If you want to get technical about it, the Civil War has been over
for 148 years. Still, sporadic fighting breaks out occasionally — as it
did in a South Carolina school district over the right to wear a
Confederate flag to school.
When the encyclopedia of student free-speech law is written, an
entire chapter will be needed just to encompass Confederate battle flag
cases. Second only to Christian religious messages, Confederate emblems
are perhaps the most oft-litigated flashpoint when schools’ interest in
keeping order collides with students’ right of free expression.
The Richmond-based Fourth Circuit U.S. Court of Appeals
ruled March 25
that a South Carolina high school and middle school did not violate the
First Amendment in banning, on the grounds of their potential to incite
racial violence, a series of T-shirts that included the Confederate
flag.
The 3-0 opinion theoretically may be appealed to the Supreme Court,
but it’s unlikely the Court would be interested in entertaining it. So
the legal skirmish — which originated way back in 2003 — probably is at
an end.
While it’s conceivable that the Fourth Circuit reached the right
outcome, its application of well-settled First Amendment legal
principles lacks the intellectual honesty that should be expected of a
federal appeals court. Simply put, the court made up its mind that the
school should win and the student should lose, and then grasped for
wisps of evidence that might support that preordained result. When
courts fail in rigorously applying the Constitution to provide a
meaningful check on government overreaching, much more than a rebel flag
is at risk.
The result of the court’s ruling in
Hardwick v. Hayward portends
difficulty for any student in the Fourth Circuit states — South
Carolina, North Carolina, Virginia, West Virginia and Maryland — to win a
free-speech challenge, regardless of ideology, if the school labels the
student’s message “disruptive.”
The case was brought by the family of Candice Michelle Hardwick
against administrators from a middle school and high school in South
Carolina’s Latta School District, after Candice was ordered on multiple
occasions to refrain from wearing T-shirts with Confederate insignias to
school. While some of the shirts simply displayed the Confederate
battle flag, several others wedded the Confederate flag with a political
message of displeasure over the school dress code (for instance, “Our
School Supports Freedom of Speech for All (Except Southerners)”).
A federal district court
threw out
the Hardwick family’s complaint in 2009, failing even to mention the
political content of the student’s protest shirts. The Fourth Circuit
panel affirmed the district court’s dismissal.
Cases involving students’ personal expression on school property are governed by the Supreme Court’s
Tinker
standard, which permits schools to discipline students for what they
say only if the speech will “materially disrupt” school operations. The
Fourth Circuit recognized
Tinker as the proper legal standard, but applied the standard with none of the skepticism that a proper
Tinker analysis demands.
The
Hardwick court went wrong in three damaging ways that,
if applied in future cases, will significantly impair all students’
ability to defend their rights in the five states within the Fourth
Circuit’s domain:
(1) The court afforded no weight to the political content of Candice’s speech.
Government attempts to inhibit political speech, including speech
challenging school policies, are viewed especially skeptically, because
of the obvious self-serving interest in discouraging dissent. The Eighth
Circuit U.S. Court of Appeals applied appropriate skepticism in a
2008 ruling that struck down an Arkansas school’s punishment of students who wore armbands in protest of a restrictive school dress code.
But the Fourth Circuit lumped all of Candice’s banned T-shirts
together, giving no recognition to the heavier burden that a public
agency should face in restricting speech that questions government
policies. The last of the shirts that Candice was forced to change bore
simply a historically accurate picture of the state Capitol flying the
Confederate flag. The state pulled the battle flag down in 2000, a
matter of lingering political controversy on which students were
entitled to comment.
(2) The court accepted remote and speculative evidence as “proof” that Candice’s T-shirts threatened disruption.
There is no indication that any of Candice’s shirts actually provoked
any disturbance — in fact, she wore one of them several times without
administrators even noticing — so the school’s case depends entirely on
its forecast of future risk of disruption. But
Tinker requires
that preemptive censorship be based on concrete factual experience
demonstrating that disruption is imminent. The Supreme Court counseled
in
Tinker that “undifferentiated fear or apprehension of disturbance is not enough to overcome the freedom of expression.”
Here, the school was allowed to point generically to instances of
“racial tension” rather than on incidents involving Confederate symbols.
That a black student and a white student came to blows over the
“N-word” does not establish that all controversy involving race is
likely to incite violence.
And the school was permitted to reach back some 30 years to cobble
together enough “racial incidents” (in the words of the court) to make
the case for the likelihood of a disturbance.
To appreciate the feebleness of the school’s evidence, consider one
of the primary “disruptive” incidents on which Judge Dennis Wayne Shedd
relied in writing the panel’s opinion:
[I]n the mid-1980s, a white student and an
African-American student attended the prom together, causing ‘small
groups of whites and blacks . . . to stir up trouble,’ which included
white students wearing Confederate flag apparel and African-American
students wearing Malcolm X apparel.
In other words, the “trouble” consisted of –
wearing protest clothing.
It is audacious that, in defending a prohibition on protest clothing, a
school would define the wearing of the clothing as itself being the
disruption. It is astounding that three federal judges let the school’s
attorneys get away with it.
The attitudes of students toward race 30 years ago are exactly as
predictive of their current beliefs as are their attitudes about
fashion, music or anything else. The students of the early 1980s were
the children of parents who, for the most part, attended segregated
schools. The difference between 1983 and 2013 is the difference between
Phil Collins and Ne-Yo. Or between Strom Thurmond and Barack Obama.
No school district has optimal race relations, and none is without a
history of race-fueled violence. If all it takes to justify censoring
speech touching on issues of race is a handful of outbursts scattered
across three decades, then every school will have a license to suppress
discussion of sensitive racial topics.
Today’s casualty, a Confederate flag T-shirt, may be no great loss to
an educated dialogue about race relations — but tomorrow’s casualty
could be copies of the “I have a dream” speech, if there is evidence
that, 30 years ago, a white student took a swing at a black student
distributing the speech.
(3) The court sanctioned “offensiveness” as a basis for punishing even a political message.
Finally and perhaps most damagingly, the Fourth Circuit legitimized
the imposition of a plainly unconstitutional dress code empowering
principals to punish students who wear “derogatory” messages on their
clothing, or messages that are “deemed to be offensive.”
This ruling directly contravenes the Supreme Court’s most recent pronouncement on student speech rights,
Morse v. Frederick.
In that 2007 ruling, the Court took pains to emphasize the narrowness
of its ruling — that speech at school events advocating illegal drug use
could be punished — by
expressly rejecting
a school district’s insistence that “offensive” student speech is
unprotected by the First Amendment. “After all,” Chief Justice John
Roberts wrote, “much political and religious speech might be perceived
as offensive to some.”
The Fourth Circuit simply got this one wrong. A dress code forbidding
the display of “offensive” messages is itself offensive to bedrock
constitutional principles. The Latta School District policy, and those
like it elsewhere, invites viewpoint-based discrimination and gives
students inadequate warning of what slogans might be punishable.
(Judge Shedd’s opinion cites the Supreme Court’s 1986
Fraser
ruling as supporting the school’s determination that it could ban
“offensive” T-shirt sayings. That is a dangerous and unsustainable
expansion of
Fraser. As the Second Circuit
correctly explained in a 2006 ruling that also involved political speech on a student’s T-shirt,
Fraser permitted schools to punish
graphic and sexually explicit speech, not all speech to which listeners might take offense.)
While the practical result of the
Hardwick case is unremarkable — courts elsewhere have upheld bans on Confederate-themed
shirts,
purses and
other apparel where strong and recent evidence pointed to a likelihood of disruption — the court’s strained reasoning in
Hardwick undermines the ability of students with more factually sympathetic claims to get their day in court.
On the very day that the Fourth Circuit released the
Hardwick v. Hayward opinion, the First Amendment lost one of its most eloquent champions, author
Anthony Lewis. The Pulitzer Prize-winning writer of one of the definitive histories of the First Amendment,
Freedom for the Thought That We Hate,
Lewis paid special tribute in that 2007 book to the courageous judges
who, over the last 125 years, have built up a body of First Amendment
precedent highly favorable to wide-open debate, even when the
rulings were highly unpopular and the speakers
highly disagreeable. “Timid, unimaginative judges,” he wrote, “could not have made America as extraordinarily free as it is.”
The Fourth Circuit’s decision embodies just exactly that timidity
that Lewis deplored — the willingness to put expediency ahead of
principle when the law requires protecting speech we might prefer had
remained unspoken (“the thought that we hate,” a line Lewis borrowed
from Justice Oliver Wendell Holmes). The
Hardwick case is an unworthy memorial to a journalist and scholar whose work exemplified what the Supreme Court told us 44 years ago in
Tinker
— that America’s embrace of the “hazardous freedom” that permits
wide-open debate on divisive political and social issues “is the basis
of our national strength.”
http://www.splc.org/wordpress/?p=5001 
