If you want to get technical about it, the Civil War has been over for 148 years. Still, sporadic fighting breaks out occasionally — as it did in a South Carolina school district over the right to wear a Confederate flag to school.
When the encyclopedia of student free-speech law is written, an entire chapter will be needed just to encompass Confederate battle flag cases. Second only to Christian religious messages, Confederate emblems are perhaps the most oft-litigated flashpoint when schools’ interest in keeping order collides with students’ right of free expression.
The Richmond-based Fourth Circuit U.S. Court of Appeals ruled March 25 that a South Carolina high school and middle school did not violate the First Amendment in banning, on the grounds of their potential to incite racial violence, a series of T-shirts that included the Confederate flag.
The 3-0 opinion theoretically may be appealed to the Supreme Court, but it’s unlikely the Court would be interested in entertaining it. So the legal skirmish — which originated way back in 2003 — probably is at an end.
While it’s conceivable that the Fourth Circuit reached the right outcome, its application of well-settled First Amendment legal principles lacks the intellectual honesty that should be expected of a federal appeals court. Simply put, the court made up its mind that the school should win and the student should lose, and then grasped for wisps of evidence that might support that preordained result. When courts fail in rigorously applying the Constitution to provide a meaningful check on government overreaching, much more than a rebel flag is at risk.
The result of the court’s ruling in Hardwick v. Hayward portends difficulty for any student in the Fourth Circuit states — South Carolina, North Carolina, Virginia, West Virginia and Maryland — to win a free-speech challenge, regardless of ideology, if the school labels the student’s message “disruptive.”
The case was brought by the family of Candice Michelle Hardwick against administrators from a middle school and high school in South Carolina’s Latta School District, after Candice was ordered on multiple occasions to refrain from wearing T-shirts with Confederate insignias to school. While some of the shirts simply displayed the Confederate battle flag, several others wedded the Confederate flag with a political message of displeasure over the school dress code (for instance, “Our School Supports Freedom of Speech for All (Except Southerners)”).
A federal district court threw out the Hardwick family’s complaint in 2009, failing even to mention the political content of the student’s protest shirts. The Fourth Circuit panel affirmed the district court’s dismissal.
Cases involving students’ personal expression on school property are governed by the Supreme Court’s Tinker standard, which permits schools to discipline students for what they say only if the speech will “materially disrupt” school operations. The Fourth Circuit recognized Tinker as the proper legal standard, but applied the standard with none of the skepticism that a proper Tinker analysis demands.
The Hardwick court went wrong in three damaging ways that, if applied in future cases, will significantly impair all students’ ability to defend their rights in the five states within the Fourth Circuit’s domain:
(1) The court afforded no weight to the political content of Candice’s speech.
Government attempts to inhibit political speech, including speech challenging school policies, are viewed especially skeptically, because of the obvious self-serving interest in discouraging dissent. The Eighth Circuit U.S. Court of Appeals applied appropriate skepticism in a 2008 ruling that struck down an Arkansas school’s punishment of students who wore armbands in protest of a restrictive school dress code.
But the Fourth Circuit lumped all of Candice’s banned T-shirts together, giving no recognition to the heavier burden that a public agency should face in restricting speech that questions government policies. The last of the shirts that Candice was forced to change bore simply a historically accurate picture of the state Capitol flying the Confederate flag. The state pulled the battle flag down in 2000, a matter of lingering political controversy on which students were entitled to comment.
(2) The court accepted remote and speculative evidence as “proof” that Candice’s T-shirts threatened disruption.
There is no indication that any of Candice’s shirts actually provoked any disturbance — in fact, she wore one of them several times without administrators even noticing — so the school’s case depends entirely on its forecast of future risk of disruption. But Tinker requires that preemptive censorship be based on concrete factual experience demonstrating that disruption is imminent. The Supreme Court counseled in Tinker that “undifferentiated fear or apprehension of disturbance is not enough to overcome the freedom of expression.”
Here, the school was allowed to point generically to instances of “racial tension” rather than on incidents involving Confederate symbols. That a black student and a white student came to blows over the “N-word” does not establish that all controversy involving race is likely to incite violence.
And the school was permitted to reach back some 30 years to cobble together enough “racial incidents” (in the words of the court) to make the case for the likelihood of a disturbance.
To appreciate the feebleness of the school’s evidence, consider one of the primary “disruptive” incidents on which Judge Dennis Wayne Shedd relied in writing the panel’s opinion:
[I]n the mid-1980s, a white student and an African-American student attended the prom together, causing ‘small groups of whites and blacks . . . to stir up trouble,’ which included white students wearing Confederate flag apparel and African-American students wearing Malcolm X apparel.
In other words, the “trouble” consisted of — wearing protest clothing. It is audacious that, in defending a prohibition on protest clothing, a school would define the wearing of the clothing as itself being the disruption. It is astounding that three federal judges let the school’s attorneys get away with it.
The attitudes of students toward race 30 years ago are exactly as predictive of their current beliefs as are their attitudes about fashion, music or anything else. The students of the early 1980s were the children of parents who, for the most part, attended segregated schools. The difference between 1983 and 2013 is the difference between Phil Collins and Ne-Yo. Or between Strom Thurmond and Barack Obama.
No school district has optimal race relations, and none is without a history of race-fueled violence. If all it takes to justify censoring speech touching on issues of race is a handful of outbursts scattered across three decades, then every school will have a license to suppress discussion of sensitive racial topics.
Today’s casualty, a Confederate flag T-shirt, may be no great loss to an educated dialogue about race relations — but tomorrow’s casualty could be copies of the “I have a dream” speech, if there is evidence that, 30 years ago, a white student took a swing at a black student distributing the speech.
(3) The court sanctioned “offensiveness” as a basis for punishing even a political message.
Finally and perhaps most damagingly, the Fourth Circuit legitimized the imposition of a plainly unconstitutional dress code empowering principals to punish students who wear “derogatory” messages on their clothing, or messages that are “deemed to be offensive.”
This ruling directly contravenes the Supreme Court’s most recent pronouncement on student speech rights, Morse v. Frederick. In that 2007 ruling, the Court took pains to emphasize the narrowness of its ruling — that speech at school events advocating illegal drug use could be punished — by expressly rejecting a school district’s insistence that “offensive” student speech is unprotected by the First Amendment. “After all,” Chief Justice John Roberts wrote, “much political and religious speech might be perceived as offensive to some.”
The Fourth Circuit simply got this one wrong. A dress code forbidding the display of “offensive” messages is itself offensive to bedrock constitutional principles. The Latta School District policy, and those like it elsewhere, invites viewpoint-based discrimination and gives students inadequate warning of what slogans might be punishable.
(Judge Shedd’s opinion cites the Supreme Court’s 1986 Fraser ruling as supporting the school’s determination that it could ban “offensive” T-shirt sayings. That is a dangerous and unsustainable expansion of Fraser. As the Second Circuit correctly explained in a 2006 ruling that also involved political speech on a student’s T-shirt, Fraser permitted schools to punish graphic and sexually explicit speech, not all speech to which listeners might take offense.)
While the practical result of the Hardwick case is unremarkable — courts elsewhere have upheld bans on Confederate-themed shirts, purses and other apparel where strong and recent evidence pointed to a likelihood of disruption — the court’s strained reasoning in Hardwick undermines the ability of students with more factually sympathetic claims to get their day in court.
On the very day that the Fourth Circuit released the Hardwick v. Hayward opinion, the First Amendment lost one of its most eloquent champions, author Anthony Lewis. The Pulitzer Prize-winning writer of one of the definitive histories of the First Amendment, Freedom for the Thought That We Hate, Lewis paid special tribute in that 2007 book to the courageous judges who, over the last 125 years, have built up a body of First Amendment precedent highly favorable to wide-open debate, even when the rulings were highly unpopular and the speakers highly disagreeable. “Timid, unimaginative judges,” he wrote, “could not have made America as extraordinarily free as it is.”
The Fourth Circuit’s decision embodies just exactly that timidity that Lewis deplored — the willingness to put expediency ahead of principle when the law requires protecting speech we might prefer had remained unspoken (“the thought that we hate,” a line Lewis borrowed from Justice Oliver Wendell Holmes). The Hardwick case is an unworthy memorial to a journalist and scholar whose work exemplified what the Supreme Court told us 44 years ago in Tinker — that America’s embrace of the “hazardous freedom” that permits wide-open debate on divisive political and social issues “is the basis of our national strength.”