By Will Nevin
When North Bend Superintendent Bill Yester made the decision to ban the Confederate flag from school district property in the wake of a recent fist fight between two students, it was not immediately clear what legal justification he had. But Yester’s decision is consistent with U.S. Supreme Court case law and a U.S. Ninth Circuit Court of Appeals decision that upheld a school administrator’s decision to ban the American flag at a California school.
Yester had reportedly pinned North Bend’s prohibition on “legal authority to provide an environment free of harassment” and district policy that “allows principals to prohibit clothing that distracts from the educational process.” But those are complicated and losing arguments.
Any discussion of the law of student expression must start with the U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, a 1969 case that upheld the rights of students to silently protest the Vietnam War with black armbands. While the court has retreated from Tinker in a series of important decisions, the case still stands for the principle that students have First Amendment rights in their public schoolhouse — so long as they do not create a material and substantial disruption.
And that’s really Yester’s strongest argument: that the Confederate flag caused a material and substantial disruption at North Bend High School, thus making it subject to school censorship. While Tinker’s disruption standard has been abused by school administrators elsewhere, one of the best examples of how it should actually work is Dariano v. Morgan Hill School District, a 2014 Ninth Circuit case that upheld a principal’s decision to force students to either remove or otherwise obscure American flag apparel – or leave campus.
The American flag banned at a public school? It sounds incredible, but the facts are in line with what we’d expect from a court deciding a case under Tinker. The school had a history of conflicts — some of them physical — between students who broke along white/Hispanic lines and were often fueled by displays of both the American and Mexican flags. When students wore American flag clothing on Cinco de Mayo, the principal acted to protect the peace in the best way he knew how — by removing flag clothing altogether.
Dariano is not the best pro-speech outcome, as it somewhat embraces what is commonly known as the heckler’s veto, in which an unruly mob silences unpopular speech. But it is consistent with Tinker and a reasonable attempt at balancing an individual’s right to expression with the day-to-day needs of operating a public school.
It’s not an easy thing to say an officer of the state has the right to silence anyone’s voice, and student speech generally is a mess in our courts, with Justice Clarence Thomas remarking that the Supreme Court’s case law “says that students have a right to speak in schools except when they don’t.”
Is a fist fight a material and substantial disruption? I can’t say. But my gut (and Dariano) says that North Bend could win a court challenge with a pretty plausible argument. Because given the right situation, the Confederate flag — just like the American one — may not be protected speech.
Will Nevin, Ph.D., J.D., is an instructor of digital communication at the University of West Alabama and an entertainment writer with Advance Media. His dissertation, “Students, Violence, and Violent Student Speech: The Preservation of First Amendment Rights in a Frightening Age,” was completed in 2014.
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