By David L. Hudson Jr.
First Amendment Center research attorney
06.09.05

A West Virginia high school student had a First Amendment right to wear Confederate flag clothing to school, a federal judge recently ruled.

Noting a “sea of interpretations about what the flag represents,” the judge reasoned that “there are a variety of innocent flag uses that would be silenced by the broadly worded policy” of Putnam County’s Hurricane High School.

Franklin Bragg sued school officials after he was punished for wearing a “Dixie Outfitters” T-shirt and a belt buckle, both of which bore the flag’s image. School policy prohibited “racist language and/or symbols or graphics,” specifically including “the Rebel flag, which has been used as a symbol of racism at high schools in Putnam County.”

Bragg enlisted the help of the American Civil Liberties Union of West Virginia, which filed a federal lawsuit on his behalf in April 2005. On May 31, U.S. District Judge John T. Copenhaver Jr. ruled in a memorandum opinion and order in Bragg v. Swanson that Principal Joyce Vessey Swanson had violated Bragg’s First Amendment rights.

Swanson instituted the ban because she said she had had several negative experiences with the flag at other schools in the county. However, Copenhaver ruled Swanson had not shown much evidence of racial tension associated with the flag.

Copenhaver reasoned that the applicable legal standard for resolution of the case was Tinker v. Des Moines Independent Community School Dist., the U.S. Supreme Court’s 1969 decision upholding the right of several students to wear black armbands to school protesting U.S. involvement in Vietnam. The Court established the so-called Tinker standard, which holds that school officials can censor student expression if they can reasonably forecast that the expression will create a substantial disruption or material interference with school activities or will invade the rights of others. The Court in Tinker warned that school officials could not censor student expression based on “undifferentiated fear or apprehension of disturbance.”

Some courts have given school officials greater leeway to regulate the Confederate flag under a standard from the Supreme Court’s 1986 decision Bethel School District No. 403 v. Fraser, which established that school officials can prohibit student expression that is “vulgar, lewd or plainly offensive.”

However, Copenhaver refused to apply the Fraser standard, writing that “the display of the flag is not per se and patently offensive.”

Applying Tinker, Copenhaver said the principal did not have enough evidence to reasonably forecast that the flag would create a substantial disruption of school activities. Copenhaver said “the principal acted with ‘a remote apprehension of disturbance’ rather than a ‘specific and significant fear of disruption.’”

“Although the best of intentions undergird the policy, the offending portion unjustifiably silenced a significant amount of permissible speech in contravention of the First Amendment,” Copenhaver wrote.

He credited the testimony of Bragg’s friend, Lisa Adkins, an African-American student who said Bragg’s clothing did not bother her or other African-American students at Hurricane. The judge wrote that Adkins’ testimony showed that “there exists at the school an environment in which people of both races mix freely together and form good relationships.”

The judge also said it was problematic that school officials singled out the Confederate flag but allowed students to wear Malcolm X T-shirts.

However, he cautioned that his ruling in Bragg’s favor should not give anyone license to intimidate others with Confederate flag clothing: “This opinion should not be interpreted as offering a safe haven for those bent on using the flag in school as a tool for disruption, intimidation, or trampling upon the rights of others. Should that occur, or be reasonably forecast by the school, the very ban struck down today might be entirely appropriate.”

The West Virginia ACLU applauded the judge’s ruling. “The court recognized that allowing some expressions of political speech by students while banning others is a flagrant violation of the First Amendment,” said Executive Director Andrew Schneider in a news release. “We hope that the school will use this as an opportunity to teach students about their constitutional rights and encourage debate over future controversial subjects before resorting to censorship.”

Charleston, W.Va.-based attorney Greg Bailey, who represented the school board and the principal, said: “No decision has been made on whether to appeal. It is still under consideration. The superintendent plans to discuss it with the school board in the near future to decide what action to take.”

NOTE: If you would like to contact Franklin Bragg regarding his experiences, you can send him an email at cowboy_f150@yahoo.com.

CLICK HERE to view the judge’s final order on Bragg vs Swanson. NOTE: You will need Adobe Acrobat Reader on your computer to view this file. If you don’t already have it, it is available FREE by clicking on the link below.

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On The Web: http://www.firstamendmentcenter.org/news.aspx?id=15405