Is a school ban on the Confederate flag unconstitutional?
October 20, 2015
By Jeremy Quattlebaum, Student Voices staff writer
Students at Christiansburg High School in Christiansburg, Va., have raised questions regarding their First Amendment rights and whether wearing the Confederate battle flag is protected speech.
Christiansburg High School banned clothing with the Confederate flag after the 2001-2002 school year when a series of racially motivated fights broke out. The flag was used to harass and intimidate others, said Brenda Drake, a spokeswoman for the school district. The district then enacted a ban that forbids symbols or flags that could be considered offensive based on race, religion, ethnic group or sexual orientation. “It was an entire school year of significant racial tension,” Drake said in a Washington Post interview. She added that racial violence continued despite the ban. “I think certainly we value First Amendment rights, but we have to maintain an orderly and safe environment for all students.”
Starting in 2015, the ban was extended into the student parking lot. The student parking contract said no symbols that could be considered offensive were allowed on students’ cars. Students who want to use the parking lot must sign the contract.
The new parking policy has been challenged by students, who argue that the ban violates their First Amendment right to free speech. They held a small protest rally in the parking lot and then tried to enter the school wearing clothing that prominently featured the Confederate flag. At the school doors, administrators told the students that they were not allowed in if they were wearing Confederate regalia. Twenty-three students were suspended.
Junior Zach Comer, who attended the rally, told the Washington Post that students wanted to show that the dress code and parking policy unfairly target those who wish to display the flag. Comer said: “We’re not trying to go into school and raise Cain or anything. We’re doing it to raise a point that the flag is not racist. Everyone else can wear whatever shirts they want, but we’re not. We just said, ‘It’s time to put a stop to it.’”
Free speech rights in schools have come before the Supreme Court several times in the past 50 years. In 1965, Mary Beth Tinker and two other students wore a black armband to school to silently protest the Vietnam War. They were suspended and sued the school, arguing that their First Amendment rights had been violated. In 1969, the Supreme Court ruled in favor of Tinker in Tinker v. Des Moines Independent Community School District, saying that speech, including symbolic speech and especially political speech, is protected as long as it does not interfere with the educational mission of the school.
Decades later, Matthew Fraser gave a speech filled with sexual innuendos at a school assembly, but refrained from swearing or using graphic language. He was suspended and sued the school. The Supreme Court found that the school did not violate Fraser’s First Amendment right and that lewd speech could be considered disruptive and contradicted the educational mission of the school.
And in 2011, a panel of the Sixth U.S. Circuit Court of Appeals ruled in Defoe v. Spiva that schools were allowed to exclude racially hostile or contemptuous displays from protected speech because the use of such language could result in conflict or violence on school grounds. The panel’s majority opinion stated: “Expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.”
What do you think?
Does the ban on the Confederate flag violate the students’ right to free speech? Is the Confederate flag is a racially offensive symbol? Should schools be allowed to ban certain symbols because of the threat of violence? How should schools balance the free speech right of students with their educational mission? Join the discussion and let us know what you think!
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