Timothy Castorina, a former student at Madison Central High School in Richmond, Ky., sued the school claiming that his First Amendment rights were violated when he was suspended in 1997 for wearing a Hank Williams Jr. T-shirt, which featured two Confederate flags and the phrase "Southern Thunder" on the back.

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

Principal William Fultz suspended the students for violating the 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 wearing the T-shirts to celebrate Hank Williams Sr.'s birthday and to express their southern heritage, were suspended twice for three-day periods.

A federal district court dismissed the case in 1998, stating that wearing the shirts was not considered expressive conduct under the First Amendment.

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

"The plaintiffs intended to express more than a mere appreciation for the life and music of either performer," Judge Merritt wrote in the decision. "Because the plaintiffs' intended expression was both a commemoration of Hank Williams, Sr.'s birthday as well as a statement affirming the plaintiffs' shared southern heritage, their decision to wear the Hank Williams T-shirts constitutes speech falling within the First Amendment."

The panel compared the case to Tinker v. Des Moines Independent Community School District. In Tinker, the U.S. Supreme Court ruled that students' First Amendment rights were violated when school officials prohibited the wearing of black armbands to protest the Vietnam War.

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

The Sixth Circuit panel ruled that Castorina's case was similar to Tinker because school officials at Madison Central High School allowed other students to wear clothing with depictions of Malcolm X, while banning the Confederate flag.

Kirk Lyons, one of Castorina's attorneys, said he is happy with the decision.

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

Castorina's case was sent back to the district court to determine how the school enforced the dress code and whether there was any racially based violence at the school before the suspensions that could have justified the ban on Confederate symbols.

© 2001 Student Press Law Center

For More Information:

The Sixth Circuit's decision in Castorina v. Madison County School Board is available online at: http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=01a0064p.06