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Confederate flag in school and free speech

Published October 2016

Recently, a high school student in the metro area who displayed a Confederate flag in their vehicle was told to remove it from school property. The school district reported that a similar incident occurred in the prior school year which resulted in fighting and a material and substantial disruption of school. This raised questions from the public and the media regarding a student’s free speech rights and whether or not a school district could impose this restriction. Although students do have a right to expression, those rights are not without limits.

Under similar circumstances, the Eighth Circuit Court of Appeals has ruled that a ban on a students wearing of clothing depicting the Confederate flag did not violate free speech of the student. B.W.A. v. Farmington R-7 School Dist., 554 F.3d 734 (2009). In its opinion, the court relied on the Supreme Court’s decision in Tinker vs. Des Moines Independent Community School District, 393 U.S. 503 (1969) which held that school administrators must demonstrate facts that might reasonably lead them “to forecast substantial disruption of or material interference with school activities” before prohibiting a particular expression of opinion.

In Tinker, students were sent home and suspended for wearing black arm bands to protest the Vietnam War. Id. at 504. The court held the armbands were not in any way related to disruptive conduct, thus the wearing of the armbands was protected. Id. at 505-506. The Court also stated:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained.

The court in B.W.A. however found that the district acted constitutionally when it banned the student from wearing a T-shirt with a Confederate flag because of substantial race-related events occurring at the school and in the community, some of which involved the Confederate flag. B.W.A., 554 F.3d at 739. The court found under these facts that it could reasonably “forecast” a substantial disruption resulting from the display of the Confederate flag. Id.

Here are the top three free speech principles to remember:

  1. Absent either impingement on the rights of others or the likelihood of a substantial and material disruption at school, school officials may not regulate student speech at school. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 (1969)
  2. Lewd, indecent, objectively offensive speech by students may be regulated by school officials. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986)
  3. School officials may regulate speech that appears to promote illegal or harmful activity. Morse v. Frederick, 127 S.Ct. 2618 (2007). In this case the activity was illegal drug use.

As always when these issues come up in your school, contact your district legal counsel for advice before acting.