Federal appeals panel reinstates student’s suit over suspension for Rebel flag shirt

Tuesday, March 13, 2001

A former public high school student in Kentucky, suspended for wearing T-shirts bearing the Confederate flag, has had his free-speech suit reinstated by a federal appeals court panel.

The principal of Madison County High School suspended Timothy Castorina and Tiffany Dargavell in September 1997 for refusing to comply with the school’s dress code.

Castorina and Dargavell wore Hank Williams Jr. concert T-shirts to school on two occasions. The shirts bore two Confederate flags on the back with the phrase “Southern Thunder.”

The principal said the shirts violated the school’s dress code policy, which prohibited clothing with “any illegal, immoral or racist implication.” The principal ordered the students to either go home and change shirts or wear them inside out. When the students refused, he gave them three-day suspensions.

After the suspensions, the students wore the shirts again and received another three-day suspension. The students later withdrew from the school and were home-schooled by their parents.

After their suspensions, the two students sued in federal court, contending a violation of their First Amendment rights. They argued that by wearing the T-shirts, they communicated their support for Hank Williams and southern heritage.

They also alleged that the school principal discriminated on the basis of viewpoint by allowing other students to wear Malcolm X clothing.

In 1998, a federal district court judge dismissed their lawsuit, finding that their wearing of the shirts did not constitute expressive conduct under the First Amendment.

Castorina appealed the decision to the 6th U.S. Circuit Court of Appeals. On March 8, a three-judge panel of the 6th Circuit reversed in Castorina v. Madison County School Board.

The appeals court panel first determined that the students did engage in speech by wearing the shirts.

Next, the panel reinstated the suit, finding that the case was similar to the classic U.S. Supreme Court decision Tinker v. Des Moines Independent Community School District. In Tinker, the high court ruled that Iowa school officials violated the First Amendment rights of several students by suspending them for wearing black armbands to school to protest U.S. involvement in the Vietnam War.

In Tinker, the high court noted that the school officials singled out black armbands and allowed students to wear other symbols. The court determined that school officials could not censor student-initiated speech unless they could reasonably forecast that the speech would cause a substantial disruption of the school environment.

The 6th Circuit panel ruled that the actions of Madison County High School officials gave “the appearance of a targeted ban” because other students were allowed to wear clothing with the “X” symbol.

The judges said that the case would have to be sent back to the lower court for further fact finding, including:

  • How the school enforced its dress code; and
  • “Whether Madison County High School had actually experienced any racially based violence prior to the suspensions.”

“The defendants do claim that prior to the plaintiffs’ suspension, there was a racially based altercation on school grounds, but plaintiffs contend that race was not the cause of the disturbance,” the court wrote. “This disagreement simply highlights the need for a trial to determine the precise facts of this situation.”

Kirk Lyons, chief trial counsel for the Southern Legal Resource Center and one of Castorina’s attorneys, praised the ruling.

“We were very pleased to see the 6th Circuit thunderously affirm Tinker,” Lyons said. “Our concern was that various school boards were acting as if Tinker did not exist. To our knowledge this stands as the first pro-speech decision by a federal appeals court that involves a student wearing Confederate flag clothing. “

The attorney for the school district was out of town and unavailable for comment.

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