In Hardwick v. Heyward, 711 F.3d 426, (2013), the Fourth U.S. Circuit Court of Appeals ruled that public school officials in Latta, South Carolina, did not violate the First Amendment rights of a public school student who wore Confederate flag t-shirts at her middle and high school. 

Hardwick told to not wear Confederate clothing at school

The controversy began when Latta Middle School Principal Martha Heyward ordered student Candice Hardwick to remove her “Southern Chicks” t-shirt that featured a depiction of the Confederate flag.  Later, other school officials forced Hardwick to remove or cover up a “Dixie Angels” t-shirt, a “Black Confederates” t-shirt, and a t-shirt featuring a picture of General Robert E. Lee and the Confederate flag. 

Hardwick sued, alleging a violation of her First Amendment rights. The school officials countered that the Confederate flag was a disruptive symbol in a school that has had instances of race-based tension. After a federal district court granted summary judgment to the defendants, Hardwick appealed to the Fourth Circuit.

Court said school did not violate student's First Amendment rights

The Fourth Circuit applied the substantial disruption test from the U.S. Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District (1969).  The appeals court reasoned that Latta school officials reasonably could forecast that Hardwick’s Confederate flag clothing would cause substantial disruptions at school.  The court cited the Tenth U.S. Circuit Court’s decision in West v. Derby Unified School District (10th Cir. 2000) in allowing school officials to consider instances of racial tension in the larger community outside of the school setting. 

“The record contains ample evidence from which the school officials could reasonably forecast that all of these Confederate flag shirts would materially and substantially disrupt the work and discipline of the school,” the Fourth Circuit wrote.  The appeals court reached the same conclusion to what Hardwick called her “protest t-shirts.”  The court also rejected Hardwick’s broader overbreadth and vagueness challenges to the school’s dress code.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.‚Äč

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