kind of hostility to the speaker that
has a real likelihood of developing into conflict. Such an
inference, however, would be fair only if "ill will" were
construed so narrowly as to lose its ordinary sense. By
contrast, such an argument would likely be more suitable
with respect to racial "hatred." For "hatred" implies such
strong feelings that a serious possibility of disruption might
be inferred. But the inclusion of the stronger term"hatred"
in the policy implies that the broader term "ill will" should
be given its ordinary sense. And in its ordinary sense, no
similar inference is reasonable. Accordingly, if"ill will" is to
have any effect in the policy, it expands the policy too far
into the domain of protected expression.
Another useful comparison is with the policy’s prohibition
on "racially divisive" materials. Racial divisiveness connotes
33
something more than a listener’s negative response to the
expression. There is a notion of conflict implicit in the

-- 27 of 42 --

phrase. It suggests a mutual antagonism between
competing individuals or groups of people that could erupt
into genuine hostilities. And where a school has
experienced a history of racial difficulties, it is more likely
entitled to conclude that racially divisive material is a
genuine threat to the proper maintenance of order and
discipline.
Plaintiffs suggest the phrase "racially divisive" is itself too
broad, because certain clearly protected expression, such
as discussions of affirmative action, in or out of the
classroom, might be thought to be racially divisive. This
may be so in some sense, but the racially divisive material
must also be harassing or intimidating to be prohibited. For
this reason, it is hard to view even a heated discussion of
affirmative action as amounting to harassment or
intimidation. In any event, we are confident the policy
would not require the suppression of genuine political,
social or academic discussions that reveal strongly held
views on matters like affirmative action.
In short, given the state of racial relations in Warren
Hills, defendants appear to have a genuine and well-
founded basis for fearing disruption by most--but not all--
of the expression prohibited by the policy. But one
provision creates an overbreadth problem of sufficient
magnitude that it must be stricken from the policy. That
part of the policy directed at material that "creates ill will"
is unconstitutional.
Stripped of this phrase, the remaining policy is
constitutionally permissible in the context of the Warren
Hills School District and its recent unpleasant history. This
reliance on the background of turmoil at a particular place
and a particular time means that the policy would likely be
unconstitutional in another school district, or even in
Warren Hills at a different time. Viewed one way, this is not
troubling. Especially in the school setting, restrictive
policies are appropriately targeted to the special features of
the given context. What is necessary in one school at one
time will not be necessary elsewhere and at other times.
Schools require the flexibility to deal with problems as they
34
arise. But the possibility that the policy may become
unconstitutional is clearly an undesirable feature. A policy
might avoid this problem by more directly addressing the
factors that justify the school’s regulation of the speech.
The District Court’s approach would go a long way in
achieving this result, but it might be addressed in any
number of ways. Nonetheless, as modified, defendants have
sufficiently established, at this juncture, a likelihood of
establishing that the harassment policy’s "restrictions are
necessary to prevent substantial disruption or interference
with the work of the school or the rights of other students."
Saxe, 240 F.3d at 216. They may continue to enforce the
policy so modified.

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ii. Vagueness.
When the language of a regulation is vague, speakers are
left to guess as to the contours of its proscriptions. They
are left without "fair notice" of the regulation’s reach.
Commonly, this uncertainty will lead them to "steer far
wider of the unlawful zone than if the boundaries of the
forbidden areas were clearly marked." Baggett v. Bullit, 377
U.S. 360, 372 (1964) (citation omitted). The need for
specificity is especially important where, as here, the
regulation at issue is a "content-based regulation of speech.
The vagueness of such a regulation raises special First
Amendment concerns because of its obvious chilling effect
on free speech." Reno v. ACLU, 521 U.S. at 871-72. There
is also a second, "more important aspect of vagueness
doctrine" Kolender v. Lawson, 461 U.S. 352, 358 (1983). A
vague rule "may authorize and even encourage arbitrary
and discriminatory enforcement," Morales, 527 U.S. at 56,
by failing to "establish minimal guidelines to govern . . .
enforcement." Kolender, 461 U.S. at 358.
When addressing school disciplinary rules, courts have
been less demanding of specificity than they have when
assessing the constitutionality of other regulations, such as
criminal statutes. As we have noted, because schools need
the authority to control such a wide range of disruptive
behavior, "school disciplinary rules need not be as detailed
as a criminal code which imposes criminal sanctions."
Fraser, 478 U.S. at 686. Accordingly, school disciplinary
35
rules will be struck down on this basis only when the
vagueness is especially problematic.
The portions of the policy plaintiffs contend are
unconstitutionally vague are imprecise. "Racially divisive"
and "hatred and ill will" are phrases subject to a range of
interpretations. But "there are limitations in the English
language with respect to being both specific and
manageably brief." U. S. Civil Serv. Comm’n v. Nat’l Ass’n of
Letter Carriers, 413 U.S. 548, 578-79 (1973). The
challenged phrases are "set out in terms that the ordinary
person exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the public
interest." Id. at 579. The policy is not vague "in the sense
that no standard of conduct is specified at all," but "in the
sense that it requires a person to conform his conduct to
an imprecise but comprehensible normative standard."
Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Only
the phrase "ill will" presents an arguable vagueness
concern, but because we have found it to be
constitutionally unsuitable for other reasons, we need not
assess its precision for constitutionality. For public
elementary and secondary school disciplinary rules, the
language of the racial harassment policy is specific enough
to give fair notice to the students and to provide school
officials with standards by which to enforce the policy.

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iii. Content Discrimination.
Plaintiffs contend the policy is not only vague and
overbroad, but is also, in a sense, too narrow. Because the
policy restricts only speech that expresses racially oriented
themes, plaintiffs contend the policy amounts to content
discrimination.
"Content-based regulations are presumptively invalid."
R.A.V., 505 U.S. at 382. This is true even where the
regulation restricts only expression that can
constitutionally be suppressed under the First Amendment.
In R.A.V., for example, the Supreme Court struck down a
law that criminalized "bias-motivated" fighting words. Even
though the speech at issue might have been regulated as
fighting words, the Supreme Court held the law
36
unconstitutional because it picked out only those fighting
words that "arouse[ ] anger, alarm or resentment in others
on the basis of race, color, creed, religion or gender." Id. at
380; St. Paul, Minn. Legis. Code S 292.02 (1990). The Court
concluded that by limiting the applicability of the law to
certain expression on the basis of its content, the city had
engaged in "content discrimination." R.A.V., 505 U.S. at
387.
Plaintiffs contend that by targeting only racially
provocative expression, Warren Hills has singled out for
sanction a particular class of speech based on its content.
While the school district has the right to sanction speech
that is disruptive, plaintiffs contend that under R.A.V., it is
not permitted to discriminate between disruptive speech
that has racial elements and disruptive speech that does
not.
The racial harassment policy is indisputably a content-
based restriction on expression, and in other contexts, may
well be found unconstitutional under R.A.V. But as
discussed, the public school setting is fundamentally
different from other contexts, including the university
setting.26 Primary and secondary school officials stand in a
unique relationship with respect to their students, most of
whom are minors. They are charged with the basic
education of the nation’s youth, which is "perhaps the most
important function of state and local governments." Brown
v. Bd. of Ed., 347 U.S. 483, 493 (1954). This task requires
not simply enforcement, but "shaping the students’
experience to achieve educational goals," Ambach v.
Norwick, 441 U.S. 68, 78 (1979), which include"inculcating
fundamental values necessary to the maintenance of a
democratic political system." Id. at 77. Further, "the
education of the Nation’s youth is primarily the
responsibility of parents, teachers, and state and local
school officials, and not of federal judges." Hazelwood, 484
_________________________________________________________________
26. Compare Dambrot, 55 F.3d at 1184, where the Court of Appeals for

-- 30 of 42 --

the Sixth Circuit applied R.A.V. in finding unconstitutional a public
university’s harassment policy. "Under R.A.V. , the . . . policy constitutes
content discrimination because it necessarily requires the university to
assess the racial or ethnic content of the speech."
37
U.S. at 273. A crucial element of that responsibility is
maintaining an environment conducive to fulfilling the
state’s educational mission. Accordingly, "conduct by the
student, in class or out of it, which for any reason--
whether it stems from time, place, or type of behavior--
materially disrupts classwork or involves substantial
disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of
speech." Tinker, 393 U.S. at 513. And importantly, school
officials are granted "comprehensive authority . . . to
prescribe and control conduct in the schools." Id. at 507.
Courts have long recognized the need to grant schools a
degree of flexibility in identifying conduct that disrupts
education or violates principles central to their mission. For
this reason, courts have recognized a similar need for
flexibility in adopting responses to those perceived
problems.
When due respect is paid to the needs of school
authority, it becomes clear the focus on racial expression in
this case is justifiable. When a school has identified a class
of speech that, because of its content, is subject to a well-
founded fear of conflict, it should be allowed to prescribe
clear rules that students are capable of following to the
degree necessary to maintain order. The "comprehensive
authority of the States and of school officials, consistent
with fundamental constitutional safeguards, to prescribe
and control conduct in the schools" requires the ability to
implement rules of conduct viewed by school officials as
capable of adequately guiding the behavior of students and
administrators. Tinker, 393 U.S. at 507.
We believe that Tinker and its progeny provide the
principal mode of analysis in this area. It is not entirely
clear what implications R.A.V.’s "underbreadth" analysis
has for public school disciplinary policies.27 In any event,
_________________________________________________________________
27. There might be instances in which R.A.V. would require finding
unconstitutional a school policy in a case governed by Tinker.
Presumably, a school cannot distinguish between subclasses of
disruptive speech on any basis it chooses. Where such a distinction is
made on no legitimate basis at all, it might be possible to conclude the
subcategory of disruptive speech had been singled out simply because
the school officials disfavored the views expressed. Cf. Saxe, 240 F.3d at
206-10 (discussing R.A.V. in school disciplinary context, but not holding
policy unconstitutional on that basis).
38
we need not resolve this question because it is clear that

-- 31 of 42 --

adopting a policy limited to racially provocative speech was
an acceptable non-discriminatory response by school
authorities to the history of race relations in Warren Hills
schools. Therefore, while a similar policy may be found
unconstitutional on this basis in other contexts, the policy
does not amount to "content discrimination" in violation of
the First Amendment within the context of these public
schools.
IV.
We recognize the challenges faced by school officials
when attempting to adopt disciplinary policies directed at
racial harassment. The need to respect the rights of
students requires a careful balancing. On the one hand,
speech codes are disfavored for their tendency to interfere
with or silence protected speech. Students should not be
prevented from engaging in nondisruptive speech. But
when there is a concrete basis--ordinarily established by a
history of disruption and interference with the legitimate
rights of other students--for concluding that certain
expression presents a well-founded fear of disruption, a
school should be free to address the issue by adopting a
formal policy, so long as the policy narrowly targets the
identified problems. When policies focus broadly on
listeners’ reactions, without providing a basis for limiting
application to disruptive expression, they are likely to cover
a substantial amount of protected speech. Here, the
inclusion of the phrase "creates ill will" causes just such a
problem.
Defendants have made a good faith effort to respond to a
serious disciplinary problem without unduly restricting
students’ expression. Nevertheless, the application of the
policy to the Foxworthy T-shirt appears to go too far.
Defendants have not, on this record, established that the
shirt might genuinely threaten disruption or, indeed, that it
violated any of the particular provisions of the harassment
policy (excepting, perhaps, the "ill will" provision).
Accordingly, we will reverse the District Court to the
extent it refused to enjoin further application of the racial
39
harassment policy to the Foxworthy T-shirt, and to the
extent it permitted further enforcement of the policy’s "ill
will" provision.
40
ROSENN, Circuit Judge, concurring and dissenting.
I concur and join in Parts I, II, and subsections (2) and
(3) of Part IV of the well-drafted majority opinion. However,
I do not agree that any part of the Warren Hills School
Board’s (WHSB or Board) policy to combat racial
harassment in its elementary and public schools was

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impermissible or unconstitutional. I therefore respectfully
dissent from the majority’s decision that the District Court
abused its discretion in denying a preliminary injunction,
particularly on a record comprised of affidavits and not
testimony, that sought to enjoin enforcement of the School
Board’s anti-racial harassment policy.
I.
WHSB adopted its anti-racial harassment policy "in
response to a pattern of disturbing racial incidents." (Maj.
op. at 2) The first racial incident occurred in October 1999
at the high school when a white student dressed for
Halloween appeared at the school wearing overall jeans, a
straw hat, and a thick rope around his neck. The student
had tied the rope in a noose and blackened his face. The
majority describes the growing pattern of incidents at the
high school during the year 2000-2001, the many students
"deeply offended" by the racial incidents, and the new
student recently enrolled at the high school who was
physically threatened at his home by a large group of
teenagers. I, therefore, will not repeat them. "The District
Court also found the racial tension spilled over into the
classroom, displacing class lessons with discussions about
racial relations." (Maj. op. at 4)
The Warren Hills High School (WHHS) consists of
approximately 1200 students from grades seven to twelve.
Less than sixty of those are African-American. An
indication of the depth to which racial harassment had
descended at the high school by the time the WHHS
adopted its anti-harassment policy is a series of actions by
students and the School District to achieve relief. In May
2000, Hester German, a high school sophomore, filed a
complaint with the Warren County Human Relations
Commission alleging racial harassment. Her complaint
41
noted concerns about students wearing T-shirts with the
Confederate flag, some of which also had the word
"Redneck." As a result, the School District initiated a
program to promote the value of diversity and assured the
Human Relations Commission that it would monitor the
situation carefully. By the beginning of the school year,
2000-2001, the severity of racial relations had escalated.
Students not only wore Confederate flags on their T-shirts
but gang-like behavior commenced with racially-fired hate
groups known as "Hicks" appearing at the high school.
In October 2000, the Warren County Human Relations
Commission submitted a letter to the School Board in
support of the Board’s efforts to deal with racial bias on an
individual basis. On October 20, 2000, as the majority
observes, the School District’s Mediation Coordinator,
Timothy Downs, issued an internal report concerning the
racial strife at the high school during the preceding month.
The report stated: "At this time, this issue is too complex,
involves too many people, and is too controversial for Peer

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Mediation Services." (Maj. op. at 6) With racial harassment
escalating, a fight occurred between a black student and a
white student that resulted in a concussion and stitches for
one of the students. (Maj. op. at 5)
Racial harassment at the high school continued
unabated between October 2000 and February 2001. The
Board increasingly became concerned for the safety of the
minority population at the high school. Having exhausted
its resources at independent intervention, the Board and its
school superintendent, Merluzzi, concluded that the
"minority population was at significant risk from, not only
verbal and intimidating harassment, but also . . . physical
violence." The Board thereupon researched anti-harassment
policies around the country and ultimately selected a policy
that it concluded best fit the situation at hand-- a policy
that had been upheld by the Court of Appeals for the Tenth
Circuit. Shockingly, within days after the adoption of the
policy, sexually and racially obscene graffiti were found in
the boys’ and girls’ restrooms, too vulgar to repeat.
The anti-racial harassment policy adopted on March 13,
2001, by the School Board provides in pertinent part:
42
Racial Harassment or Intimidation
District employees and student(s) shall not racially
harass or intimidate other student(s) or employee(s) by
name calling, using racial or derogatory slurs, wearing
or possession of items depicting or implying racial
hatred or prejudice. District employees and students
shall not at school, on school property or at school
activities wear or have in their possession any written
material, either printed or in their own handwriting,
that is racially divisive or creates ill will or hatred.
(Examples: clothing, articles, material, publications or
any item that denotes Ku Klux Klan, Arayan Nation -
White Supremacy, Black Power, Confederate flags, or
articles, Neo-Nazi or any other "hate" group. This list is
not intended to be all inclusive.)
The policy plainly is directed at student misbehavior. It is
a code of conduct admonishing students and begins with
an opening statement not to "racially harass or intimidate
other student(s) or employee(s) by name calling, using
racial or derogatory slurs, wearing or possession of items
depicting or implying racial hatred or prejudice." The
balance of the operative paragraph amplifies the opening
statement directing employees and students while at school
not to wear or possess "any written material . . . that is
racially divisive or creates ill will or hatred." This statement
is followed by examples such as items denoting the Ku Klux
Klan, White Supremacy, Black Power, Confederate flags,
neo-Nazi or any other hate groups. It is essentially a policy
obviously designed to curb student racial misbehavior,
prejudice and hatred and to encourage civility and respect
for the rights of other students. Nothing in it prohibits or

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discourages protected freedom of expression. The policy
complements the mission of the school to prepare pupils for
citizenship, and to promote human values and a peaceful
society. It is not a speech code "disfavored for[its] tendency
to interfere with or silence protected speech." (Maj. op. at
39)
II.
The plaintiffs, one in the Middle School and the other in
high school, assert a First Amendment right to wear a T-
43
shirt with the word "Redneck" printed on it. Relying on
Tinker v. Des Moines Independent Community School
District, 393 U.S. 503 (1969) and our recent decision in
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir.
2001), they argue that wearing the T-shirt is protected
speech and that applying the policy to ban wearing it
violates their First Amendment rights. In Tinker , the court
declared that neither students nor teachers "shed their
constitutional rights to freedom of speech or expression at
the school-house gate." Id. at 506. However, the right of
freedom of expression is not absolute. The Court recognized
the right of a student to express opinions with the proviso
that "he does so without ‘materially and substantially
interfer[ing] with the requirements of appropriate discipline
in the operation of the school,’ and without colliding with
the rights of others." 393 U.S. at 503 (quoting Burnside v.
Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
In his concurrence, Mr. Justice White deemed it
appropriate to note that "the Court continues to recognize
a distinction between communicating by words and
communicating by acts or conduct which sufficiently
impinges on some valid state interest." Id. at 515. In the
instant case, the plaintiffs raise First Amendment rights to
communication by conduct, not oral speech. In his
concurrence, Mr. Justice Stewart stated that he could not
share the majority’s assumption "that, school discipline
aside, the First Amendment rights of children are
coextensive with those of adults." Id. at 515.
The facts in Tinker differ from what we have here. In
Tinker, the students wore black armbands to express a
political point of view -- publicizing their objections "to the
hostilities in Vietnam and their support for a truce." Id. at
504. In the instant case, it is difficult to find much
expression in the T-shirt, although the plaintiffs claim that
the expression is one "about being a ‘Redneck sports fan,’ "
not much of an expression of an idea. However, the school
authorities saw in it an inflammatory identification with the
Hicks and racial harassment.
In Tinker, the Supreme Court noted that the wearing of
the armbands "in the circumstances of this case was
entirely divorced from actually or potentially disruptive

-- 35 of 42 --

44
conduct by those participating in it. It was closely akin to
‘pure speech.’ " Id. at 505. The Court distinguished between
a situation involving "pure speech" and one involving
aggressive, disruptive action or even group demonstrations.
There was no evidence whatever in Tinker of any
interference "with the schools’ work or of collision with the
rights of other students to be secure and to be let alone."
Id. at 508. By contrast, in the instant case, we have
evidence of widespread racial harassment of students,
disruption of school teaching, violence, interference with
the rights of other students, and the subjection of male and
female students to sexual and racial obscenities. The effect
on many students was offensive, distressing, and profound.
As Superintendent Merluzzi and the Board concluded,
"there had been significant disruption in the school and . . .
the population was at significant risk from not only verbal
and intimidating harassment but also, increasingly, the
risk of physical violence."
The plaintiffs argue that a restriction on free expression
does not "pass constitutional muster" unless the school can
"point to a well-founded expectation of disruption --
especially one based on past incidents arising out of similar
speech." Cf. Saxe, 240 F.3d at 211. They assert that
because there has never been any racial incidents relating
to the T-shirt or the word "redneck," the decision to ban T-
shirts is not based on a "specific and significant fear of
disruption." This argument lacks merit. First, as Judge
Scirica observed at oral argument, plaintiffs’ position
represents an "almost impossible standard to satisfy."
Second, the School Board can point to evidence of
disruption, or to a well-founded expectation of disruption or
interference with the rights of other students. In Tinker, the
court not only spoke of the schools’s fear of disruption but
added another important dimension. The Court also
expressed concern over whether the challenged conduct
"would substantially interfere with the work of the school or
impinge upon the rights of other students." 393 U.S. at
509. These are conditions and concerns that also weighted
heavily on the WHSB.
Under such circumstances as confronted the WHSB, the
Supreme Court has held that officials are not entirely
45
helpless. Even under less disruptive and racially harassing
circumstances than the WHSB confronted, the Court has
recognized the highly appropriate function of public school
education "to prohibit the use of vulgar and offensive terms
in public discourse." Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 683 (1986). The Court upheld in that case a
disciplinary rule proscribing "obscene" language and
sanctions for a lewd speech by a high school student. Here,
we have obscenities and much more. The Court in Fraser
emphasized the importance of public education to prepare

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pupils for citizenship and the "fundamental values of habits
and manners of civility essential to a democratic society
[that tolerates] divergent political and religious views, [but
which] also take into account consideration of the
sensibilities of others, and, in the case of a school, the
sensibilities of fellow students." Id. at 681.
The Fraser Court also echoes New Jersey v. T.L.O., 469
U.S. 325, 340-342 (1985), holding that "the constitutional
rights of students in public schools are not automatically
coextensive with the rights of adults in other settings." Id.
at 682. It does not follow that because an offensive form of
expression may not be prohibited for adults under certain
circumstances that "the same latitude must be permitted to
children in a public school." Fraser, 478 U.S. at 682.
In Hazelwood Sch. Dist. v. Kuhlmeier, the Supreme Court
concluded that the standard articulated in Tinker for
determining when a school may punish student expression
need not also be the standard governing a school’s refusal
to lend its name and resources to the dissemination of
school expression. Instead, the Court held that"educators
do not offend the First Amendment by exercising editorial
control over the style and content of student speech in
school-sponsored expressive activities so long as their
actions are reasonably related to legitimate pedagogical
concerns." 484 U.S. 260, 273 (1988) (footnote omitted). The
Court also observed, of pertinence here, that the education
of the Nation’s youth is primarily the task "of parents,
teachers, and state and local school officials, and not of
federal judges." Id. The Court made the point that only
when the decision to censor a vehicle of student expression
has no valid educational purpose is the First Amendment
46
so directly and sharply implicated as to require judicial
intervention to protect students’ constitutional rights. Here,
the T-shirt had no valid educational purpose and the
School Board’s policy had a legitimate pedagogical concern.
The plaintiffs contend, however, and the majority
apparently agrees, that their "Redneck Sports Fan" T-shirt
did not "materially and substantially interfere" with the
school’s work or the rights of other students. Confronted
with an acute, critical problem of racial harassment,
intimidation, and violence as was the WHHS, the decision
whether the wearing of the shirt "materially and
substantially interfered" with the school’s work and the
rights of other students was best determined by the school
authorities. The school authorities were on the firing line;
they were in a position to feel the heat of the fray, perceive
the tensions and intimidation, and see the effect on school
classes. Federal judges, especially in this case where no
witnesses have testified, have only a cold, lifeless record.
Yet, even on this record, there is substantial evidence in
the affidavits from which to determine that the"Redneck"
T-shirt materially and substantially interfered with the

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school’s work and the rights of other students. The racial
harassment at the school commenced with T-shirts.
Offensive Confederate flags were indisputably emblazoned
on the shirts. Before the adoption of the policy, Tom
Sypniewski, the older of the three brothers and initially a
plaintiff, had been observed in the high school with the
Confederate flag displayed on the back of his shirt.
Immediately after the policy was instituted, he wore the
"Redneck" T-shirt to school. The school newspaper reported
that he wore the shirt "because it is associated with the
words ‘redneck’ and ‘hick,’ " a term by which he and his
friends refer to themselves.
Tom previously had been photographed in the Newark
Star Ledger wearing a shirt that stated "not only am I
perfect, but I’m a redneck too," with a Confederate flag
illustrated on the word "redneck." He also had been
observed pre-policy wearing a shirt with the Confederate
flag displayed. There had been a two-year pattern of
disruption and interference with classes and students
before the adoption of the harassment policy, focused in the
47
early stages on the use of the Confederate flag by a group
known as the "Hicks."28 Many students believed that the
Hicks were also known as the Rednecks.29 The perception of
the school newspaper when Tom was photographed wearing
the T-shirt immediately after the adoption of the anti-
harassment policy that the Rednecks and the Hicks were
associated together was also a perception of the school
authorities.
Plaintiffs also assert that "redneck" is not pejorative and,
therefore, the policy should not have been applied to it;
they claim it is an innocuous synonym for "hick." This
argument is unavailing. Although they acknowledge that
the District Court used Webster’s Third New International
Dictionary to determine that "redneck" is defined as a
"white member of the Southern rural laboring class," they
ignore the most salient portion of the District Court’s
definition: that the term "redneck" is "usually used
disparagingly." "Redneck" and "hick," though similar terms,
had become identified at the high school with some form of
racial and divisive animus. The District Court recognized
that the words "while certainly not identical, are quite
similar, particularly given the overall school context." (Dist.
Ct. op. at A-68) The District Court further found similarities
"between the Confederate flag and the term ‘redneck’ as
well indicated, for instance, by German’s complaint about a
shirt with both the words ‘redneck’ and a Confederate flag."
Superintendent Merluzzi and Assistant Principal Griffith,
in determining how the "redneck" T-shirt was or would be
perceived by the student body on the heels of the disruptive
effect of the Confederate flag on student T-shirts, had a
"well founded expectation of disruption" and interference
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28. The plaintiffs argue that the school newspaper was wrong and that
Tom was not a member of the Hicks. Whether Tom was or was not a
member of the Hicks is irrelevant. Relevancy lies in how the students
and the paper perceived Tom, and they were under the impresion that
Tom wore the shirt because of his association with the Hicks.
29. Superintendent Merluzzi averred, inter alia, "[m]any of the students
at the high school who are familiar with the group that calls themselves
the ‘hicks’ are also of the opinion that this . .. racially intolerant group
also called themselves the ‘rednecks.’ "
48
with the rights of the other students. The "defendants here
have presented substantial evidence of disruption that
constitutes a solid foundation for fear of future disruption."
(Maj. op. at 29) In addition, there is substantial evidence
that wearing T-shirts, whether depicting the Confederate
flag or "redneck," were symbols of racial intolerance and
divisiveness to the students and faculty that substantially
interfered with school operations and invaded the rights of
other students. Tinker spoke not only in terms of disruption
of school activities but in the disjunctive, interference with
the rights of others.
Finally, the appellants assert that the policy has been
discriminatorily applied because Tom was disciplined for
wearing the T-shirt and Brian was not. This argument also
fails. First, the Board has recognized that "in hindsight
action should have been taken" against Brian, too.
Moreover, although the policy is district-wide, there is no
reason that the policy must have the same breadth in the
middle school that it has in the high school. The high
school has been the major racial battleground; indeed,
neither party has made this Court aware of any racial
incidents occurring in the middle school. What is likely to
have a disruptive effect in one environment is not
necessarily likely to have the same effect in another. The
School Board reasonably concluded that due to the two-
year cycle of racial harassment the T-shirt posed a threat of
disruption and interference with the rights of other
students in the high school that was not present in the
middle school. The School Board did not apply the anti-
racial harassment policy unconstitutionally.
III.
The plaintiffs also assert that the policy is facially
unconstitutional in its entirety. I agree with the majority
that striking down a statute or a school regulation because
it is overbroad on its face is "strong medicine." As the Court
stated in New York v. Ferber, 458 U.S. 747, 769 (1982),
facial unconstitutionality is employed "with hesitation, and
then only as a last resort." This is particularly true in an
elementary and high school environment where "the
overbreadth doctrine warrants a more hesitant application
49

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. . . than in other contexts." (Maj. op. at 23) The reasons
are obvious and well stated by the majority. It notes that
here, "the history of racial hostility demonstrates the policy
was intended to address a particular and concrete set of
problems involving genuine disruption." (Maj. op. at 27-28)
Nonetheless, the majority holds that the anti-racial policy
"directed at material that ‘creates ill will’ is
unconstitutional." (Maj. op. at 34)
The policy is entitled "Racial Harassment or
Intimidation," and the introductory sentence focuses on
conduct depicting hatred or prejudice. As to the second
sentence in which the phrase "creates ill will" appears, it is
conjoined with school activities and materials that are
"racially divisive or create[ ] ill will or hatred." Thus, the ill
will phrase is limited to students and employees of the
WHSD "at school, on school property or at school
activities." As to the students at this school, it appears
plain that they are not to wear or possess items at school
that will create ill will, and thus aggravate the racial
harassment at the school.
The Court of Appeals for the Tenth Circuit, in construing
these precise words in a similar school policy challenged by
a student as overbroad, held that the policy "does not
threaten protected speech and is not unconstitutionally
overbroad." West v. Derby Unified Sch. Dist. No. 260, 206
F.3d 1358, 1368 (10th Cir. 2000). The Merriam Webster
Collegiate Dictionary, 9th ed. (1990) defines "ill will" and
"malice" as synonymous. The term "malice" has been in use
in legal jurisprudence for centuries and is well defined in
both criminal and civil law. Black’s Law Dictionary, 7th ed.
(1999) also defines it in a nonlegal context as"ill will;
wickedness of heart." This court defined the term"malice"
in Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993) which
involved a malicious prosecution claim, as "ill will in the
sense of spite . . . or its use for an extraneous improper
purpose." Id. at 1502. The term "malice" appears frequently
in the case law, and like "ill will," has a well developed legal
meaning. Malice generally means that harm is inflicted
intentionally and without justification or excuse. See, e.g.,
Ideal Dairy Farms v. John Labatt, Ltd., 90 F.3d 737, 747
(3d Cir. 1996). Therefore, as used in the anti-racial policy
50
here, conduct that creates ill will or malice has a well
defined meaning. It is not overbroad, especially in a high
school setting where the school authorities are not drafting
a statute but only a policy for students.
Running through each of these definitions is an element
of enmity, spite, or improper purpose -- "wickedness at
heart." Moreover, in this case we deal not with pure speech
but student conduct. I therefore disagree with the
majority’s statement that "[a]s a general matter, protecting
expression that gives rise to ill will -- and nothing more --
is at the core of the First Amendment." (Maj. op. at 33)

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There is more here, much more in light of the decisions
referred to above and the definition of ill will. Conduct in a
public school differs from pure speech in a public forum or
a legislative body, especially at a time when a school is
suffering from high tension, disruption, and interference
with the rights of other children. At the core of a definition
of "ill will" is "something more than mere offense" described
by the majority. Here, we have "ill will" in the form of
misconduct in a school ambience indisputably disrupted
with racial divisiveness. Under such circumstances,"a
serious possibility . . . might be inferred" of inciting more
disruption or prolonging the disruption already present.
For these reasons, the majority’s conclusion that the
words ill will "expands the policy too far into the domain of
protected expression" is not well founded. Even though in
an adult public forum or in the public press, speech spoken
with malice is unprotected, see New York Times v. Sullivan,
376 U.S. 254 (1964), the majority gives words of enmity
and wickedness at heart in a children’s ambience an
unjustifiable sense of propriety. It does this at a time when
the Nation’s public schools are struggling for survival. Such
protective construction of words, I fear, to children
attending elementary and public schools may only
encourage them to defy their teachers, discourage school
teachers, and threaten to undermine a school system
already under strong attack.
The schools of this Nation undoubtedly have
contributed to giving us tranquility and to making us
a more law-abiding people. Uncontrolled and
uncontrollable liberty is an enemy to domestic peace.
51
We cannot close our eyes to the fact that some of the
country’s greatest problems are crimes committed by
the youth, too many of school age. School discipline,
like parental discipline, is an integral and important
part of training our children to be good citizens-- to be
better citizens.
Tinker, 393 U.S. at 524 (Black, J., dissenting).
IV.
In conclusion, it must be noted that pending before us is
the denial by the District Court of a request for a
preliminary injunction. The court’s decision was based on
a record consisting of affidavits only, without any witness
having been subjected to cross-examination. The District
Court emphasized the preliminary nature of the
proceedings and of its order. The denial of a preliminary
injunction is committed to the sound discretion of the
district judge. The scope of appellate review is narrow.
Unless the trial court abused its discretion, or committed
an obvious error in applying the law, we must take the
judgment of the trial court as presumptively correct.
Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d

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Cir. 1992); Kershner v. Mazurkiewicz, 670 F.2d 440, 443
(3d Cir. 1982) (en banc).
Under these circumstances, we should be quite
deferential to the District Court’s order and affirm. Indeed,
"the most compelling reason in favor of [granting a
preliminary injunction] is the need to prevent the judicial
process from being rendered futile by defendant’s action or
refusal to act." 11A Wright & Miller, Federal Practice and
Procedure S 2947 (1995). There should be no concern here
that the judicial process will be rendered futile through the
District Court’s denying injunctive relief. The case will
proceed to trial and the children in the meantime should
behave by conforming to the school’s policy until the
District Court will have acted on the application for a
permanent injunction.
Moreover, "[a]s a prerequisite to the issuance of an
interlocutory injunction . . . . [t]here must be no disputed
issues of fact." Charles Simkin & Sons, Inc. v. Massiah, 289
52
F.2d 26, 29 (3d Cir. 1961). Here, there are many disputed
facts, militating against injunctive relief. Finally, an
injunction should issue "only if the movant produces
evidence sufficient to convince the trial judge that all four
factors favor preliminary relief." Opticians Ass’n of America
v. Indep. Opticians of America, 920 F.2d 187, 192 (3d Cir.
1990). The plaintiffs simply have not met that burden, as
the District Court found that several factors militate against
injunctive relief. Because I do not believe the District Court
erred in denying injunctive relief and that the school policy
is unconstitutional as applied or facially overbroad, I
respectfully dissent.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
53

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