An Oregon school bus driver has won the first round of a free speech lawsuit claiming his First Amendment rights were violated when he was fired for refusing to remove a Confederate flag from the back of his pickup truck.
Kenneth Webber had worked as a K-12 bus driver for nearly six years in Oregon’s Jackson County School District 4. But he lost his job after he repeatedly refused a supervisor’s order to remove the three-by-five-foot flag – emblazoned with the work “Redneck” – from his truck while it was parked on school district property.
Mr. Webber filed a lawsuit in federal court charging that his former employer, his former supervisor, and the school superintendent violated his free speech right to express controversial or offensive ideas without facing censorship or punishment from the government.
On Thursday, a federal magistrate upheld the lawsuit, and said Webber’s case should proceed to a trial to determine whether his constitutional rights were violated.
“The law governing Webber's First Amendment rights is clearly established. The display of a flag is an act of symbolic expression protected under the First Amendment,” Magistrate Judge Mark Clarke concluded.
He said there was no evidence in the case that any student had seen Webber’s flag or that the display on his pickup truck had been in any way disruptive to school district operations.
The magistrate judge said that given those facts it appeared that the school district’s interests in preventing the display of a Confederate flag did not outweigh Webber’s constitutional right to freedom of expression.
“The US Supreme Court has held that it is ‘a bedrock principle underlying the First Amendment … that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,’ ” John Whitehead, president of the Rutherford Institute, said in a statement.
“Ken Webber’s case is a clear example of what happens when free speech and political correctness collide,” he said.
Webber’s case is being litigated by lawyers with the Rutherford Institute, a Virginia-based advocacy group.
The controversy began in February 2011 when School Superintendent Ben Bergreen noticed the Confederate “Redneck” flag on Webber’s truck.
The superintendent asked a supervisor of the bus drivers to instruct Webber to remove the flag from his truck while it was parked in a district-owned parking lot.
Mr. Bergreen expressed concern that the Confederate flag was a symbol of racism and that it might violate the district’s anti-harassment policy. The policy is designed to avoid any “jokes, stories, pictures or objects that are offensive, tend to alarm, annoy, abuse or demean certain protected individuals and groups.”
The supervisor ordered Webber to take down the flag or face suspension from his job. Webber refused. Next, he was ordered to remove the flag or lose his job. That’s when he was fired.
Webber disputed the accusation of racism. He said he is merely a “backyard redneck.”
“I work for what I have. I support my family. It’s just who I am. I’m a redneck. It’s a way of life,” he is quoted as saying.
Webber had been flying his flag on the pickup truck and parking in the same school district parking lot for a year and a half before the superintendent noticed it.
It will now be up to the federal judge in the case to accept or reject the magistrate’s recommendation. If it is accepted, Webber’s case would be scheduled for trial.
The case is Webber v. First Student, Inc. (11cv3032).