Courtside: Unflagging Efforts.

IN LATE October 2000, Franklin Scott and Nicholas Thomas, 11th-graders at a high school in Alachua County, Florida, each displayed a Confederate flag on campus. Scott did so on his pickup truck, and Thomas did so on his T-shirt. The principal, Lamar Simmons, had given each of them a warning when they had engaged in such conduct earlier in the month. This time, he suspended them for two days each. His school- based unwritten ban also applied to clothing with messages related to drugs/alcohol, sexuality, profanity, and other potentially violence- provoking racial or religious content. The school had previously experienced a fight on a school bus that resulted in racial unrest on campus and subsequent displays of Confederate flags. On 27 March 2001, Scott and Thomas, via their parents, filed a civil rights lawsuit in federal court, claiming that Simmons' action violated their First Amendment right to symbolic speech. On 7 August 2002, the federal district court granted summary judgment for the defendant school authorities. On 6 September 2002, the students appealed. On 20 March 2003, the 11th Circuit affirmed the lower court's decision in favor of the school authorities, and when the students subsequently sought review, the Supreme Court denied certiorari.1 In a modern twist on the Supreme Court's 1969 opinion in Tinker v. Des Moines Independent Community School District, the 11th Circuit concluded: Although public school students' First Amendment rights are not forfeited at the school door, these rights should not interfere with a school administrator's professional observation that certain expressions have led to, and therefore could lead to, an unhealthy and potentially unsafe environment for the children. . More specifically, building on the reasoning of the district court judge, the appellate court rested its decision on two alternative theories. First, citing evidence of racial tensions at the school, including fights during the months leading up to the incident at issue, the 11th Circuit relied on the Tinker Court's criterion of school officials' reasonable forecast of substantial disruption. Second, however, the court concluded, even if the evidence was insufficient to meet this standard, the Supreme Court's subsequent decision in Bethel School District v. Fraser -- which upheld the discipline of a student for a nominating speech laced with sexual innuendo -- provided sufficient support for the school authorities in terms of their right and duty to inculcate values. Finding that the Confederate flag symbolized, depending on one's viewpoint, both states' rights and white supremacy, the court cited relevant decisions from other jurisdictions in concluding: Part of a public school's essential mission must be to teach students of differing races to engage each other in civil terms rather than in 'terms of debate highly offensive or highly threatening to others.' THIS COURT decision is the latest in the second cluster of such cases. In the first cluster, not long after Tinker, federal courts upheld the constitutionality of public school bans on Confederate symbols based on evidence clearly meeting the substantial-disruption standard.2 In the second cluster, a generation later, the courts have been faced with situations in which the evidence is murkier. In a 1997 decision, a federal court in South Carolina found the requisite factual foundation for a reasonable forecast of substantial disruption. The plaintiff student in this case had argued that he was a victim of viewpoint discrimination: the school officials had banned Confederate symbols but not black power and Nazi symbols. The court summarily rejected this argument because the student failed to proffer evidence that clothing with the latter symbols had been the cause of disruption at the school.3 Three years later, in a Kansas case, the 10th Circuit relied on Tinker to summarily dispose of another such First Amendment claim. …