When her Kentucky school district prohibited her from attending prom due to the Confederate flag-adorned dress she chose to wear to the event, Jacqueline Duty brought the matter to an authority higher than her school administrators, appealing to the federal courts for reprieve. In a lawsuit filed against the Russell Independent School District Board of Education, Duty alleged infringement upon her First Amendment right to free speech, as well as defamation, false imprisonment, and assault. However, while Jacqueline Duty’s official complaints may have been numerous, it was the issue of free speech in public high schools that lay at the heart of her suit.
Court verdicts have consistently reaffirmed the ability of K-12 public schools to, as agents of the state, limit or censor certain expressions of speech amongst their student populaces. These limitations reflect the societally differing roles of K-12 institutions and any post-high school educational endeavors, with the former possessing a constitutionally legitimate claim to the “avoidance of conflict,” and the latter serving as a public forum for declarations of dissent and the unthreatened voicing of conflicting perspectives, with the ultimate aim of fostering maturity and intellectual growth. The 1988 Supreme Court case of Hazelwood School District v. Kuhlmeier clarified the conditions under which censorship of student speech is permissible, specifically as it pertains to the extent of free speech guaranteed to public school curricular student newspapers. In deciding Hazelwood, the Supreme Court ruled that school administrators could indeed regulate the content of school-sponsored mediums of expression, so long as the enacted regulation conformed to an educational mission, was reasonable in nature, possessed pedagogical value, and thereby served a valid purpose. Similarly, in Bethel School District v. Fraser (1986), the Court ruled that a student’s suspension for a sexual innuendo-laden speech delivered at a school assembly did not violate his First Amendment rights, since the student in question was addressing a captive audience. Notwithstanding the outcomes of these prominent cases, the burden of proof for any limitation placed on free speech falls to school administrators, as established by the 1969 landmark verdict of Tinker v. Des Moines Independent Community School District.
Ultimately, like so many other lawsuits involving inhibited freedom of expression in a public K-12 environment, the case initiated by Jacqueline Duty never found its way to trial – the Russell Independent School District Board of Education consented to an out-of-court settlement, likely in recognition of the vast financial resources and media scrutiny inherent to the trial proceedings of such a case, as well as the vested interest and involvement of the Sons of Confederate Veterans group. Admittedly, the Russell Independent School District Board of Education likely would have faced an uphill battle if the lawsuit had proceeded any further, especially since the high school attended by Jacqueline Duty was predominantly white at the time of the incident, meaning an argument could be made that displays of the Confederate flag were unlikely to incite any disruption. Indeed, in the case of Saxe v. State College Area School District (2001), the Supreme Court did rule against the implicated school administration, since the speech in question could not be proven to offend a majority of students. Thus, in order for schools to effectively ban symbols of hate (a category that, by any account of history other than the revisionist, certainly encompasses the Confederate flag), our legal conception of speech must first evolve so as to emphasize a symbol’s actual content and connotations, rather than simply the reaction it is anticipated to elicit in a highly confined environment. The precedent established by Saxe v. State College Area School District ultimately allows for an unequal application of the law, a reality that any liberal society should seek to avoid.