Is the Confederate flag constitutionally protected? Not at this high school.

The principal of Bloomington High School North said the flag is too disruptive a symbol to have a place on campus. 

Ryan Kang/AP
Chance White waves a Confederate battle flag as he drives away from Roseburg Regional Airport in Roseburg, Ore., Oct. 2015.

Indiana high school students that wore Confederate flags as capes to class last week have renewed a debate over the extent to which the speech of public school students is protected by the First Amendment.

The principal of Bloomington High School North, about an hour from Indianapolis, says that the flag has no place at school. In an email to parents Wednesday, Jeffrey Henderson wrote his administration has banned the flag because it has created a disruptive, divisive environment on campus.

“As an educational institution, one of the things we focus on is teaching tolerance for opposing points of view and civil discourse surrounding controversial issues. Balancing the First Amendment rights of all individuals in a democracy can be a challenging task. Doing that with teenagers can prove to be even more challenging,” writes Mr. Henderson, in the email provided by Indiana Public Media. “This issue has evolved into one that has created a substantial disruption to the educational environment.”

Long a divisive symbol, the Confederate battle flag has become even more contentious after it was featured in photographs with the Charleston church shooter in 2015. As municipalities have voted whether to fly the flag, opponents say the saltire stands for lingering racism, pointing to its use by Southern governors during the civil rights era. But supporters say it’s more about pride for those whose ancestors fought for the Confederacy.

Schools have been confronted with not stifling either of these conflicting viewpoints. Some, including the Indiana high school and Christiansburg High School in Virginia, have found these views irreconcilable. They banned the flag, arguing the contentiousness of the symbol trumps the free-expression rights of students.

“There’s emotion here when we’re talking about the Confederate flag or the US flag, but we really have to step back and say that the focal point here is disruption, not whether or not you like the symbol,” Gene Policinski, a First Amendment expert and chief operating officer of the Newseum Institute in Washington, told The Christian Science Monitor’s Patrik Jonsson in 2015. At the same time, “I think we have to be very wary anytime the government constrains speech. We have a right to be offensive; we’re not required to be nice.”

Officials at the Indiana high school weighed these options before they issued the ban Wednesday. The controversy started when three students wore the flags around their necks the entire school day, according to Indiana Public Media. Administrators said they couldn’t force the students to remove the flags, citing the 1969 Supreme Court case, Tinker v. Des Moines, which extends constitutional rights such as free speech to all public school students. But one exception to the law is if the expression of free speech disrupts learning environments in schools.

The administration found that was the case, after several students complained to administrators.

One of the complaining students, Tamara Brown, told the Indiana Daily Student, the student newspaper for nearby Indiana University, that she was  stopped by “multiple students wearing Confederate flags as hats and capes draped across their bodies…They yelled things such as, 'If you want to start stuff, then we’ll start stuff too,' and 'The South will rise again.'”

“That certainly caused a substantial disruption to the school day and the school environment,” district spokesperson Andrew Clampitt told Indiana Public Media. “Anything that causes those types of disruptions we’re certainly not in favor of.”

Likely adding to the administration’s concern were other incidents involving high school students in the state this month. Pictures taken from Snapchat and circulated through other social media showed the Confederate flag at a party. One image contained the caption, “Confederate lives matter,” an apparent mock of the Black Lives Matter movement, the Indianapolis Star reported.

While the high court protected students’ First Amendment rights in 1969, it indicated there are exceptions with schools that banned offensive symbols for safety reasons.

In 2014, a principal at Live Oak High School in Morgan Hill, Calif., banned the US flag on Cinco de Mayo because he thought it would disrupt classes. The Supreme Court declined to take up the appeal to the federal court decision that sided with the principal. A key part of the case was the majority-Hispanic school had a long history of racial tension and violence, including 30 hallway fistfights in one school year, according to school officials. 

Further complicating Tinker v. Des Moines and subsequent decisions is whether bans can extend to school parking lots and private property in plain view, such as cars. Christiansburg High School in Virginia believed it does. The school banned the symbol from both its hallways and the mini flagpoles and rear windows of vehicles in the school parking lot.

“Banning Confederate flags from trucks in the school parking lot is in some ways the latest skirmish over how America thinks about the impact of symbols on race relations…Some students said they’ll continue to wear their rebel gear,” writes the Monitor’s Mr. Jonsson. “That could lead to at least one legal tangle, with students fighting for freedom of expression and with schools testing the extent to which Confederate symbols can be torn down from the public square – in this case, a parking lot.”

Another central question in this debate is whether the “heckler’s veto” doctrine should apply to public schools, writes Eugene Volokh, a law professor at the University of California, Los Angeles, in an op-ed for The Washington Post in 2015.

Under that doctrine, government officials generally can’t stop speech in public places based just on a fear (even a reasonable fear) that the speech will lead to violent attacks on the speaker, at least unless an outright riot is looming. If one thinks this doctrine carries over to K-12 schools, then such fear of people trying to fight the speaker shouldn’t count for Tinker purposes. But if one thinks that the doctrine doesn’t carry over to K-12 schools, and that school administrators should be free to prevent substantial risks of material disruption whatever the disruptive mechanism might be, then Confederate clothing would indeed generally be restrictable.

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