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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF WEST VIRGINIA
`AT CHARLESTON
`
`FRANKLIN BRAGG,
`
`Plaintiff
`
`V.
`
`CIVIL ACTION NO. 2:05-0355
`
`JOYCE VESSEY SWANSON
`
`in her official capacity as
`
`principal of Hurricane High School and
`THE BOARD OF EDUCATION
`
`OF THE COUNTY OF PUTNAM,
`
`Defendants
`
`MMORANDUM OPINION AND ORDER
`
`Pending is plaintiff's motion for a preliminary
`
`injunction and temporary restraining order, filed May 3, 2005.
`
`Pursuant to Rule 65(a)(2),
`
`the court ordered the trial of this
`
`action advanced and consolidated with the hearing on plaintiff's
`
`motion.
`
`The parties consented to this action both prior to, and
`
`during,
`
`the bench trial conducted on May 9, 2005.
`
`I.
`
`Introduction
`
`This action involves a high school student who was
`
`disciplined for wearing a T—shirt that displayed the Confederate
`
`flag.
`
`He wore the shirt in observance of his southern heritage.
`
`For some,
`
`the mere mention of the emblem evokes strong feelings.
`
`

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`The focus of this opinion, however, is not alone on the
`
`Confederate flag. Rather, as observed by then—Chief Judge
`
`Wilkinson in another flag—inspired case, a much broader principle
`
`is at stake:
`
`When a legislative majority singles out a minority
`viewpoint in such pointed fashion, free speech values
`cannot help but be implicated. And it is as a free
`speech case, not as a Confederate flag case, that this
`appeal must be resolved.
`
`It is important to keep the issue here in some‘
`perspective. The vast majority of Virginians have no
`desire to display a Confederate logo on their license
`plates. The vast majority of Virginians seek venues
`other than a motor vehicle tag for the observance of
`their lineage, and do not view the Confederate flag as
`symbolically celebrating their line of descent. The
`vast majority of Virginians understand that one
`motorist‘s proclamation of heritage is another's
`reminder of the unspeakable cruelties of human bondage.
`The vast majority of Virginians recognize the sad
`paradox of Confederate history-—namely, that individual
`southerners, so many good and decent in themselves,
`
`swore allegiance to a cause that thankfully was lost,
`and to practices that no society should have sought to
`defend.
`
`But the First Amendment was not written for the
`
`vast majority of Virginians. It belongs to a single
`minority of one. It is easy enough for us as judges to
`uphold expression with which we personally agree, or
`speech we know will meet with general approbation. Yet
`pleasing speech is not the kind that needs protection.
`
`Sons of Confederate Veterans, Inc. v. Commissioner of Virginia
`
`Dept. of Motor Vehicles, 305 F.3d 241, 242 (4th Cir. 2002)
`
`(Wilkinson, C.J., concurring in denial of rehearing en banc).
`
`With this in mind,
`
`the court proceeds to the analysis.
`
`2
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`

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`II. Findings of Fact
`
`A.
`
`Prior Racial Incidents in Putnam County Schools
`
`Hurricane High School
`
`(“school”)
`
`is located in Putnam
`
`County.
`
`It has a student population of 1004, 14 of whom are
`
`African—American. Plaintiff Franklin Bragg is an eighteen (18)
`
`year—old senior at the school. While enrolled there, he has
`
`enjoyed a relatively unblemished disciplinary record.
`
`Defendant Joyce Vessey Swanson was named the new
`
`principal (“principal”) at the school for the 2004-2005 school
`
`year.
`
`She is employed in that capacity by the defendant Board of
`
`Education of the County of Putnam (“board”).
`
`The principal, who
`
`once served as a teacher at the school from 1975 to 1988,
`
`formerly served as assistant principal at Poca High School in the
`
`same county from 1988 to 1997. Later, she served as principal of
`
`Buffalo High School from 2000 to 2004, another secondary
`
`educational institution in the county. During her tenures at
`
`these schools,
`
`the principal had several negative experiences
`
`with the Confederate flag (“flag”):
`
`1.
`
`In 1989, one of the first, if not
`Poca High School.
`the first, African—American student at the school
`joined the cheerleading squad. At the initial pep
`
`3
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`some fellow students greeted her from the stands
`rally,
`by wearing flag attire and unfurling large flags
`between them. This caused the cheerleader to leave the
`
`floor.
`
`The principal confiscated the items.
`
`2.
`
`two students wearing flag
`In 1994,
`Poca High School.
`attire referred to a male African—American student as a
`
`“nigger” and used other racial epithets when he exited
`the school bus.
`
`3.
`
`In 2002, an incoming freshman was
`Buffalo High School.
`greeted outside the school by a group of students
`displaying the flag.
`The students were also wearing
`the flag on their clothing, exhibiting it on their
`vehicles, and generally creating a gauntlet—like
`environment calculated to intimidate the student.
`
`Some
`
`The
`other students came to the young man's defense.
`situation was subsequently defused by a combination of
`both disciplinary action and the movement of staff
`within the school.
`The principal stated the incident
`was very disruptive to the learning environment.
`
`After arriving at the school, and implementing the
`
`dress code changes discussed infra, an incident occurred in
`
`September 2004.
`
`A new ninth grade African—American student left
`
`his spiral notebook in a classroom. When the student returned to
`
`retrieve it, he found someone had defaced it with a variety of
`
`racist language and symbols.1
`
`(Defs.’ ex. 1.)
`
`The student was
`
`1Etched on the cardboard cover was written “Roger is a
`nigger” and “nigger lover.” Near the bottom of one inside page
`was a small sketch of the flag just above which was written
`“rebel” and just below which was written “nigger hater.” On
`another page was written “Shut up nigger” and “nigger’s” with one
`undecipherable, struck—through word located below it, along with
`another unclear word appearing further below an intervening
`drawing of an eight-pointed star.
`The words and images are
`(continued...)
`
`

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`understandably distraught and missed a day of school.
`
`Unfortunately,
`
`the perpetrator(s) was never identified.
`
`Despite this incident, Lisa Adkins indicated that there
`
`is a good racial environment at the school. This is significant
`
`because Ms. Adkins regards herself as an African—American,
`
`although her lineage is 1/3 each African—American, Caucasian, and
`
`Native American.
`
`She observed that people of both races mix
`
`freely at the school and are friendly with one another.
`
`She has
`
`not seen any disputes of a racial character involving flag
`
`paraphernalia during her time at the school. While recognizing
`
`that her testimony may possibly be influenced by a desire to
`
`maintain cordial relations with her fellow students at the
`
`school, which appears to be heavily Caucasian,
`
`the court credits
`
`her testimony which stands unimpeached.
`
`B.
`
`The Dress Code
`
`The board has promulgated a Policy Manual setting forth
`
`the rules and regulations applicable to the schools under its
`
`jurisdiction.
`
`The applicable provisions follow:
`
`1(...continued)
`difficult to decipher in view of the fact that defendants were
`only able to tender a xerox copy of the notebook.
`
`5
`
`

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`Attire and appearance. Students in Putnam County have
`the right to equal educational opportunities.
`In order
`to create a learning environment and to foster good
`citizenship within the school,
`the following attire and
`appearance rights and responsibilities are established
`during the regular school day with the intention of
`
`providing students with the greatest freedom in
`deciding what they can wear to school and at the same
`time protecting everyone's right to equal educational
`opportunities.
`
`These regulations are minimum standards for attire and
`appearance.
`Schools may require additional standards
`as may be appropriate.
`
`Students have the right to wear any clothing or
`accessories imprinted with slogans or advertisements as
`long as they do not contain obscenity, profanity, or
`advertisements of illegal drugs.
`
`Inappropriate Dress or Grooming — A student will not
`dress or groom in a manner that disrupts the
`educational process or is detrimental to the health,
`safety, or welfare of others. A student will not dress
`in a manner that is indecent or distractive,
`to the
`
`extent that it interferes with the teaching and
`learning process,
`including wearing any apparel that
`displays or promotes any drug, alcohol, or tobacco
`related product that is prohibited in school buildings,
`on school grounds,
`in school—leased or owned vehicles,
`and at all school sponsored functions.
`
`Board of Education of the County of Putnam, Policy Manual §
`
`S.5.2, S.5.l7.4(6)
`
`(Jul. 25, 1995 and supp. June 7, 2004).
`
`The board policy makes no mention of the flag.
`
`Indeed,
`
`neither the words “confederate” nor “rebel” appear anywhere in
`
`

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`the 270 page document.
`
`The principal’s prior experiences with
`
`the flag at other schools, however, along with a request from the
`
`school's faculty senate to ban its display,
`
`influenced her to
`
`expand the school's dress code in that regard.
`
`To that end,
`
`the
`
`school instituted a “DRESS CODE ENFORCEMENT[,]” policy (“policy”)
`
`at the beginning of the 2004-2005 school year which, as devised
`
`by the principal, provides pertinently as follows:
`
`WHAT County Policy SAYS
`
`HOW IT WILL BE INFORCED [SIC]
`
`6. Offensive language or
`
`symbols are not permitted.
`
`Profanity, vulgarity, sexual
`innuendo, and racist language
`and or s
`ols or
`ra hics are
`
`prohibited. This includes
`items displaying the Rebel
`flag, which has been used as a
`symbol of racism at high
`schools in Putnam County.
`
`(Ex. 2 at 2
`
`(emphasis added).)2 Students are permitted to wear
`
`items bearing the flag’s image to after—school, extra—curricular
`
`activities.
`
`The principal stated that if the ban is ever lifted at
`
`the school it will result in a significant exhibition of the flag
`
`2While the text on the left hand side following the number 6
`above may have been the product of an effort to reasonably
`interpret the board policy,
`the court notes the language nowhere
`appears therein.
`
`

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`that will be disruptive of the school environment.
`
`She conceded
`
`that prior to her arrival at the school the flag was a
`
`permissible mode of expression and no complaints or incidents
`
`ever attended its display.3 The principal also acknowledged that
`
`the flag can be found at the school in text book illustrations
`
`and on materials located within the school library.
`
`The school permits students to wear clothing bearing
`
`other content—specific expressions. Most significantly,
`
`some
`
`students have worn, and continue to wear, Malcolm X T—shirts,
`
`which one court has identified as being tied to what it terms the
`
`the principal
`3Without reference to any dates or identities,
`testified to two incidents during the current school year where
`students who had previously worn flag clothing to the school used
`racist language on an occasion when flag attire was not being
`worn.
`In view of the apparent lack of the flag being employed
`during the incidents,
`the court does not assign any significant
`weight to the observation.
`The court also sustained a hearsay
`objection, and thereby implicitly struck,
`the principal’s
`testimony regarding another lesser incident.
`The court notes that William Michael Ellis, a teacher,
`
`testified on cross-examination simply that the flag had caused
`disruption at the school prior to the principal’s arrival and
`implementation of the new policy but did not relate the nature of
`the disruption.
`He noted no disciplinary action was ever
`undertaken though, suggesting the “disruption” may have been of a
`more benign genre.
`The testimony lacked both specificity and a
`temporal anchor. Mr. Ellis harbors decided feelings concerning
`the flag. He noted that, prior to the policy, he commented on
`flag clothing from time to time and “told [students] his own
`personal viewpoint on it.” The court also notes the principal’s
`observation that she was never informed of any flag—related
`incidents at the school prior to implementation of the policy.
`
`8
`
`

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`“Black Muslim movement.” Castorina ex rel. Rewt v. Madison
`
`County School Bd., 246 F.3d 536, 541 (6th Cir. 2001).
`
`The
`
`Malcolm X T—shirts have been worn by white students before, and a
`
`few times since, plaintiff was disciplined in November.4
`
`Students wearing clothing with prohibited messages
`
`relating to alcohol have not been disciplined at times.
`
`Plaintiff stated he sees two or three of these shirts each day,
`
`with references to Jim Beam, Jack Daniels, and tequila, without
`
`consequences enuring to the offenders.
`
`C.
`
`Plaintiff's Clothing
`
`Plaintiff has a wardrobe filled with clothing and
`
`accessories upon which the flag appears.
`
`In addition to his belt
`
`buckle, every shirt but two that plaintiff owned bore a flag
`
`symbol. During his three years at the school, plaintiff wore a
`
`T—shirt with some depiction of the flag on it nearly every day.
`
`On a monthly average, plaintiff wore flag—bearing clothing every
`
`school day but one.5
`
`‘The principal stated it would be permissible for students
`to wear a variety of politically inspired clothing,
`including
`everything from shirts advocating John Kerry to shirts
`proclaiming President George W. Bush as “an idiot.”
`
`5On this single day out of the month, plaintiff wore other
`(continued...)
`
`

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`Plaintiff described his array of flag T-shirts in great
`
`detail.
`
`The first shirt displayed the flag and the American
`
`flag, along with another blazon that he could not recall.
`
`The
`
`second bore the image of a “little Chow dog” in a doghouse
`
`wearing a rebel flag bandana on its head.
`
`The third exhibited a
`
`Ford truck with the flag in the background.
`
`The fourth displayed
`
`two puppies near a football superimposed over an image of the
`
`flag. Another shirt exhibited the flag along with an image of an
`
`alcohol product. Plaintiff, however, deemed this shirt
`
`“inappropriate” for school, and he did not wear it there.
`
`The particular shirt (“shirt”) that precipitated the
`
`initial disciplinary action resulting in the filing of this
`
`lawsuit was offered as plaintiff's exhibit four at trial.
`
`It
`
`bore a small 2 inch by 4 inch graphic on the front that had the
`
`words “Dixie Outfitters” superimposed over the flag.
`
`(Pl.’s ex.
`
`4.)
`
`On the reverse side is a 10.5 inch by 11 inch image of a
`
`bloodhound whose paws are hanging over the busted out portion of
`
`a wooden fence with an image of part of the flag in the
`
`background, and the words “Dixie Outfitters” at the top and
`
`5(...continued)
`types of shirts,
`including one containing the fireman’s prayer.
`The shirt, and others like it, were worn in observance of
`plaintiff's service to the Hurricane Volunteer Fire Department.
`
`10
`
`

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`“Southern Comfort” and “Blood Hound” at the bottom.
`
`(EQL) There
`
`is also a score tally visible, with the “Rebels” leading the
`
`“Yanks.”
`
`(;g;) The principal does not assert the shirt in any
`
`way offends the school's policy aside from its inclusion of the
`
`flag. There is no suggestion in the record that any part of the
`
`shirt other than the flag itself is seen as an offensive symbol.
`
`The belt buckle in issue bore a 1 inch by 1.75 inch
`
`image of the flag, along with a listing of the original
`
`Confederate states.
`
`(Pl.’s ex. 5.) Plaintiff wore it every day
`
`for over three years while at the school.
`
`He wore during the
`
`school day one of the foregoing shirts on the average of once
`
`each day per school week.
`
`D.
`
`Plaintiff's Heritage and the Reaction to His Clothing
`
`Plaintiff has a strong sense of his southern heritage.
`
`He wore the flag shirts and belt buckle in observance of his
`
`roots. Plaintiff's father hails from Texas and other family
`
`members claim southern heritage as well. Plaintiff also had
`
`relatives who fought on the side of the Confederacy during the
`
`Civil War. One of plaintiff's existing relatives participates in
`
`Civil War reenactments.
`
`ll
`
`

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`There is no basis in the record for concluding that
`
`plaintiff, who has African—American friends, is a racist.‘ One
`
`such friend, Lisa Adkins, testified at trial as earlier noted.
`
`Adkins, a senior at the school, stated that plaintiff's clothing
`
`does not bother her and that other African—American friends are
`
`not offended by the shirt.
`
`She also testified that no racial
`
`animus has ever been directed toward her by individuals wearing
`
`flag clothing.
`
`Over the course of the three-plus years plaintiff wore
`
`clothing and accessories exhibiting the flag, neither he nor the
`
`school received a single complaint or comment concerning them.
`
`Additionally, as testified by Lisa Adkins, seventy—five (75)
`
`to
`
`eighty (80) percent of the students wore flag apparel at the
`
`school prior to the ban.
`
`‘On cross examination, plaintiff acknowledged that he once
`used the “‘N’ word” while playing in a football game.
`He
`explained he did so after African—American students on the
`opposing team used a variety of derogatory terms toward him and
`fellow teammates during the game,
`including “crackers.” He
`seemed genuinely contrite about the incident, stated the
`offensive term “slipped out[,]" and he accepted his ejection from
`that game and the game suspension he received as punishment.
`Importantly, pe added that the use of that deplorable word is not
`a part of his heritage. Although plaintiff offered an
`explanation as to why he used the term, he conceded, as he must,
`his guilt in uttering an unforgivable racial slur.
`The court has
`credited his testimony in its entirety.
`
`12
`
`

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`E.
`
`The November and February Incidents
`
`In November 2004, plaintiff wore the shirt to school,
`
`along with the belt buckle.
`
`The principal confronted plaintiff
`
`about the shirt and explained that items displaying the flag were
`
`banned from the school. Plaintiff was required to remove the
`
`shirt or wear it inside out.
`
`No mention was made of the belt
`
`buckle.
`
`The school record states that plaintiff was directed to
`
`serve one day in noon detention hall for violating the ban, but
`
`plaintiff says it was four periods of detention.
`
`The punishment
`
`left him only five minutes on each such day to eat his lunch and
`
`nearly caused him to miss the deadline for ordering certain
`
`graduation materials. Plaintiff obediently refrained from
`
`wearing the shirt, or any of his other flag shirts, for the
`
`remainder of the school year to this point.
`
`Four months later,
`
`in February 2005, plaintiff was
`
`confronted by teacher Ruben Ellis. Mr. Ellis asked plaintiff to
`
`hide the flag image on his belt buckle and plaintiff ultimately
`
`complied.
`
`The two visited the office of Sara Welch,
`
`the school's
`
`assistant principal, who formerly served at Buffalo High School
`
`with the new principal. Ms. Welch told plaintiff to remove the
`
`13
`
`

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`belt buckle.
`
`She concedes she never received any complaints
`
`about the buckle from fellow students. Plaintiff was
`
`additionally warned that consequences would follow if he wore the
`
`item again. Ms. Welch explained that plaintiff spoke with her at
`
`length and sincerely represented to her that he wore the flag as
`
`a statement of his heritage and not because of any racial animus.
`
`She responded that the flag was part of her heritage too,
`
`in that
`
`an ancestor owned slaves, and that she was not proud of the
`
`symbol.
`
`In the end, plaintiff complied and bought a new belt
`
`buckle.
`
`F.
`
`The Litigation and Request for Relief
`
`On April 28, 2005, plaintiff instituted this action
`
`with a verified complaint. His one—count pleading alleges that
`
`defendants’ actions violated his rights under the First
`
`Amendment.7 He seeks:
`
`[1] permanent injunctive relief;
`[defendants’] actions
`
`[2] a declaration that
`were and are
`
`7In paragraph 3 of his complaint, plaintiff alleges “this
`court has pendent jurisdiction of Plaintiff's state
`constitutional claims to freedom of speech guaranteed by article
`III §§ 1, 23, 7,10, 11, 15 16 and 20 of the West Virginia State
`Constitution.”
`(Compl. 1 3.) Plaintiff disclaimed any reliance
`upon state law at trial.‘ Accordingly,
`the court reaches only the
`First Amendment claim.
`
`14
`
`

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`in
`.
`.
`unconstitutional, illegal, and void, and .
`contravention of Plaintiff's constitutional rights;
`[3] expungement
`.
`.
`. of any reference to the
`disciplinary action relating to his .
`.
`.
`[flag
`. for
`.
`clothing].
`.
`.
`[;]
`[4]
`.
`.
`.
`reimburse[ment]
`.
`his reasonable attorneys’ fees, expenses, and costs
`and all such further relief as the Court may deem
`just and proper.
`
`(Compl. prayer for rel.)
`
`III. Conclusions of Law
`
`A.
`
`The Applicable Standard
`
`The First Amendment provides “Congress shall make no
`
`law .
`
`.
`
`. abridging the freedom of speech .
`
`.
`
`.
`
`.” U.S. Const.
`
`amend. I.
`
`In Tinker v. Des Moines Independent Community School
`
`Qisty, 393 U.S. 503, 504 (1969),
`
`the Supreme Court observed the
`
`“wearing of an armband [in school] for the purpose of expressing
`
`certain views .
`
`.
`
`.
`
`. was closely akin to ‘pure speech’
`
`entitled to comprehensive [First Amendment] protection[.]” Id;
`
`at 505-06.
`
`The Court has also held, however, “the constitutional
`
`rights of students in public school are not automatically
`
`coextensive with the rights of adults in other settings.” Bethel
`
`School Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
`
`15
`
`

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`In determining the applicable standard by which to
`
`judge the school's policy, a trilogy of Supreme Court cases are
`
`relevant.
`
`The starting point is Tinker. Our court of appeals
`
`has distilled Tinker’s analysis:
`
`Responding to the school authorities‘ attempt to
`justify their actions by reason of a concern about the
`possibility of the armbands' creating a disturbance in
`school,
`the Court held that, "in our system,
`undifferentiated fear or apprehension of disturbance is
`not enough to overcome the right to freedom of
`expression." IQ; By contrast, "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 class work or involves substantial disorder or
`invasion of the rights of others is, of course, not
`immunized by the constitutional guarantee of freedom of
`speech." Id; at 513, 89 S.Ct. 733. Accordingly, Tinker
`"requires a specific and significant fear of
`disruption, not just some remote apprehension of
`disturbance." Saxe v. State Coll. Area Sch. Dist., 240
`F.3d 200, 211 (3d Cir.200l).
`In sum, "if a school can
`
`point to a well-founded expectation of disruption-
`especially one based on past incidents arising out of
`
`similar speech—-the restriction may pass constitutional
`muster." Id. at 212.
`
`Newsom ex rel. Newsom v. Albemarle County School Bd., 354 F.3d
`
`249, 256 (4th Cir. 2003)
`
`(emphasis added).
`
`The second case is Fraser, where a student employed a
`
`generous amount of sexual metaphor to nominate a classmate for
`
`office.
`
`The offending student instituted suit after he was
`
`punished.
`
`In upholding the school's intervention,
`
`the Supreme
`
`Court noted “society's ... interest in teaching students the
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`boundaries of socially appropriate behavior.” Fraser, 478 U.S.
`
`at 681.
`
`The opinion authorizes school administrators to promote
`
`the “fundamental values of ‘habits and manners of civility,’” by
`
`“insisting that certain modes of expression are inappropriate and
`
`subject to sanctions.” ;g; at 681, 683. Fraser is thus properly
`
`understood as an exception to Tinker's disruption requirement.
`
`That requirement, under Fraser, is avoided when the banned speech
`
`is “lewd, vulgar,
`
`indecent, or plainly offensive.” Newsom, 354
`
`F.3d at 256.
`
`The third case is Hazelwood School Dist. v. Kuhlmeier,
`
`484 U.S. 260 (1988).
`
`In Hazelwood, school officials censored two
`
`articles that were to appear in the school newspaper. One
`
`article dealt with the pregnancies of certain enrolled students
`
`and the other discussed how divorce impacted young adults. Both
`
`stories were censored based upon the principal’s fears that,
`
`respectively,
`
`(1)
`
`the identities of the pregnant students were
`
`insufficiently masked, and (2)
`
`the divorced parents were not
`
`given sufficient time to respond to the piece.
`
`The newspaper staff instituted suit, but the Supreme
`
`Court aligned itself with the school for a variety of reasons,
`
`including the following considerations:
`
`(1)
`
`the paper was not a
`
`public forum,
`
`(2) publication was a school-sponsored activity in
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`an advanced journalism class,
`
`thus leading readers to infer
`
`school approval of the newspaper's content, and (3)
`
`the important
`
`privacy interests enjoyed by both the pregnant students and the
`
`families in the midst of divorce. Ultimately,
`
`the Supreme Court
`
`held “that educators do not offend the First Amendment by
`
`exercising editorial control over the style and content of
`
`student speech in school—sponsored expressive activities so long
`
`as their actions are reasonably related to legitimate pedagogical
`
`concerns.”
`
`Id. at 272-73 (footnotes omitted).
`
`Regarding Fraser, and despite defendants’ arguments to
`
`the contrary,
`
`the display of the flag is not pg; gg and patently
`
`offensive.
`
`In an analogous case,
`
`the United States Court of
`
`Appeals for the Eleventh Circuit observed two distinct ways in
`
`which the flag is viewed:
`
`The plaintiffs‘ experts plan to testify that "the
`Confederate battle flag is not a symbol of racism, but
`rather a historical symbol embodying the philosophical
`and political principals [sic] of a decentralized form
`of government in which states and local government
`retain all powers not expressly ceded to the
`centralized federal government under the constitution"
`and that thus the flag is merely "a symbol of southern
`heritage."
`The defendant's expert plans to testify
`that "from its inception,
`the confederacy was a
`political movement dedicated to the preservation of the
`institution of slavery. Therefore from its inception,
`the confederacy and its symbols represented approval of
`white supremacy" and that "the confederate flag is a
`symbol that has acquired numerous racist associations
`to the point that the flag itself has understandably
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`come to be perceived as a racist symbol."
`
`The problem, of course, is that both of them are
`correct.
`
`Scott v. School Bd. of Alachua County, 324 F.3d 1246, 1248-49
`
`(11th Cir. 2003); Sons of Confederate Veterans, Inc. ex rel.
`
`Griffin v. Commission of Virginia Dept. of Motor Vehicles, 288
`
`F.3d 610, 624 (4th Cir. 2002)
`
`(noting competing views and
`
`interpretations regarding the flag).“ The same observation holds
`
`in the context of this case. Although some seventy—five (75)
`
`“Our court of appeals has discussed Confederacy—related
`symbols on several occasions.
`For instance,
`in Crosby by Crosby
`v. Holsinger, 816 F.2d 162 (4th Cir. 1987), students instituted a
`First Amendment challenge to a principal’s ban on the school's
`longstanding “school mascot and logo[,] the figure of ‘Johnny
`Reb,’ a caricature of the emblematic Confederate soldier.” Id.
`
`The district court dismissed the complaint as frivolous.
`at 163.
`After noting “there was no indication of disruption or violence
`in the school's history that had been occasioned by the use of
`‘Johnny Reb[,]’” the court of appeals reversed.
`Id; at 163.
`doing so, Judge Ervin observed for the panel that “The Supreme
`Court has not been receptive to schools that prohibit students
`from wearing items of clothing with political significance.”
`at 164.
`
`Id.
`
`In
`
`After a second appeal following development of the merits,
`the court of appeals turned away the students’ challenge under
`Hazelwood:
`
`Under the recent Supreme Court decisions noted above,
`school officials have the authority to disassociate the
`school from controversial speech even if it may limit
`student expression. Principal Holsinger was within his
`power to remove a school symbol that blacks found
`offensive.
`
`Crosby by Crosby v. Holsinger, 852 F.2d 801, 803 (4th Cir. 1988).
`
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`percent of the students at times prior to the policy wore flag
`
`paraphernalia at the school, their actions generated no
`
`complaints or incidents of a racial nature. Accordingly, Fraser
`
`is of little utility here.
`
`The same analysis holds true with Hazelwood.
`
`No
`
`reasonable person would attribute school sponsorship to any
`
`individual student's decision to wear flag clothing.
`
`Accordingly,
`
`the Tinker standard governs the analysis.
`
`See
`
`Newsom, 354 F.3d at 257; Castorina ex rel. Rewt v. Madison County
`
`School Board, 246 F.3d 536, 541 (6th Cir. 2001).
`
`B.
`
`Prior Precedent Involving Tinker and Flag Restrictions
`
`There are a handful of circuit court decisions
`
`addressing school flag bans.
`
`The factual settings in these
`
`cases, along with the relief awarded,
`
`inform application of the
`
`Tinker analysis.
`
`The first case is Scott.
`
`In Scott, a three—page, per
`
`curiam opinion, a principal instituted an unwritten ban on
`
`display of the flag. When two students violated the ban,
`
`they
`
`were disciplined and subsequently filed suit.
`
`In upholding the
`
`ban,
`
`the court observed “School officials presented evidence of
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`racial tensions existing at the school and provided testimony
`
`regarding fights which appeared to be racially based in the
`
`months leading up to the actions underlying this case.”
`
`Id. at
`
`1249.
`
`Second,
`
`in Sypniewski v. Warren Hills Regional Board of
`
`Education, 307 F.3d 243 (3rd Cir. 2002),
`
`the court was faced with
`
`the constitutionality of “a public school's racial harassment
`
`policy against a background of demonstrated racial hostility.”
`
`;g; at 246.
`
`The policy “was enacted [in 2001]
`
`in response to a
`
`pattern of disturbing racial incidents [from 1999 to 2001].” The
`
`incidents are profound in scope. Among others,
`
`the school
`
`experienced the following egregious events:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`A student appeared for a school Halloween party in
`black face with a noose around his neck;
`
`A student complained about fellow students wearing tee
`shirts emblazoned with an image of the confederate
`flag,
`some of whom for