Sixth Circuit ruling on Confederate flag ban is an attack on students’ rights

Tuesday, August 26, 2008

Chip Sinton

[President, National Youth Rights Association]: "The National Youth Rights Association disagrees with the Sixth Circuit’s ruling in Barr et al. v. Lafon, et al. NYRA disagrees not because we are Confederate sympathizers nor because we support any hateful message implicit in the symbol in question, but because we believe that the court did not apply the correct scrutiny and the school hadn’t met its burden in provingthat this was a necessary curtailing of the constitutional rights of the students affected. As an organization devoted to the protection and expansion of youth and student rights in society, we wish to see the decision viewed from the perspective of the party effected – students – and viewed through the prism of whether this egregious violation of student speech is justified. Tinker v. Des Moines, in no unclear terms, established that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," a precedent this organization wholeheartedly supports.

Our first issue with the decision was the application of intermediate scrutiny. While stare decisis may point to using that scrutiny, a true examination of the youth reveals that they merit the application of strict scrutiny, meeting all four criteria set forth in footnote 4 of United States v. Carolene Products Company. Minors are, without a doubt, "discrete, insular minorities" subjected to purposeful and unequal treatment on a daily basis. They are a disenfranchised demographic that is subject to overbroad discrimination based solely on their age – e.g. youth prohibition, government imposed curfews, etc. When the broad history of age discrimination and their political impotence(lack of voting rights) is viewed, the fact that youth warrant suspect classification becomes even more obvious. To meet the final burden of achieving suspect classification, it is the opinion of NYRA that age is an immutable characteristic that cannot be hastened, slowed, transferred or abandoned. It must be endured. It is because we believe that youth are unrecognized discrete and insular minorities, we disagree with the application of mere intermediate scrutiny in this case.

Our second disagreement with the ruling stems from the fact that the school didn’t meet its burden of proof in showing that the right of students to display speech related paraphernalia had to be curtailed. The Sixth Circuit held that it was just for the administration of the school to prohibit the flag because they sensed "tension" and had forecast that it could cause problems in the future. This pre-emptive prohibition is almost exactly like the prohibition overturned in Tinker v. Des Moines. In that case, as noted in Frederick v. Morse, the principal of the school acted out of "fear or apprehension of disturbance" and the "mere desire to avoid…discomfort and unpleasantness." This was held to be insufficient grounds by the courts in the 1960s, and that precedent should have been reaffirmed by Barr et al. v. Lafon, et al, not flouted. In Tinker, it was held that "the wearing of armbands…was entirely divorced from actually or potentially disruptive conduct," and in this case, the displaying of a flag was divorced entirely from any past racially motivated disruptive conduct.

The flag was not a gang sign nor an intimidation tactic, but rather it was pure, undisruptive speech divorced from the conduct of those wearing them. The flag is no different from the armband in the sense that it is simply a symbol of a belief. The case at hand is not dealing with a swastika nor a gang sign that is a direct call to disruptive action. Unless the school can prove the flag itself is a call to racist, violent action – a signal, not a symbol – than it is just as inert as the Tinker armband. Tinker was asked to remove her armband because other students in the school knew people in the war, or agreed with the war. The principal feared it would exacerbate the war v. draft tensions already in the school. The armband was telling some students that their friends were dying for nothing. It represented an insult to beliefs they held very dearly. But the court made the very important distinction of separating the armband itself from inciteful speech and action by war protesters.

If the students wearing the flag are yelling racial epitaphs in a crowded hallway, then they ought to be punished; but if they are simply wearing a flag patch to represent either their agreement with the confederate cause or their pride in their rebel heritage, they ought to be allowed to wear it regardless of personal disagreement. Much like in Tinker, the ban was put in place in a fervent wish to "avoid the controversy which might result from the expression." Thusly, by affirming the school’s decision, the Sixth Circuit court ignored the vital precedent set by Tinker v. Des Moines, in what amounts to little more than a slap in the face to Students’ Rights."

© Bernard J. Hibbitts 2008

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