Advice on Southern Civil Rights
for Parents and Activists

Nature and Extent of The Right of Students In The Public School System To Wear Clothing, Emblems and Symbols of The Confederacy on School Premises During Hours When School Is In Session.

Submitted by an SLRC affiliate attorney

I. INTRODUCTION

    In setting forth this explication of the right of students to wear clothing and symbols which honor their Confederate forbears, I do not desire to be perceived as being pessimistic or hesitant about their fundamental right to honor their ancestors and to express solidarity with their culture and heritage. Nevertheless, the temper of the times in which we live necessitates an attitude of realism about such matters. This is particularly true when one considers the absolute necessity of such young people to obtain as decent an education as they can in circumstances which can be, and frequently are, very tense and discomforting, to say the least.

     The best advice an attorney can give to parents of a student wishing to express Southern pride in a school setting may well be to advise them to withdraw the student from public school and either switch to a private school or homeschool. Sadly, this is the most effective method to protect the civil rights of a student proud of his Southern heritage. Of course this author realizes that private and homeschool options are not available to all families with this problem.

     Those of us that are of a traditionalist, conservative set of mind should believe very much in doing whatever we can to preserve our culture and civilization. In doing so, we can be thankful that we have as much freedom of speech and expression as we have in this country. We are most assuredly not as free as we were sixty or seventy-five years ago, but we are far more at liberty to express ourselves about the matters that concern us than are like-minded people in Great Britain, Canada and western Europe.

     Nevertheless, the context in which these freedoms exist today is heavily determined by which side of the great political, religious, racial and social cleavage that one places oneself. The nature, extent and breadth of the right to freedom of expression is determined whether, on the one hand, one is associated with the political and cultural left of American society, which includes liberals, homosexuals and various racial, religious and ethnic minority activists and, on the other, the social and political right, which includes among other groups, "the religious right," Southern traditionalists, anti-abortion activists, and European-American heritage groups. The nature and extent of the right of freedom of speech and expression will be examined and analyzed with regard to each of these groupings.

A. THE CULTURAL AND POLITICAL LEFT

     The late 1950's and the 1960's were characterized by an explosion of activism on the part of "civil rights" groups and the so-called "young" who demanded greater freedom from the constraints of the allegedly repressive culture that had existed in this country into the 1950's. This activism found its most prominent expression in the "civil rights" movement which was designed to emancipate Blacks from the constraints of segregation, particularly in the South, and in activism against the war in Vietnam. A movement that grew in parallel fashion to both of these crusades was the push for greater freedom of expression in human sexuality culminating in the "free love" and "homosexual rights" movements.

     Although this writer will not engage in any extended analysis of the opinions of the United States Supreme Court and lower courts dealing with freedom of expression and speech that arose in the context of these movements, it is safe to say that the jurists who were called upon to issue opinions in such instances were in virtual unanimous sympathy with these trends. This proposition is particularly true with regard to the United States Supreme Court and the various federal appellate courts. Moreover, these judges were greatly assisted and encouraged in writing such opinions by a multitude of law clerks, most of whom were graduates of prestigious, liberal-oriented law schools, who were generally speaking even more ardent in their support of these trends than were the judges that they served. Judges who wrote such opinions would be guaranteed favorable editorials and commentary by the liberal media. They knew they would also be considered for elevation to even higher positions in the judiciary. The law clerks who assisted them could anticipate receiving nice, cushy job offers from prestigious law firms or well paying jobs in the government bureaucracy, such as the United States Justice Department. They knew, and still know, intuitively that opposing these trends is not the path to personal and professional advancement and recognition.

     For these reasons, leftists and minority group activists who ran afoul of the law, particularly in what were regarded as narrow, prejudicial and parochial areas of the nation such as the Deep South, could always count upon the courts, particularly the federal judiciary, to construe and interpret the First Amendment guarantee of freedom of speech, as well as other constitutional rights, as broadly as they could be construed in order to protect them. In virtually every case, left-wing and minority activists were given the benefit of the doubt by the courts no matter how egregious and outrageous their conduct and behavior may have been to reasonable persons. Moreover, given the prevalent sexual libertinism of the left, even the vilest and most disgusting pornographer could find influential and powerful personages in the media and in the legal community who would take up his cause.

     This situation has continued to this very day.

B. THE CULTURAL AND POLITICAL RIGHT

     So called "Right-wingers ," abortion clinic protesters, non-violent White nationalists and other conservative activists have received a very different reception in the courts and the ambit of their First Amendment rights has been construed and interpreted in a very different manner. In the early 1970's, local police were allowed to beat anti-busing demonstrators in Louisville, Kentucky, with impunity, the federal authorities doing absolutely nothing about that outrage.

     In a similar vein, pro-life activists who have blockaded the entrance ways and approaches to abortion clinics have been treated on occasion with extreme brutality by local law enforcement authorities and yet, to the knowledge of this writer, no investigation by the FBI or any other federal agency has ever been ordered or conducted in order to determine whether anyone's civil rights have been violated in such instances. In fact, the full weight and might of the federal government has been thrown against anti-abortion protesters, and by and large, the compliant and leftist oriented federal courts have supported these repressive actions.

     Invariably, these politically incorrect activists are automatically labeled "racists" and "haters" by the Left and liberal media. These groups have received shabby and humiliating treatment in both the federal and state courts by judges who are anxious to show the media and other opinion molding segments of society how much in adherence and in support they are of the leftist, anti-religious, multi-culturalist program.

     While the right to freedom of expression still exists in its most basic and elemental form as to such individuals, the federal judiciary has left no room for doubt about the fact that it considers traditionalist views in and of themselves to be execrable and of little or no social value. In other words, the expression of pride in Southern heritage is protected solely because of the bedrock guarantee of freedom of speech and not because any of these interpreters and expounders of the law believe that such views have any socially beneficial value as truth.

     In making his ruling in the famous flag burning case, Justice Brennan said that "The First Amendment does not guarantee that other concepts virtually sacred to our nation as a whole - such as the principle that discrimination on the basis of race is odious and destructive - will go unquestioned in the marketplace of ideas." Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 2547 (1989). Similarly, in upholding the right of the State of Alabama to fly the Confederate flag above the state capital, the United States Court of Appeals of the Eleventh Circuit opined that "It is unfortunate that the State of Alabama chooses to utilize its property in a manner that offends a large portion of its population, but that is a political matter which is not within our province to decide." N.A.A.C.P. v. Hunt, 891 F. 2nd 1555, 1566 (11th Cir. 1990). Essentially these decisions and others like them say that but for the unequivocal and concise language of the First Amendment protecting freedom of speech, prevailing political and judicial establishments and elites in this country would see little harm done, and indeed great benefit, if such views which they consider to be socially and politically regressive were not expressed in any manner at all.

     And this attitude extends not just to extremist groups such as the Neo-nazis, the Ku Klux Klan and various skinhead groups. Whatever those of the "Magnolias and Mint Juleps," "Heritage, Not Hate" moderate Southern traditionalists may like to believe, the basic and unmistakable fact of the matter is that the powers that be in the media, in the courts and in the educational establishment see absolutely no redeeming value whatsoever in the veneration and remembrance of the Confederacy by Southern traditionalists of whatever stripe. Respect and regard for the Confederacy and its heroes does not do anything to advance their militantly egalitarian and globalist agenda and therefore they have no use for it.

     With regard to the purview and contours of freedom of expression of an individual who adheres to these beliefs, the logical conclusion is that the courts will in no way give such a person the "benefit of the doubt" in any situation wherein that person finds himself in a confrontation with the state and its servants. In fact, if such an individual is considered to be particularly troublesome, he may very well find himself to be the victim of spurious criminal charges that have clearly been trumped up as a means of persecuting him for his views. In such instances, it is virtually certain that reviewing and appellate courts, especially here in the South, will look the other way and allow such misconduct to proceed even though it is a blatant and palpable violation of fundamental rights of freedom of speech and expression.

     These differing applications of the right to freedom of speech in the federal courts must always be considered by the Southern heritage activist of whatever age when he embarks upon any course of action that could conceivably bring him or her into a confrontational situation with governmental authority.

III. THE FUNDAMENTAL AND CONTROLLING PRINCIPLES

     The seminal case on a student's right to freedom of expression is Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 (1969). That case dealt with the constitutional rights of high school students who desired to wear black arm bands to school as a means of protesting the war in Vietnam.

The Court held as follows:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained.

89 S.Ct. At 738.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system students may not be regarded as closed-circuit recipients of only that which the school chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expression of feelings with which they do not wish to contend."

89 S.Ct. At 739.

. . . conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. (cit.)

89 S.Ct. At 740.

     Some seventeen years after handing down the Tinker decision, however, the Supreme Court held that there are limits that school authorities can place upon a student's right to freedom of expression:

These fundamental values of "habits and manners of civility" essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these "fundamental values" must also take into account consideration of the sensibilities of others, and, in the case of the school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interests in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.

Bethel school district number 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159,3163 (1986)

The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided court upheld the right to express an anti-draft viewpoint in a public place, albeit in terms highly offensive to most citizens. (cit.) It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school.

106 S.Ct. At 3164.

The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission.

106 S.Ct. At 3165.

That it is constitutionally permissible for school authorities to circumscribe a student's manner of expression was reiterated and further explicated by the court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 567 (1988)wherein the Court said:

We have nonetheless recognized that the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings" (cit.), and must be "applied in light of the special characteristics of the school environment." (cit.) A school need not tolerate student speech that is inconsistent with its "basic educational mission." (cit.), even though the government could not censor similar speech outside the school.

     Lower federal courts in construing and interpreting these opinions have held that school administrators are entitled to take into account the circumstances in which the proposed speech or expression is likely to take place in deciding whether or not it can be expressed in the school setting.

When a conflict arises between a public school student's right of free speech and the authority of officials to prescribe and control conduct in the schools, a student's free speech right may not be abridged in the absence of facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities. Such justification for curtailment of the student's exercise of the right of free speech does not demand a certainty that disruption will occur, but only the existence of facts which reasonably lead school officials to forecast substantial disruption. Because of the state's interest in education, the level of disturbance required to justify intervention is relatively lower in a school than it might be on a street corner and the court may consider all circumstances confronting the school administrators which might reasonably portend disruption.

Jeglin v. San Jacinto Unified School District, 827 F. Supp. 1459, 1461 (C.D. Cal.1993)see also Chandler v. McMinnville School District, 978 F. 2nd 524 (9th Cir. 1992)and Karp v. Becken, 477 F. 2nd 171, 174-175 (9th Cir. 1973). Compare Burnside v. Byars, 477 F. 2nd (5th Cir. 1966)with Blackwell v. Issaquena County Board of Education, 363 F. 2nd 749 (5th Cir. 1966).

     It is important to note that the "probability of substantial disruption and interference" standard with regard to freedom of speech in the school setting materially displaces and supersedes a fundamental principle of First Amendment jurisprudence that is normally applicable to other situations concerning the right to freedom of expression. In normal circumstances, speech cannot be curtailed merely because those who hear it or otherwise perceive it may intensely dislike the message imparted or be otherwise negatively impacted by it. In other words, the Constitution admits of no "heckler's veto." See Boos v. Berry, 485 U.S. 312, 108 S.Ct. 1157, 1164 (1988)and Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 881-882.

     This fact has very significant and important implications for the young White Southern heritage activist who wishes to openly and visibly express his solidarity with and support of his Confederate ancestors. In racially integrated public schools where minorities comprise a significant portion of the student body and perhaps a majority, the following factors must be born in mind:

1. Many Blacks, particularly young Blacks, have adopted an adversarial and oppositional stance to the larger White society, a factor that gives them a group cohesion that they would otherwise not have. Moreover, after decades of being saturated with rhetoric from the media and their own leadership about "White racism," they have been conditioned in a Pavlovian fashion to hate the symbols of our ancestors such as the Confederate flag and "Dixie." Because of this prejudice, militant Blacks feel no need to respect or honor the dignity and integrity of those Southern heritage activists with whose opinions they disagree.

2. The very "coin in trade" for Black political advancement against conservative White society has been "righteous indignation" and anger against real and imagined slights to them by nefarious "White racists." Such incidents are always used by the Black political "civil rights" leadership to extract concessions from the Whites and to "perpetuate the movement."

3. These Blacks are further emboldened by the presence in school of a significant minority of socially marginal, self-loathing Whites who have defected from their own heritage and who are quite hostile to Southerners who are proud of their heritage.

     The conclusion necessarily follows that the presence of emotionally volatile students with anti-Southern prejudices in any considerable number in an integrated public school in and of itself poses a probability of "substantial disruption or material interference" with school functioning in the event of an open and expressive display of Southern cultural pride and social solidarity, particularly insofar as Confederate symbols are concerned. At least that is precisely the way the situation will invariably be perceived by sensitive and intimidated school officials who will do anything to maintain a superficial appearance of peace and tranquility in these institutions.

     The reaction of school officials in such circumstances will inevitably be to crack down upon and to limit the expressive freedoms of the pro-Southern heritage students since they are obviously more easily controlled for many reasons. This is precisely what happened in the case of Melton v. Young, 328 F. Supp. 88 (E.D. Tenn. 1971), affirmed, 465 F. 2nd 1332 (6th Cir. 1972). In that case Bryan Melton, a young high school student in Chattanooga, Tennessee, wore a Confederate flag armband to school as a means of protesting the forced integration of that institution and the attendant changes that took place during that process. The school officials told him to take off the armband which he refused to do. In consequence, he was expelled and he sued the school authorities over the obvious abridgement of his First Amendment rights. The United States district court upheld the actions of the school authorities in ruling as follows:

Unlike the Tinker case, where the court found no evidence of either actual or potential disruptive conduct but only an "undifferentiated fear or apprehension of disturbances," the record in the present case reflects quite clearly that there was substantial disorder at Brainard High School throughout the 1969-70 school year, that this disorder most materially disrupted the functioning of the school, so much so that the school was in fact closed upon two occasions, that much of the controversy the previous year had centered around the use of the Confederate flag as a school symbol, and that the school officials had every right to anticipate that a tense racial situation continued to exist as of the opening of school in September of 1970. Under these circumstances Brainard High School officials were not required to wait until another disruption occurred before restricting the use of the symbol previously found to have caused the disruption or to have contributed to the causing of the disruption.

328 F. Supp. At 98-99.

     Another United States district court was even more empathetic in stating that school officials have the right to ban the wearing of Confederate symbols when "the natives become restless," so to speak.

On the evidence before it, the court finds that the use of the Confederate battle flag by individual students was a source of violence and disruption at the school and that the tensions surrounding the symbols have not subsided but have increased, and will continue to increase. Under these circumstances the wearing or displaying of the Confederate battle flag by individual students while attending school or at school activities should be prohibited. This prohibition is not based on mere apprehension of disturbance, but on evidence indicating a substantial probability of serious disruption and violence if individual use is not limited.

Augustus v. School Board of Escambia County, 361 F. Supp. 383, 389 (N.D. Fla. 1973), affirmed, 507 F. 2nd 152 (5th Cir. 1975)

     Having established the fact that the courts have successfully asserted the prerogative of narrowly circumscribing the right of a student to wear Confederate symbols and regalia, the question remains as to what extent can a young patriotic Southerner express his esteem and regard for his Confederate forbears in a lawful manner. The following observations and recommendations are made:

1. Obviously the scope of a student's right to express himself in this manner is going to be greatly circumscribed and controlled in the public school setting by the demography of the school population, current conditions and issues that are preoccupying the minds of the students, the socio-economic status of the students who attend such a school, etc... Clearly in schools where Blacks comprise a heavy proportion of the population, a the school authorities are going to assume that they have greater power to ban the wearing of such symbols if they see the need to do so. Unfortunately, they will take this position even if there is no actual disruption.

2. Those students who desire to visibly and tangibly "show their colors" should do so in a dignified and non-inflammatory manner. The wearing of T-shirts and hats with sarcastic messages such as "You Wear Your X And I'll Wear Mine" and "It's A Southern Thing (referring to the Confederate flag) You Wouldn't Understand" should be discouraged in the school environment. The wearing of armbands should not be utilized. Instead, the wearing of a dignified lapel pin, similar to the SCV membership pin, should be encouraged. Perhaps even a jacket and a Confederate flag tie or scarf (in the case of young women) should be worn.

There should be nothing about the wearing and display of these symbols that would lead any reasonable person to believe that they are being used to antagonize, agitate or racially taunt Blacks or other persons who would dislike Confederate symbolism. The nature of such symbols should be that they can only be clearly recognized by other persons who wear them or who are otherwise familiar with them, particularly those persons that the wearer allows in close proximity to his person. Our Confederate symbols should always be used as a means of encouraging Southern solidarity and consciousness and not as a means of antagonizing Blacks or other sensitive liberal or minority groups.

 

By wearing such articles and symbols in an unobtrusive and dignified manner, the wearer greatly lessens the possibility that the school authorities can censor him or her for doing so. The federal courts have clearly indicated that the discretion of school authorities to prohibit the wearing or display of articles is governed by a rule of reasonableness, and surely most reasonable people would say that it would be manifestly unfair to prevent a student from wearing a lapel pin, a tie or a scarf merely because the Confederate flag was inscribed upon it or interwoven in it. See Broussard By Lord v. School Board of the City of Norfolk, 801 F. Supp. 1526, 1536 (E.D. Va. 1992)

3. A powerful argument can and should be made that students should be allowed to wear such symbols and emblems in an unobtrusive and dignified manner because they are, in fact, a separate and distinct ethnic group whose ethos and rituals compel them to identify in a visible and tangible manner with their Confederate ancestors. See Alabama and Coushatta Tribes v. Big Sandy School District, 817 F. Supp. 1319 (E.D. Tx. 1993) (Indian students could not be compelled to not cut their hair in order to comply with school dress code because Native American religion discourages the cutting of hair growing on the head) and Braxton v. Board of Education of Duval County, Florida, 303 F. Supp. 958 (M.D.Fla. 1969)(Black school teacher could not be forced to cut off his goatee because he considered the wearing of such a beard to be symbolic of his solidarity with the pride in being a member of the larger Black community). The writer of this memo believes that this is a particularly persuasive ground for arguing for the right to wear such symbols.

     The writer of this document understands that many of the more militant readers of this memorandum may fervidly disagree with its implications. However, those Southern students who are unfortunately constrained to pursue their education in schools where the atmosphere is not hospitable to the open expression of their views would do well to concentrate on "getting their union card" and getting out with as much of a genuine education as they can obtain in such circumstances. After all, if there is anything that our unfortunate defeat in the War for Southern Independence should have taught us, much thought and deliberation should attend the times and places that we pick to do battle.