Law & Courts

High Court Declines To Hear Case on Confederate Flag

By Mark Walsh — November 08, 2000 3 min read

For the second time this fall, the U.S. Supreme Court declined last week without comment to hear an appeal from a student who was disciplined for displaying a Confederate flag in school.

The latest case involved Wayne Denno, who was a sophomore at Pine Ridge High School in Deltona, Fla., in 1995 when he showed a small Confederate battle flag to some friends during lunch. Mr. Denno, now 21, was described in court papers as a Civil War history buff who participated in battle re-enactments with a Florida group.

When an assistant principal approached Mr. Denno and asked him to put the flag away, saying it was a racist symbol, the student refused and attempted to explain its historical significance. He was ordered to the school office and was told he was being suspended.

At the office, another student was being detained for wearing a T-shirt bearing a Confederate flag. Mr. Denno urged the student to refuse to turn his shirt inside out, saying their displays of the flag were protected by the First Amendment.

Mr. Denno was suspended by school administrators for nine days, with a recommendation that he be expelled, although the school board of the 61,000-student Volusia County district in central Florida declined to take that action.

Appellate About-Face

In court papers, Mr. Denno’s mother said school officials also filed a criminal complaint alleging that Mr. Denno was trying to incite a riot with his display of the flag. Prosecutors declined to press charges.

Mr. Denno and his mother sued two school administrators and the school board, alleging that his punishment violated the First Amendment because the display of the Confederate flag was a protected form of expression. They lost in federal district court, then initially won a reversal in the U.S. Court of Appeals for the 11th Circuit, in Atlanta.

However, the three-judge panel of the appeals court reversed itself in a 2-1 decision in July and ruled against the Dennos. (See Denno v. School Board of Volusia County, Florida.)

The administrators were entitled to immunity from the lawsuit, because barring student displays of the Confederate flag was not clearly unreasonable under Supreme Court cases involving student speech, the panel said.

“Many people are offended when the Confederate flag is worn on a T- shirt or otherwise displayed,” the majority said. The fact that Mr. Denno had no racist intentions or that some people view the flag as a memorial to Southern heritage is not as relevant as the fact that a “school official might reasonably think that other students would perceive the display as racist or otherwise uncivil,” the court added.

The dissenting judge noted that there was no history of racial tension at Pine Ridge High. He argued that Mr. Denno was disciplined solely because of the content of his speech.

“The Confederate battle flag itself is a catalyst for the discussion of varying viewpoints on history, politics, and societal issues,” Judge J. Owen Forrester wrote in his opinion. “Discourse on such issues, without the fear of undue government constraint or retaliation, is exactly what the First Amendment was designed to protect.”

The Supreme Court’s Oct. 30 refusal to hear the appeal in Denno v. School Board of Volusia County (Case No. 00-306) was not a ruling on the merits of the case. Earlier last month, the justices declined to hear an appeal involving a Kansas student disciplined for drawing a Confederate flag on a piece of paper.

As displays of Confederate flags continue to cause controversy, most lower courts that have addressed the issue have upheld decisions by school administrators to bar the symbol.

Annexation Case

Separately last week, the high court declined to hear the appeal of a predominantly black Illinois school district that is seeking to halt efforts of a mostly white subdivision to detach itself and join a neighboring district.

The 3,300-student Rich Township High School District in suburban Chicago, which has an 80 percent African-American enrollment, has so far lost in its legal efforts to bar a subdivision called the Greens from joining the mostly white Homewood-Flossmoor High School District.

Rich Township argues that a state law barring consideration of the racial impact on student enrollment in annexation decisions conflicts with the U.S. Constitution’s guarantee of equal protection of the laws. But the district lost in Illinois state courts, and the Supreme Court declined without comment to hear the appeal in Board of Education of Rich Township High School District v. Brown (No. 00-318).

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A version of this article appeared in the November 08, 2000 edition of Education Week as High Court Declines To Hear Case on Confederate Flag

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