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Columnist Jennifer L. Nye disturbed by Confederate flag sweatshirt decision

  • Dozens of students, parents and community members staged a demonstration at Easthampton High School on Monday morning to show a “disruption of education” after a student wore a Confederate flag sweatshirt to school last week.  CAITLIN ASHWORTH



Monday, May 08, 2017

I support free speech and I’m a card-carrying member of the American Civil Liberties Union, but I’m deeply disturbed by the recent decision by the Easthampton School District to allow a high school student to continue wearing a Confederate flag sweatshirt to school in light of recent racial tensions.

While more speech is generally the best answer to speech one disagrees with, speech in a school is different from speech in the public square. In the public square, you not only have the option of more speech, you also have the option of leaving if you don’t want to be exposed to offensive or disagreeable speech.

But in a school, students who disagree with the speech may not be able to speak back (because a math or physics teacher might legitimately not want to entertain a heated discussion about the merits of the Confederate flag) and students who leave the classroom not only face potential disciplinary action, but also won’t receive the education to which they are entitled.

There is no blanket First Amendment right to wear a Confederate flag in school, nor is free speech the only important civil or human right at stake in an educational setting. Under both federal law (the 1969 Supreme Court decision Tinker v. Des Moines) and state law (the 1996 Supreme Judicial Court decision Pyle v. School Committee of South Hadley), schools may limit speech if the speech could reasonably be expected to substantially or materially disrupt school safety or schoolwork.

The thing that is most incomprehensible about Easthampton’s decision is that the majority of federal court decisions on the issue have upheld school decisions to bar the Confederate flag. In 2010, the Sixth Circuit upheld a bar on the Confederate flag in school and a concurring opinion stated that “expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.”

Likewise, in upholding a school’s decision to bar Confederate flag T-shirts in 2013, the Fourth Circuit stated, in a decision the Supreme Court declined to review, that “(a)lthough students’ expression of their views and opinions is an important part of the educational process and receives some First Amendment protection, the right of students to speak in school is limited by the need for school officials to ensure order, protect the rights of other students, and promote the school’s educational mission.”

In addition to a limited right to free speech, students also have the right to attend school free from harassment, abuse, bullying and intimidation – rights that have been upheld by both federal and state courts. Easthampton’s own dress code states that students may be asked to change their clothes or face discipline if the dress in question “substantially interferes with the educational process or with another student’s ability to receive an education.” It’s mind-boggling that school officials don’t think the Confederate flag falls under that definition.

The Confederate flag is a symbol, if not the symbol in the United States, of white supremacy, slavery, segregation, and violent resistance to racial integration. Despite assertions that there can be multiple meanings of the Confederate flag, the vast majority of historians agree that the Confederate States of America was established on the principle of white supremacy and to uphold slavery. The Confederate flag is about “Southern pride” in the same way the swastika is about “German pride.”

Following the Civil War, especially during Reconstruction, the early 20th century, and the Civil Rights movement, the Confederate flag was used by Ku Klux Klan as it waged a campaign of terror against African-Americans, and by state politicians in defense of Jim Crow, including segregated schools. In 1963, Alabama Governor George Wallace raised it over the state capital, famously declaring “segregation then, segregation now, segregation forever.”

Today, white supremacist groups continue to use the Confederate flag as a symbol of their cause. To suggest that the Confederate flag does not stand for upholding or supporting the principles of white supremacy and racial hostility toward non-whites is to rewrite U.S. history.

Given Easthampton High’s history of racial tensions, it’s hard to see how a student wearing a Confederate flag would not be potentially “disruptive to the educational process.” These racial tensions include a racial slur by a white student posted on social media; a physical altercation between this student and three students of color (all three students of color were arrested and suspended, while the white student was not arrested or disciplined by the school); a walkout during school hours by hundreds of students in protest of administrative inaction against racism; an emergency meeting of the School Committee where students and parents reported a dangerous, racially charged environment and a group of parents called for the removal of the principal and resource officer; and a rash of anonymous complaints to the school board from students and others “with stories of harassment, intimidation, hate speech and racial prejudice at the school. Some of the complaints included a swastika written on a poster and a student allegedly waving the Confederate flag and yelling “white power.”

Finally, given the history and current use of the Confederate flag as a symbol advocating racism, it is reasonable to conclude that its display on a student sweatshirt creates a hostile learning environment and would negatively interfere with a student’s ability to receive an education. In fact, a 2016 study found just that: The stress of racial discrimination, including the perception of racial prejudice, can negatively impact the educational performance of students of color.

These are teachable moments. Although we should be careful when we give schools the power to restrict student speech, schools are also unique places charged with providing an equal education to all students. Just like any other constitutional right, the right to free speech is not unlimited. Laws against sexual harassment are limits on free speech. Laws against bullying are limits on free speech. Laws against threats and intimidation are limits on free speech.

And even without resorting to legal arguments, faculty, students, and the community should urge this student not to wear the Confederate flag, out of respect for his peers and peace at the school. Just because you might have a right to do something, doesn’t mean you should. You can conform your behavior to a higher standard than the law, which is after all, a floor, not a ceiling.

Finally, students are not adults and we should not remain “neutral” in the face of racist speech, as urged by the Easthampton High principal. Neutrality in this instance is not even-handed; it is about upholding racist speech in the face of clear evidence that it harms the education of students of color.

While it is admirable that the ACLU is doing a teach-in about civil rights, it would be even better if the school invited local university historians to teach and talk about the history of white supremacy and the Confederate flag. It is the job of adults to teach kids about the effects of their actions. We’ve lost our ethical — and perhaps our legal — compass when we don’t help students understand the harms worked by the speech of the Confederate flag.

I hope that the parents and students of Easthampton High will weigh in on this decision as they have in the past.

Jennifer L. Nye, of Northampton, is a lawyer and lecturer in law and social justice in the department of history at the University of Massachusetts Amherst.