Is wearing the confederate flag to school protected as “symbolic speech”?

The display of the Confederate flag, as shown here, has been the subject of numerous lawsuits. In January, 2009, a federal court ruled against students wearing the Confederate flag at school and agreed with the school district’s ban of this type of symbolic speech.*

Akasped (Flickr)

Three high school students at Farmington High School in Missouri wore various articles of clothing to school with the flag depicted on each. Bryce Archambo wore a baseball cap, a T-shirt and a belt buckle with the Confederate flag emblem. R.S. wore a shirt with the words “The South was right – Our school is wrong” next to a picture of the Confederate flag.  Both were suspended after refusing to change clothes.

The court’s decision followed the Tinker test, stating that “Based on the substantial race-related events occurring both at the school and in the community, some of which involved the Confederate flag, we hold that the District’s ban was constitutionally permissible.”

Due to the history of community violence and on-campus disruption surrounding the display of the Confederate flag, the First Amendment does not protect this form of symbolic speech. Schools have a duty to protect students and maintain an environment where education thrives without violating the rights of others.

Update:  In a similar case out of Tennessee, students at William Blount High School challenged their school’s ban of T-shirts displaying the Confederate flag.  The ban was enacted during a period of heightened racial tension at the school and an altercation between a black and white student. The lower federal courts approved the ban because images of the flag would substantially and materially disrupt the school environment. On October 5, 2009, the United States Supreme Court declined to review the case, leaving the rulings of the lower courts in place.**

Again, in Tennessee, a challenge to the school’s ban on displaying the Confederate flag on campus was defeated in 2011.*** A long line of rulings have backed school administrators seeking to prevent racial conflict over such symbols.

On July 9, 2015, South Carolina Governor Nikki Haley signed a bill removing the Confederate flag from the state capitol grounds. It was ceremoniously removed on July 10, 2015 to be placed in a museum nearby.

Elsewhere in the country, the Confederate flag survives at school. At Hurley High School in Virginia, the flag is prominently displayed on the front doors of the school, and on the football team’s helmets. The school’s one African-American student, senior running back Chris Spencer, sports a battle-flag tattoo on his arm. He’s been quoted saying “It doesn’t mean racism to me. I just look at it as a flag. It’s our mascot. It just means our school.” His principal agrees, saying “It means heritage, not hate.”

*B. W. A. v. Farmington School District, 8th Circuit Court of Appeals, January 29, 2009.

** Barr v. LaFon, U.S. Supreme Court, October 5, 2009.

***Defoe v. Spiva, U.S. Supreme Court, #10-1513, October 11, 2011.