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Banning Student Confederate Flag Apparel at School


July 31st, 2020

Following several deaths involving police use of excessive force against black citizens, there has been a resurgence in efforts to remove Confederate monuments and symbols from public places. Re­latedly, there has been an uptick in questions from school officials asking whether they can ban students from wearing Confederate flag apparel (e.g., shirts, hats, belt buckles, masks) at school. Since displaying the Confederate flag is an expressive activity, a school’s prohibition against the symbol implicates the First Amendment.

Courts across the nation, including the Sixth Circuit Court of Appeals (the decisions of which are binding in Michigan), have upheld a school’s authority to restrict Confederate flag apparel if school officials “reasonably forecast” that the symbol will cause a material and substantial disruption to school operations, regardless of the wearer’s intent.

Some schools have banned Confederate flag imagery; other schools have included more general prohibitions against “racially divisive symbols”. Most cases challenging Confederate flag bans involve a student alleging that a school’s imposition of discipline for a dress code violation infringed on the student’s free speech rights. Courts generally consider student clothing a form of expressive speech and apply the First Amendment analysis set forth by the U.S. Supreme Court in Tinker v Des Moines Indep Cmty Sch Dist (1969).

Under Tinker, school officials may discipline a student for expressive conduct that is otherwise protected by the First Amendment if the conduct “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” or if school officials can reasonably forecast that the speech will cause a material and substantial disruption.

The Sixth Circuit has issued three rulings on Confederate flag bans at school in the past 20 years, once remanding a case for further analysis, and twice upholding the school’s ban. In 2001, the Sixth Circuit was unable to resolve the case without additional evidence about whether the school had “actually experienced any racially based violence prior to the suspensions” and remanded the case for further factual findings. Castorina v Madison Cty Sch Bd. (2001).

Seven years later, in Barr v Lafon (2008), racial tensions at a school prompted the school to ban clothing that “cause[d] disruption to the educational process.” Two students who wore Confederate flag shirts to school were told to remove or cover-up the shirts or face suspension for violating the dress code. The students sued, alleging that the ban violated their First Amendment rights. Applying the Tinker standard, the Sixth Circuit upheld the ban, emphasizing that school officials are not required to wait for student expression to cause an actual disruption before taking action. Rather, if school officials, based on specific facts (i.e., past incidents of racial violence or complaints about racial discrimination), can reasonably forecast that student expression will cause a disruption, they may preemptively suppress that expression. In Barr, because that school previously encountered racially-charged graffiti containing hit lists, interracial fights, and other threats of violence, the Sixth Circuit concluded that school officials reasonably forecasted a disruption caused by Confederate flag clothing.

Two years later, in Defoe v Spiva (2010), the Sixth Circuit again upheld a school’s dress code prohibiting “racial or ethnic slurs/symbols” and applied that standard to Confederate flag clothing. A student sued the school after he was sent home for refusing to turn his Confederate flag t-shirt inside out and refusing to remove his Confederate flag belt buckle. In upholding the school’s dress code, the court observed that evidence of students using racial slurs and songs and engaging in interracial fights allowed school officials to reasonably forecast that Confederate flag imagery would substantially disrupt school operations.

In Defoe, the Sixth Circuit extended its analysis of student speech regulation to recognize a school’s substantial interest in educating students in an environment conducive to “fostering both knowledge and democratic responsibility.” The court reasoned that banning “racially divisive symbols,” including the Confederate flag, is consistent with this substantial interest, even in cases where school officials cannot forecast a substantial disruption. Importantly, whether the Sixth Circuit will apply this analysis to student speech regulation beyond racially divisive symbols remains unanswered.

Court decisions involving First Amendment rights are fact-specific and may depend on express provisions in a school’s written dress code policy. We encourage school officials to carefully review their dress codes be­fore the school year begins and to work with legal counsel to craft appropriate language if a ban on any specific imagery is under consideration.