Appeals court calls Confederate flag T-shirt expressive speech

OHIO — A former student who filed a lawsuit againsthis high school after he was suspended for wearing a T-shirt bearingthe Confederate flag had his case reinstated in March by the U.S.Court of Appeals for the Sixth Circuit.

Timothy Castorina, a former student at Madison Central HighSchool in Richmond, Ky., sued the school claiming that his FirstAmendment rights were violated when he was suspended in1997 forwearing a Hank Williams Jr. T-shirt, which featured two Confederateflags and the phrase "Southern Thunder" on the back.

Another student, Tiffany Dargavell, was also suspended forwearing the same shirt and filed a lawsuit along with Castorina.Dargavell, however, decided not to join in the appeal to the SixthCircuit.

Principal William Fultz suspended the students for violatingthe school dress code, which prohibits any clothing that is "obscene,sexually suggestive, disrespectful, or which contains slogans,words or in any way depicts alcohol, drugs, tobacco or any illegal,immoral or racist implication."The two students, who claimed at the time that they were wearingthe T-shirts to celebrate Hank Williams Sr.’s birthday and toexpress their southern heritage, were suspended twice for three-dayperiods.

A federal district court dismissed the case in 1998, statingthat wearing the shirts was not considered expressive conductunder the First Amendment.

A three-judge panel for the Sixth Circuit disagreed and reinstatedCastorina’s case, stating that the district court’s finding thatthe T-shirts worn by the students did not qualify as "speech"was incorrect.

"The plaintiffs intended to express more than a mere appreciationfor the life and music of either performer," Judge Merrittwrote in the decision. "Because the plaintiffs’ intendedexpression was both a commemoration of Hank Williams, Sr.’s birthdayas well as a statement affirming the plaintiffs’ shared southernheritage, their decision to wear the Hank Williams T-shirts constitutesspeech falling within the First Amendment."

The panel compared the case to Tinker v. Des Moines IndependentCommunity School District. In Tinker, the U.S. SupremeCourt ruled that students’ First Amendment rights were violatedwhen school officials prohibited the wearing of black armbandsto protest the Vietnam War.

The Court also noted in Tinker that the school districtdid not ban other types of controversial clothing.

The Sixth Circuit panel ruled that Castorina’s case was similarto Tinker because school officials at Madison Central HighSchool allowed other students to wear clothing with depictionsof Malcolm X, while banning the Confederate flag.

Kirk Lyons, one of Castorina’s attorneys, said he is happywith the decision.

"This is the first pro-Confederate flag decision in anyof the U.S. Courts of Appeal," Lyons said. "There hasbeen a tendency among school boards to try to get rid of the Tinkerdecision, but we think this is a strong reaffirmation of [Tinker]."

Castorina’s case was sent back to the district court to determinehow the school enforced the dress code and whether there was anyracially based violence at the school before the suspensions thatcould have justified the ban on Confederate symbols.

For More Information:

The Sixth Circuit’s decision in Castorina v. Madison CountySchool Board is available online at:

The Sixth Circuit’s decision in Castorina v. Madison CountySchool Board is available online at: