In Charlottesville and Albemarle County right now, activists are trying to get local school boards to adopt policies that would prohibit Confederate flag T-shirts. Can they, consistent with the First Amendment?
A group called the Hate-Free Coalition is arguing that the Supreme Court’s decision in Tinker v. Des Moines School District — which struck down a policy that prohibited arm bands — allows the schools to ban Confederate paraphernalia. What is sometimes referred to as the “Tinker test” is basically this — Does the speech or expression of the student “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school?”
The first thing that will be apparent is that this test contains an implicit validation of a concern that First Amendment theorists have a hard time dealing with — that whether speech is permitted depends on the reaction of the hearer. This is sometimes referred to as the “heckler’s veto.” Taken from the fact pattern of the guy on a soapbox in the park, the doctrine is that if a provocative speaker attracts hecklers who want to punch him in the mouth, we don’t allow the heckler to shut down the speaker by engaging in violence toward the speaker. First Amendment law says that we are to allow the speech and to prosecute those being disruptive.
It is worth going back to the actual language of the Court in Tinker, the case that said that Des Moines could not prohibit armbands generally, and anti-war armbands in particular:
The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (C.A.5th Cir. 1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538, 30 A.L.R. 1212 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507–08, 89 S. Ct. 733, 737, 21 L. Ed. 2d 731 (1969). The Court goes on to note that “our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students.” 393 U.S. at 509.
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol—black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam—was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.
393 U.S. at 510-511. The Court concluded:
… the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.
393 U.S. at 514.
So if there is a basis for suppressing speech in a school, it has to be tied to either disruptive conduct or some reason why the speech will cause “material and substantial interference with schoolwork or discipline.”
Does that mean that the test for whether we prohibit Confederate flag T-shirts is based on the reaction of those who see the T-shirt? Isn’t that precisely the “heckler’s veto” that First Amendment theory says we are not supposed to consider? That’s not the way that the First Amendment is supposed to work — speech that makes other people unhappy or uncomfortable or angry is still protected, under the First Amendment. And the answer, in a nutshell, is that “schools are different.”
So when the Fourth Circuit recently ruled on the question of whether a school can prohibit wearing a Confederate flag T-shirt, it held — first — that
… a student-speech case about the Confederate flag is merely a student-speech case and therefore, in a legal sense, no different than other student-speech cases that we have decided. See, e.g., Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565 (4th Cir.2011); Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249 (4th Cir.2003). Thus, despite the attention the Confederate flag may attract or the emotions that it may cause, this case is, at its core, a student-speech case governed by Tinker and other applicable Supreme Court precedent.
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 437 (4th Cir. 2013). The Court said that:
The record contains ample evidence from which the school officials could reasonably forecast that all of these Confederate flag shirts “would materially and substantially disrupt the work and discipline of the school.” Tinker, 393 U.S. at 513, 89 S.Ct. 733. Latta is a small Southern town in which whites and African–Americans were segregated, including in school, for more than a century. When the schools were finally integrated in the 1970–71 school year, the presence of racial tension was understandable. Over the past four decades, this tension has diminished, but it has not completely disappeared, as numerous incidents illustrate.
* * * *
…the proper focus is whether school officials could predict that the Confederate flag shirts would cause a disruption. See Tinker, 393 U.S. at 513–14, 89 S.Ct. 733; see also B. W.A. v. Farmington R–7 Sch. Dist., 508 F.Supp.2d 740, 749 (E.D.Mo.2007) (“[T]he plaintiff’s interpretation of the Confederate flag’s meaning is largely irrelevant because courts recognize that it is racially divisive in nature.” (citing Briggs v. Mississippi, 331 F.3d 499, 506 (5th Cir.2003))).
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 439–40 (4th Cir. 2013).
So we have a Fourth Circuit decision, saying that the Confederate flag is “racially divisive,” and that the school doesn’t have to wait for violence to erupt if in its experience it seems likely to provoke disruption. The countervailing case that some cite is Newsom v. Albemarle County School Board, 354 F.3d 249 (4th Cir. 2003), invalidating an effort to apply to an “NRA Shooting Camp” T-shirt an Albemarle County dress code prohibiting clothing that “contained messages related to weapons.” There, the Court found that there was no evidence that such a T-shirt had ever provoked violence before in concluding that the ban could not be constitutionally applied to such a T-shirt.
The upshot of these cases is that — at least in a school setting — the “heckler’s veto” is alive and well. How other kids are going to react to a provocative T-shirt can determine whether that T-shirt can be worn.
Question — suppose white students decide that they want to pick a fight with kids wearing “Black Lives Matter” T-shirts? Under the rationale of Hardwick and Newsom, that could give the administration an excuse to ban “Black Lives Matter” T-shirts.
Do we want the schools heading down that path? Does that open a school system up to the accusation of content discrimination, itself a First Amendment violation?
