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Symbols in School

A New Jersey case complicates school officials' attempts to ban the wearing of symbols like the Confederate flag.

The Southern Legal Resource Center (SLRC) claims that Castorina v. Madison County School Board, 246 F.3d 536 (6th Cir. 2001), is "first and foremost the ONLY pro-Confederate student free speech case in any of the United States Circuit Courts of appeals."

But given the SLRC's penchant for exaggeration (see Cashing in on the Confederacy), it should surprise no one that Castorina not only is not "the ONLY pro-Confederate" appellate decision, it is not even the most significant one. That distinction belongs to Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3rd Cir. 2002), a case that originated north of the Mason-Dixon Line and has the potential to give school administrators fits.

More than three decades ago, the Supreme Court ruled that students do not shed "their constitutional rights to freedom of speech or expression at the schoolhouse door." Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). To prohibit student expression — be it speech, the wearing of black armbands as a sign of protest, or the wearing of Confederate flag emblems as a sign of regional or ethnic pride — school officials must point to more than an "undifferentiated fear or apprehension of disturbance." Instead, they must point to evidence that they have reason to anticipate that the expression will "substantially interfere with the work of the school or impinge upon the rights of other students."

The Castorina decision is simply an application of these same principles. The case was filed after two Kentucky students were suspended from school for insisting on wearing T-shirts emblazoned with the Confederate flag and the slogan "Southern Thunder."

Because it was not clear that the school had experienced any racial unrest from past displays of Confederate symbols and because the suspended students claimed that the school had let black students wear clothing with racially divisive messages, the appellate court ruled that the lower court had erred in ruling for the school district without a trial.

The school in the Sypniewski case, in contrast, had experienced significant racial turmoil. A group of white students known as "the Hicks" had marked what they called "White Power Wednesdays" each week by sporting Confederate flag clothing. After racial tensions escalated into threats and fights, the school board enacted a policy that prohibited students from wearing "racially divisive" clothing. The policy was even-handed — it referred to both white supremacist and black power fare.

Thomas Sypniewski was one of the students who wore a Confederate flag shirt during the period of racial unrest. His shirt carried the slogan "Not only am I perfect, I'm a Redneck too!" The Confederate battle flag could be seen through the letters in the word "redneck." Less than ten days after the school board enacted its new policy prohibiting "racially divisive" clothing, Thomas showed up at school wearing a T-shirt that listed the "Top 10 reasons you might be a Redneck Sports Fan" inspired by comedian Jeff Foxworthy.

"The thought crossed my mind," Thomas was quoted in his local newspaper as saying, that the shirt was "going to piss people off." (Thomas later denied making the remark.) When Thomas refused to remove the shirt, he was suspended. With the backing of the Center for Individual Rights, a conservative law firm best known for bringing challenges to university affirmative action policies, Thomas and his brothers filed suit.

In a split decision, the court of appeals ruled that school officials had probably violated Thomas' First Amendment rights when they suspended him. In an opinion more notable for its verbal gymnastics than for its realism, the court ruled that the term "redneck" was not sufficiently similar to the expressions and symbols that had caused racial problems at the school despite the fact that Thomas had worn a shirt with the word "redneck" and a Confederate flag on it during the period of racial unrest, despite the racial connotations of the term "redneck," and despite the in-your-face timing of the incident.

The Sypniewski decision has the potential to cause tremendous headaches for school officials. Even if they are justified in prohibiting racially divisive clothing because of a history of racial turmoil at their schools, they will likely face challenges from belligerent, but clever students wearing clothing sufficiently similar to the banned fare to threaten problems, but sufficiently different to make the issue a debatable one.

Faced with the prospect of federal judges second-guessing their decisions, prudent school officials will be tempted to adopt broad, but easy-to-administer policies requiring student uniforms rather than narrow, but difficult-to-enforce policies banning only the kind of clothing that has caused problems. Student self-expression will be sacrificed in the process, but school administrators will avoid lawsuits.

Sypniewski may be a First Amendment victory for Thomas and his brothers, but it may lead school administrators to stifle the rights of future students.

Perhaps the most ironic thing about the Sypniewski case is that it arose in a northern state like New Jersey. The champions of the word "redneck" were not Southerners, but proud Polish-American brothers living less than 100 miles from New York City. They claim that there was nothing racial in their actions. But to us, the case looks like a reflection of the ethnic nationalism that is growing throughout the country.