Student Display of the Confederate Flag in Public Schools
Henry, Michael J
Few symbols of American history are as controversial as the Confederate Flag. For some, the Confederate Flag has come to embody our nation’s painful history of racism and the subordination of African Americans. For others, the Confederate Flag symbolizes a unique pride in Southern history and lifestyle.
The divisiveness regarding the interpretation of the Confederate Flag has in the past caused considerable racial tension and hostility. American schools have not been spared from this hostility. Consequently, many schools have chosen to outlaw the display of the Confederate Flag as a means of promoting school safety. As a result, in recent years the courts have been forced to confront the difficult issue of whether schools may constitutionally ban the display of the Confederate Flag. This Chalk Talk will not only discuss these cases, but also argue that school policies banning the Confederate Flag are appropriate ways to deal with the racial hostility surrounding the Flag.
I. Regulation of Student Speech in Schools
The premier case dealing with the bounds of student speech in schools was Tinker v. Des Moines.1 Tinker involved a situation where high school students were reprimanded for wearing black armbands to school in protest of the Vietnam War.2 The school argued that its actions were a reasonable attempt to prevent disturbances that would be caused by the students’ armbands.3 In holding that the school’s actions violated the students’ freedom of expression, the Supreme Court stated that schools have the comprehensive authority to regulate and control students’ conduct in schools.4 Freedom of speech does not allow students to engage in behavior that disrupts class work or creates substantial disturbances.5 However, students do not lose all of their free speech rights once they enter school doors.6 In order for a school to constitutionally ban particular expressions of opinion, it must be able to show that the expression would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”7 Applying these standards, the Court determined that the students’ armbands did not present any serious or substantial threat of disruption. In striking down the school’s action, the Court stated, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”8 In other words, in order for a school to constitutionally ban a particular kind of student speech, the school must be able to show evidence that this type of speech has caused disruption in the past.
The Supreme Court later developed a balancing test to determine the constitutionality of school regulation of student speech. In Bethel School District v. Fraser, the Supreme Court stated “the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”9 In Fraser, a student was punished for making lewd and sexually offensive statements at an assembly while nominating a classmate for a student elective office. The Court determined that, due to the “slight social value” of the student’s statements, the school’s interest in protecting students from exposure to vulgar expression outweighed the student’s interest in freedom of expression.10
II. The Confederate Flag Cases
Since the late 1990’s, federal courts have heard several cases involving students displaying the Confederate Flag at school. The first time a federal court heard this issue was in Melton v. Young.11 In that case, a student was suspended for wearing a jacket with a Confederate Flag emblem on one sleeve.12 The student defended his actions by saying that he was merely demonstrating pride in his Confederate heritage.13 The Sixth Circuit upheld the suspension, saying that the school’s tense racial history surrounding display of the Flag was much more that the “undifferentiated fear or apprehension of disturbance” from Tinker.14 Due to the prior disruptions involving the Flag, the school had reason to foresee that further display of the Flag could lead to further disruptive conduct.15
No federal court dealt with this issue again until 1997 in Phillips v. Anderson County School District.16 The facts of Phillips were virtually identical to those of Melton; a high school student was suspended for refusing to remove a jacket bearing a Confederate Flag.17 The District Court upheld the suspension, saying that although in this particular instance the Flag did not cause any disruptions, because of the school’s history of disorder resulting from the display of the Flag, the school could reasonably believe that it could “substantially interfere with the work of the school or impinge upon the rights of other students.”18
The Tenth Circuit dealt with the Confederate Flag issue in West v. Derby Unified School District.19 This case was factually different from Phillips and Melton in that, rather than wearing the Flag, the student merely drew a picture of the Flag on a piece of paper after a dare from another student.20 It was undisputed that the student never intended to harass any other student; it was merely a dare.21 The Tenth Circuit, applying the same reasoning as Melton and Phillips, held that regardless of the student’s intent, the school’s prohibition on the display of the Flag was constitutional due to the past incidents at the school involving the Flag.22
The Eleventh Circuit addressed the Confederate Flag issue in Denno v. School Board of Volusa County.23 A student that was a Civil War enthusiast was suspended for showing his friends a Confederate Flag while leading a discussion on Southern history.24 The Eleventh Circuit upheld the suspension, although it chose to use the balancing test from Fraser. The court stated that one of a public school’s missions was to “teach students of different races, creeds and colors to engage each other in civil terms” rather than in offensive or threatening terms.25 The court determined that the school’s interest in teaching the boundaries of socially acceptable behavior outweighed the student’s freedom to advocate controversial views.26
The last Flag case is the only one where the court ruled in favor of the student over the school board. In Castorina v. Madison County School Board, two students were punished for wearing Hank Williams, Jr. t-shirts that pictured two Confederate Flags.27 The students claimed they wore the shirts in commemoration of Hank Williams, Sr.’s birthday and “to express their southern heritage.”28 In holding for the students, the Sixth Circuit focused on the fact that the school only prohibited display of the Confederate Flag and allowed students to display other potentially disruptive symbols, like the “X” associated with Malcolm X.29 The court stated that this amounted to an unconstitutional viewpoint-specific ban on certain racially sensitive symbols and not others.30 Further the school board did not show any kind of history of turmoil surrounding the Flag that would justify the belief that future display of the Flag would lead to disruption.31
III. Are School Policies Banning the Confederate Flag an Appropriate Way to Deal With this Issue?
There has been considerable debate over whether anti-harassment policies are the proper way to address the controversy surrounding the Confederate Flag. Some scholars have suggested that the best way to deal with the tensions surrounding the Flag is to subject the issue to “open dialogue” in the schools rather than banning the Flag. Proponents of this approach believe that open dialogue is the only way to fix this problem and still preserve students’ First Amendment rights.32 There is certainly an appeal to this solution. If the open dialogue approach is successful, both sides of the controversy would hopefully better understand each other’s viewpoints and be more considerate of them.
However, in order for open dialogue to work, all of the participants must feel equally empowered to voice their opinions. There must be a “free trade in ideas” for open dialogue to be successful.33 In reality, there are substantial inequalities for minorities in this “marketplace of ideas.”34 Due to years of subordination, many minority students have learned to suppress their opinions as a means of survival.35 As a result, there is a reduced likelihood that “all facts and interests relevant to the problem” will be “fully and fairly represented.”36 In the end, all that the open dialogue approach exposes is the opinions of those displaying the Flag, not the opinions of those opposing it. This is far from the well-rounded discussion that proponents of open dialogue advocate.
Furthermore, it is unrealistic to believe that public schools have the time or resources to institute forums of open dialogue. Because public schools are commonly judged according to standardized test scores, schools are forced to devote every second of every day to core curriculum. As a result, schools have become more regimented and simply do not have the time to create discussion forums on issues like the Confederate Flag. Schools are left with the choice of either devoting less time to core curriculum and taking the chance of having lower test scores or spending all of their time on core curriculum and devoting no time to student discussion forums. Understandably, schools have chosen to devote all of their time to core curriculum.
While promoting students’ First Amendment rights is a key mission for our schools, there are other interests that support anti-harassment policies that ban the Flag. Another important mission for schools is to teach students the bounds of socially acceptable behavior.37 Schools have a duty to “teach students of different races, creeds, and colors to engage each other in civil terms.”38 These anti-harassment policies are a good way to show students that some symbols, like the Flag, are both threatening and offensive to others. They promote awareness and consideration of other people’s feelings.
Schools also have an interest in providing a learning environment that is free from serious disruption.39 The Supreme Court stated in Tinker that freedom of speech does not allow students to engage in behavior that disrupts class work or creates substantial disturbance.40 The central purpose of any school is to educate students and serious disruptions inhibit the educational process. It is painfully obvious from the Flag cases that the controversy surrounding the Flag has led to numerous disruptions and altercations. In Melton, the use of the Confederate Flag as a school symbol led to serious demonstrations at school.41 Tensions were so high that a town curfew was imposed.42 In Phillips, students wearing clothing depicting the Flag led to several altercations, one of which erupted into violence.43 In West, there were also several confrontations over students wearing the Flag, at least one of which resulted in a fight.44 Clearly, schools that have a history of trouble surrounding the Flag have an interest in prohibiting its display as a means of preventing disruptions.
However, as the 6th Circuit stated in Castorina, a school must be able to show facts supporting its opinion that the Flag is disruptive. Without such facts, the policy would amount to the “undifferentiated fear or apprehension of disturbance” of which the Supreme Court warned in Tinker.45
Although the majority of courts addressing the issue of student display of the Confederate Flag have upheld school policies banning display of the Flag, there is still a considerable amount of turmoil over whether these anti-harassment policies are the proper way to address this issue. However, these policies are beneficial and effective in that they both teach students to treat each other with respect and prevent serious disruptions that would inhibit the educational process. As a result, these policies promote a nurturing environment that is more conducive to learning.
MICHAEL J. HENRY
1. 393 U.S. 503 (1969).
2. Id. at 503.
3. Id. at 508.
4. Id. at 507.
5. Id. at 513.
6. Id. at 506.
7. Id. at 509.
8. Id. at 508.
9. 478 U.S. 675 (1986).
10. Id. at 685.
11. 465 F.2d 1332 (6th Cir. 1972).
12. Id. at 1334.
14. Id. at 1335 (citing Tinker, 393 U.S. at 508).
16. 987 F. Supp. 488 (D.S.C. 1997).
17. Id. at 491.
18. Id. at 491 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).
19. 206 F.3d 1358 (10th Cir. 2000).
20. Id. at 1363.
22. Id. at 1366.
23. 218 F.3d 1267 (11th Cir. 2000).
24. Id. at 1270.
25. Id. at 1273.
26. Id. at 1275.
27. 246 F.3d 536, 538 (6th Cir. 2001).
29. Id. at 541.
30. Id. at 544.
32. For an in-depth discussion of this viewpoint, see Dyer, The Banning of Confederate Symbols in Public Schools: Preventing Disruption or Avoiding Discomfort?, 125 Ed. Law Rep. 1019 (1998).
33. Cammack and Davies, Should Hate Speech Be Prohibited in Law Schools?, 20 S.W. U. L. Rev 145, 162 (1991).
35. Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 453-454 (1990).
37. Fraser, 478 U.S. at 681 (1986).
38. Denno, 218 F.3d at 1273 (11th Cir. 2001).
39. Tinker, 393 U.S. at 513 (1969).
41. Melton, 465 F.2d at 1333 (6th Cir. 1972).
43. Phillips, 987 F. Supp. at 490 (D.S.C. 1997).
44. West, 206 F.3d at 1362 (10th Cir. 2000).
45. Tinker, 393 U.S. at 508 (1969).
Copyright Jefferson Law Book Company Oct 2004
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