The allowance of Confederate symbols in public school dress codes has been a contentious issue for years and was further compounded by last year’s Unite the Right rally, which brought violence and death to Charlottesville.
The Hate-Free Schools Coalition, a group made up of parents and community members, has been asking the Albemarle County School Board to change the dress code to ban Confederate and white supremacist symbols since February.
The group cites the fear and intimidation the symbols prompt in students of color. Members most recently asked the School Board to change the dress code at a June 14 meeting.
“We’ve been disappointed in the lack of urgency in the response to request,” said Lara Harrison, a representative for the coalition. “The Confederate flag is an image that is racially intimidating, very specifically to Charlottesville because of the terrorist attack that happened in August last year.”
So far, the School Board has not made a decision on whether or not to change the dress code. Charlottesville City Schools also does not have a ban on Confederate symbols in its dress code.
According to incoming Superintendent Matt Haas discussions with community members are ongoing.
“We recognize that strong feelings exist in many communities across our country on a wide range of political and social issues, including the display of Confederate insignia,” he wrote in a statement. “That’s why we have brought together school division officials and community members, including representatives of the coalition, to discuss current School Board policies on such issues as our student dress code.”
To the coalition, Confederate symbols are an issue of school safety, an argument Harrison said would allow the school district to change its dress code policy without violating First Amendment rights.
During public comment at the June 14 meeting, members of the coalition cited examples of other school districts that had banned Confederate symbols, including Orange County, North Carolina.
According to Seth Stephens, spokesman for North Carolina’s Orange County Public Schools, the decision to ban Confederate symbols, along with swastikas and any Ku Klux Klan-related symbols or language, was made in part as a result of the Aug. 12 violence in Charlottesville.
“We brought in law experts and the North Carolina ACLU to make sure the decision was legally sound,” he said.
The Orange County Board of Education had been considering the ban for months prior to its decision, but didn’t finalize the approval until August 2017.
“The new policy gives our staff the permission to ensure that the learning environment in each of our schools and in each of our classrooms is free of intimidation and distraction with regards to dress and symbols of speech,” Todd Wirt, superintendent of Orange County schools, said in a statement on Facebook after the decision.
The Durham Public Schools Board of Education in North Carolina followed suit, also banning Confederate flags from the dress code in August 2017.
“Seeing the flag really does negatively impact the ability of students to learn,” said Natalie Beyer, a member of the Durham Board of Education. “I hope Albemarle schools find a way to ban it, too.”
However, the legality of limiting expression in public schools can be complicated and hinges on several factors.
Leslie Kendrick, a vice dean of law at the University of Virginia, said the public schools have to provide a lot of leeway in what they allow students to express.
“Schoolkids have First Amendment rights, they’re not checked at the door,” she said. “The exceptions to this is if its disruptive or interferes with the educational message.”
Citing the 1969 Tinker vs. Des Moines case, in which the U.S. Supreme Court ruled that black armbands worn by students to protest the Vietnam War were not a disruption, Kendrick said determining what is and is not protected speech can be complicated.
“Disruption is very fact-specific, and a lot of courts are pretty deferential to schools, but not always,” she said.
In the 2003 case, Newsom v. the Albemarle County School Board, the county schools lost a $150,000 lawsuit to a sixth-grade student at Jack Jouett Middle School who had been told by administration he couldn’t wear a National Rifle Association shirt. The shirt had silhouettes of men pointing guns across the NRA logo.
After an initial verdict in favor of the school district, Newsom appealed the decision and the Fourth Circuit Court of Appeals overturned the earlier verdict.
Citing in part the Tinker verdict, Senior Judge Clyde Hamilton said Jouett Middle School had been unconstitutionally overbroad in banning messages on clothing relating to weapons under its dress code.
“Because there was no evidence presented at the preliminary injunction stage of the case demonstrating that clothing worn by students at Jouett containing messages related to weapons, nonviolent, nonthreatening, or otherwise, ever substantially disrupted school operations or interfered with the rights of others, the number of examples of the unnecessarily broad nature of the 2002-2003 Jouett Dress Code is practically limitless,” he wrote.
Given the historical context for the Confederate flag and its relation to the Unite the Right rally — which was ostensibly about the proposed removal of two statues of Confederate generals — Harrison and the coalition contend that Confederate symbols and messages do create a disruption for Albemarle students.
“When you allow a student to wear a shirt that says ‘The South Will Rise Again,’ what kind of message are you sending to students of color,” Harrison asked. “We’ve had parents from across the county come and tell us these symbols racially intimidate their students.”
Whether county schools opt to change their dress codes, as it did in February when it removed Lee-Jackson Day from the school calendar, remains to be seen.