Over a vigorous dissent by one judge, a full federal appeals court on Monday refused to reconsider a panel's decision that upheld a Tennessee school district's prohibition on any student display of a Confederate flag.
The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, declined to re-examine a decision of a three-judge panel of the court in favor of the Anderson County, Tenn., district and its ban on Confederate symbols.
The panel ruled last November that the school district was justified in barring Confederate symbols because the community had never overcome racial tensions since the district was desegregated in the 1950s. A concurring judge said a Confederate flag on a T-shirt was likely perceived by many students as a "statement of racial hostility." (I blogged about the panel decision here.)
In his dissent from the denial of rehearing in Defoe v. Spiva, U.S. Circuit Judge Danny J. Boggs said the panel decision "eviscerates the core holding in Tinker v. Des Moines Independent Community School District that student speech can be suppressed only based on its disruptive potential, not on its content."
Boggs said the panel misread the U.S. Supreme Court's 2007 decision in Morse v. Frederick, which carved out an exception from Tinker's student speech protections for messages perceived as promoting illegal drug use.
"Morse does not give the slightest hint that schools are authorized to suppress any speech that either they or an appellate court deems contrary to the school's mission or core values," Boggs said.
He said the panel's view that Confederate symbols are racially hostile and contemptuous might be true in some circumstances, but that characterization wasn't proved in the Anderson County case. Under the panel's logic, an American flag might be perceived as racially hostile to recent immigrants, or a Mexican flag in a U.S. public school could be taken as hostile to "Anglo" students, Boggs said.
"Similarly, T-shirts with legends of Che Guevara or Mao Tse-Tung could certainly be taken by many as displaying hostility and contempt toward their victims and the victims' supporters or descendents," Boggs said. "May those images too be banned?"
"Surely what is revealed by these examples ... is that the law in the Sixth Circuit is now that 'nice symbols' (e.g., black armbands, which I imagine the majority would concede are still controlled by Tinker) must be permitted, but 'naughty symbols' (e.g., the Confederate flag) can be banned without further analysis," Boggs said. "This is directly contrary to Tinker and, indeed, to any type of fidelity to First Amendment doctrine."