NAACP Request to Ban Confederate Flag in Orange County Schools at Variance with Constitutional Standards

The Raleigh News and Observer has recently reported that the Northern Orange County NAACP has again asked the Orange County (North Carolina) Schools Board of Education to ban the Confederate flag. According to the article (http://bit.ly/2lMFgMe)) NAACP President Patricia Clayton recently sent a letter to both the Orange County school board as well as Superintendent Todd Wirt, requesting that the school district ban the flag on school grounds.  According to the article, Clayton rationalized the NAACP’s request on the basis that the “. . . flag is a racially inflammatory symbol, which is undeniably rooted in slavery and racism" and further added that "[g]iven OCS’ commitment to serve all students, the district should not allow the Confederate flag on its campuses.”

This is the second time the Northern Orange County NAACP has made such a request.  On the previous occasion, school officials demurred to the request, citing instead district policies already in place which prohibit  student appearance or clothing that is “. . . deemed disruptive, provocative, indecent, vulgar, or obscene, or if it endangers the health or safety of the student or others.”

Notwithstanding the strong symbolic content of images of the Confederate Battle Flag which may be unsetting to some, First Amendment issues clearly complicate the manner of response made to the NAACP by the Orange County School system.  While it is true that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), it is also true that students do not "shed their constitutional rights to the freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988); Barr v. Lafon, 538 F.3d 554, 562 (6th Cir. 2008). Generally, school campuses are not public forums where the full protection of the First Amendment applies. Instead, schools are able to limit students' rights to free speech due to the special characteristics of the school environment where an appropriate learning environment must be maintained. It is important to note, however, that student speech may only be limited when on balance, the student interest in free speech is outweighed by a compelling governmental interest in maintaining discipline and preserving the learning environment necessary to accomplish the school's educational mission." Barr at 562. Usually this burden of proof requires a tangible demonstration that a particular form of speech is actually impeding discipline or disrupting the learning environment or would reasonably lead to such a situation. See DeFoe v. Spiva, 650 F. Supp. 2d 811, 819 (E.D. Tenn. 2009).

At present, the Northern Orange County NAACP has not made such an evidentiary showing. Moreover, it believes it does not have to do so. According to the News and Observer report, the organization is opposed to having to demonstrate that the flag disrupts the learning environment in as much as it “sidesteps” community concerns about the Confederate flag. As quoted in the article, the NAACP has taken the position that the Confederate Flag is “ . . .symptomatic of racial and cultural bias in the district, which is inextricably tied to the persistent underperformance of African American children.”

The NAACP's position in seeking to ban the Confederate Flag without evidence of its presence being either disruptive or a hindrance to Orange County Schools educational mission ignores the importance our Constitution places on the toleration of divergent viewpoints, whether those viewpoints be religious or political, high philosophy or just plain non-sense. Upholding this core value, our courts have consistently placed the strictest scrutiny on government actions which seeks abridge free speech, even when that speech was most unpopular. Applied to the school room, this scrutiny has upheld a student's right to do a great many unpopular things, including the right to protest the Vietnam War which the NAACP no doubt would have supported at the time.

The NAACP’s position,  while certainly raising some worthy points, nonetheless should be reconsidered by not only Patricia Clayton but by the NAACP as a whole. Does the NAACP really wish to suspend particular speech because it betrays attitudes that may be viewed as hostile? If so, the NAACP is asking the Orange County School Board to impose a policy that is analogous to an Orwellian ban on thought crime, where it matters not what the speech does as much as whether  that expression betrays an impurity of thought which might lead to otherwise undesirable consequences.