Can a school ban wearing the Confederate flag?
Schools can’t shut down speech just because it’s offensive to some people. However, the Confederate flag has become so linked to racial discrimination and violence that many school officials consider it more than just offensive. Students might feel threatened or intimidated by the flag. They could feel unsafe and distracted from their learning environment even if the school has no history of racial-motivated fighting. Schools have the authority to censor speech that could disrupt a student’s ability to learn, so the school could likely ban the Confederate flag due to its tense history.
HISTORY & BACKGROUND
The Confederate flag carries a long history and its meanings are hotly debated.
CIVIL WAR
The American Civil War was fought because, among other things, the northern and southern states disagreed on the question of whether to abolish slavery. In 1860 and 1861, eleven southern states seceded from the rest of the country and formed the Confederate States of America, led by Jefferson Davis and General Robert E. Lee.
Sometimes known as the Southern Cross, the Rebel flag, or the Dixie flag, the design of the Confederate flag as we know it today is the ‘Stars and Bars’ pattern adopted by the Confederate Congress in 1861. However, contrary to popular belief, this flag was only used by the military for less than a year, then was replaced with a battle flag that wouldn’t be confused with the Union stars and stripes on the battlefield. Because ‘The Stars and Bars’ was first Confederate national flag, it came to represent the Confederacy in later years.
LATER YEARS
After the Civil War, the flag was mostly used in historical films like Gone With The Wind. In the 1950s and 60s, the Confederate flag reappeared as a symbol of opposition to the civil rights movement. To some, the flag is a symbol of southern heritage and rural values. To many, however, the flag is symbolic of racism, segregation and white supremacy –– and it has sparked antagonism in schools across the country. Today, it shows up on ball caps, belt buckles, t-shirts, blue jean jackets, and is flown from the beds of pickup trucks.
The Flag as Speech
According to the Supreme Court, student speech is protected under the First Amendment, though not as much as adult speech. ‘Speech’ can include expressive conduct, like flying a flag or wearing a flag on clothing.
Schools have the authority to shut down speech that is likely to cause a substantial disruption to the learning environment. This disruption could be fights between students, arguments that take away from class time, or anything else that gets in the way of a student’s ability to learn. The school doesn’t have to prove that this disruption actually happened, just that it could see that a disruption might happen. Normally, to censor speech based on the Confederate flag, the school must show that a disruption could foreseeably happen, and it would be caused by the flag.
If the school has a history of racial tension (fights breaking out, racial slurs being used, etc.), wearing the Confederate flag could foreseeably cause a disruption. Even before a fight happens, it’s easy for the school to predict that bringing the flag into a tense environment could cause a disruption. So, the school can ask students to change their clothes or take the flag down from cars parked in the school parking lot.
The Flag as Intimidation
In some cases, students have displayed the flag to intentionally intimidate others. For example, in one school, students hung the Confederate flag in a hallway on the same day new African-American students were admitted. The school could punish the students for this speech because such intimidation would get in the way of the African-American students’ ability to have a safe learning environment.
Any School Can Shut Down This Speech
Even if there is no history of fights or intimidation in your school, it’s likely any school can stop students from displaying the flag. There have been far too many incidents of violence and tension around the country involving the flag. For example, in August 2017, members of a white nationalist movement displayed the flag to protest the removal of a statue of Robert E. Lee in Charlottesville, Virginia. The demonstration turned violent, causing the city to go into a state of emergency. Because of this history, a school could decide that even wearing the Confederate flag on school grounds could create a risk of substantial disruption.
Even though students do have a right to free speech, schools have a responsibility to ensure that all students feel safe in their schools. If a school feels like students wearing the Confederate flag could in any way disrupt that, it can ban the Confederate flag.
Have questions about free speech rights?
Send your questions our way, and we'll have our team find you an answer. Keep in mind, we’re not actually your lawyers and aren’t representing you. We can definitely help clear some things up and give you some info, but if you need actual legal help for your situation, you should find a lawyer in your area. And don't worry, any information we collect is only for our own research, and we won’t share it or sell it to anyone.
