Monday, December 2, 2013

Confederate Flag Leads to Suspensions and Ban, But Cases Not Necessarily Simple

Rebel-flagJust before Thanksgiving, a fight broke out between two students at Millennium High School in Goodyear, Arizona, over one student displaying a confederate flag on his car.  The school's response: suspend both students for five weeks and ban the student from displaying the confederate flag.  The student who displayed the flag still objects, arguing that the flag does not represent racism, but freedom.  He offered the standard high school distinction: “The flag means basically more independence, less government. It didn’t mean racism, it didn’t mean slavery, it didn’t mean any of that. It basically meant what they were fighting for was their right to be independent and not have the government control them.”

The school district, of course, responded by pointing out that the confederate flag "has been proven to be patently offensive to certain groups and the courts recognize that.”  Moreover, “[o]bviously there was some event that took place it was related to reaction to the flag and it did create an environment where it was disruptive.”

The school is right on courts' interpretation of the flag.  Just last year, for instance, the Fourth Circuit in Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013), ruled in favor of a school district that had stopped a student from wearing shirts displaying the Confederate flag because the shirts were likely to cause a substantial disruption to the school environment. 

While the current student's position on the flag ignores a lot of history and, even as a high school student, I found such arguments to be silly, I often got the sense that many such students were sincere in their ignorance, which potentially makes these cases more complicated.  If a student's argument is pretext, a school can easily intervene.  But if the student is expressing a genuine, albiet ignorant, belief about independence, a student's argument gets a little better.  

Schools have the authority to limit speech that poses a substantial disruption, but Tinker v. DeMoines, 393 U.S. 503 (1969), indicates that  they must distinguish between disruptions that are a result of the person expressing himself and those that are a result of inaappropriate reactions by the listener or viewer.  After all, there were some disruptions in Tinker when other students responded to Tinker's Viet Nam protest armband.  If the response is, for instance, the result of the listener's immaturity, it is wrong to punish the speaker.  This line, however, is far easier to draw in theory than reality, particularly when student speakers and listeners border on per se immature and ignorant in various respects.  

In the context of the flag, even if the student's position is sincere, the student has to know that others do not see the flag the same as he does, which raises the question of whether such a student is just being coy in the slavery versus independence distinction.  Even if the student does not support racism, the student is probably trying to incite a reaction.  If the student were not hoping to incite some reaction, might not the student express his position a little differently? Then again, these are students and wisdom is not to be expected.  

Rather than engage in pyscho-babble courts take the understandbly easy route out of these cases and just label the flag disruptive.  As a practical matter, I suppose that is correct, but skipping analytical steps is dangerous.  Consider the fact that in Hinduism a swatiska is a geometric Swastika 361px-卍_2013-09-01_13-33represenation of the god Ganesha.  As a general principle, a school might be inclined to perceive swatiskas as inherently disruptive, just like the confederate flag, but that rationale would quickly fall apart if the school sought to prohibit a Hindu student from displaying it.    

(image with permission from Jean nguyen)

http://lawprofessors.typepad.com/education_law/2013/12/confederate-flag-leads-to-suspensions-and-ban-but-cases-not-necessarily-simple.html

Discipline, First Amendment | Permalink

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