Academic journal article Missouri Law Review

Silencing the Rebel Yell: The Eighth Circuit Upholds a Public School's Ban on Confederate Flags

Academic journal article Missouri Law Review

Silencing the Rebel Yell: The Eighth Circuit Upholds a Public School's Ban on Confederate Flags

Article excerpt

B.W.A. v. Farmington R-7 School District, 554 F.3d 734 (8th Cir. 2009).


Forty years ago, United States Supreme Court Justice Abe Fortas called the public school classroom the "marketplace of ideas" (1) in his majority opinion in the landmark student speech case Tinker v. Des Moines Independent Community School District. Justice Fortas emphasized the importance of protecting students' constitutional freedoms within school and cautioned that school officials could not constitutionally confine student speech "to the expression of those sentiments that are officially approved." (2) In the decades since Tinker, students have challenged school regulation of many types of speech, including the expressive conduct of wearing clothing that depicts the Confederate flag. The Confederate flag waves with symbolism and ignites passion from those who fight to display it and those who fight to banish its display. As a result, many of America's public schools have chosen to ban the display of the Confederate flag based on administrators' assertions that it leads to disruption and compromises school safety. (3) Confederate flag bans have been and continue to be the subject of great controversy, and in recent years courts have been forced to confront the thorny issue of whether public schools may legally ban the flag's display. (4)

In 2009, the United States Court of Appeals for the Eighth Circuit heard for the first time a case challenging the constitutionality of a public school's ban on the display of Confederate flags. (5) When the Eighth Circuit faced this situation in B.W.A. v. Farmington R-7 School District (B.W.A. v. Farmington), it attempted to balance the competing interests of protecting students' free speech rights and avoiding future disruption and danger to the learning environment. In doing so, the court adhered to the reasoning established by its sister circuits and set a precedent within the Eighth Circuit that shifts away from Tinker's original protections to allow suppression of a particular mode of student political speech, even when that exact mode of expression has never caused a disruption.


In B.W.A. v. Farmington R-7 School District, three Farmington, Missouri, high school students were suspended during the 2006-2007 school year after they wore clothing displaying the Confederate flag. (6) The school district's student dress code, adopted in 1995, prohibited "[d]ress that materially disrupts the education environment." (7) After a series of race-related disruptions in the district during the 2005-2006 school year, the district superintendent informed administrators that the dress code extended to a ban on clothing that depicted the Confederate flag. (8)

At the time of the students' suspension, the racial composition of Farmington High School was predominantly white, with approximately 1,100 students in attendance, and only fifteen to twenty of those students were black. (9) Leading up to the ban on Confederate flag clothing, there were approximately eleven verbal or physical confrontations between black and white students, including several incidents of hate speech or racial slurs in the Farmington district between May 2005 and April 2006. (10) Ten of these incidents involved Farmington students. (11)

The first racially charged incident that led to the ban on Confederate flag clothing occurred in May 2005, when a white elementary school student urinated on a black fourth grader while allegedly saying, "[T]hat is what black people deserve." (12) The black student then withdrew from the Farmington school district and began attending another school. (13) Another disturbance occurred when several white students, one wielding a baseball bat, went to the house of a black student and made racist comments, such as "anything that is not white is beneath them." (14) After the black student's mother attempted to separate the students, one of the white students hit her in the eye, and a fight ensued between her son and the other students. …

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