In Virginia school parking lot, new questions about Confederate flag

Behind the suspensions this week at a Virginia high school over a Confederate flag ban lurked a restive question in an age of symbol sensitivity: How far can a school district go in messing with someone’s truck?

More than 20 students at the school were suspended Thursday after refusing to remove clothes that depicted the tipped-over St. Andrew’s cross. A pro-flag rally brought attention to the group of students, who said they were acting not out of hate, but as part of a United States civics debate, asking the school to justify at least the perceived marginalization of Southern history.

The frustration at Christiansburg High School in the mountains near Blackburg, Va., arose from a new district policy banning any Confederate symbol not just from the school, but also from the mini flagpoles and rear windows of vehicles in the parking lot. The Confederate flag-specific policy angered some students, given that trucks and rebel flags have long been a nostalgic pairing.

Banning Confederate flags from trucks in the school parking lot is in some ways the latest skirmish over how America thinks about the impact of symbols on race relations. A group of about 40 people, including Christiansburg High School students and their supporters, gathered near the school Friday to call on administrators to reverse their policy, the Associated Press reported. Some students said they’ll continue to wear their rebel gear.

That could lead to at least one legal tangle, with students fighting for freedom of expression and with schools testing the extent to which Confederate symbols can be torn down from the public square – in this case, a parking lot.

“There’s emotion here when we’re talking about the Confederate flag or the US flag, but we really have to step back and say that the focal point here is disruption, not whether or not you like the symbol,” says Gene Policinski, a First Amendment expert and chief operating officer of the Newseum Institute in Washington. At the same time, “I think we have to be very wary anytime the government constrains speech. We have a right to be offensive; we’re not required to be nice.”

Free speech expressions at school have a long history of judicial oversight. They’re underscored by a 1969 US Supreme Court decision, Tinker v. Des Moines Independent Community School District, in which the justices held that students “don’t shed their constitutional rights at the school house gates.”

Last year, however, the high court declined to take up the appeal of a federal court decision that found a principal at Live Oak High School in Morgan Hill, Calif., was within his rights to ban the US flag on Cinco de Mayo because he thought it would disrupt classes.

A key part of that case was that the majority-Hispanic school had a long history of racial tension and violence, including 30 hallway fistfights in the span of a school year. For their part, Christiansburg officials say there was a Confederate flag-inspired fight at the school in 2002.

Christiansburg isn’t the only US high school dealing with parking lot disputes.

Just two weeks ago, a South Carolina high school principal restored the ability of students to have flags on their cars, as long as they weren’t the Confederate flag. A few days earlier, school officials had combed the parking lot and cut down flags from vehicles, including the US flag, citing a new policy.

The issue is particularly sensitive in South Carolina, where the state legislature in July voted to retire the flag from the State House grounds. That decision came after Dylann Roof, who is accused of killing nine black parishioners on June 17 at a historic church in Charleston, S.C., was depicted waving the Confederate flag.

But the renewed push against the flag has created a backlash: The rural South is now frequently the stage for impromptu truck protests where large and small Confederate flags are flown.

Most Confederate flag supporters say it’s simply a point of pride for those whose ancestors fought for the Confederacy. But critics point to the use of the flag by Southern governors during the civil rights era, when it became a powerful symbol of racial segregation.

As for the situation at Christiansburg, some believe the students may have the opening for a lawsuit. A key factor would be the extent to which administrators could point to specific incidents that prompted them to reasonably fear disruptions at the school. Whether the fight in 2002 applies now is a big question.

Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, told The Roanoke Times that she believes the school’s parking policy might be violating the students' free speech rights because the application of the rule to private vehicles has nothing to do with expression inside the school building.

Moreover, the Supreme Court does not allow, per Tinker, administrators to ban certain symbols arbitrarily. Montgomery County Public Schools spokeswoman Brenda Drake explained in a statement, "We are not issuing a judgment on the flag, but know that not allowing it ... supports a peaceful educational environment in the building. Continued racial friction suggests that lifting the ban of this particular symbol would cause significant disruption at the school."

Still, a 2007 decision in another Supreme Court case limited students’ free speech rights. In that case, an Alaska high-schooler was suspended after he unveiled a banner reading “Bong Hits 4 Jesus” on a public sidewalk outside his school. The justices said the suspension didn’t violate speech rights.

Christiansburg High School, which has 1,100 students, 8 percent of whom are black, is the only one of four high schools in the district to single out Confederate symbols.

If a legal case ensues, it will be important whether the district's explanation for the ban is specific enough.

“It’s a case that can be brought when you ask the school to give its justification, and its justification may not pass muster,” says Trevor Burrus, managing editor of the Cato Supreme Court Review. “At some level, what it means for the First Amendment to apply is that you can demand from government some sort of explanation and evidence for actions of censorship.”

He adds, however, “In school [situations, officials] don’t have to give as good of a justification as in other situations.”

Mr. Policinski of the Newseum Institute says school officials are probably in the legal right as they put safety and education first, over politics and cultural debates. Yet the deeper issue may not be as easy to adjudicate, he notes.

“For people who don’t like the Confederate flag, they might consider that 50 to 60 years ago, schools were banning people from speech that had to do with civil rights.”