In a very recent decision, the U.S. Sixth Circuit Court of Appeals had the opportunity to review the legally required analysis in matters involving student symbolic speech. The Court, in Defoe v Spiva, upheld the school district’s right to discipline a student who wore a t-shirt, and, later, a belt buckle, with images of the Confederate flag.
In Defoe, a Tennessee high school age student wore a t-shirt to school which bore an image of the Confederate flag. He was informed by school officials that this was a violation of the student code of conduct. The student was asked to either remove the t-shirt or turn it inside out. When he refused, he was sent home.
A week later, the same student wore a belt buckle to school that had an image of the Confederate flag. When he refused to remove the belt, he was suspended.
The student and his father brought suit in federal district court in Tennessee. The court denied their request for injunctive relief. Following a lengthy procedural history, the court ultimately entered summary judgment in favor of the school district.
The student and his father pursued an appeal to the Sixth Circuit Court of Appeals (the Court that also has jurisdiction over appeals from federal courts in the State of Michigan). After reviewing the several U.S. Supreme Court cases that address the First Amendment rights of students in the school setting, the Court found that its analysis would be guided by Tinker v Des Moines Independent Community School District (1969). In Tinker, the Supreme Court upheld the students’ rights to wear black armbands in school as an expression of their opposition to the Vietnam War. The Supreme Court noted that there was no evidence in that case that the wearing of the armbands would “substantially interfere with the work of the school or impinge upon the rights of other students.” While actual interference or disruption is not required to be shown, it is not sufficient simply to attempt to avoid controversy. There must be a “reasonable forecast” of substantial disruption.
In the Defoe case, there was a great deal of evidence about racial incidents and tensions that had occurred in the school district. The Court found that the Tinker standard was satisfied and that the school was within its rights in regulating the conduct in question.
It is interesting to note that two members of the three-judge panel in Defoe expressed the opinion that the school was not required to satisfy the Tinker standard in order to regulate the wearing of articles of clothing displaying the Confederate flag. They looked to other Supreme Court precedent and said that the general rule should be that school administrators can limit speech in a reasonable fashion to further implement policies at the heart of public education.
First Amendment cases in the school setting are very much dependent on the particular facts and circumstances. While the courts have recognized that students do not have the same First Amendment rights in school that exist away from school, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”