Student, school district await judge’s decision in Confederate flag drawing case

Thursday, July 30, 1998

A Kansas seventh-grader, his father and school district officials are now waiting for a federal judge to determine whether the boy's First Amendment rights were violated when he was suspended for sketching a Confederate flag in math class.

Terry West sued the Derby Unified School District #260 in federal court on behalf of his 13-year-old son, T.J., after the boy was suspended from Derby Middle School for three days in April for violating the school district's “Racial Harassment or Intimidation” policy.

The policy provides: “Student(s) shall not racially harass or intimidate another student(s) by name calling, using racial or derogatory slurs, wearing or possession of items depicting or implying racial hatred or prejudice. Students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred.”

The policy lists several examples of so-called “racially divisive symbols,” including: “any item that denotes Ku Klux Klan, Aryan Nation, White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other hate group.” The policy provides that “this list is not intended to be all inclusive.”

The parties argued their case before a federal district court judge last Tuesday. The judge ordered attorneys for each side to submit legal documents known as findings of fact and conclusions of law.

Attorneys for the seventh-grader contend the district's policy violates the First Amendment. In earlier documents, they wrote that the school district cannot restrict the free-expression rights of their client by punishing him for his “peaceful, non-threatening possession” of a Confederate flag drawing.

The plaintiffs assert that a student possessing a Confederate flag is no different than the students who wore black armbands to protest U.S. involvement in the Vietnam War.

In the 1969 case Tinker v. Des Moines Indep. Community School Dist., the U.S. Supreme Court ruled that school officials had violated the First Amendment rights of several students when they suspended them for wearing the black armbands.

The high court wrote in Tinker that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court also determined that student expression is constitutionally protected unless it causes a material or substantial disruption of the educational process or invades the rights of others.

According to the plaintiffs, “the only material difference between this case and Tinker is that in Tinker, students were penalized for wearing black armbands to protest the Vietnam War; here, T.J. was penalized for possessing a drawing of the Confederate flag.”

The plaintiffs quote another passage from Tinker — “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”— to back their contention that the Derby school district's policy is unconstitutionally overbroad.

They argue that under this policy a student could be suspended for wearing a Star of David because that would be harassing to a Palestinian student; for wearing a Washington Redskins jacket, because that would be offensive to a Native American; or for possessing a Serbian flag, because that would be offensive to a student of Croatian descent.

According to the plaintiffs, these examples show the policy has “limitless scope.” Furthermore, they argue that to many people the Confederate flag does not symbolize racial hatred or superiority; they contend that to others it stands for “states' rights, or freedom from oppressive federal government or independence from tyranny.”

However, Jeff Griffith, counsel for the school district, says the policy represents the school district's attempt to balance students' free-expression rights with school officials' duty to provide an educational environment conducive to learning and free from harassment.

He said: “It is the district's position that the student knew what he was doing was wrong and that he intentionally violated the policy. Even if his conduct did not create a substantial disruption, it is the district's position that the student can still be punished.

“Secondly, it is the district's position that school administrators do not have to wait for actual harassment before regulating any racially divisive symbols. Instead, school officials must have the ability and flexibility to take action prior to the actual harassment,” Griffith said.

“There is no question that the student's First Amendment rights were infringed, but you have to understand that students do not possess the same level of First Amendment rights as the general public. This regulation could not stand as a city ordinance. However, schools are different — they have a duty to students to maintain order and an atmosphere conducive to learning.

“Schools have to be able to draw the line somewhere and it is the district's position that its policy — which was established by a task force composed of 350 members of the community — drew the line reasonably,” Griffith said.