Justices Decline to Wade Into Debate on Confederate Symbols and Schools

By Mark Walsh — November 27, 2017 2 min read
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The U.S. Supreme Court on Monday refused to take up a black Mississippi man’s challenge to his state’s flag, which incorporates the Confederate battle flag, and state laws that require the flag to be “displayed in close proximity” to public schools.

The justices also declined to take up a case on prayers at school board meetings. I wrote separately about that case here.

In the Mississippi case, the justices declined without comment to hear the appeal of Carlos E. Moore, an African-American lawyer and a descendant of slaves, whose lawsuit under the 14th Amendment’s equal-protection clause challenged the design of the flag and another state law that students be taught “proper respect” for it.

“The message in Mississippi’s flag has always been one of racial hostility and insult and it is pervasive and unavoidable by both children and adults,” said the lawyer’s appeal in Moore v. Bryant (Case No. 17-23). “The state’s continued expression of its message of racial disparagement sends a message to African-American citizens of Mississippi that they are second-class citizens.”

Both a federal district court and the U.S. Court of Appeals for the 5th Circuit, in New Orleans, held that both Moore and his 6-year-old daughter lacked legal standing to challenge the state flag.

Moore’s appeal to the Supreme Court was pending in August when the violent clashes in Charlottesville, Va., fueled renewed debate over Confederate symbols and memorials. In late August, after that event, the high court sought a response from the state of Mississippi to Moore’s appeal, an indication that the case had drawn the interest of at least one justice.

In their response, state officials did not explicitly defend the Mississippi flag, which was adopted in 1894, or the laws about its display at schools. But they say the lower courts correctly ruled that the Moores suffered no real injuries from their exposure to the flag.

“If [Moore] has standing here, virtually any litigant could challenge any government action display, monument, or speech he or she views as offensive,” the state’s brief says. “Equal protection would go from being a prohibition on the denial of equal treatment to an embargo on being offended.”

Meanwhile, Moore drew friend-of-the-court briefs on his side by several groups, including the Congressional Black Caucus and the Southern Poverty Law Center.

“The Confederate battle flag is a divisive and harmful symbol of racism that some governments nonetheless continue to embrace,” says the brief signed by 48 members of the CBC. “Ending government endorsements of racism is essential to our nation’s continued progress toward ending racism itself.”

A version of this news article first appeared in The School Law Blog.