Amid a growing mound of Confederate flag cases, one unsettled legal issue in courts across the country is this: Can public schools ban the wearing of Dixie Outfitters and other Confederate T-shirts without running afoul of the First Amendment? The Dixie Outfitter shirts celebrate the Confederate flag—insofar as draping fuzzy baby bunnies, fuzzy puppies, and fuzzy duckies in flags could be said to constitute celebration. Schools in Florida, Georgia, Virginia, West Virginia, Kentucky, Michigan, and elsewhere have instituted bans, following complaints from parents and students who find them offensive. When Cherokee high school in Georgia banned the shirts last fall, student protests and ACLU lawsuits broke out in the lunchroom the way chicken pox used to.
Years of bickering over Confederate flags atop state capitols, on state flags and license plates, in parades and at football games haven’t established as an aesthetic matter whether the flags mean racial hate or regional pride. Nor has anyone ruled as a legal matter whether they constitute threatening hate speech. A symbol African-Americans deem no less racist than a white hood or burning cross is simultaneously embraced by some white Southerners as a benign symbol of pride in their ancestors or respect for Civil War veterans. A recent Zogby survey published in the Atlanta Journal-Constitution found that while a third of its respondents believe the flag symbolizes “oppression and racial division,” 55 percent felt it signaled only “heritage and history.” To some Northerners and liberals, this is a semantic posture—indistinguishable from Trent Lott’s claim that his loving defense of segregationist Strom Thurmond was race-neutral. After all, the Confederate flag is not merely the proud symbol of the Ku Klux Klan. It is linked inextricably with slavery, Jim Crow, and violent white protest against mandatory desegregation.
Fans of the Confederate flag don’t always help their claim to tolerance and pluralism, with their repeated references to the South being the last bastion of Jesus and God or their insistence that African-Americans should stop acting like victims and start loving the rebel flag as it was meant to be loved. Still, speech is speech, and the courts have generally held that expressive clothes are speech. They’ve also held that the cure for hateful speech is more speech, not censorship. So, the case against the schools should be open and shut.
It isn’t. And it doesn’t help that the U.S. Supreme Court refuses to address the issue with nearly unprecedented zeal. Like last month’s cross-burning case, a ruling on the meaning of the Confederate flag would require catering to either the sensibilities of the most offensive bigot or the most fragile listener. And while the First Amendment doesn’t often care about that fragile listener, the courts care a lot when that listener is still in school—especially elementary or high school.
Since 1969, when the Supreme Court decided the landmark Tinker v. Des Moines Independent Community School District, courts have attempted to balance the rights of student free speech against the disciplinary and caretaking roles with which they are charged in loco parentis. Kids are to be stimulated and encouraged to think freely, while protected from harm or hurt feelings. In Tinker, the Supreme Court, by a 7-2 vote, invalidated a school policy that resulted in suspensions for three high-schoolers wearing black armbands to protest the war in Vietnam. Tinker was responsible for the famous claim by Justice Abe Fortas that “[P]ublic school students do not shed their First Amendment rights at the schoolhouse door.” After Tinker, schools couldn’t ban student expression unless there was some risk of that speech significantly interfering with school discipline.
That test was eroded by a 1986 decision, in Bethel School Dist. No. 403 v. Fraser, upholding the suspension of Matthew Fraser for his nomination speech of a classmate to student office, using what the court characterized as “elaborate, graphic and explicit sexual metaphor.” The court in Fraser held that school bans on obscene language were a perfectly legitimate function of educators, since one of the main duties of a school is to inculcate “civility.” The Fraser court also felt that while the Tinker students’ political speech was of some social value, the purely sexual speech in Fraser was constitutionally worthless. But if you came away thinking that Tinker allows schools to ban only “fighting words” or speech that starts riots, while Fraser allows them to censor only explicit sexual speech, you’re wrong. Somehow, in combination, these cases have come to mean that schools get to pick what speech is polite and what’s not.
Following Tinker and Fraser—and since no one knows which is the law anymore—school administrators are left with what’s effectively a veto over what constitutes “appropriate speech.” This is why, in most of the disciplinary suspension cases involving school speech or clothing, the schools keep winning. For instance, in a Kansas case from 2000, a seventh-grader was suspended for drawing a Confederate flag in math class. The lower court upheld the suspension policy, citing the Tinker test of whether student disruption was likely, as well as the Fraser civility mandate. The 10th Circuit Court of Appeals agreed. The U.S. Supreme Court denied certiorari. In a 1997 South Carolina case, the federal district court upheld the suspension of a middle-schooler in a Confederate flag jacket. Again, although the jacket incited no actual violence, the court used the Tinker standard of possible fights to justify the ban on free expression. An 11th Circuit case from 2000 came down the same way, again in the interest of fostering “civility” in the schools.
In short, schools win by merely speculating that violence may break out or by resting on their authority to teach students to be sweet to one another. And this is precisely the sort of unbridled state discretion the First Amendment was designed to prevent. It lodges the exclusive power to limit or permit speech amid the preferences and prejudices of a single administrator or an elected school board. Yes, the Confederate flag is a racially divisive and possibly even a hateful symbol; but it’s also a symbol that implicates American history, racial sensitivity, and the nuance of differing human perspectives. It’s the whole darn social studies curriculum in a few stripes and bars; precisely the sort of subject best addressed through education and discussion.
If American kids can be counted on for anything it’s this: Tell them they can’t do/wear/say something and they’ll do/wear/say it ‘til their heads blow off. This is why Dixie Outfitters sold a million T-shirts last year, and why virtually every kid disciplined for wearing a Confederate flag to school shows up the day after the suspension in either the same T-shirt or one with a bigger flag. Yes, it would be a more civil world if we could all just agree once and for all that the Confederate flag is either beautiful or vile. But until that day comes, it would be a useful and educational exercise to at least hear one another out on the subject. One might think a school would be a good laboratory for such efforts. One would hope there’s no better place to try.