BWA v. Farmington R-7 Sch. Dist., No. 07-3099 (8th Cir. Jan. 30, 2009)
The U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD) has ruled that a Missouri school district’s ban on the display of Confederate flag did not violate students’ First Amendment free speech rights, because school officials could reasonably forecast “substantial disruption” based on prior race-related incidents. B.A., a student at Farmington High School (FHS), was involved in two incidents in which school officials ordered him to remove or obscure the flag symbol. B.A.’s parents withdrew him from school, and students R.S. and S.B. were involved in subsequent incidents in his support. The three sued Farmington R-7 School District (FSD) in U.S. district court for violating their free speech rights. The defendants asked the court to dismiss the case, arguing their actions were justified because they had reason to believe that display of the symbol would cause material and substantial disruption to the operation of school. FSD’s dress code provides: "Dress that materially disrupts the educational environment will be prohibited." District officials also testified about several prior racially related incidents. The district court granted FSD’s motion for summary judgment, dismissing the suit.
The Eighth Circuit affirmed. Basing its decision on the standard established in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), the appeals court determined that the ban was constitutional because school officials, considering the facts and circumstances, could reasonably forecast a substantial disruption resulting from any display of the Confederate flag. The court enumerated several incidents involving race and the flag at school and in the community that provided “substantial evidence of actual and potential disruptions.” The court also noted that “no other circuit has required the administration to wait for an actual disruption before acting.” The court rejected B.A.’s argument that FSD’s actions constituted impermissible viewpoint discrimination. Instead, the court found that if Tinker’s substantial disruption standard is met, then any viewpoint discrimination that results from restricting speech does not violate the First Amendment. While acknowledging that Tinker does not allow school officials to suppress speech simply “to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” the court concluded that the evidence in the record went beyond “ordinary discomfort and unpleasantness of unpopular viewpoints” and demonstrated “likely racially-motivated violence, racial tension, and other altercations directly related to adverse race relations in the community and the school.”
Turning to B.A.’s claim that FSD had violated a provision in Missouri law that prohibits school officials from ordering “a student to remove an emblem, insignia, or garment, including a religious emblem, insignia, or garment, as long as such emblem, insignia, or garment is worn in a manner that does not promote disruptive behavior,” the federal court attempted to analyze the issue in the same manner as would the Missouri Supreme Court. The Eighth Circuit was persuaded that the plain language of the statute allowed for school officials to order the removal of emblems worn in a manner that promotes disruption, and that such was the case here.
BWA v. Farmington R-7 Sch. Dist., No. 07-3099 (8th Cir. Jan. 30, 2009)
[Editor’s Note: The Associated Press (AP) reports that B.A.’s attorney, Robert Herman, plans to appeal to the U.S. Supreme Court and quotes him as saying, “It's a sad day when a court rules someone's opinion is not protected because it offends other people. The essence of this ruling is Bryce can be punished because he expressed an opinion others found offensive.” The Legal Clips summary of the district court’s opinion also is below.]
Associated Press, 1/30/09, By staff
NSBA School Law pages on BWA v. Farmington R-7 Sch. Dist.