Posted on 01/09/2003 7:45:41 PM PST by stainlessbanner
Amid a growing mound of Confederate flag cases, one unsettled legal issue in courts across the country is this: Can public schools ban the wearing of Dixie Outfitters and other Confederate T-shirts without running afoul of the First Amendment? The Dixie Outfitter shirts celebrate the Confederate flag—insofar as draping fuzzy baby bunnies, fuzzy puppies, and fuzzy duckies in flags could be said to constitute celebration. Schools in Florida, Georgia, Virginia, West Virginia, Kentucky, Michigan, and elsewhere have instituted bans, following complaints from parents and students who find them offensive. When Cherokee high school in Georgia banned the shirts last fall, student protests and ACLU lawsuits broke out in the lunchroom the way chicken pox used to.
Years of bickering over Confederate flags atop state capitols, on state flags and license plates, in parades and at football games haven't established as an aesthetic matter whether the flags mean racial hate or regional pride. Nor has anyone ruled as a legal matter whether they constitute threatening hate speech. A symbol African-Americans deem no less racist than a white hood or burning cross is simultaneously embraced by some white Southerners as a benign symbol of pride in their ancestors or respect for Civil War veterans. A recent Zogby survey published in the Atlanta Journal-Constitution found that while a third of its respondents believe the flag symbolizes "oppression and racial division," 55 percent felt it signaled only "heritage and history." To some Northerners and liberals, this is a semantic posture—indistinguishable from Trent Lott's claim that his loving defense of segregationist Strom Thurmond was race-neutral. After all, the Confederate flag is not merely the proud symbol of the Ku Klux Klan. It is linked inextricably with slavery, Jim Crow, and violent white protest against mandatory desegregation.
Fans of the Confederate flag don't always help their claim to tolerance and pluralism, with their repeated references to the South being the last bastion of Jesus and God or their insistence that African-Americans should stop acting like victims and start loving the rebel flag as it was meant to be loved. Still, speech is speech, and the courts have generally held that expressive clothes are speech. They've also held that the cure for hateful speech is more speech, not censorship. So, the case against the schools should be open and shut.
It isn't. And it doesn't help that the U.S. Supreme Court refuses to address the issue with nearly unprecedented zeal. Like last month's cross-burning case, a ruling on the meaning of the Confederate flag would require catering to either the sensibilities of the most offensive bigot or the most fragile listener. And while the First Amendment doesn't often care about that fragile listener, the courts care a lot when that listener is still in school—especially elementary or high school.
Since 1969, when the Supreme Court decided the landmark Tinker v. Des Moines Independent Community School District, courts have attempted to balance the rights of student free speech against the disciplinary and caretaking roles with which they are charged in loco parentis. Kids are to be stimulated and encouraged to think freely, while protected from harm or hurt feelings. In Tinker, the Supreme Court, by a 7-2 vote, invalidated a school policy that resulted in suspensions for three high-schoolers wearing black armbands to protest the war in Vietnam. Tinker was responsible for the famous claim by Justice Abe Fortas that "[P]ublic school students do not shed their First Amendment rights at the schoolhouse door." After Tinker, schools couldn't ban student expression unless there was some risk of that speech significantly interfering with school discipline.
That test was eroded by a 1986 decision, in Bethel School Dist. No. 403 v. Fraser, upholding the suspension of Matthew Fraser for his nomination speech of a classmate to student office, using what the court characterized as "elaborate, graphic and explicit sexual metaphor." The court in Fraser held that school bans on obscene language were a perfectly legitimate function of educators, since one of the main duties of a school is to inculcate "civility." The Fraser court also felt that while the Tinker students' political speech was of some social value, the purely sexual speech in Fraser was constitutionally worthless. But if you came away thinking that Tinker allows schools to ban only "fighting words" or speech that starts riots, while Fraser allows them to censor only explicit sexual speech, you're wrong. Somehow, in combination, these cases have come to mean that schools get to pick what speech is polite and what's not.
Following Tinker and Fraser—and since no one knows which is the law anymore—school administrators are left with what's effectively a veto over what constitutes "appropriate speech." This is why, in most of the disciplinary suspension cases involving school speech or clothing, the schools keep winning. For instance, in a Kansas case from 2000, a seventh-grader was suspended for drawing a Confederate flag in math class. The lower court upheld the suspension policy, citing the Tinker test of whether student disruption was likely, as well as the Fraser civility mandate. The 10th Circuit Court of Appeals agreed. The U.S. Supreme Court denied certiorari. In a 1997 South Carolina case, the federal district court upheld the suspension of a middle-schooler in a Confederate flag jacket. Again, although the jacket incited no actual violence, the court used the Tinker standard of possible fights to justify the ban on free expression. An 11th Circuit case from 2000 came down the same way, again in the interest of fostering "civility" in the schools.
In short, schools win by merely speculating that violence may break out or by resting on their authority to teach students to be sweet to one another. And this is precisely the sort of unbridled state discretion the First Amendment was designed to prevent. It lodges the exclusive power to limit or permit speech amid the preferences and prejudices of a single administrator or an elected school board. Yes, the Confederate flag is a racially divisive and possibly even a hateful symbol; but it's also a symbol that implicates American history, racial sensitivity, and the nuance of differing human perspectives. It's the whole darn social studies curriculum in a few stripes and bars; precisely the sort of subject best addressed through education and discussion.
If American kids can be counted on for anything it's this: Tell them they can't do/wear/say something and they'll do/wear/say it 'til their heads blow off. This is why Dixie Outfitters sold a million T-shirts last year, and why virtually every kid disciplined for wearing a Confederate flag to school shows up the day after the suspension in either the same T-shirt or one with a bigger flag. Yes, it would be a more civil world if we could all just agree once and for all that the Confederate flag is either beautiful or vile. But until that day comes, it would be a useful and educational exercise to at least hear one another out on the subject. One might think a school would be a good laboratory for such efforts. One would hope there's no better place to try.
We've been saying it for years. And soon it's going to come back and bite them in the rear. When something precious to all of the citizens in the respective states not born in God's own country is lost, all I can say is we told you so.
Translation: You lying Southern scum, you're all racists, admit it! You don't deserve to live!!!
If that were the case, then the Supreme Court and President Eisenhower should have agreed with Governor Orval Faubus, that desegregation could not be implemented because of the likelihood of disruption.
As are the Stars and Bars, but we never hear that, do we? Thanks for the ping, Stainless.
It's interesting how the Confederate flag (any version of it) is inexorably tied to these things while the American flag is not. Slavery existed under the American flag (1776-1865) much longer than under the Confederate flag (1861-1865). The American flag has been just as much of a KKK symbol as the Confederate flag. People need to wake up to this fact.
FRee dixie,sw
NOW, the damnfools/damnyankees are demanding that CSA flags not be flown on PRIVATE PROPERTY!
will this STUPIDITRY never end?
FRee dixie,sw
FRee dixie,sw
also, the last time the A.N.S.W.E.R. IDIOTS marched on DC there were MANY US flags, carried right beside diamond-shaped yellow signs with black SWASTIKAS, some of which were printed with the message: KILL THE JEWS!
the FACT that bigots use a symbol or do NOT use a symbol does NOT make the symbol bad, but rather the PERSON is the problem.
before anyone starts banning ANY symbol, stop & think: "is MY symbol NEXT??"
FRee dixie NOW,sw
The poll, published Thursday, suggested that the flag isn't very high on most Georgians' minds. In terms of urgency, it ranked way behind ethics reform and education.
[Minimize, minimize]
But most Georgians do feel they should have a say. Two-thirds of the 500 people questioned in the independent Zogby survey said voters should be consulted on flags, and a majority dislikes the new decal-coated 2001 flag. Yet only one in four Georgians, according to the poll, and only one in three white Georgians wants to return to the 1956 flag.
[Say what? Got that backed up? Or do we have a push question here?]
This last point seems important. Many political observers have assumed for years that, if put to a simple vote, the neo-Confederate flag of 1956 would win, buoyed by a huge majority of white male voters. But the reality is more complicated --- and surprisingly moderate.
[Soothing ooze of Dixie-snuffing liberal word-poison]
Perdue himself leaned toward moderation .... He might have added, but didn't, that the flag's eye-popping element, the Confederate battle emblem, is still widely linked with slavery, the Ku Klux Klan, Jim Crow and the white Southern backlash against federal desegregation.
[Purdue didn't, because that's your opinion.]
In any case, whatever got Perdue elected, he now seems in touch with a relatively practical and nondivisive public mood. And that's good.
[Translation: "I think we can roll this guy over!"]
It's possible, of course, that the flag fight will turn bitter again. And that would be bad. [Because things might get away from us and our thought-control techniques.] So here are some calming thoughts:
[More oozing, Dixie-slaying poison coming right up...]
> The AJC poll reflected this sharp division: Many Georgians (mostly white) see the Confederate battle flag as representing "heritage and history," while many other Georgians (mostly black) see it as an emblem of "oppression and racial division." OK. Strong symbols are like that. But here's something nearly everybody can agree on: Flags aside, Georgia's history has known gallantry, sacrifice, tragedy, white supremacy, human bondage, cruelty, and more!
[This is called changing the subject while trivializing the issue.]
> It could turn out that a poorly designed popularity contest would drive Perdue and the Legislature to embrace the inflammatory 1956 flag. But it isn't likely, and the national Republicans wouldn't want that, and the AJC poll suggests the numbers just aren't there....
[Aha! A strategy emerges......Notice, this writer is speaking for the national Republican Party now? How'd he get so plugged in? Did he call Karl Rove? "....national Republicans wouldn't want...."!!]
....Maybe Atlantans, in particular, should stop being so fearful of popular Georgia opinion. The state really is changing.
[Notice, he uses the word "Atlantan" as a synonym for "African-American" or "black". Notice also the apparent opposition between "Georgia" and "Atlanta".]
> If a new flag is in the cards, so be it. It could be totally new, or partly new, or we could resurrect some earlier state flag. Two promising flags are the pre-1956 flag, which combined the state seal with a Confederate device of a noninflammatory type (red and white stripes); and the unofficial 1799 flag, which has the state seal on a field of blue.
And there it is. His argument boils down to, there is no mandate for the old flag.....there are no "Georgia crackers" any more.......we needn't pay attention to "those people" any more. All is well, the South is dead.
They just had an election and his side lost. Now here he is, like a typical liberal newspaperman, trying to steal a win out of a butt-whipping anyway.
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