Inside the First Amendment: Confederate flags in public schools

June 7, 2004

Alberta Martin, the last widow of a Civil War veteran, died on Memorial Day in Enterprise, Ala., at age 97. (In case you’re adding up, she was very young and he was very old when they married.) Another living link to that horrific conflict may be gone (some elderly sons and daughters survive), but the Confederate battle flag flies on — stirring emotions and divisions across the nation.

This month the citizens of Callaway County, Ga., are arguing about the rebel banner flying over a local business. The owner calls it "a symbol of my heritage," while his African-American neighbors look up and see an ugly reminder of cross burnings and oppression.

Let’s face it. No matter how much advocates of the Southern battle flag insist it’s all about "Southern pride," millions of Americans will forever associate the emblem with the history of slavery, Jim Crow laws and segregation.

Debates about the Confederate flag run deep, sometimes spilling over into the courtroom. Just last week a federal appeals court reinstated a lawsuit by Matthew Dixon, a South Carolina mechanic fired last year from Coburg Dairy for displaying a Confederate flag on his toolbox. The case now goes back to a state court, which must decide whether state law protects Dixon’s right to carry the flag into his workplace.

Dixon’s case notwithstanding, most of the flag disputes are shouting matches, not lawsuits. After all, the First Amendment gives Americans the right to fly whatever flag they choose — even when it offends their neighbors.

But does that right extend to kids in public schools? That’s the hot issue that’s dividing many communities these days as a growing number of school districts attempt to ban the Confederate flag from the classroom.

The latest battleground is in the aptly named town of Battle Ground, Wash. That’s where high school freshman Tuesday Boyd was recently suspended for displaying the Confederate flag on her notebook. Boyd, originally from Texas, said she displayed the flag to honor her heritage.

Earlier this spring, 13 students in Caldwell County, N.C., were sent home for violating their high school’s new policy banning displays of the Confederate flag. And in April, 15 students were suspended from a Campbell County, Va., high school for refusing to change shirts bearing the flag. The list goes on.

Are these public schools violating the free-speech rights of kids? Or do school officials have the authority to ban controversial symbols?

Here’s the answer no administrator likes to hear: It depends.

If school officials can reasonably forecast that wearing the Confederate flag will lead to a substantial disruption of the school environment, then they can probably ban it.

For example, a 2000 decision out of the 10th U.S. Circuit Court of Appeals upheld the suspension of a middle school student for drawing a picture of a Confederate flag. Why? Because the school district could point to past incidents of racial tension and violence as evidence that the flag would likely cause substantial disruption. The school’s policy didn’t target the Confederate symbol, but banned all "racially divisive" materials.

But a 2001 decision out of the 6th Circuit went the other way, finding that the school district banning the flag had failed to show that the flag would cause significant problems for the school. Moreover, the school policy appeared not to apply evenhandedly to other racially divisive symbols.

The "substantial disruption" test used in these cases comes from a 1969 U.S. Supreme Court decision, Tinker v. Des Moines Independent School District. In Tinker, students were suspended from school for wearing black armbands to protest the Vietnam War. Ruling in favor of the students, the Court declared that "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate." That sounds good. But in real life, courts often defer to the judgment of school officials about just how disruptive student expression might be. If Tuesday Boyd’s case goes to court, how would a judge react to the district’s claim that the Confederate flag on her notebook is "disruptive"?

From news reports, it would seem that Tuesday has a good case. Apparently, no student complained about the flag and there doesn’t seem to be a history of racial conflict at Battle Ground High School. But given recent court decisions, it’s hard to predict the outcome.

Whatever happens in the courts, outlawing the rebel flag won’t work. At the Campbell County high school, the day after a rumor spread through the school that the flag would be banned, more than 80 students wore Confederate flag shirts to class. Want to make a symbol popular with teenagers? Just prevent students from wearing it.

However well-motivated, efforts to put a lid on racial tensions by banning the Confederate flag will only build resentment — and do little to address real differences.

A better solution is for public schools to turn the controversy into a "teachable moment" — an open, honest dialogue about the issues behind the symbol. Letting students experience what the First Amendment is all about (including the challenge of protecting speech that many find offensive) can yield surprising results.

Ask a roomful of high school students in any part of the country if they think schools should ban the Confederate flag or other provocative symbols. I have found that after a vigorous discussion of free speech, the vast majority of students will argue against censorship. And many will actually begin to listen to others.

Getting students to engage their differences with civility won’t guarantee racial reconciliation, but it’s a good place to start.