Legal News

No Whistlin? Dixie: In Confederate Flag Case, Students Denied Review

By Dan Slater

Remember that controversial Confederate flag case from Tennessee?

The recap: A high school principal in Tennessee told students they couldn’t have “Rebel flags” or symbols of flags on their clothes. Three students, who felt that the policy unconstitutionally interfered with their ability to express their southern heritage, sued. In August, the Sixth Circuit Court of Appeals upheld a grant of summary judgment in favor of the school.

The court cited testimony that racial tensions — including racist and threatening graffiti and physical altercations between African-American and white students — comprised the context for the clothing ban. The court distinguished the case from Tinker v. Des Moines Ind. Comm School, the landmark First Amendment case that struck down a school ban on armbands to protest the Vietnam War.

Today, the Sixth Circuit denied the students’ petition for rehearing en banc.

In dissent, Judge Danny Boggs wrote:

It should be emphasized that no disruption of any sort was directly associated with the display of symbols, in that the persons displaying the symbols are not alleged to have been involved in any physical incidents, nor to have instigated even any verbal ones. . . Consider also that one of the plaintiffs to this case, who was involved in a verbal confrontation with another student, testified that after he was called a “dumb redneck,” he did not respond because “it’s not worth my time beating somebody’s butt because they’re just acting stupid.” . . . Though a confrontation short of a violent altercation could amount to a disruption within the meaning of Tinker, not every disagreement or incident of name-calling will support the suppression of speech. And it should be left to a jury to determine whether this disagreement both constitutes a disruption and was sufficiently related
to the Confederate flag to justify a ban.

Full post as published by Law Blog - WSJ.com on January 23, 2009 (boomark / email).