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Tenn. Confederate-flag controversy set for Aug. trial

By David L. Hudson Jr.
First Amendment scholar

Editor’s note: The Associated Press reported that U.S. District Judge Tom Varlan declared a mistrial in Tommy DeFoe’s free-speech lawsuit on Aug. 15. Varlan dismissed the jury after it deliberated for about 13 hours without reaching a unanimous verdict.

A federal district court has refused to grant a preliminary injunction against a flag-display ban in Anderson County, Tenn., public schools in a case involving a former student.

One of the most divisive symbols in public life and public schools is the Confederate flag. Its proponents extol it as a symbol of a proud heritage; opponents counter that it represents hate and racial supremacy. Public school officials across the country have found themselves embroiled in legal controversies when they punish students who wear Confederate flag clothing.

The Tennessee student, Tom DeFoe, was suspended in 2006 for wearing a Confederate flag T-shirt and belt buckle while attending Anderson County High School and Anderson County Career and Technical Center.

DeFoe sued in federal court, contending that school officials violated his First Amendment rights when they punished him for his expressive clothing. DeFoe argued that his Confederate-flag clothing caused no disruption at school. School officials countered that there had been incidents of racial unrest, violence and disruptions as a result of other displays of the Confederate flag. The injunction was denied July 1.

Each side points to the U.S. Supreme Court’s seminal student free-expression case, Tinker v. Des Moines Independent Community School District (1969), in which the Court prohibited the selective targeting of a black peace armband associated with an anti-war viewpoint.

In Tinker, the high court ruled that public school officials could censor student speech if they could show that the expression caused a substantial disruption of school activities or invaded the rights of others. The Court majority reasoned that the Iowa school officials failed to meet this standard with regard to the wearing of the armbands. The opinion also noted that officials allowed students to wear other symbols, such as political campaign buttons and the Iron Cross.

“Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible,” wrote Justice Abe Fortas for the Tinker majority. He added that “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”

So the question facing the litigants in the Anderson County case is whether the display of the Confederate flag created any substantial disruption or whether school officials could reasonably forecast that such displays would disrupt the school environment.

DeFoe’s legal counsel, Knoxville-based attorney Van R. Irion, has filed several motions for a preliminary injunction, asking the court to order the school to stop banning the Confederate flag.

In its July 1 opinion in DeFoe v. Spiva, the federal district court denied DeFoe’s fourth motion for a preliminary injunction. The court rejected the argument that, because the school allowed racially inclusive symbols, the suppression of the Confederate flag constituted viewpoint discrimination. However, the court also ruled that the case could proceed on whether the school engaged in viewpoint discrimination by selectively singling out the Confederate flag while allowing other racially divisive clothing.

“In sum, a school cannot permit discussion of some racially divisive issues and not others, but there is no requirement that a school allow racially divisive speech simply because it allows racially inclusive speech,” Judge Thomas A. Varlan wrote. “Thus, defendants’ allowance of expressions of opinions promoting racial equality, tolerance, diversity and cultural equalities does not mean that they must allow racially divisive expressions.”

Varlan added that “plaintiffs can still be successful in their claim of viewpoint discrimination if they demonstrate that school officials discriminate between different disruptive racially divisive expressions.”

The case now proceeds to trial on Aug. 11. “If we don’t win at trial I will absolutely be appealing this case, based upon several other bad rulings,” Irion said. “However, I fully expect to win at trial.”

Irion expressed displeasure with the latest denial of preliminary-injunctive relief.

“Categorical bans on content are not allowed when the school already allows other viewpoints to be expressed via the same means,” Irion said. “So, if the school tolerates displays of flags in general, it cannot prohibit the Confederate flag in a categorical manner. It must analyze potentially disruptive flags on a case-by-case basis to determine if a particular display is likely to cause substantial disruption to school operations.”

Arthur F. Knight III, attorney for the schools, said that “the Confederate flag is a racially divisive symbol” in public schools. He noted that two days after two African-American students who had moved from an area hit by Hurricane Katrina enrolled in an Anderson County school, other students raised a Confederate flag in the gym.

“Go to and see how that group uses the Confederate flag,” Knight said.

Court tosses challenge to Tenn. school's ban on Confederate flag
Tommy Defoe's case was first tried a year ago, ending with a hung jury; retrial was expected in a few weeks. 08.13.09


Tenn. students challenge school's Confederate-flag ban

Federal lawsuit says policy barring William Blount High students from wearing clothing that bears Rebel battle flag violates free speech. 03.05.06

Md. high school racial tension promps Confederate-flag ban

Principal says some white students were using rebel flag to intimidate, harass black students. 03.14.08

6th Circuit supports Tenn. school's Confederate flag ban

Panel points to race-related incidents in ruling that school officials could bar symbol because they could 'reasonably forecast' that it would cause disruption. 08.21.08

Students lose Confederate-flag purse case in 5th Circuit
By David L. Hudson Jr. Appeals court panel says school officials in Texas reasonably forecast that substantial disruption could ensue from flag displays by two girls. 10.16.09

States move to add nooses to list of outlawed symbols
By David L. Hudson Jr. Lawmakers look to cross-burning statutes, make sure new measures bar only displays with 'intent to intimidate.' 06.28.08

Cartoons, T-shirts and more: why we must protect what offends
By Gene Policinski The same First Amendment protections that shield offensive speech from government censorship also protect those who would speak in opposition. 05.18.08

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