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4th Circuit hears Latta Confederate clothing case

By: S.C. Lawyers Weekly staff//November 1, 2010

4th Circuit hears Latta Confederate clothing case

By: S.C. Lawyers Weekly staff//November 1, 2010

RICHMOND, Va. (AP) — School officials who barred a South Carolina student from wearing shirts with the Confederate battle flag on campus failed to demonstrate that her clothes would be disruptive, the former pupil’s lawyer told a federal appeals court.

Kirk D. Lyons urged a three-judge panel of the 4th U.S. Circuit Court of Appeals on Oct. 27 to reinstate Candice Hardwick’s lawsuit, which a judge tossed out last year. Hardwick claims public school officials in Latta violated her free-speech rights.

U.S. District Judge Terry Wooten ruled that school officials, concerned that Confederate imagery could cause problems in the racially diverse schools, acted reasonably in banning such items.

Affidavits by school officials and some students predicted racial turmoil and fights if Hardwick were allowed to wear Confederate-themed clothing, but Lyons said that was not good enough. He said they had to provide documentation that the Confederate flag caused problems in the schools around the time Hardwick was displaying it.

“This case is just bare,” Lyons said.

Vinton D. Lide, an attorney for the school district, disputed Lyons’ suggestion that officials could not be proactive in heading off trouble in schools where racial tensions exist.

“Counsel would have his client bring into that powder keg a lighted match in the form of the Confederate flag,” Lide told the judges.

Lyons disputed that racial divisions exist in the schools, but appeals court Judge Paul Niemeyer said “you’d have to be putting your head in the sand” to ignore the Confederate flag’s potential for fueling conflicts.

Lyons said he would hope that nobody would start a fight over the Confederate flag, but he added: “The Constitution and free speech is worth a black eye or a bloody nose.”

Hardwick was a 15-year-old high school sophomore when she and her parents filed the lawsuit in 2006. According to court papers, Hardwick dropped out of high school because of family problems and now lives on her own. She was not present for the court hearing.

Court papers filed by Lyons described Hardwick as a descendant of Confederate soldiers who “has a strong affinity for the South, and particularly for the brief period of time that it had constituted itself as a separate nation in the form of the Confederate States of America.”

Although the Confederate clothing is the focus of Hardwick’s lawsuit, attorneys also argued over a secondary issue whether she can still pursue damages for being prohibited from wearing T-shirts that protested the district’s dress code. Court papers said those shirts featured messages like “Freedom of Speech for all (Except Southerners)” and “Jesus and the Confederate Battle Flag, banned in our schools but forever in our hearts.”

Lide said Hardwick abandoned that part of the case after Latta High School officials agreed to allow the shirts, but Lyons argued that she preserved her right to seek damages for earlier incidents in which she was ordered to cover up the shirts or turn them inside-out.

The appeals court typically takes several weeks to rule.

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