Reporting at the Wall Street Journal blog, which can be accessed on our sidebar links, thoughtful blogger Dan Slater reports that a controversial Confederate flag case has been decided in Tennessee, and I for one am not too happy with the majority ruling.
The recap: A high school principal in Tennessee told students they couldn’t have “Rebel flags” or symbols of flags on their clothes. Three students, who felt that the policy unconstitutionally interfered with their ability to express their southern heritage, sued. In August, the Sixth Circuit Court of Appeals upheld a grant of summary judgment in favor of the school. This bugged me, as I am a student of Tinker vs. Des Moines, the landmark First Amendment case that struck down a school ban on armbands to protest the Vietnam War.
The court cited testimony that racial tensions — including racist and threatening graffiti and physical altercations between African-American and white students — comprised the context for the clothing ban. The court distinguished the case from Tinker and its progeny.
Last week, the Sixth Circuit denied the students’ petition for rehearing en banc.
In dissent, Judge Danny Boggs wrote:
'It should be emphasized that no disruption of any sort was directly associated with the display of symbols, in that the persons displaying the symbols are not alleged to have been involved in any physical incidents, nor to have instigated even any verbal ones. . . Consider also that one of the plaintiffs to this case, who was involved in a verbal confrontation with another student, testified that after he was called a “dumb redneck,” he did not respond because “it’s not worth my time beating somebody’s butt because they’re just acting stupid.” . . . Though a confrontation short of a violent altercation could amount to a disruption within the meaning of Tinker, not every disagreement or incident of name-calling will support the suppression of speech. And it should be left to a jury to determine whether this disagreement both constitutes a disruption and was sufficiently related to the Confederate flag to justify a ban.'
The facts of the case are delicate but it seems to suggest to me that my behaviour should be governed by another reaction’s to it. Take a look at the case and let me know what you think.
I can totally relate personally with those who wanted to deny the students' the right to wear that shirt. I know exactly what they were feeling. My very first roommate at Hofstra University in 1967 was a kid from the deep South. When I walked into the dorm for the first time, he had already been there for a day, and set up the room. Above his bed, he had hung a large Confederate flag. I told him that there was no way I was living with that in my room; that it was racist and wrong and offensive. We wound up living together for less than a week. I hated the guy.
Today, even though I would not make him my friend, I would represent him as my client. I guess that is the difference forty years makes.