The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on Plaintiffs' Motion for Preliminary Injunction Pending Appeal [Doc. 147] and Plaintiffs' Fourth Motion for Preliminary Injunction [Doc. 150]. Plaintiffs seek an order prohibiting defendants from enforcing their prohibition of displays of the Confederate flag at Anderson County High School. Defendants have filed a response in opposition to each motion [Doc. 148; Doc. 163], and plaintiffs have replied to defendants' responses [Doc. 149; Doc. 167; see also Doc. 219]. Because the appeal in this case has been dismissed [see Doc. 170], Plaintiffs' Motion for Preliminary Injunction Pending Appeal [Doc. 147] is moot and will be denied as such. The Court has considered the merits of Plaintiffs' Fourth Motion for Preliminary Injunction [Doc. 150], including the arguments incorporated by reference to other motions, and for the reasons discussed herein, it will be denied.
Plaintiff Tom Defoe was a high school student who attended Anderson County High School and Anderson County Career and Technical Center until at least December 20, 2007. [Doc. 63 at 2; Doc. 196.] All Anderson County schools have a dress code policy in effect which states in part:
Clothing and accessories such as backpacks, patches, jewelry, and notebooks must not display (1) racial or ethnic slurs/symbols, (2) gang affiliations, (3) vulgar, subversive, or sexually suggestive language or images; nor, should they promote products which students may not legally buy; such as alcohol, tobacco, and illegal drugs. [Doc. 63 at 7.]
On October 30, 2006, Tom Defoe wore a t-shirt to school bearing the image of the confederate flag. [Doc. 130 at ¶ 12; Doc. 177 at ¶ 13.] Anderson County High School officials informed Tom Defoe that his shirt violated the school's dress code policy, and he was asked to remove the shirt or turn it inside out. [Doc. 130 at ¶ 12; Doc. 177 at ¶ 13.] Tom Defoe refused to comply. [Doc. 130 at ¶ 12; Doc. 177 at ¶ 13.] Plaintiffs assert that Tom Defoe was suspended in response to his refusal to comply, while defendants assert that he was merely sent home. [Doc. 130 at ¶ 12; Doc. 177 at ¶ 13.] On November 6, 2006, Tom Defoe wore a belt buckle depicting the confederate flag to school. [Doc. 130 at ¶ 13; Doc. 177 at ¶ 14.] Again, a school official informed Tom Defoe that his clothing violated the dress code policy and when Tom Defoe refused to comply with the dress code, he was suspended for insubordination. [Doc. 130 at ¶ 13; Doc. 177 at ¶ 14.] Prior to these two instances, Tom Defoe wore clothing depicting the confederate battle flag to school on several occasions but complied with requests to remove or cover the clothing. [Doc. 130 at ¶ 14; Doc. 177 at ¶ 15.]
Plaintiffs assert that there have been no disruptions to the learning environment caused by displays of the confederate flag and that school officials and teachers stated that it was unlikely that the confederate flag would cause a disruption at school. [Doc. 50 at 6-7; Doc. 130 at ¶ 15.] Defendants assert that there have been and continue to be incidents of racial unrest, violence, and general disruption of school activities as a result of displays of the confederate battle flag. [See e.g., Doc. 14 at ¶ 15; Doc. 200-2; Doc. 200-4; Doc. 200-7.]
Plaintiffs assert that Anderson County High School permits students to wear clothing bearing other expressions of political or controversial viewpoints, including images referring to Malcolm X, foreign national flags, and candidates for political office. [Doc. 130 at ¶ 16.] Defendants deny this allegation and state that at most plaintiffs' allegations show that a student "got away" with wearing a Malcolm X shirt. [Doc. 196 at 2.] Defendants assert that this does not show that Anderson County Schools, its Board, or any staff member approved of the shirt. [Id.] In a sworn affidavit, defendant Merl Krull states that he has never seen any students wearing a Malcolm X shirt and that, "I have not and would not allow other students to wear Malcolm X t-shirts or any other potentially racially divisive symbols which could be deemed contrary to any view which may be expressed by the confederate flag. In other words, I enforce the dress code policy evenhandedly." [Doc. 200-3.]
A party seeking a temporary restraining or preliminary injunction order bears the burden of establishing four factors, which the Court must balance: (1) irreparable harm to movant if such an order is not entered; (2) likelihood of harm to others if such an order is entered; (3) movant's substantial likelihood of success on the merits; and (4) the impact on the public interest by entry of such an order. See Nightclubs, Inc. v. City of Paducha, 202 F.3d 884, 887 (6th Cir. 2000); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (citing Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996), cert. denied, 519 U.S. 807 (1996)).
When a party seeks a preliminary injunction on the basis of a potential First Amendment violation, the likelihood of success on the merits factor is often determinative. Connection Distrib. Co., 154 F.3d at 288. With regard to the irreparable harm factor, courts have long recognized that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality), quoted in Connection Distrib. Co., 154 F.3d at 288. Therefore, to the extent a plaintiff can establish a substantial likelihood of success on the merits on a First Amendment claim, that plaintiff has also established the possibility of irreparable injury. See Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995), quoted in Connection Distrib. Co., 154 F.3d at 288. The same is true with regard to the public interest factor, because the public interest always lies with protection of a party's constitutional rights. See G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Fisher, 70 F.3d at 1490. Furthermore, an examination of harm to the parties also requires a consideration of the merits, since the harm to a party resulting from imposition of an ...