This week the Supreme Court dismissed, without comment, the case of Barr v. LaFon, a free-speech case centered on a student’s right or lack thereof to wear clothing decorated with the Confederate flag.
William Bount High School in Maryville, TN banned images of the Confederate flag in 2005. This was a period when racial tensions had risen starkly as represented by racist graffiti in the restrooms—most notably of a noose next to a Confederate flag.
This is not the first time that such a case has gone to the Supreme Court. Back in 1997 the Supreme Court was presented with and heard Phillips v. Anderson County School. The Court upheld the banning of the Confederate flag on school grounds because “based on prior incidents of racial tension and unrest it was reasonable to believe that such a symbol would cause substantial disruption of the school’s environment.” The Supreme Courts decision to dismiss Barr v. LaFon will allow cases such as Phillips v. Anderson County School to stand as precedent.
Schools history banning of specific garments or images is not limited to the Confederate flag, schools have banned, and courts have upheld at various instances, items such as T-shirts depicting violence, drugs, racial epithets; ripped or saggy pants or jeans; sneakers with lights; colored bandannas, baseball or other hats, words shaved into scalps, brightly colored hair, exposed underwear; Malcolm X symbols, Walkmans, cellular phones, tattoos, etc.
“Courts have generally contended that such “expression” does not have protection when there is violence in the community or school such as intimidation of students and faculty, shootings or knifings, rampant drug use, or racial turmoil that is related to gang or hate group activity” (see School Law: Cases & Concepts by Michael W. Lamorte)
In Jeglin v. San Jacinto Unified School District (1993), the court held that students’ rights do no “demand a certainty that disruption will occur, but only the existence of facts which might reasonably lead school officials to forecast substantial disruption.”
The student in question was wearing baggy pants and claimed that preventing him from doing so infringed on his free speech rights and his ability to express his place in the hip hop culture. According to Lamorte, the judges ruled that his pants failed the two part test:
1. there must be an intent to convey a particularized message
2. there must be a great likelihood that the message would be understood by those who observe the conduct
It is this same test that the Confederate flag would no doubt fail because students wearing the image claim it is to celebrate their southern heritage and not because they are racist.
According to the Christian Science Monitor, Director of Blount County Schools, Alvin Hord, agrees because he said he “did not ban the Confederate flag because it was a “racist symbol,” but because of the ongoing racial confrontation at the school.” This seems like some strong cognitive dissonance that would allow him to accept that it is racially inflammatory but still maintain that it is not racist.
The reality is that the Confederate flag is seen as a racist symbol to many people, especially blacks, just as the Swastika is seen as a Nazi symbol to Jews even though it was once anciently used as a religious symbol by Hindus and other religious groups. The acts that the Germans perpetrated using this symbol make most people avoid any connection with the Swastika. So why so much pride over the Confederate flag?
The truth is most people today have a misconception that the Civil War was fought by ideological equals over states rights vs. the federal government when in reality white southerners founded the Confederacy on the ideology of white supremacy. As Alexander Stephens, vice president of the Confederacy stated, “Our new government’s foundations are laid, its cornerstone rests, upon the great truth that the Negro is not equal to the white man, that slavery—subordination to the superior race—is his natural and normal condition.”
To this day, history textbooks still present Union and Confederate sympathizers as equally idealistic. The North fought to hold the Union together, while the South fought for the preservation of their rights and freedom to decide for themselves. Nobody apparently fought to preserve racial slavery; nobody fought to end it. As one result, unlike the Nazi Swastika, which lies disgraced, even whites in the North still proudly display the Stars and Bars of the Confederacy on den walls, license plats, T-shirts, and even on high-school logos.
As Paul Escott author of Major Problems in the History of the American South: Documents and Essays wrote, “The protection of slavery had been and still remained the central core of Confederate purpose.”
Now I am sure I’ve already lost some of you but those that are still reading I ask you to bear with me because I know that many of us were taught the states rights fallacy growing up.
Here is a simple truth: Slavery was the underlying reason that South Carolina, followed by ten other states, left the Union.
In 1860, leaders of that state were perfectly clear about why they were seceding. On Christmas Eve, they signed a “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union.” Their first grievance was that “fourteen of the states had deliberately refused, for years past, to fulfill their constitutional obligations,” specifically they quote the following clause from Article IV, Section 2 of the Constitution, “No person held to service or labour in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up…”
The Declaration then continues by referencing the Fugitive Slave Act of 1850 which was enacted to enforce the aforementioned clause in the Constitution. The law required officers of the law and even private citizens in free states to participate in capturing and returning blacks when whites claimed them to be their slaves. This made the free states complicit with slavery. The free states wriggled around, trying to avoid full compliance.
PA, for example, passed a law recognizing the FEDERAL act but pointing out that PA still had the STATE right to determine pay for their officers of the law, and they refused to pay for time spent capturing and returning alleged slaves. (I capitalized federal and state to emphasize that South Carolina was making the case that the states rights of Pennsylvania are superseded by federal law.)
The Declaration continues by stating that “an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations…The States of ME, NH, VT, MA, CT, RI, NY, PA, IL, IN, MI, WI and IA, have enacted laws which either nullify the acts of Congress or rend useless any attempt to execute them.” Once again South Carolina is opposed to the states rights when the federal law i.e. acts of Congress benefits South Carolina.
South Carolina’s Declaration went on to condemn New York for denying “even the right of transit for a slave” and other Northern States for letting blacks vote. Before the Civil War these were state’s rights. Nevertheless, South Carolina claimed the right to determine whether New York could prohibit slavery within New York or Vermont could define citizenship in Vermont. South Carolina even contested the rights of residents of other states to think differently about their “peculiar institution,” giving another reason for secession that Northerners “have denounced as sinful the institution of slavery.”
In short, slavery permeates the document from start to finish. Other states used similar language.
Thus South Carolina opposed state’s rights when claimed by the free states. This is understandable. Historically, whatever faction has been out of power in America has pushed for state’s rights. For example, most people would probably say that liberals are opposed to states rights and conservatives are for them but if you tried to tell most liberals that the federal government was going to ban gay marriage despite what a state wishes you would hear a lot of support for states rights from liberals and probably a lot of support for the federal government from the conservatives. If you reversed the federal law to one that forced all states to allow gay marriage those opposing and supporting the states rights would switch sides.
For further proof that states rights were not the foundation of the secession you have only to look at how the actual Confederacy operated.
As the war continued the Confederacy began to deny state’s rights within the new nation. As early as December 1862, President Jefferson Davis denounced state’s rights as destructive to the confederacy. The mountainous counties in Western Virginia bolted to the Union. Confederate troops had to occupy east Tennessee to keep it from emulating West Virginia. Winn Parish, LA refused to secede from the union. It may have been okay for the states to secede from the Union but there would be no secession from the Confederacy. No state had that right.
In response to all these cries for local sovereignty Davis expressed great contempt for the “public meetings of treasonable character, in the name of state sovereignty being held” in pockets throughout the Confederacy.
States rights as an ideology was contradictory and was not the reason the war was fought. It was to maintain slavery or better yet to expand it (see the Kansas-Nebraska Act).
Even Confederate Col. John S. Mosby, the “Gray Ghost of the Confederacy” decried the obfuscation that historians were throwing up as to what the war had been about. In 1907 he wrote, “the South went to war on account of slavery.” He cited the South Carolina’s secession proclamation and noted scornfully, “South Carolina ought to know what was the cause for her seceding.” (see Mosby’s Memoirs by John S. Mosby)
For those that will inevitably claim that blacks fought for the South let me state this:
Blacks were so unwilling to fight or stay on plantations that to avert revolts and runaways, the Confederate states passed the “twenty nigger law,” exempting from military conscription one white man as overseer to for every twenty slaves. Confederates had to keep back as much as a third of their fighting force to prevent slave revolts. Those slaves that did help the confederate army by building bridges and performing other acts of manual labor were not doing so of their own volition. History is replete with blacks fleeing confederate forces to join the North at their first opportunity.
As I stated previously, throughout the 20th century our textbooks have presented the Civil War as a struggle between virtually identical peoples. This is all part of the unspoken agreement, reached during the nadir of race relations in the US (1890-1940) to smooth over the past. Today states such as Texas set the stage for what we find in textbooks due to their size and buying power. If Texas won’t buy it, then the publishers won’t print it. Do you think Texas would buy a book that squarely detailed significantly large role racism played in forcing the South to secede? In the battle at the Alamo?
Heck, Alabama law used to require that schools avoid “textbooks containing anything partisan, prejudicial or inimical to the interests of the [white] people of the State or that would “cast a reflection on their past history.” (see Why Are They Lying to Our Children? By Herbert London)
It is for this reason that the history textbooks often called it “the war between the states”, “the war of northern aggression”, or “the war for southern independence” despite the fact that between 1861 and 1865 the war was consistently called one of three things: the Civil War, the Rebellion or the Great Rebellion.
We need to stop teaching a sanitized version of American history which allows people to grow up believing that the South did not secede to perpetuate slavery. I know we want students to grow up with a sense of patriotism and optimism but taking out the truth just makes history bland and boring. If we look at much of our history squarely in the eye, we are going to get red eyes. This is our past however, and we must acknowledge it. It is time to send students home, if not with red eyes at least with thought-provoking questions.
So not only was the Supreme Court right to dismiss this case and uphold the limiting of the Confederate flag on school grounds in order to maintain order but I think it is about time that the Confederate flag should stop being seen as a symbol of Southern pride. It stands for one of two things: At its best it stands for treason and at its worst it stands for racist slavery.
In the first instance, James Madison, Father of the Constitution, denounced in unmistakable terms and condemned secession as “utterly without support in the understanding of the men who made, ratified, and launched the Constitution.” And in the second, historical evidence strongly supports the notion that racial slavery was the impetus for secession.
The Confederate flag is indeed a symbol of the South’s heritage but is not a heritage that anyone should be proud of.