Ex-Anderson student challenges ban on displaying Confederate flag image

By Jamie Satterfield (Contact)
Tuesday, August 12, 2008

Was it hate or heritage on display when an Anderson County senior donned clothing depicting the Confederate flag?

Does it even matter what message Tom Defoe sought to convey with his T-shirt and belt buckle? Does his right to express himself trump school administrators’ right to prevent racial strife? Does the display of a Confederate flag at a predominantly white school even cause any such conflict?

Was there real threat of disruption of the learning environment or, instead, worry someone might be offended?

It is those questions and more that an all-white jury is being asked this week in U.S. District Judge Tom Varlan’s federal courtroom to debate as Defoe, via his attorneys, seek to prove Anderson County’s quarter-century ban on the display of the Rebel flag violated his right to free speech.

That the jury is all-white was not the result of selection strategy by either side. There were no black people in the small pool of people from which a panel was selected.

Of that pool, two people who expressed support for display of the controversial flag were booted off. As with all jury trials, which side did the kicking is kept under wraps from the public. Also rejected was a member of a Civil War club and a former Alabama educator who acknowledged the flag "can inflame" but added she didn’t "really know why blacks see it as a racist symbol."

Anderson County School Board Chairman John S. Burrell testified Monday that the school system’s dress code has been in effect for some 26 years. It contained specific bans, including the display of Confederate flags, references to Malcolm X or the Ku Klux Klan and logos for cigarettes or booze but later was changed to a generalized prohibition on the display of "racial or ethnic slurs or symbols, gang affiliations, vulgar, subversive or sexually suggestive language or images" and products students cannot legally buy.

The Confederate flag, he said, remained among the banned displays.

Defoe ran afoul of the dress code in the fall of 2006, first, when he sported a T-shirt with the flag and, second, when he wore a belt buckle displaying it. In each instance, he admits he refused to either remove or cover the flag and was suspended as a result.

Defoe contends, via attorney Van R. Irion, that he is a descendant of a Confederate soldier and was expressing pride in his heritage by cladding himself in Rebel flag wear. The school system cannot silence him because others might view the flag differently, Irion insists.

"The school board tells Mr. Defoe he should be ashamed of who he is," Irion told jurors in opening statements.

Attorney Arthur F. Knight III, who represents Anderson County school system officials, counters that it doesn’t matter what Defoe intended to say with his clothing choice.

"We fully understand the Confederate flag is not a racist symbol to everybody," Knight told jurors. "But there are others who … consider that to be a racist symbol."

At the core of this legal dispute is whether Anderson County school officials can prove their need to prevent disruption via racial strife or fights trumps Defoe’s right to free speech.

Irion contends there is no racial strife at the overwhelming white Anderson County High School.

"Zero racial incidents in Mr. Defoe’s school during his entire senior year," Irion said.

Knight disagreed.

"What you will hear is there is an element, hopefully a very small element, who want to use that symbol … to bully, to intimidate," Knight told jurors.

The trial continues today.

© 2008 The E.W. Scripps Co.

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