No offense, but student's Confederate shirt is protected speech: Marc A. Scaringi

By Marc Scaringi of Scaringi Law posted in Know Your Rights on Thursday, September 24, 2015.

Christopher Shearer, a student at the Lebanon County Career and Technology Center, was sent home from school last week because he wore a shirt that "offended" the principal. The shirt contained an image of the Confederate flag.

Even though the principal was offended by the student's shirt, the principal's action violated the student's right to free speech protected by the First Amendment to the United States Constitution and Article I Section 7 of the Pennsylvania Constitution.

Even school students have the right to free speech. In the leading student free speech case, Tinker v. Des Moines Independent School District, the United States Supreme Court stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate."

In the Tinker case, a group of school students decided to quietly protest the Vietnam War by wearing black armbands to school. School officials learned of the students' planned sartorial protest and established a "no armband" dress code and suspension if the students refused to take off the armbands. Three students wore the armbands; they were suspended.

In the court case that followed the school argued armbands would cause a disruption in the school. The Court, however, found no disturbance occurred and the school did not produce any evidence that "might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities." The Court held the school dress code prohibiting the armbands violated the First Amendment.

The same can be said about the Lebanon County matter.

Christopher Shearer wore a shirt depicting the Confederate flag in a self-described act of "rebellion" and independence. The Confederate flag, like the Gadsden flag and the flag of the 13 original American colonies, are all symbols of political "rebellion" and assertions of independence. Thus, the display of the Confederate flag is a symbolic expression and communication of political speech and is thus protected by the First Amendment.

In the landmark U.S. Supreme Court case holding students cannot be forced to salute the American flag, the Court wrote, "Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short-cut from mind to mind. Causes and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design...symbols of State often convey political ideas."

According to news reports, the Lebanon County Career and Technology Center principal took action against Mr. Shearer because he was personally offended by the shirt. The media reported the student's mother, Jennifer Shearer, said "[The principal] told me that his shirt that he was wearing was offensive and I immediately asked him, 'offended who? Did Chris say something wrong? Did he offend someone? Was he mean? Was he rude?' And he [the principal] said 'he offended me.'"

Being personally offended does not satisfy the test set forth in Tinker that would permit the school to restrict such speech. The legal test is whether the speech is likely to cause substantial disruption of or material interference with school activities. But that is not what the principal used to justify his actions. He was simply "personally offended" by the Confederate flag.

That is not enough to suppress speech.

News reports have pointed out the school's non-harassment policy lists the Confederate flag as a symbol that "could" constitute "harassment." But, assuming for the sake of argument the wearing of a shirt to school displaying the Confederate flag does constitute "harassment," it doesn't remove the shirt from the protections of the First Amendment. Protecting speech that gives rise to ill will or offense is at the core of the First Amendment protection.

U.S. Supreme Court decisions since Tinker have expanded the government's power to curtail student speech in some limited circumstances. For example, the Supreme Court has held schools have the right to restrict "lewd" student speech (i.e., speech containing sexual references) and speech that occurs in school-sponsored communications such as student newspapers on the grounds the school like any editor has control over the content of the publication. But those are not the facts of the Lebanon County matter.

The shirt depicting the Confederate flag is protected speech. As such, the school principal's action to send Mr. Shearer home because he was wearing the shirt violated the student's First Amendment right to free speech.

To learn more about how Scaringi Law attorney Marc A. Scaringi can help you, call him toll free at 877-LAW-2555 or email him at info@scaringilaw.com.