Tinker, Viewpoint Discrimination and a Flag

“…We must forevermore do honor to our heroic dead. We must forevermore cherish the sacred memories of those four terrible but glorious years of unequal strife. We must forevermore consecrate in our hearts our old battle flag of the Southern Cross – not now as a political symbol, but as the consecrated emblem of an heroic epoch. The people that forgets its heroic dead is already dying at the heart, and we believe we shall be truer and better citizens of the United States if we are true to our past.”

Confederate Veteran Rev. Randolph Harrison McKim

Not all Confederate soldiers fought under the blue St. Andrew’s cross (more accurately, the saltire).  And apart from its use during veterans events, the flag’s visibility was minimal during the decades following the war. [. . .]

However, the flag’s most lasting legacy — and the source of much of the controversy today — can be traced to its use as a symbol of “Massive Resistance” by the Dixiecrats beginning in 1948 and continuing through the Civil Rights movement of the 1950s and 60s. During that period, the flag became the standard for those committed to defending classrooms, bus depots, and other public spaces (now battlefields themselves) from black encroachment.

In fact, the flag’s use throughout the 20th century covered a time span significantly longer than its presence on Civil War battlefields. Its placement atop southern statehouses like South Carolina ultimately reinforced the flag’s connection to segregation and racism.

Kevin M. Levin, America’s Simple-Minded Obsession with the Confederate Flag, The Atlantic, Aug. 16, 2012

Candice Hardwick wore shirts bearing various images of the Confederate flag to her elementary and middle schools in Latta, South Carolina on several occasions and was made to change her clothes or, on one occasion, disciplined.  Latta, South Carolina was formerly a part of the Jim Crow South, and in fact was holding segregated school proms until the 1980’s.  Significant racial tensions remain.  The Latta School District enforces a dress code policy that forbids clothing that would “distract others, interfere with the instructional programs, or otherwise cause disruption.”  Examples would include “clothing that displays profane language, drugs, tobacco, or alcohol advertisements. sexual innuendos or anything else deemed to be offensive.”

I’ll cut to the chase here and tell you that the Fourth Circuit, in Hardwick v. Heywood, 711 F.3d 426 (Mar. 25, 2013), held that the First Amendment did not require the school district to allow Hardwick to wear the shirts, and that the dress code was not unconstitutionally overbroad or vague.  The Court also held that Hardwick’s equal protection rights were not violated based upon evidence that the school district has also prohibited students from wearing Malcolm X and similar apparel.  Relying on Tinker v. Des Moines Independent Community School District, a Supreme Court opinion that law students recall as the “black armband case” because a group of students wore armbands in protest of the Vietnam war, the Fourth Circuit simply concluded that the Confederate Flag could be reasonably expected to cause disruption at the school.  (And there was some evidence that it in fact had caused disruptions, although the school’s evidence involved racial tension generally.)  Therefore, the Court held, the school district was justified in banning its display.  Many other circuits have so held.  See, e.g. Defoe ex. rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v. School Bd. of Alachua Co., 324 F.2d 1246 (11th Cir. 2003); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972).

I suppose that what bothers me about the Court’s reasoning in Hardwick, though, is that there was evidence that Hardwick wore shirts with the flag on several occasions at school (i.e., before she “got caught”), and that not only were there no disturbances, but there was apparently some positive reaction. Some of the examples of racial disturbances offered by the school district, on the other hand, were more than thirty years old.

Please understand, this is not an argument for display of the Confederate flag. If you’ve read this blog, you know where I fall on the political spectrum; as to the assertion that the flag represents positive or neutral “heritage,” I am skeptical at best.

But I am also skeptical whenever one form of speech is subjected to a different standard than others. I wonder if that’s going on here, between the lines.

According to the Court in Tinker:

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09, 89 S. Ct. 733, 737-38, 21 L. Ed. 2d 731 (1969).

The students in Tinker wore armbands to protest a war, the politics of which were also extraordinarily divisive. The Supreme Court was satisfied that no disruption resulted in the classrooms, although “hostile remarks” were made outside the classroom. That was enough.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.

Id. at 509, 89 S. Ct. at 738, 21 L. Ed. 2d 731.

Was there really evidence that the flag shirts worn by Hardwick would “materially and substantially interfere with the requirements of appropriate discipline” at her schools? I’m not sure; perhaps something has been lost along the way from trial transcript to reported opinion. I do know, though, that there can be a good deal of flexibility in determining when an “apprehension of disturbance” is reasonable, and that we must be cautious of exercising that flexibility in favor of the viewpoints that we prefer.

 

Reasonable Accomodation in Maryland: A Shifting Burden

While the local media is focusing on legislative efforts to overturn the Maryland death penalty and reconcile competing pit bull liability statutes, an important decision on housing discrimination has recently been issued by the Court of Appeals.

Under Maryland law (and, in many circumstances, under federal law), it is unlawful “[t]o refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped individual equal opportunity to use and enjoy a dwelling[.]”  Md. Code Ann., Art. 49B § 22(a)(9).  The language in the state statute correlates closely with language in the federal Fair Housing Act.  See 42 U.S.C. § 3604(f)(3)(B) (stating that “a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” is housing discrimination).

Under either statute, housing discrimination will only be found if the particular accommodation requested is “reasonable.”  Reasonableness in this context means that a support can be provided at reasonable cost without excessively burdening other people.  Among many questions that typically arise in proving housing discrimination is which party – the plaintiff or the defendant – bears the burden of proving reasonableness. 

In Board of Directors of Cameron Grove Condominium, II, et al. v. State Comm’n on Human Relations, issued on March 28, 2013, the Court of Appeals decided the question in favor of plaintiffs.  The Court held that in order to prove a housing discrimination case under the state statute, a plaintiff must make a prima facie showing of reasonableness;  once that showing has been made, the burden of proof then shifts to the defendant to prove that the requested accommodation is not reasonable.

This is a win for the disabled, since a prima facie showing is a pretty low bar to meet.  Cameron Grove is interesting for another reason, also.  The Fourth Circuit Court of Appeals, which is the federal appeals court responsible for Maryland among other states, has taken the opposite position in adjudicating housing discrimination cases under the federal statute.  See Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997) (stating that “[b]ecause the [Fair Housing Act]’s text evidences no intent to alter normal burdens the plaintiff bears the burden of proving each of these three elements by a preponderance of the evidence”).

The Maryland Court of Appeals is, in almost every case, the final arbiter of the meaning of state statutes, while the federal court system is responsible for interpreting federal statutes.  While it’s not unheard of for courts to reach different conclusions on similar statutory language, it’s quite striking when the language in the state statute so closely mirrors the federal statute.  It’s worth pointing this out, too, because concepts like “the burden of proof” are rarely dealt with on television or in movies, yet the allocation of the burden can be determinative of the outcome of a case.  The plaintiff in Bryant Woods Inn, for example, lost its case, while the plaintiffs in Cameron Grove won theirs.  I’m not accounting for differences in facts here, so the comparison isn’t necessarily fair, but it is interesting.

What was at issue in Cameron Grove?  Two individuals in a condominium complex who suffered from unnamed medical conditions filed suit to require that the condominium association provide them with keys to back and side doors to their respective buildings.  Apparently these doors were closer to a retail area within the complex and the plaintiffs wanted to be able to use those doors when they brought in their groceries.  The condominium argued that it shouldn’t have to give copies of the keys for security reasons and that installing a security code pad at each door would be prohibitively expensive at $19,000.  The association was ordered to pay both plaintiffs a combined total of $35,000, in addition to a civil penalty of $5,000.

Most hardware stores sell keys for something like $4.00.