Opinion: Confederate Flag Controversy Doesn’t Pass Tinker Test

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Closeup of silky Confederate flag

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 1969 Supreme Court Majority Opinion

In 1969, the United States Supreme Court decided in a 7-2 decision in the famous Tinker v. Des Moines case that the first amendment also applies at public schools after the schools forced Des Moines students to remove arm bands protesting the Vietnam War.

This week, a student in Vinton, Iowa was removed from school for having a Confederate flag in the back of his truck. Other students have joined in protest by flying and displaying their own Confederate flags. The school administration only exacerbated the problem by removing the student. While I will disagree with flying the Confederate flag, I will defend the student’s rights to do so as long as they are not harming others. Just because people don’t like something and have strong opinions on something doesn’t mean they can have the state ban it. It is dangerous to ban books, speech, or armbands because one day your speech that is popular today may become unpopular and stifled by the state.

The issue is not about your opinions of the Confederate flag. The issue is free speech and the first amendment and when we defend free speech we sometimes find ourselves defending the speech that we don’t like or find offensive. Defending our neighbors free speech, even when we disagree with them, is as American as baseball and apple pie. Apparently, some school administrators in Vinton need to be educated on the first amendment and the Tinker v. Des Moines case. The student with the Confederate flag doesn’t pass the Tinker substantial disruption test which requires that something “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” before the school can prevent it.

Instead of pushing ideas and opinions underground, we should be talking about issues. The fact that we have for far too long ignored issues is the reason we are in the mess we are in today. You don’t have a right not to be offended by someone else’s speech and that is the fundamental basis of our system of government.

Iowans should be able to fly a United States flag, the Iowa flag, a rainbow gay pride flag, and a Confederate flag all at the same time if they really want to without interference from the state. Of course, that doesn’t mean that if you fly the Confederate flag that you are free from criticism and the free speech of others.