December 21, 2004
Private: Girl Sues Over Confederate Prom Dress Ban
A Kentucky girl barred from her prom for wearing a dress designed to resemble the Confederate flag is suing her school district, the Lexington-Herald Leader reports. The girl said that by wearing the dress she designed to primarily white Russell High School's prom, she "'wanted to show part of [her] Southern heritage,' adding that it had always been her dream to wear a Confederate-themed dress to her senior prom." Furthermore, she noted that the school dress code (since changed) did not bar Confederate symbols, and students had worn such symbols to school previously, with no repercussions.
Case law on the subject is currently conflicted, and seems to depend highly on the facts of an individual case. The Supreme Court has not ruled on Confederate symbols in schools, although several recent cases in the lower courts have upheld school bans and suspensions. In West v. Derby Unified School District 260 (2000), the 10th Circuit found that suspending a student for drawing a Confederate flag and showing it to other students, even if he had no intent to "harrass or intimidate," did not violate the First Amendment or equal protection because it was disruptive to the learning environment. However, unlike in the Kentucky case, the school in Derby had a history of racial problems, and a code forbidding any materials that are racially divisive (including specifically the Confederate flag). In an article in American School Board Journal, Benjamin Dowling-Sendor argues that this history of racially divisive incidents was crucial in finding the Confederate flag to be disruptive (the standard for upholding restrictions on student expression under the landmark case Tinker v. Des Moines School District), and "as shown by the recent controversy over the Confederate battle flag at the South Carolina state capitol, Confederate flags are ambiguous symbols that can be interpreted as conveying racism or honoring the common soldiers who fought for the Confederacy."
Relying on these principles of disruption and context, in Kentucky itself the 6th Circuit in Castorina v. Madison County School Board remanded a case in which two boys were suspended for refusing to remove t-shirts with the Confederate flag. The court sought further fact-finding on whether other racial clothing (like Malcolm X t-shirts) were also banned, and whether any disruptive incidents stemming from Confederate flag display had occured. If not "the court below would be required to strike down the students' suspension as a violation of their rights of free speech as set forth in Tinker." The case was settled before the second trial occured, with Madison County agreeing to develop clearer criteria for its dress code policy, as well as an appeals process. Many other Kentucky schools have followed this example, and Russell High School is probably wishing that it followed suit.
UPDATE 12/21/04, 9:22pmEST, by Ian: The student plaintiff in this suit is being represented by the Southern Legal Resource Center, which the Southern Poverty Law Center links to white supremacists, and the Neo-Confederate movement.
UPDATE II, 12/22/04, 11:15amEST, by Ian: Thanks to Is That Legal? which provides this picture of the dress:
Eric at Is That Legal? also reports that Jeff Foxworthy has been appointed a special master in the case.