Student Can't Wear 'Inflammatory' Confederate Flag T-Shirts

By William Peacock, Esq. on March 27, 2013 | Last updated on March 21, 2019

Obvious proposition of the day: students have less rights when in school. For example, their Fourth Amendment rights are curtailed to the extent that separating them from their belongings and having drug dogs sniff around is permissible. There is also a line of cases, across the circuits, that allow some restrictions on free speech.

Here's another one.

Candice Hardwick, a Caucasian female who formerly attended middle and high school in Latta, South Carolina. She's quite proud of her Southern heritage and chose to express that pride by wearing shirts depicting the Confederate Battle Flag, which is the infamous flag that we've all seen plastered onto a dirty pickup truck at some time or another.

CSA Flag
Image courtesy of DeviantArt.

After she was asked to change out of the shirts, she began to push the matter by wearing “protest shirts”, such as one that stated “Jesus and the Confederate Battle Flag: Banned from Our Schools but Forever in Our Hearts” in red and blue font resembling the flag.

The “pride” is strong in that one.

The problem is, there is a lotta history of racial tension in Latta, including:

  • In the 1980s, an interracial prom couple was harassed by white students sporting the Confederate flag and black students wearing Malcom X apparel.
  • In the early 1990s, a student drove through the parking lot with the flag attached to his truck;
  • In the mid 1990s, a couple of white students burned down a historic African-American church.
  • Since Candace’s time at Latta High, a student almost had his Confederate Flag belt buckle forcefully removed by others.

Hardwick filed a § 1983 action against the school and the district, claiming violations of her First Amendment rights, as well as her Fourteenth Amendment Due Process (unclear dress code) and Equal Protection rights (unequal enforcement of that code).

After acknowledging the reality of restricted rights for students, the court then pointed out the controlling Tinker precedent, which states that “in light of the special characteristics of the school environment,” the Court held that school officials may prohibit or punish student speech that would “materially and substantially interfer[e] with the requirements of appropriate discipline in the operation of the school [or] collid[e] with the rights of others.”

In doing so, the school has to point to facts that lead them to “forecast” such a disruption.

SCOTUS has also provided three situations where Tinker’ssubstantial disruption” analysis doesn’t apply, and where speech can be restricted: vulgar and offensive speech, speech that could be interpreted as coming from the school itself, and pro-drug speech.

Where does the CSA’s flag fit in? If there is a history of past racial tension, that fits perfectly into Tinker’s “substantial disruption” framework. The Confederate flag is not only a symbol of rebellion and Southern pride, but also a symbol of racial oppression.

Latta’s lotta racial tension means the school could reasonably forecast trouble from the display of such a racially-charged symbol in a classroom environment. That trumps concerns over self-expression or free speech.

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