Monday, February 02, 2009
Please disseminate as wide as you can
The free speech rights of all school children in American are at risk – endangered by a federal judiciary that will not hold schools to their burden to prove that a banned symbol would (not might) cause a substantial and material disruption to the educational process at the school. The federal circuit Courts have tended to treat Confederate flag cases involving students as “special” cases, needing special consideration and handling – especially where schools whine about “racial tension.” Racial tension that is never defined or quantified and never mind that any integrated school will have some racial tension.
The 10th (Kansas, Colorado, Oklahoma, New Mexico, Wyoming & Utah) and 11th (Alabama, Georgia & Florida) federal Circuit courts have ruled harshly against Confederate symbols in Schools, the 3rd Circuit (Pennsylvania, New Jersey, Delaware) has indirectly ruled in favor of Confederate symbols in schools)
For 7 years the 6th (Kentucky, Tennessee, Ohio, Michigan) Circuits decision in Castorina stood as the pre-eminent school Confederate flag case victory followed by the settlement in the Jacqueline Duty case – which (with active lobbying by the Kentucky Division SCV) restored Confederate flag rights to students in scores of Kentucky schools.
Last Summer, a jury in Knoxville came within one vote of restoring the rights of Confederate kids in a Anderson County, Tennessee schools. The casae will be retried next Summer.
Suspiciously, two weeks ago the 6th Circuit denied Derek Barr and others a rehearing before the full panel of the 6th Circuit United States Court of Appeal in his bid to restore his right to display Confederate symbols at William Blount High School in Knox Country, Tennessee. Citing ill-defined or quantified incidents causing “racial tension- none of which involved Confederate symbols, the full 6th Circuit allowed William Blount High School to run their anti-Confederate flag gulag without interference from the Constitution. The Senior Judge of the Circuit wrote a dynamic dissent – which should be read by every freedom loving citizen – but Castorina is effectively dead unless Barr is overturned by the US Supreme Court.
Ominously, just this past Friday a 3 judge panel of the 8th Circuit (Arkansas, Iowa, Nebraska, Minnesota, North & South Dakota affirmed one of the most outrageous and patently unconstitutional orders ever appealed to a US Circuit Court of Appeals. Simply by waving the “racial tension” talisman, Farmington High School in Missouri gets a constitutional pass from the 8th Circuit, even though none of their racial incidents (some off campus) involved Confederate symbols at all!
BWA v. Farmington-7 was fought hard and well by a very competent St Louis Civil Rights lawyer. His case well well-argued before the circuit. Even a casual listener would conclude that 1. the student’s attorney made monkeys out of the school and Department of Justice lawyers and 2, it was apparent that 2 of the 3 judges were sympathetic to the students.
But in the privacy of their book-lined chambers the 8th Circuit Judges turned the Constitution inside out and told Confederate kids they have no rights the court is bound to respect. Racial tension trumps everything – truth, fairness, legality, objectivity – student’s rights. The heckler’s veto is now enshrined in our jurisprudence.
Since 1969 it has been an axiom of American law that students don’t shed their rights at the school house door, that the school has the burden at every stage of proceedings of proving that a symbol would (if not banned) cause a substantial and material disruption to school operations.
But if the courts will not hold the schools to their burden, what can we do? Win or lose, SCV members, students, lawyers and citizens must continue to put on record the hypocrisy of the schools and courts where they stamp on inalienable rights of heritage and liberty.
Next week an SLRC team, headed by Chief Trial Counsel Kirk D. Lyons will travel to New Orleans to argue on Wednesday morning before a 3 judge panel of the 5th Circuit (Texas, Louisiana & Mississippi) United States Court of Appeals. Lyons will appeal to the panel on behalf of Ashley and Megan Thomas and Aubrie McCallum, whose crime back in 2006 was to bring Confederate flag purses (Christmas presents from their parents) to Burleson High School in Burleson, Texas.
The school immediately moved in to ban the purses, even though the girls were not causing a disruption and had not caused a disruption in years. The school citing “a rise in racial” tension turned down all the girls administrative appeals.
If the case involved any other symbol but the Confederate flag it would probably be considered a perfect case. ACLU attorneys would be fighting for the right to defend the girls. Numerous sympathetic news articles would run – celebrities would show up to show support – but not for Confederate kids – who are guilty of nothing more than being patriotic and loving their heritage.
But the SCV and the SLRC will support for them and fight for them and the stakes are high. The 5th Circuit has not ruled on a school free speech case involving Confederate symbols. We have been working almost around the clock to prepare for our showdown with Burleson High School’s hired guns.
But notice the timing.
Do you think it is only a coincidence that the 6th Circuit Barr v. Lafon order was issued only two weeks ago before the scheduled oral arguments in the Burleson case?
Do you think it is only a coincidence that the 8th Circuit BWA v. Farmington decision was issued only 5 days before the scheduled oral arguments in the Burleson case?
I don’t either – but whether the fix is in or not – we are going to give it all we’ve got in New Orleans. We will put the School’s hypocrisy on the record. We will show them for the educational tyrants that they are! Never give up the Ship! We shall fight on for the Confederate community as long as we have hands to write and throats to argue. And we might just beat them. We have done it before. We slew them in Castorina in 2001. David did slay Goliath. It can happen! Like our Confederate ancestors we are used to being the underdog and outspent 10-1.
Pray for us and the case as we go to battle for your rights and the rights of every student in the South and America!
Kirk Lyons and Fred Taylor are on their way to New Orleans. Please keep them in prayer for traveling mercies and a successful outcome. Don’t forget us. If you live near New Orleans you are free to attend. Arguments are at 9AM on Wednesday at the US Court of Appeals at 600 Maistre Place in New Orleans.
God Bless us all.
Roger W. McCredie
Southern Legal Resource Center, Inc.
P.O. Box 1235
Black Mountain, NC 28711