Students lose Confederate-flag purse case in 5th Circuit
By David L. Hudson Jr.
First Amendment scholar
10.16.09Texas public high school officials did not violate the First Amendment by prohibiting two female students from carrying purses featuring images of the Confederate flag to school, a federal appeals court panel has ruled.
The school district in Burleson has a policy barring students from wearing clothing or accessories that display “inappropriate symbolism, especially that which discriminates against other students based on race, religion or sex.” Burleson High School supplemented this districtwide regulation during the 2002-03 school year with a policy prohibiting the visible display of the Confederate flag on campus.
The high school adopted the policy after several incidents of racial tension and hostility at the school. In the 2002-03 school year 35 incidents of race-related problems were reported. One incident involved a Burleson High School student’s shoving a Confederate flag in the face of several members of an all-black volleyball team from a visiting school.
The two girls at Burleson High School — known in court papers as A.M. and A.T. — challenged the constitutionality of the policy after being told they could not carry their Confederate-flag purses on school grounds in January 2006. The students contended that the policy violated their free-expression rights. They also alleged that school officials committed viewpoint discrimination by singling out the Confederate flag for unfavorable treatment, while allowing students to wear other racially tinged clothing, such as Malcolm X and Mexican-nationalist T-shirts.
The girls sued in February 2007 in federal district court, which ruled in favor the school defendants. The district court found that school officials reasonably concluded that displaying the Confederate flag would cause substantial disruptions at school within the meaning of the U.S. Supreme Court’s seminal student-speech decision in Tinker v. Des Moines Independent Community School District (1969).
In Tinker, the Court ruled that school officials in Iowa violated the First Amendment rights of several students when they enforced a ban on black armbands students had worn in part to protest U.S. involvement in Vietnam. Tinker established a standard — that school officials can punish student expression only if they can reasonably forecast that such student expression will cause a substantial disruption or material interference with school activities.
On appeal, a three-judge panel of the 5th U.S. Circuit Court of Appeals unanimously affirmed the lower court Oct. 9 in A.M. v. Cash. The panel concluded that the lower court had applied the Tinker standard correctly.
“Applying the Tinker standard to the instant case, defendants reasonably anticipated that visible displays of the Confederate flag would cause substantial disruption of or material interference with school activities,” the court wrote. “There is ample, uncontroverted evidence that elements of the BHS student body have continually manifested racial hostility and tension.”
The plaintiffs argued that the school officials had to show more than simply generalized racial tension, but also a direct connection between the flag and disruptive activities.
The panel disagreed, writing: “But Tinker does not require a showing of past disruption; administrators can also meet their burden by establishing that they had a reasonable expectation, grounded in fact, that the proscribed speech would probably result in disruption.”
Kirk Lyons, attorney for the students, wrote in an e-mail to the First Amendment Center Online: "The court’s standard is so broad it negates Tinker. Any school can ban the Confederate flag (or symbol of choice) with impunity under such a standard. It has been a consistent problem with student free speech advocates in getting courts to hold schools to the burden set by Tinker."
On The Web: www.firstamendmentcenter.org/news.aspx?id=22206