Federal court upholds district’s ban on student displays of Confederate flag
A federal district court in South Carolina has ruled that a school district’s ban on Confederate flag displays in school did not violate a student’s First Amendment free speech rights. It also held that the ban did not violate her equal protection, due process, or state constitutional rights. Candace Hardwick was disciplined on several occasions while middle school and high school student by Latta School District (LSD) officials for wearing T-shirts that contained depictions of the Confederate flag. Her parents made numerous requests to the Latta School Board that the disciplinary actions taken regarding the T-shirt incidents be expunged from her student record and that the board revise its policy banning Confederate flag displays. The board denied the requests. Hardwick filed suit against LSD, alleging the ban violated her First Amendment free speech rights, Fourteenth Amendment equal protection and due process rights, and violation of her rights under the state constitution. LSD filed a motion for summary judgment on four counts, seeking dismissal of the suit.
The district court addressed the free speech claim first. It determined that the speech/expression in question was controlled by the principles established in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), that provide school officials may restriction student speech/expression where they can reasonably forecast “substantial disruption or a material interference with school activities” if the speech/expression is allowed. It pointed out school officials must have more than “undifferentiated fear or apprehension” of a future disturbance” in order to justify restricting students’ free speech rights. However, it emphasized that officials are not required to wait for disruption to occur before prohibiting student speech. After reviewing several federal court decisions involving bans of display of Confederate symbols in school, the district court found that the cases revealed a number of principles relevant to application of Tinker to school bans on Confederate symbols: (1) school officials may rely on past incidents of racial tension in anticipating a future disruption, even if those prior incidents did not directly involve the Confederate flag; (2) school officials are not required to show prior incidents of racial tension occurred during actual classroom instruction, or even on the campus; (3) incidents of prior racial tension need not necessarily be violent; (4) the student’s own conduct need not disrupt or interfere with school activities before school authorities may enforce a ban on Confederate flag displays; and (5) school officials need not prove conclusively that the prior incidents on which they justified the ban were, in fact, racially motivated so long as they had reasonable evidence from which to anticipate a future disruption. Based on evidence demonstrating past and present tension and hostility between African-American and Caucasian students in LSD, it found school district officials “could have reasonably concluded that permitting the [student] to wear Confederate flag t-shirts would likely result in a substantial disruption of or material interference with school activities.”
Turning to the equal protection claim, the district court interpreted the student as arguing that the LSD’s dress code was enforced selectively against displays of Confederate symbols in a viewpoint discriminatory manner. Specifically, the student was contending that other racially divisive symbols, such as “Malcolm X” and “Black power,” had not been banned. After reviewing the record, it concluded LSD’s “ban on Confederate flag clothing was not enforced in a viewpoint-discriminatory manner so as to violate the [student’s] Fourteenth Amendment right to equal protection of the law.” It noted, based on federal caselaw, that in order for the student’s equal protection claim to succeed, student must present evidence that LSD enforced the dress code in a discriminatory and unequal manner. It found that the evidence did not support a finding that LSD enforced the dress code in a viewpoint discriminatory manner. In support of that finding, it pointed out that officials had prohibited a student from wearing a Malcolm X T-shirt. It also noted that officials could not be held responsible for code violations that went unnoticed. Finally, it noted that the record did not support a finding viewpoint discrimination based on other images raised by the student, such as “Gay pride, because there was no showing that such images caused a disruption at the middle or high school.
The court then reviewed the due process claim. It found that the student was asserting a facial challenge to the dress code based on it being overbroad and vague. It pointed out that in order to succeed based on overbreath and vagueness, the student must initially show: “(1) the dress codes’ overbreadth was both real and substantial when judged in relation to their ‘plainly legitimate sweep,’ and that (2) no ‘limiting construction’ or ‘partial invalidation’ could ‘remove the seeming threat or deterrence to constitutionally protected expression.’” However, “[b]ecause the dress code [was] written to target only clothing that causes disruption or interference in accordance with the standard set forth in Tinker, the Court” did not find the dress code legally overbroad. It also rejected the student’s contention that the dress code was unconstitutionally vague because it failed to provide her with adequate notice of the ban on Confederate clothing. It pointed out the student had conceded that she had been aware of the ban since attending middle school in lSD.
Hardwick v. Heyward, No. 06-01042 (D. S.C. Sept. 8, 2009)
[Editor’s Note: In August, a federal district court in Tennessee ruled in DeFoe v. Spiva that a school district’s decision to ban displays of the Confederate flag in school did not violate the Free Speech Clause of the First Amendment. The court found its reasoning supported the holding of U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) in Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008), which upheld a similar ban under similar circumstances. Summary of the DeFoe opinion below.]
NSBA School Law pages on DeFoe v. Spiva