Silencing the rebel yell: the Eighth Circuit upholds a public school's ban on Confederate flags.

• Jurisdiction: United States
• Author: Luetkemeyer, Lucinda Housley
• Date: 22 June 2010

B.W.A. v. Farmington R-7 School District, 554 F.3d 734 (8th Cir. 2009).

1. INTRODUCTION

   Forty years ago, United States Supreme Court Justice Abe Fortas called the public school classroom the "marketplace of ideas" (1) in his majority opinion in the landmark student speech case Tinker v. Des Moines Independent Community School District. Justice Fortas emphasized the importance of protecting students' constitutional freedoms within school and cautioned that school officials could not constitutionally confine student speech "to the expression of those sentiments that are officially approved." (2) In the decades since Tinker, students have challenged school regulation of many types of speech, including the expressive conduct of wearing clothing that depicts the Confederate flag. The Confederate flag waves with symbolism and ignites passion from those who fight to display it and those who fight to banish its display. As a result, many of America's public schools have chosen to ban the display of the Confederate flag based on administrators' assertions that it leads to disruption and compromises school safety. (3) Confederate flag bans have been and continue to be the subject of great controversy, and in recent years courts have been forced to confront the thorny issue of whether public schools may legally ban the flag's display. (4)

   In 2009, the United States Court of Appeals for the Eighth Circuit heard for the first time a case challenging the constitutionality of a public school's ban on the display of Confederate flags. (5) When the Eighth Circuit faced this situation in B.W.A. v. Farmington R-7 School District (B.W.A. v. Farmington), it attempted to balance the competing interests of protecting students' free speech rights and avoiding future disruption and danger to the learning environment. In doing so, the court adhered to the reasoning established by its sister circuits and set a precedent within the Eighth Circuit that shifts away from Tinker's original protections to allow suppression of a particular mode of student political speech, even when that exact mode of expression has never caused a disruption.

2. FACTS AND HOLDING

   In B.W.A. v. Farmington R-7 School District, three Farmington, Missouri, high school students were suspended during the 2006-2007 school year after they wore clothing displaying the Confederate flag. (6) The school district's student dress code, adopted in 1995, prohibited "[d]ress that materially disrupts the education environment." (7) After a series of race-related disruptions in the district during the 2005-2006 school year, the district superintendent informed administrators that the dress code extended to a ban on clothing that depicted the Confederate flag. (8)

   At the time of the students' suspension, the racial composition of Farmington High School was predominantly white, with approximately 1,100 students in attendance, and only fifteen to twenty of those students were black. (9) Leading up to the ban on Confederate flag clothing, there were approximately eleven verbal or physical confrontations between black and white students, including several incidents of hate speech or racial slurs in the Farmington district between May 2005 and April 2006. (10) Ten of these incidents involved Farmington students. (11)

   The first racially charged incident that led to the ban on Confederate flag clothing occurred in May 2005, when a white elementary school student urinated on a black fourth grader while allegedly saying, "[T]hat is what black people deserve." (12) The black student then withdrew from the Farmington school district and began attending another school. (13) Another disturbance occurred when several white students, one wielding a baseball bat, went to the house of a black student and made racist comments, such as "anything that is not white is beneath them." (14) After the black student's mother attempted to separate the students, one of the white students hit her in the eye, and a fight ensued between her son and the other students. (15) The black student received threats that his house would be burned down, resulting in the police being called to the scene. (16) Subsequently, this black student also withdrew from the school district. (17)

   A third racial skirmish occurred during a basketball tournament at a neighboring school district, where a heated altercation broke out during a game between Farmington High School students and Festus High School students. (18) During the confrontation, Farmington students allegedly made racial slurs against two black players from Festus, a school with a greater population of African-American students than Farmington. (19) Festus students reported that a Confederate flag was hanging in the hall near the locker rooms during the basketball game. (20) After the incident, the two Festus students complained to the Missouri State High School Activities Association and to the United States Department of Justice's Office of Civil Rights, and both entities investigated the incident. (21) As a result of the confrontation during the game, Farmington and Festus no longer play each other unless their athletic conference requires it. (22)

   After the district banned Confederate flag clothing in response to these events, additional racial disruptions occurred at Farmington High School, including when a white student wrote racial slurs, including the n-word, in his notebook, and when another student announced to his teacher that the "n*gg*rs [are] here" in response to the arrival of a visiting track team. (23)

   During a "Spirit Week" the following school year, B.W.A., a fourteen-year-old Farmington High School student, wore a Confederate flag baseball cap to school, emblazoned with the words, "C.S.A., Rebel Pride, 1861." (24) A teacher directed B.W.A. to remove the hat and put it away for the remainder of the day. (25) The next day, B.W.A. wore a T-shirt bearing the image of the Confederate flag and a belt buckle with the flag and the words "Dixie Classic." (26) The assistant principal instructed B.W.A. to remove the belt buckle and turn his shirt inside out, but B.W.A. refused to do so and was subsequently suspended. (27) He withdrew from school that day. (28) In response to B.W.A.'s suspension and withdrawal, community members and parents protested the school's actions by gathering across the street from the high school and displaying a Confederate flag. (29) Students reported to school officials that the protests were offensive and distracting and would lead to future disruptions. (30) The school was the target of race-related vandalism, which resulted in property damage. (31) Additionally, one black student withdrew from the high school because he was "uncomfortable due to the racial tension." (32)

   Several months after B.W.A. left the district, another Farmington High student, R.S., wore a Confederate flag shirt to school with the words, "The South was right[.] Our school is wrong." (33) R.S. was suspended for refusing to remove the shirt. (34) The next day, R.S. wore a similar shirt and was sent home to change. (35) A few days later, a third student, S.B., wore a shirt to school "containing the Confederate colors" which read, "Help support B.[W.A.]. Once a rebel, always and forever a rebel. We love B.[W.A.]." (36) S.B. too was sent home after refusing to change, and again the school was subjected to racially charged vandalism and reports from students that they feared future disruptions. (37)

   After he was suspended, B.W.A. sued the Farmington School District under 42 U.S.C. [section] 1983, claiming that the school and its officials violated his First Amendment rights. (38) R.S. and S.B. joined the lawsuit as plaintiffs. (39) The three plaintiffs sought an injunction prohibiting the school from banning the display of the Confederate flag and a declaratory judgment that the three students possessed a First Amendment right to wear the Confederate flag to school. (40) The students also claimed that district officials violated Missouri's "strip search" statute, found at Missouri Revised Statute section 167.166.7, when they instructed the students to remove their Confederate flag clothing. (41) The statute prohibits district officials from requiring students to remove items of clothing unless that item is worn in a way that promotes disruptive behavior. (42) The school district responded by filing a motion for summary judgment, arguing that its actions were constitutional because officials were reasonable in their belief that displaying the Confederate flag would result in a material and substantial disruption. (43) The United States District Court for the Eastern District of Missouri granted the defendants' motion for summary judgment and dismissed the claims of the students. (44)

   On appeal, the Eighth Circuit affirmed the ruling of the district court, holding that the Farmington School District did not violate the students' First Amendment rights when it prohibited them from wearing clothing depicting the Confederate flag. (45) The court based its decision on the fact that the high school and community at large recently experienced several race-related disruptions and school officials reasonably believed that displaying the rebel flag would cause material and substantial disruption to the educational process. (46) When school officials reasonably suspect material and substantial disruption, they may constitutionally restrict the free speech rights of students, including prohibiting the display of the Confederate flag. (47)

3. LEGAL BACKGROUND

   This section first will analyze the history of United States Supreme Court decisions regarding student speech, detailing the establishment of certain general constitutional protections for student speech and the latitude given to school officials to restrict certain student speech. Next, this section will explain recent and relevant circuit court cases dealing with Confederate flag bans in school districts...