May a school punish a student for wearing Confederate flag attire?
The courts are divided on this question, but most will examine whether the clothing would create a substantial disruption or material interference with school activities or invade the rights of others.
Practically, the issue boils down to whether the school has had prior incidences of racial violence or tension. If school officials can point to such incidents, a court will tend to side with them in Confederate flag attire cases.
However, the Supreme Court has also said that school officials could not censor student expression based on "undifferentiated fear or apprehension." This means that school officials have some burden to justify their actions.
May schools enforce speech codes on school grounds?
Schools can prohibit students from harassing other students on school grounds. However, schools must ensure that their speech codes are narrowly drafted in order to survive a First Amendment challenge.
In 2001, a federal appeals court in Pennsylvania struck down a student anti-harassment code that prohibited “unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, threatening, bullying, extorting or the display or circulation of written material or pictures.” (See an article about this.)
The appeals court determined that the student speech code was overly broad and could include “much ‘core’ political and religious speech,” which should receive First Amendment protection.
At the college level, many speech codes have been struck down on First Amendment grounds. Kevin O’Shea, publisher of the monthly newsletter First Amendment Rights in Education, predicts that “we could very well be witnessing the initial stages of a similar phenomenon in public elementary and secondary schools.”
He adds that “it is likely that many more school districts will see their own anti-harassment policies overturned in the face of First Amendment scrutiny.”
Schools have a duty to ensure a safe learning environment free from hostility and harassment. However, schools must also ensure that they do not impose far-reaching restrictions on student speech in their efforts to eliminate harassment.