May a school punish a student for wearing Confederate flag attire?
It depends on whether the school officials can reasonably forecast that the wearing of the Confederate flag will lead to a substantial disruption of the school environment. In one decision, a court rejected a student’s First Amendment right to wear a Confederate flag jacket because the school officials had cited "several incidents of racial tension." According to the court, "school officials are not required to wait until disorder or invasion occurs" but only need "the existence of facts which might reasonably lead school officials to forecast substantial disruption."1
Another federal court, using the same criteria, recently reached the opposite conclusion, finding that a school district in Kentucky failed to satisfy the Tinker standard by showing any reasonable forecast of substantial disruption.2 The appeals court determined that the school district’s policy with respect to the Confederate flag appeared to be a "targeted ban" that was not applied evenhandedly to other racially divisive symbols.
Still another court applied the Fraser standard to a Confederate flag. This federal court ruled that the controlling legal standard does not come from Tinker. School officials’ actions can be analyzed, they stated, under "the more flexible Fraser standard where the speech involved intrudes upon the function of the school to inculcate manners and habits of civility."3
Phillips v. Anderson County Sch. Dist., 987 F. Supp. 488 (D.S.C. 1997).
Castorina v. Madison County Sch. Bd., 246 F.3d 536 (6th Cir. 2001).
Denno v. Sch. Bd. of Volusia County, 218 F.3d 1267 (11th Cir. 2000), cert. denied, 531 U.S. 958 (2000).
Thursday, November 23, 2017 | 11:16:51