The federal appeals court decision in Melton v. Young, 465 F.2d 1332 (6th Cir. 1972), represents one of the early times an appeals court had to grapple with the troubling question of regulating Confederate flag clothing in public schools. A divided court ruled that school officials could suspend a student for wearing Confederate flag clothing without violating the First Amendment because the flag had led to disruptions of school activities.

Melton was ordered to take off Confederate jacket at school

The question arose when student Rod Melton wore a jacket with a Confederate flag to his Chattanooga, Tennessee, high school. The school, which had only recently integrated in 1966, had witnessed a series of racial incidents the previous year, including citywide disturbances and school closings. School officials recently had stopped using the Confederate flag as a school symbol and Dixie as a school pep song. The school then adopted a code of conduct and a dress code policy that banned “provocative symbols on clothing.”

Melton and his parents sued after he was ordered to remove the jacket or leave school. Melton asserted that he had a First Amendment right to wear the jacket. School officials countered that the Confederate flag was disruptive in the school environment given racial tensions in the school. A federal district court ruled the ban on “provocative symbols” was unconstitutional but that school officials could prohibit the Confederate flag because it was disruptive.

Court of Appeals ruled in favor of the school

On appeal, a three-judge panel of the Sixth Circuit Court of Appeals ruled 2-1 in favor of school officials and against Melton. Writing for the majority, Judge Damon Keith recognized that this was a “troubling case” that presented a clash between freedom of expression and school officials’ authority.

Court said Confederate flag could be disruptive

Applying the substantial disruption test from the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District, Keith determined that given the history of racial tension in the school and surrounding community, the school officials could prohibit the Confederate flag on student clothing. Keith reasoned that the racial history made it reasonable for school officials to believe that Confederate flag clothing could disrupt school activities.

Judge William E. Miller dissented, writing that the school principal overreacted and acted out of what the Supreme Court called in Tinker “undifferentiated fear or apprehension of disturbance.” He focused on the fact that the racial tensions in the school and community had not been caused by students wearing Confederate flag clothing.

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