A full federal appeals court refused Friday to hear a lawsuit bythree Tennessee students threatened with suspension if they woreConfederate flag T-shirts.
In a dissenting opinion, however, the court’s chief judge suggested the case needed to go to trial.
Students Derek Barr, Craig White and Chris White argued that theirfree speech rights were violated by William Blount High’s ban onclothes with the Rebel flag, which is considered a symbol of racism andintolerance by some and an emblem of Southern heritage by others.
The students were threatened with suspension in 2006 amid growingracial tensions and violence at the majority-white high school inMaryville, south of Knoxville. Graffitti appeared threatening the livesof black students, fights broke out between black and white studentsand police were called in to lock down the school.
Barr and the Whites were not accused of participating in thoseactivities, only of wearing Rebel flag clothing, which school officialsviewed as “disruptive.”
In 2007, a federal judge issued a summary judgment in their casewithout a trial affirming the school dress code. A three-judge panel ofthe 6th U.S. Circuit Court of Appeals in Cincinnati upheld the rulingin August. On Friday, that appeals court refused in a two-paragraphorder to give full-court reconsideration.
However, Chief Judge Danny Boggs wrote that he was concerned thatthe facts of the case were still in dispute — whether there was aspecific connection between the students’ flag clothing and schooldisruptions.
“The court says that evidence of disruption is ‘uncontested,’ butthe record suggests otherwise,” Boggs wrote. “It should be left to ajury to determine whether this disagreement both constitutes adisruption and was sufficiently related to the Confederate flag tojustify a ban.”
Boggs said a jury might be persuaded that Blount High officials weretrying “to avoid political or public controversy” by suspending thestudents rather than trying to avoid school disruptions — “a reasoningnot sanctioned” by previous court rulings.
“This is basically what I am going to say in my petition” to theU.S. Supreme Court, said Van Irion, a Knoxville attorney representingthe students.
Irion said he was disappointed in the court’s decision Friday, but”I am more optimistic than I would normally be that the Supreme Courtwill hear this” because of Boggs’ dissent.