Published by MoASBO, September 2017

The events of the last several weeks involving hate speech and a variety of symbols have been memorialized by the media.  It would be unrealistic to expect that there will not be a degree of spill over in our public schools.  It may take the form of confederate flags or confederate memorabilia.  It may take the form of swastikas or clothing depicting Antifa or other hate related material.  Regardless of the nature, displays of symbols which may be perceived as hateful or intimidating raise serious constitutional issues.

However, care should be taken to balance the First Amendment rights against potential disruptions.  Constitutionally protected speech comes in a variety of forms.  We are probably most familiar with protected speech that is spoken, written, or electronically displayed.  The messages portrayed on flags, t-shirts, stickers, belt buckles, hats, etc. may be a form of still another form of constitutionally protected speech, symbolic speech.  I am sure that we all remember our graduate school law class and remember Mr. Tinker who chose to wear a black arm band to school.  What was Mr. Tinker trying to communicate?  His message was to oppose the Vietnam War.  More importantly, many of his fellow students and likely some staff members understood the message that he was attempting to convey with his armband.

So, there are really two questions to consider.  First, is the material or symbol constitutionally protected? And second, if the material or symbol is constitutionally protected, may it be banned or limited?

How do we determine whether a symbol is constitutionally protected?  Let’s use the confederate flag as an example.  The initial question, does the flag convey a message or not?  Most would  agree that it does.  At this stage, it does not matter whether the flag is seen as a historical or cultural symbol or whether it is seen as a racist or threatening symbol, it is associated with a message. It is therefore protected.  What if the flag consisted of red and yellow stripes?  If the red and yellow flag was not associated with anything, it would not be protected.

We can now move to the next step.  Do people seeing the flag understand that it is sending a message?  Remember many of the Des Moines students understood Mr. Tinker’s armband to convey his objection to the Vietnam War.  If the confederate flag is being displayed to convey its historical context, it will be protected.  What if the flag is intended and is viewed by other students as the display of racism.  Is it still protected?  Yes, it is.  Remember, the First Amendment is not designed to protect only speech with which we agree.  Rather, the strength of the First Amendment is that it protects speech with which we may totally disagree.  Also, remember that obscenity and vulgarity have no protections whatsoever.

Just because the confederate flag may be a form of symbolic speech, that does not mean that it cannot be limited or banned.  If the flag has caused substantial disruption among students, such as threats of violence or bullying, then the flag may be banned.  In a case before the Federal Court of Appeals, a case that Sarah Schmanke and I defended, the Eighth Circuit held that school officials do not have to wait until there are fights, threats of violence, or other disruptions at school before banning the symbol.  Moreover, the substantial disruption itself, or the incidents on which administrators rely to predict future substantial disruptions, need not be limited to school premises.  Rather, incidents of substantial disruptions or reasonable predicates of disruption may occur in the schools’ community at large.  Name calling, vandalism, confrontation away from school, and outside of school time will support an administration decision to ban the causable symbol.  If however there is no evidence of substantial disruption and no basis to reasonably predict a substantial disruption, the flag as protected speech, may not be banned or limited.

Our discussion about items of clothing as a vehicle for disparaging symbols is not limited to school buildings.  Rather, it extends to the school parking lot.  If there has been a substantial disruption related to the flag, or the reasonable anticipation of related substantial disruptions in the future, flags and bumper stickers may be banned.  In this instance, banning may mean being excluded from school parking lots until the flag or related symbols are covered.