Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, November 30, 2010

Tennessee school district’s ban on Confederate flag displays is constitutional

Defoe v. Spiva, No. 09-6080 (6th Cir. Nov. 18, 2010), is an interesting case. The Sixth Circuit held that a school district’s ban on displays of the Confederate flag in school does not violate students’ free speech rights. Although the panel’s decision was unanimous, the panel issued two separate opinions, with the concurrence, in which two of the judges joined, governing as the majority’s position to the extent in differed with the other opinion. The first opinion concluded that the ban met the requirements of the substantial disruption standard enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). It found that school officials had sufficient evidence from which to reasonably forecast that permitting Confederate flag symbols in its schools would result in substantial disruption or material interference with the school environment.

The concurrence differed by relying on the U.S. Supreme Court’s reasoning in Morse v. Frederick, 551 U.S. 393 (2007), to uphold the ban. It enumerated two principles for its reliance on Morse instead of Tinker. First, the U.S. Supreme Court in Morse recognized that “the mode of analysis set forth in Tinker is not absolute.” Second, just as the Court in  Morse recognized an “’important, perhaps compelling interest’ in deterring drug use in the schools, there is of course a comparably ‘important, perhaps compelling’ interest in reducing racial tension in the public schools.”

Law review commentary on this issue would be most welcome.

Mitchell H. Rubinstein

Education Law, Law Review Ideas | Permalink


I don't have any idea what the case is all about. But if you're pertaining to school district’s ban on displays of the Confederate flag in schools, definitely it would be of a concern. This would entirely affect the student's free speech. I hope this is just temporary. I couldn't stand the fact not to hear our student's opinion regarding any important issues arise in the society. I hope that this ban would be lifted up, soon.

Posted by: CFD Trading Tips | Dec 1, 2010 4:15:58 PM

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