In response to previous incidents, the high school adopted a policy prohibiting the display of the Confederate flag on school grounds. When plaintiffs A.M. and A.T. came to school at the beginning of the spring 2006 semester carrying purses adorned with large images of the Confederate battle flag, administrators required them to cease carrying the purses (giving them the option of leaving the purses in the administrative offices until school ended for the day, or to have someone come and pick the purses up from the school). The girls voluntarily went home for the day rather than comply with the demand.God knows, under Tinker, it's difficult to see how any different result was possible. What's striking is the racial hostility that led to the policy:
during the 2002-2003 school year, there were 35 reported incidences of race-related problems. The next year brought one referral based on a student’s use of a racial epithet against another student. During the 2004-2005 school year, there were ten referrals involving racial incidents. One of these incidents involved a student who drew a Confederate flag in his notebook accompanied by the statement “No niggers; subject to hanging.” Finally, during the 2005-2006 school year (the year in which A.M. and A.T. brought their purses), there were sevenThis is Burleson, Texas, at a school with about a 3% black population. Love ya, Texas! Making Misisssippi look good!
race-related referrals. One involved a student who drew a noose and made comments about hanging minorities. * * *
Also during the 2002-2003 school year, a BHS student “shoved a Confederate Flag in the face of several members” of another high school’s all-black girls volleyball team as they walked through the BHS hallways. According to Crummel, this incident caused tension and required Crummel, who was then the principal at BHS, to apologize on behalf of the school. Thereafter, BHS students attempted to display the flag at athletic events, prompting BHS administration and staff to “intervene.” The same school year (2002-2003), supporters of a predominantly African-American school left BHS during a sporting event because a BHS student waived [sic -- TBA] the flag from his pick-up truck in front of them. This caused the state high school athletics governing body to view the display of the flag at BHS events as a racial insult and a means of intimidation, and led to the consideration of sanctions against BHS because the school was “identified [as] having a reputation . . . as being openly hostile to African-Americans; if not simply racist.” That year, some white BHS students also waved a Confederate flag in the direction of a group of fellow African-American students as they waited for the bus. According to Crummel, the staff viewed this “as an attempt to intimidate our African-American students.” Following these incidents, during the 2002-2003 school year, BHS instituted the ban on visible displays of the Confederate flag. * * *
On Martin Luther King, Jr. Day in 2006 -- less than a month after A.M. and A.T. carried their purses to school -- a homemade Confederate battle flag was raised on the BHS flagpole and graffiti representing the flag was drawn on the sidewalk below. In December 2006, the following academic year, a white BHS student attempted to wrap his belt around an African-American student’s neck while using racial epithets and threatening to hang him.
(Judge Garwood writes separately to emphasize that a flat ban on the Confederate battle flag merely on the basis that "'some who display that flag 'may' harbor racial bias or belief in racial separation," absent some history at the school supporting that inference, would not pass muster under Tinker. I suppose one could make the same argument about the swastika.)