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A controversial symbol that can stand for Southern pride as well as racial prejudice has been banned from three North Carolina public school districts.
Durham Public Schools became the latest district to censor the Confederate battle flag on students’ clothing and accessories, following the Orange County and Chapel Hill-Carrboro school systems’ lead.
Durham’s new dress code bans the Confederate flag along with the swastika and logos or insignia associated with the Ku Klux Klan on the grounds that they’re “reasonably expected to intimidate other students on the basis of race,” according to the Herald-Sun newspaper.
This flawed policy presumes any design a student can find offensive is inherently intimidating — a leap of logic the school board failed to support.
Schools and government agencies certainly shouldn’t fly the Confederate flag from public poles, but there’s a vast difference between institutional and individual speech. No reasonable person would presume slogans and pictures on high-schoolers’ T-shirts represent the school’s official position.
Censoring the rebel flag slams the door on discourse between students about what the symbol really represents. Under the new policy, Confederate flags in slashed circles would be forbidden along with Sons of Confederate Veterans and “Dukes of Hazzard” T-shirts. Students can show neither support for nor opposition to the banished banner.
First Amendment scholars say banning the Confederate flag in public schools when it hasn’t been a catalyst for substantial disruption may run afoul of the Supreme Court’s 1967 Tinker v. Des Moines ruling, where black armbands worn in a student protest of the Vietnam War were found to be protected speech.
Unfortunately, the 4th U.S. Circuit Court of Appeals — whose jurisprudence is binding on North Carolina — snubbed its nose at Tinker and gave Confederate censors the green light in the 2013 Hardwick v. Hayward case.
“The 4th Circuit recognized Tinker as the proper legal standard, but applied the standard with none of the skepticism that a proper Tinker analysis demands,” Frank LoMonte wrote in a review of the case for the Student Press Law Center.
Like Durham, the Latta School District in South Carolina forbade a student from wearing Confederate flag T-shirts and justified the heavy-handed rule by wringing its hands over conflicts that existed only in administrators’ prodigious imaginations.
“But Tinker requires that preemptive censorship be based on concrete factual experience demonstrating that disruption is imminent,” LoMonte notes. “The Supreme Court counseled in Tinker that ‘undifferentiated fear or apprehension of disturbance is not enough to overcome the freedom of expression.’”
To justify their bans, Durham, Orange County and Chapel Hill-Carrboro rely on alarmism that would make Chicken Little blush. Their fabricated forecasts of school disruption are the very definition of “undifferentiated fear or apprehension.”
Government censorship is a lesson unworthy of our public school scholars. Educators who believe the Confederate flag to be an outmoded symbol of slavery should use the controversy as a teachable moment. Debates are won through persuasion, not coercion.