May a school punish a student for wearing Confederate flag attire?
The courts are divided on this question, but most will examine whether the clothing would create a substantial disruption or material interference with school activities or invade the rights of others. Practically, the issue boils down to whether the school has had prior incidences of racial violence or tension. If school officials can point to such incidents, a court will tend to side with them in Confederate flag attire cases. However, the Supreme Court has also said that school officials could not censor student expression based on “undifferentiated fear or apprehension.” This means that school officials have some burden to justify their actions.
It depends on whether the school officials can reasonably forecast that the wearing of the Confederate flag will lead to a substantial disruption of the school environment. In one decision, a court rejected a student’s First Amendment right to wear a Confederate flag jacket because the school officials had cited “several incidents of racial tension.” According to the court, “school officials are not required to wait until disorder or invasion occurs” but only need “the existence of facts which might reasonably lead school officials to forecast substantial disruption.” In 2007, a U.S. district court in Missouri reached a similar conclusion, ruling that a school district did not violate a student’s free speech rights by prohibiting him from wearing a Confederate flag symbol in school.
It depends on whether the school officials can reasonably forecast that the wearing of the Confederate flag will lead to a substantial disruption of the school environment. In one decision, a court rejected a student’s First Amendment right to wear a Confederate flag jacket because the school officials had cited “several incidents of racial tension.” According to the court, “school officials are not required to wait until disorder or invasion occurs” but only need “the existence of facts which might reasonably lead school officials to forecast substantial disruption.”1 Another federal court, using the same criteria, recently reached the opposite conclusion, finding that a school district in Kentucky failed to satisfy the Tinker standard by showing any reasonable forecast of substantial disruption.
