Confederate flag ban does not violate students’ constitutional rights
The U.S. Court of Appeals for the Fifth Circuit has ruled that a school district policy prohibiting the display of the Confederate flag on school property does not violate students’ free speech or equal protection rights. A.M and A.T., students at Burleson High School (BHS), were sent home for bringing to school purses displaying Confederate flag symbols. The Confederate flag policy had been adopted during the 2002-03 school year after several racial incidents, some involving the Confederate flag. The students sued BISD, alleging the Confederate flag policy violated their free speech, due process, and equal protection rights. The district court granted BISD’s motion for summary judgment on the ground that the ban could be justified under the substantial disruption standard established in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
The Fifth Circuit affirmed the lower court’s decision. Regarding the free speech claim, the appeals court pointed out that under the Tinker standard, school officials may restrict student expression if they reasonably forecast such expression will lead to material disruption in school operations. While “mere expectation” would not suffice, officials need not wait until actual disruption has occurred before acting to prohibit speech. Applying Tinker the appeals court found ample evidence of racial hostility from which school officials could reasonably anticipate that displaying the flag would result in disruption. It also cited a number of federal circuit court decisions upholding bans on displays of the Confederate flag, including Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir. 2002); and Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249 (11th Cir. 2003). In each instance the ban was based on a history of racial tension. It rejected the students’ assertion that under Tinker the ban of Confederate flag displays could be justified only if school officials presented evidence of actual past disruption. It said, “This directly contradicts Tinker’s holding that administrators may proscribe speech if there are facts “which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”
Turning to the due process claim, the Fifth Circuit rejected the students’ argument that BISD’s dress code was vague, concluding that the policy provided students with sufficient notice that flag displays were prohibited. In addition, it found the relatively light sanction of having to leave school “militate[d] against their vagueness claim.” It also concluded that the equal protection claim failed. Because the students are not members of a suspect class, BISD needed only to demonstrate that the policy is rationally related to a legitimate government purpose to pass muster. It concluded that since the policy satisfied Tinker, it was rationally related to the legitimate interest in maintaining school discipline and order.
A.M. v. Cash, No.08-10477 (5th Cir. Oct. 9, 2009)
[Editor’s Note: In September, a federal district court in South Carolina upheld a ban on Confederate flag displays. That court also found that evidence of past and present racial tension provided a reasonable basis for school officials to conclude that Confederate flag displays would lead to disruption. A summary of the opinion is below.]
NSBA School Law pages on Hardwick v. Heyward