Confederate flag tests the limits of expression

Friday, March 20, 1998

Whether it symbolizes Southern heritage or racial subordination to those who see it, the Confederate flag elicits powerful emotions. The flag creates controversy in football stadiums and state capitals and incites arguments over roadside displays and license plates. But the fiercest debate over the Confederate flag may be occurring in our public schools.

Students from across the country have worn Confederate-flag clothing or unfurled flag banners at school. Many of these students have faced discipline, including suspension, for exhibiting the provocative symbol. In fact, school administrators have often responded by banning Confederate-flag attire.

Several students have fired back with First Amendment lawsuits, arguing that administrators trampled on their free expression rights in the name of political correctness. School administrators respond that they are merely exercising their duty to ensure a stable educational environment.

Analysis of Confederate-flag cases and other issues involving student expression begins with the famous Tinker v. Des Moines Independent School District decision by the U.S. Supreme Court in 1969.

In Tinker, several students-John F. Tinker, Christopher Eckhardt and Mary Beth Tinker-wore black armbands to high school and (in Mary Beth’s case) junior high school to protest U.S. involvement in Vietnam. After school officials learned of the students’ plans, they enacted a policy prohibiting the wearing of armbands.

The students wore the armbands to school anyway, and school officials suspended them. The students claimed the First Amendment protected their right to engage in symbolic speech; school administrators disagreed. The case eventually made its way to the Supreme Court, which ruled 7-2 in favor of the students.

The majority of the justices determined that the school administration “must be able to show that its action [in censorship] was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

In striking down the suspensions on First Amendment grounds, the Supreme Court established the so-called Tinker standard: Student expression is constitutionally protected unless it creates a “material interference” or “substantial disruption” of school activities or invades the rights of others.

Following Tinker and in the wake of the school desegregation process, several federal courts have had to examine the First Amendment claims of students suspended for wearing Confederate clothing to school.

In Augustus v. School Bd. of Escambia and Melton v. Young, the 5th and 6th Circuit Courts of Appeals ruled that school officials could prohibit the display of the Confederate flag, because it created substantial disruptions in school.

The 6th Circuit acknowledged it faced a “troubling case” pitting free speech concerns against educators’ need to maintain an environment conducive to learning. The appeals court cited evidence of racial tension, referring to the flag as a “precipitating cause.”

Last year, a federal district court in Phillips v. Anderson County School District rejected the First Amendment claim of a South Carolina middle school student who argued his suspension for wearing a Confederate-flag jacket violated his free-speech rights.

Applying the Tinker standard, the court cited “several incidents of racial tension” to determine that school officials did not violate the First Amendment in prohibiting the provocative symbol. According to the court, “school officials are not required to wait until disorder or invasion occurs” but only need “the existence of facts which might reasonably lead school officials to forecast substantial disruption.”

The net effect of these Confederate-flag cases has been to encourage school officials and courts to use the Tinker standard to censor student expression. Attorney Kevin O’Shea, who writes a monthly publication called First Amendment Rights in Education, finds this “somewhat ironic.”

“If Tinker stands for anything, it symbolizes protection for student expression and sets a high standard for school officials before they can censor. Now the courts rely on the ‘substantial disruption’ or ‘invade the rights of others’ language in Tinker to justify censorship,” he says.

Vanderbilt law professor Tom McCoy agrees that “it’s ironic that the case seen as the hallmark of student expression now serves as a basis for viewpoint discrimination.”

School officials face many difficulties when deciding what to do with Confederate attire. They must respect the rights of minority students and prevent outbreaks of racial violence. However, they also must remember the oft-cited statement from Tinker that students “do not lose their constitutional rights at the schoolhouse gates.”

Another problem for school officials: If they ban Confederate-flag attire, must they also ban Malcolm X T-shirts or other forms of expression that might inflame the passions of other students? The Confederate flag-wearing students often argue that the school is engaging in viewpoint discrimination because it treats them differently than others.

O’Shea cautions that school officials should “not censor student expression unless the Tinker standard is really met.”

While the Confederate flag can lead to racial tension and substantial disruption, school officials must make sure there is reasonable evidence of disruption or interference before issuing bans on student expression. Otherwise the basic mandate of Tinker will be ignored, and students will lose their constitutional rights at the schoolhouse gate.