Federal judge: Student had right to wear Confederate clothing

Thursday, June 9, 2005

A West Virginia high school student had a First Amendment right to wear
Confederate flag clothing to school, a federal judge recently ruled.

Noting a “sea of interpretations about what the flag represents,” the judge
reasoned that “there are a variety of innocent flag uses that would be silenced
by the broadly worded policy” of Putnam County's Hurricane High School.

Franklin Bragg sued school officials after he was punished for wearing a
“Dixie Outfitters” T-shirt and a belt buckle, both of which bore the flag’s
image. School policy prohibited “racist language and/or symbols or graphics,”
specifically including “the Rebel flag, which has been used as a symbol of
racism at high schools in Putnam County.”

Bragg enlisted the help of the American Civil Liberties Union of West
Virginia, which filed a federal lawsuit on his behalf in April 2005. On May 31,
U.S. District Judge John T. Copenhaver Jr. ruled in a memorandum opinion and
order in Bragg
v. Swanson
that Principal Joyce Vessey Swanson had violated Bragg’s
First Amendment rights.

Swanson instituted the ban because she said she had had several negative
experiences with the flag at other schools in the county. However, Copenhaver
ruled Swanson had not shown much evidence of racial tension associated with the

Copenhaver reasoned that the applicable legal standard for resolution of the
case was Tinker
v. Des Moines Independent Community School Dist.,
the U.S. Supreme
Court’s 1969 decision upholding the right of several students to wear black
armbands to school protesting U.S. involvement in Vietnam. The Court established
the so-called Tinker standard, which holds that school officials can
censor student expression if they can reasonably forecast that the expression
will create a substantial disruption or material interference with school
activities or will invade the rights of others. The Court in Tinker
warned that school officials could not censor student expression based on
“undifferentiated fear or apprehension of disturbance.”

Some courts have given school officials greater leeway to regulate the
Confederate flag under a standard from the Supreme Court’s 1986 decision Bethel
School District No. 403 v. Fraser,
which established that school
officials can prohibit student expression that is “vulgar, lewd or plainly

However, Copenhaver refused to apply the Fraser standard, writing that
“the display of the flag is not per se and patently offensive.”

Applying Tinker, Copenhaver said the principal did not have enough
evidence to reasonably forecast that the flag would create a substantial
disruption of school activities. Copenhaver said “the principal acted with ‘a
remote apprehension of disturbance’ rather than a ‘specific and significant fear
of disruption.’”

“Although the best of intentions undergird the policy, the offending portion
unjustifiably silenced a significant amount of permissible speech in
contravention of the First Amendment,” Copenhaver wrote.

He credited the testimony of Bragg’s friend, Lisa Adkins, an African-American
student who said Bragg’s clothing did not bother her or other African-American
students at Hurricane. The judge wrote that Adkins’ testimony showed that “there
exists at the school an environment in which people of both races mix freely
together and form good relationships.”

The judge also said it was problematic that school officials singled out the
Confederate flag but allowed students to wear Malcolm X T-shirts.

However, he cautioned that his ruling in Bragg’s favor should not give anyone
license to intimidate others with Confederate flag clothing: “This opinion
should not be interpreted as offering a safe haven for those bent on using the
flag in school as a tool for disruption, intimidation, or trampling upon the
rights of others. Should that occur, or be reasonably forecast by the school,
the very ban struck down today might be entirely appropriate.”

The West Virginia ACLU applauded the judge’s ruling. “The court recognized
that allowing some expressions of political speech by students while banning
others is a flagrant violation of the First Amendment,” said Executive Director
Andrew Schneider in a news release. “We hope that the school will use this as an
opportunity to teach students about their constitutional rights and encourage
debate over future controversial subjects before resorting to censorship.”

Charleston, W.Va.-based attorney Greg Bailey, who represented the school
board and the principal, said: “No decision has been made on whether to appeal.
It is still under consideration. The superintendent plans to discuss it with the
school board in the near future to decide what action to take.”