Tuesday, December 15, 2009

What Is "Inappropriate Symbolism"?

The Dawg's Case of the Month in the January issue is A.M. v. Cash, a 5th Circuit decision involving the display of the Confederate flag at Burleson High School. A couple of girls brought purses to school that displayed the ol' Stars and Bars and were told that this violated school policy. No disciplinary action was imposed, but the girls were told to leave the purses in the office for the rest of the day, or have someone come pick them up. School policy prohibited "inappropriate symbolism."

Thus we have a juicy First Amendment issue! If it is OK for kids to wear black armbands to school to protest the war in Vietnam, why is it not OK for kids to display the Confederate flag? Isn't this symbolic expression, protected by the First Amendment? One of the girls asserted that her ancestors fought in the Civil War (presumably for the losing side) and that the flag "is a venerated symbol of my ancestry, a symbol of my Christian religious faith, and a symbol of the South, a symbol of American history and a political symbol, to me, of limited government and resistance to unconstitutional authority."

No doubt, the First Amendment does protect people who choose to wave, honor and celebrate the Confederate flag or put it on their purses or backpacks. But the court concluded that school officials acted appropriately when they prohibited the display of this particular symbol in this particular school. Tinker v. Des Moines established that students have constitutional rights when they attend school--but they are limited to some degree. Things that can be said at the mall cannot be said in the public school.

School officials can prohibit or penalize student expression when they can reasonably forecast substantial disruption of or material interference with school activities. In this case the girls pointed out that there was absolutely no disruption of school due to their colorful purses. Most likely few people took notice. But the court put the emphasis on a "reasonable forecast" of disruption. The school district produced plenty of evidence of racial tensions and incidents in the past at Burleson High School, some of them directly involving the Confederate flag.

This case seems to me to have been well lawyered. Both sides put forth their strongest arguments--and both sides had strong arguments to make. For the school district, some of the most important evidence was the testimony of the principal and superintendent. The principal recounted the history of the policy and the reasons for it, based on prior racially charged incidents. He testified that "the number of incidents would be higher but for the restriction on visible displays of the Confederate flag." The superintendent took the same position, noting that "if I did not enforce the Confederate flag ban, then the number and types of confrontational incidents on campus would increase dramatically, resulting in material interference and substantial disruption of the educational environment."

I was a History major in college and so I find this kind of case fascinating. Of course our view of history is inevitably colored by our backgrounds and beliefs. I grew up in the north, and was taught that the Civil War was a simple case of Good (North) vs. Evil (South). I was amazed upon moving to Texas as a teenager to find so many schools named after Robert E. Lee and not a single one honoring General Sherman. The girls in this lawsuit were taught differently, and they desire to express their beliefs. In a free country, isn't that OK?

Of course it is. But this case is a reminder that different rules apply in different settings. This case is not about who was right and who was wrong in a 19th Century conflict. It is not about political correctness, or whose heritage is worthy of celebration. It is about school officials tending to their primary purpose--creating an environment conducive to learning for all.

Much to learn from this case.

Wednesday, February 18, 2009

One nice thing about being a school lawyer is that our clients rarely hit us. They may get angry, or think we have done a poor job. They may even say mean and ugly things to us. But with school officials as your clients, you are rarely going to be physically assaulted.

These thoughts came to mind as I read of the recent decision in Berry v. State, a decision from the Third Court of Appeals in Texas. Mr. Berry slugged his lawyer, Tom Weber of Austin, during the trial of his case for burglary. Despite this indignity, Mr. Weber continued to represent Mr. Berry. The court convicted Mr. Berry and he appealed. In the appeal he claimed that his lawyer was ineffective because he had a conflict of interest--here he was defending the guy who just smacked him in the face.

The Court of Appeals rejected that argument, and upheld Mr. Berry's conviction.

I guess that's a good thing. Otherwise, every criminal defendant who felt that the case was going the wrong way could whomp his lawyer up the side of the head and then claim "ineffective counsel." The lawyers would really not like this. Bad enough to be pummeled by your client, but then to be told you did a lousy job--talk about adding insult to injury!

So among the many blessings of the school law practice is the fact that our disagreements rarely go to fisticuffs.