Virginia students challenge suspensions for Confederate garb

Wednesday, August 2, 2000

Two Virginia high school students suspended last spring for protesting
a school policy banning Confederate symbols recently sued in federal court,
alleging a violation of their First Amendment rights.

Brandon Emerson and Landon Milhorn, who were ninth-graders at Varina
High School in Henrico County, Va., last spring, organized a demonstration to
protest the school’s policy and also to honor Gov. James S. Gilmore’s
declaration of April 2000 as “Confederate History Month.”

Emerson, Milhorn and several other students either displayed a
Confederate flag or wore Confederate clothing while driving in a truck in front
of the school. After the short protest, a news reporter interviewed the
students about their opinions regarding the ban of Confederate symbols at the
high school.

The protest took place early in the morning before school started.
However, school officials suspended the students for several days for
“disrupting the smooth opening of a school day” and “disruptive behavior.”

In their lawsuit, Milhorn v. Henrico
County Public Schools
, the plaintiffs contend that the
defendant’s policy on disruptive behavior is vague and overbroad and gives
school officials unbridled discretion to punish students.

The students contend that their act of wearing Confederate garb
constitutes “symbolic conduct, a form of free speech that is protected by the
First Amendment.”

They also allege that school officials engaged in viewpoint
discrimination because they banned Confederate clothing, while allowing other
students to wear apparel that could be considered racially offensive. According
to the lawsuit, students were allowed to wear clothing containing the For Us By
Us (FUBU) emblem, which the plaintiffs allege may be perceived as “anti-white”
because it was originally manufactured by “an African-American company that
[marketed] its products to African-Americans.”

“The students should have been saluted for attempting to overturn an
unconstitutional ban on free speech through peaceful means,” said John
Whitehead, president of the Rutherford Institute, in a news release. “Instead,
they were rewarded with an unwarranted suspension from school. School officials
must learn to protect free speech rather than teaching lessons of censorship
and discrimination.”

Ron Rissler, legal coordinator for the Rutherford Institute, which is
representing the students, said this is a “pure free-speech case.”

“As long as student speech does not cause a substantial disruption,
the student speech should be protected,” Rissler said. “This is an issue
cropping up all over the country where schools are banning this symbol when
there is no evidence of disruption.”

The attorney for the school board could not be reached for comment.

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