8th Circuit sides with Mo. school in dispute over Confederate flag

By David L. Hudson Jr.
First Amendment scholar

School officials in Farmington, Mo., were justified in suspending students for wearing Confederate flag clothing because of several racially charged incidents, a federal appeals court panel has ruled.

Three students — known in court papers by their initials B.W.A., R.S. and S.B. — from Farmington High School sued in federal court after being suspended for wearing Confederate flag clothing during the 2006-'07 school year.

The school district had a dress-code policy, adopted in 1995, which provided in part that “dress that materially disrupts the educational environment will be prohibited.” After several racially charged incidents in 2005, school officials specifically barred Confederate flags and symbols. The officials reasoned that Confederate-flag clothing qualified as materially disruptive in a school that had only 15 to 20 black students out of a student population of approximately 1,100.

The racially charged incidents cited by the school officials included a May 2005 episode in which a white student urinated on a black student while allegedly saying “that is what black people deserve.” Another incident occurred that September when several white students from Farmington High showed up at a black student’s home and made racial comments such as “anything that is not white is beneath them.”

Another incident occurred at a December 2005 basketball game between Farmington High and Festus Senior High School. During the game a fight broke out after two Farmington players allegedly used racial slurs against two black players from Festus. That incident was reported to the U.S. Department of Justice’s Office of Civil Rights, which conducted an investigation.

These incidents and others caused school officials to prohibit the wearing of Confederate flag apparel in the school district. However, B.W.A. — identified in news stories as Bryce Archambo — wore Confederate flag apparel on several occasions. In September 2006, he wore a hat with an image of the Confederate flag and the message “C.S.A., Rebel Pride, 1861.” Another day he wore a belt buckle with the words “Dixie Classic.” After the principal sent him home, his mother withdrew him from school.

Other students, such as R.S. and S.B., wore Confederate clothing in support of Archambo. In January 2007, R.S. wore a shirt with the message “the South was right, our school was wrong.” S.B. wore a shirt with Confederate colors and the message: “Help Support B[.A.] Once a rebel, always and forever a rebel. We love B.[A.].”

The students contended that they had a First Amendment right to wear such clothing and that school officials could not single out Confederate symbols. In August 2007, U.S. District Judge Jean C. Hamilton granted summary judgment in favor of school officials, ruling that they met the standard articulated by the U.S. Supreme Court in the 1969 ruling Tinker v. Des Moines Independent Community School Dist. when they barred the Confederate symbol from campus.

In Tinker, the Court ruled that public school officials in Iowa violated the First Amendment rights of several students by suspending them for wearing black armbands to protest the war in Vietnam because such symbols were not disruptive. Courts have clarified that under Tinker, school officials can restrict student expression when they reasonably forecast a substantial disruption from that expression.

Hamilton ruled in B.W.A. v. Farmington R-7 School District that “Defendants did not violate the First Amendment because they had reason to believe that students displaying the Confederate flag would cause a substantial and material disruption.”

The students appealed to a three-judge panel of the 8th U.S. Circuit Court of Appeals, which on Jan. 30 unanimously affirmed Hamilton’s ruling. Like Hamilton, the 8th Circuit panel focused on the numerous racially charged incidents in the school district.

“Tinker and its progeny allow a school to ‘forecast’ a disruption and take necessary precautions before racial tensions escalate out of hand,” Judge Lavenski R. Smith wrote in B.W.A. v. Farmington R-7 School District. “As a result of race-related incidents both in and out of school, the administration reasonably denied the display of the Confederate flag within the school.”

The 8th Circuit noted that school officials must only reasonably forecast a substantial disruption, that they don’t have to wait for an actual disruption to occur. Smith wrote that “no other circuit [court of appeals] has required the administration to wait for an actual disruption before acting.”

Archambo and the other students had argued that school officials had committed viewpoint discrimination by singling out the Confederate flag. Smith wrote that “viewpoint discrimination by school officials is not violative of the First Amendment if the Tinker standard requiring a reasonable forecast of substantial disruption or material interference is met.”

Smith concluded: “B.W.A., R.S. and S.B. characterize the case as one involving suppression of unpopular speech for its content alone. But this crops the full picture and distorts the situation confronting school officials. Here, in a school of 1,110 students, 15 to 20 minority students were subjected to racial tension from a white majority student and community population sufficient to motivate some to withdraw. This can hardly be considered an environment conducive to educational excellence. Racial tension can devolve to violence quickly.”

Archambo's attorney, Robert Herman, told the Associated Press that he would appeal the 8th Circuit’s decision to the U.S. Supreme Court.

"It's a sad day when a court rules someone's opinion is not protected because it offends other people," Herman said. "The essence of this ruling is Bryce can be punished because he expressed an opinion others found offensive."

Farmington Superintendent W.L. Sanders was quoted by the Associated Press as saying, “I just see it as a ruling for school boards and public school educators to be able to take proactive steps in prevention of potential violence."