Hardwick v. Heyward: Fourth Circuit Upholds School District’s Decision to Bar Student From Wearing Shirts to School that Display the Confederate Flag

 

Richard Fossey
Paul Burdin Endowed Professor of Education
Cecil Picard Center for Child Development and Lifelong Learning
University of Louisiana
Lafayette, Louisiana

 

Todd A. DeMitchell
Professor, Department of Education and Lamberton Professor,
Justice Studies Program
University of New Hampshire
Durham, New Hampshire

 

Hardwick v. Heyward, 2013 U.S. App. LEXIS 5855 (4th Cir. March 25, 2013) is the  latest federal appellate court decision to consider whether a high school student has a First Amendment right to display a Confederate flag on the student’s clothing while at school. In the Hardwick, case, the Fourth Circuit concluded that a South Carolina school district did not violate the free speech rights of Candice Hardwick when it prohibited her from wearing a number of shirts that depicted the Confederate flag over a period of three school years. Applying the Tinker “substantial disruption” test, the court ruled that there was ample evidence that the Confederate flag image could excite racial tensions at Candice’s school and create a substantial disruption in the school environment.

 

Facts

In 2003, Candice Hardwick was a middle-school student in the Latta School District (LSD), a small school system in South Carolina. The town of Latta had a heritage of slavery and segregation, and its schools were not desegregated until the 1970-71 school year. Id. at *26. At the time of the litigation, LSD’s student enrollment was approximately 1600, about equally divided between white and African American students.

Latta Middle School and Latta High School both had student dress codes. The middle-school dress code stated that student dress would generally be considered appropriate so long as it did not “distract others, interfere with the instructional program, or otherwise cause disruption.” Id. at *3. The policy then went on to describe clothing that the school would deem inappropriate: “clothing that displays profane language, drugs, tobacco, or alcohol advertisements, sexually innuendoes or anything else deemed to be offensive.” Id. at *3.

LSD’s high school dress code was similar to the middle school policy. The high school code provided that:

[S]tudents are to come to school in a neat and clean manner each day. Dress is casual, but some styles, which may be appropriate outside of school, are clearly inappropriate for schools. Students may not wear the following:  . . . Shirts with obscene/derogatory sayings.

 

During the 2002-2003 school year, Candice had the first of a series of confrontations with school officials over her clothing.  In early 2003, Martha Heyward, principal of Latta Middle School, directed Candice to remove her “Southern Chick” shirt, which displayed a Confederate flag.

During the following school year (2003-2004), school officials told Candice to remove a “Dixie Angels” shirt, a “Southern Girls” shirt, and a shirt honoring African American Confederate soldiers.  All these shirts depicted a Confederate flag.  Candice also wore a shirt displaying the American flag with the words “Old Glory,” and “Flew over legalized slavery for 90 years.”

In late February 2004, Candice came to school wearing a shirt that depicted Robert E. Lee and the Confederate flag.  She was given an in-school suspension after she refused to change shirts.  The following month, Candice came to school wearing a “Girls Rule,” shirt that displayed a Confederate flag.  She changed shirts on this occasion after school authorities directed her to do so.

After several of these incidents, Candice’s parents wrote a letter to John Kirby, the LSD superintendent, informing him that they approved of Candice’s clothing choices, which reflected Candice’s heritage and religious beliefs.  LSD’s school board chairman, Harold Kornblut, responded to the letter, telling the parents that LSD was justified in banning Candice’s Confederate-flag clothing based on a long history of racial tensions in the school district and the likelihood that other students might interpret the flag’s meaning differently from the way Candice interpreted it.

In 2004, Candice began attending Latta High School, where the Confederate-flag controversy continued. In May 2005, George Liebenrood, the high school principal, removed Candice from class for wearing a shirt that proclaimed “Daddy’s Little Redneck,” and—like several of Candice’s previous shirts--displayed a Confederate flag.

Candice then produced four more “protest” shirts. Liebenrood prohibited these shirts as well, although not all the protest shirts contained pictures of the Confederate flag. For example, one protest shirt stated: “Honorary Member of the FBI: Federal Bigot Institutions.” Id. at *7.

Unable to get LSD to change its position on her choice of Confederate-flag themed clothing, Candice sued her middle school principal, her high school principal and the school district’s board of trustees, claiming a violation of her constitutional rights under the First and Fourteenth Amendments.  A federal trial court dismissed most of Candice’s claims on the defendants’ motion for summary judgment, and Candice filed her first appeal.

In its initial ruling, the Fourth Circuit ruled that it did not have jurisdiction over Candice’s case since the trial court had not ruled on all of Candice’s claims.  Specifically, the trial court had not ruled on the protest shirts that Candice wore—some of which did not contain images of the Confederate flag.  The trial court then ruled on the protest shirt issues and dismissed Candice’s suit in its entirety. Candice then filed her second appeal.

Fourth Circuit’s Decision

In a decision issued on March 25, 2013, a three-judge panel of the Fourth Circuit Court of Appeals issued its opinion in Candice’s case, ruling against her on all claims.  The court relied primarily on Tinker v. Des Moines Independent Community School District, 393 U.S.  50 (1969), in which the Supreme Court authorized public school officials to censor student speech in the school environment if they reasonably anticipated that the speech would “materially and substantially interfere[e] with the requirements of appropriate discipline in the operation of the school. Hardwick at *14, citing Tinker, 393 U.S. at 513.

In the Fourth Circuit’s opinion, the record contained “ample evidence from which the school officials could reasonably forecast that all of these Confederate flag shirts would materially and substantially disrupt the work and discipline of the school.” Id. at *25 (internal quotations omitted).  The court rejected Candice’s argument that the Confederate flag shirts had in fact created no disruptions at LSD. “That the shirts never caused a disruption is not the issue,” the court explained. “[R]ather the issue is whether school officials could reasonably forecast a disruption because of her shirts.” Id. at *30.

Similarly, Candice’s argument that the shirts merely symbolized her heritage and religious faith were unavailing. “Again,” the court reiterated, “the proper focus is whether school officials could predict that the Confederate flag shirts would cause a disruption.” Id. at *31.

Finally, the court wrapped up its First Amendment analysis by ruling that school authorities reasonably predicted that her protest shirts would be disruptive even though they did not depict a Confederate flag. The court also ruled that the school district’s speech codes were not unconstitutionally vague or overbroad.

The court then turned to Candice’s equal-protection arguments and disposed of them as well.  In the Fourth Circuit’s view, the record amply supported the conclusion that Latta School District’s dress codes were viewpoint neutral and were enforced in a nondiscriminatory manner.

Conclusion

Hardwick v. Heywood is the latest in a string of court decisions dating back more than 25 years concerning the appropriateness of displaying Confederate insignia in the public schools. See Crosby v. Holsinger, 852 F.2d 801 (4th Cir. 1988) (A school, over the objection of its students, may choose the symbols that it wants associated with its name. Johnny Reb was replaced as the school’s mascot.).Although an exhaustive analysis of all this litigation is beyond the scope of this essay, recent decisions indicate that the federal appellate courts have become increasingly sympathetic to school districts when they are sued for banning Confederate insignia.

For example, in Defoe ex rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010), the Sixth Circuit ruled that schools have an interest in reducing racial tensions,  which justified a ban on displaying Confederate flags at school.  Likewise, in a 2003 decision, the Eleventh Circuit upheld a school’s decision to prohibit students from displaying a Confederate flag at school based partly on the conclusion that the school had the authority to censor uncivil speech. Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246 (11th Cir. 2003). See also A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009) (upholding ban on Confederate flag); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009) (same). For a recent scholarly article on Confederate flag litigation in the school context, see Lucinda Housley Luetkemeyer, Note: Silencing the Rebel Yell: The Eighth Circuit Upholds a Public School’s Ban on Confederate Flags, 75 MO. L. REV. 989 (2010).

The Hardwick decision is notable because the Fourth Circuit ruled that the Latta School District reasonably anticipated that Candice’s Confederate-flag depictions could cause a substantial disruption at school even though her controversial shirts, worn over a period of three school years, apparently caused no disruptions.   The decision may be an indication that the federal appellate courts are drifting toward the position that school districts have the authority to bar students from displaying Confederate insignias in the schools whether or not such displays exacerbate racial tensions.  Students who take pride in the Confederate symbol have the ability to demonstrate their affection virtually unfettered outside the schoolhouse gate.  But inside the schoolhouse gate it is another thing.