• Is wearing the confederate flag to school protected as “symbolic speech”?

    Date: 02.04.09 | by Judge Tom.

     The display of the Confederate flag, as shown here, has been the subject of numerous lawsuits. In January, 2009, a federal court ruled against students wearing the Confederate flag at school and agreed with the school district’s ban of this type of symbolic speech.*

    Akasped (Flickr)

    Three high school students at Farmington High School in Missouri wore various articles of clothing to school with the flag depicted on each. Bryce Archambo wore a baseball cap, a T-shirt and a belt buckle with the Confederate flag emblem. R.S. wore a shirt with the words “The South was right – Our school is wrong” next to a picture of the Confederate flag.  Both were suspended after refusing to change clothes.

    The court’s decision followed the Tinker test, stating that “Based on the substantial race-related events occurring both at the school and in the community, some of which involved the Confederate flag, we hold that the District’s ban was constitutionally permissible.”

    Due to the history of community violence and on-campus disruption surrounding the display of the Confederate flag, the First Amendment does not protect this form of symbolic speech. Schools have a duty to protect students and maintain an environment where education thrives without violating the rights of others.

    Update:  In a similar case out of Tennessee, students at William Blount High School challenged their school’s ban of T-shirts displaying the Confederate flag.  The ban was enacted during a period of heightened racial tension at the school and an altercation between a black and white student. The lower federal courts approved the ban because images of the flag would substantially and materially disrupt the school environment. On October 5, 2009, the United States Supreme Court declined to review the case, leaving the rulings of the lower courts in place.**

    Again, in Tennessee, a challenge to the school’s ban on displaying the Confederate flag on campus was defeated in 2011.*** A long line of rulings have backed school administrators seeking to prevent racial conflict over such symbols.

    *B. W. A. v. Farmington School District, 8th Circuit Court of Appeals, January 29, 2009.

    ** Barr v. LaFon, U.S. Supreme Court, October 5, 2009.

    ***Defoe v. Spiva, U.S. Supreme Court, #10-1513, October 11, 2011.

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

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    1 Comment subscribe to these comments.

    • dan
      Mon, 07 Feb 2011 at 10:59

      i went to school one day with the confederate flag on my shirt and they tried to suspened me for five days can they do that
      Dear Dan: Although students have First Amendment rights while at school, these rights are not unlimited. Schools have a duty to protect students and keep the learning environment safe. If the school believes that the display of the conferderate flag is going to cause disruption at school or possibly violence due to racial tension, etc., schools have been allowed to ban students from wearing the confederate flag. However, the school should give you an opportunity to change your shirt and if you refuse, that’s when the school may take action. Click here for a review of recent cases on this issue. Thanks for asking your question.
      [This is information only - not legal advice.]