Dead Confederates, A Civil War Era Blog

Confederate Flag Cases at the Fourth Circuit

Posted in Memory by Andy Hall on March 26, 2013

Quick updates on two Confederate flag cases covered previously here:

The United States Court of Appeals for the Fourth Circuit in Richmond declined to reinstate the case of Candice Hardwick of Latta, South Carolina, who was twice suspended from school for wearing a Confederate flag t-shirt back in 2006. The case was dismissed by a (federal?) court in South Carolina in 2009, and subsequently reinstated. She initially lost her case in 2010, and the case was dismissed again just about exactly a year ago. Federal case law, particularly in the wake of Morse v. Frederick (the infamous 2007 “Bong Hits 4 Jesus” case), gives school administrators very wide latitude in restricting student speech. Lots of folks across the political spectrum have deep reservations about the Supremes’ ruling in Morse, but that’s where we are right now.
That same Fourth Circuit recently rescheduled a hearing to reinstate the SCV’s lawsuit against the City of Lexington over its 2011 ordinance barring all but official, government flags from its light poles and other public fixtures. The hearing was originally scheduled for March 20, but at the last minute the court pushed it back to May 15. The change was not requested by either party. The U.S. District Court had dismissed the case last June, calling the ordinance on its face to be “reasonable, nondiscriminatory, [and] content-neutral.” If the plaintiff, the SCV’s Stonewall Brigade, wins reinstatement of the case, it will presumably go back for trial to the same district court that dismissed it in the first place.


Update, March 28: This story from the Courthouse News Service provides much more background on the Candice Hardwick case than I’ve seen in other news reports. Disputes with the school over her flag attire go back to early 2003, at least three years before the suspension that resulted in the lawsuit, when she insisted on wearing a “Southern Chicks” shirt with a Confederate Battle Flag. In middle school. Subsequent attire included the legends, “Offended by School Censorship of Southern Heritage,” “Daddy’s Little Redneck,” “Jesus and the Confederate Battle Flag: Banned from Our Schools, but Forever in Our Hearts,” a black Confederates shirt, and one with a picture of the U.S. flag with the caption, “Flew over legalized slavery for 90 years!” This is less a case of a naive kid wanting to honor her ancestors, than a deliberate and years-long intent to force a showdown. And she got it.




26 Responses

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  1. Cotton Boll Conspiracy said, on March 26, 2013 at 9:46 am

    Given that the incident happened in 2006, I suppose by now Candice Hardwick is well on her way to a PhD at some prestigious university.

  2. John said, on March 26, 2013 at 12:12 pm

    Whatever happend to the court case involving the request for an SCV license plate in Texas?

    • Andy Hall said, on March 26, 2013 at 12:14 pm

      I haven’t heard anything on that for months, although I know it’s in the works. AFAIK that case is still awaiting a trial date.

      There’s also the case of the two UDC plaques removed from the state Supreme Court building in Austin, now ten thirteen years ago. My guess is that the court will hold that the removal of the plaques by order of then-Governor George W. Bush falls in a gray area of that office’s powers, and the subsequent decade-plus of inaction by Governor Perry — who publicly disagreed with the removal at the time, when he had no responsibility or authority in the matter — would likely cause the court to consider it a fait acompli. But that’s speculation on my part, and I haven’t seen the actual arguments being made in detail.

      I’ve said before that I believe the state will lose on the license plate question, because they grant special plates to everybody and their dog already, and under those circumstances they cannot single out the SCV for rejection.

  3. Dave Tatum said, on March 29, 2013 at 1:58 pm

    Food for thought !
    What if you were to wear a T-Shirt with a picture of a state issued SCV tag (Virginia) into a public school ?
    The tag would have a Battle Flag on it ! And since it is issued by the state —— ?

    • Andy Hall said, on March 29, 2013 at 2:16 pm

      I think that would tear a hole in the space-time continuum, Dave. So please don’t try it, okay?

      More seriously, I don’t think it would matter under current federal case law where the original image came from. Cars are required by law to have some sort of license plate; wearing a picture of said plate on a shirt is entirely a personal fashion choice. (As would be wearing the plate itself around one’s neck.) A better question might be if a student’s car in the school lot had such a license tag; that might be trickier.

      School districts have a lot of leeway in determining what’s disruptive and what’s not, within their local circumstances. It’s a little heavy-handed and may seem arbitrary, but the alternative very easily spiral out of control. (And as we’ve seen recently, schools do sometimes reverse themselves on these policies.)

      One example that happened a few years ago in my town is that middle-school age boys suddenly became (allegedly) very committed to finding a cure for breast cancer, which concern they proudly displayed by wearing those rubber “I Heart Boobies” wristbands. It was a pretty transparent attempt to have an excuse to wear something in school with the word “boobies” on it, since their commitment to breast cancer research coincided directly with the appearance of said wristbands in the community. It got to be a real distraction so the school had the teachers start collecting them in the first class period in the morning and returning them at the end of the day. And guess what? The 12- and 13-year-old boys suddenly lost all interest in breast cancer research, the very week they stopped being able to wear the word “boobies” around the school. Funny how that happened, huh?

      • Dave Tatum said, on March 29, 2013 at 3:24 pm

        “A better question might be if a student’s car in the school lot had such a license tag; that might be trickier”.

        I don’t think so, I live in an area that has a kazillion military installations, the X-O of each base can dictate what is acceptable, however they can not ban you from the base for a state issued tag. So I think the same would apply to a school parking lot. But I have been wrong before !

        • Andy Hall said, on March 29, 2013 at 3:26 pm

          That makes sense. I don’t recall a case like that coming up before — Confederate flag bumper stickers, yes, but not plates.

        • Rob Baker said, on April 1, 2013 at 7:51 am

          It would not apply. Schools and military bases are not parallel in application of laws/rules and regulations.

          To answer the license plate issue, there is not an overabundance of case laws addressing this issue. Therefore, rules can sort of alternate between given circumstances until a final judgement via the Supreme Court is rendered. As it holds now, vanity plates or specialty plates, which is what the SCV plate is, is considered individual speech and not government speech. There is a long history of free speech being limited when in the uniform. This is known as “Military Expression Law.” The supreme court has affirmed this in the case United States v. Vorhees. Soldiers have been denied enlistment because of CBF tatoos, and there have been incidents with bumper stickers, political statements, etc..

          The SCV tag, is not issued by the state in that it is not state sponsored. It is considered individual free speech in the form of vanity or specialty. In other words, you chose the tag, the state did not. Therefore it is a free speech issue according to SCOTUS and the state of Virginia. However, in the case of military being able to restrict free speech, if this were to be an incident and go to court, the military would have plenty of legal precedent to take action. Schools would as well.

          • Andy Hall said, on April 1, 2013 at 10:04 am

            Maybe more interesting is what this says about “heritage” efforts — put a picture of a license plate on a shirt to get around the rules, really? It’s like Edgerton and the odious Kirk Lyons back-slapping each other because they “got around” a county ruling in North Carolina limiting displays to state flags, by putting up a Mississippi state flag that contains the CBF as part its design. Twelve-year-olds everywhere applauded.

            • Rob Baker said, on April 1, 2013 at 10:11 am

              Context is almost always the issue as well as the perception of the masses., Contextually, the American flag can be perceived in an antagonizing manner.

              • Andy Hall said, on April 1, 2013 at 10:41 am

                Sure. Any symbol can be misused.

                Unfortunately, the Confederate heritage movement has focused so much in recent years on displays of the flag, that it increasingly distracts them from doing more substantive (and less controversial) things that would make a longer-lasting difference. How many overgrown cemeteries could be cleaned up with the volunteer hours spent protesting the VMFA?

                Symbols are important, but shouldn’t be confused for the substantive thing they represent.

              • Rob Baker said, on April 1, 2013 at 12:04 pm

                Excellent example. Apparently the polyester self assumed symbol of a perverted form of heritage is most important.

              • Andy Hall said, on April 1, 2013 at 12:50 pm

                Much of “Confederate heritage” advocacy seems to boil down to more and bigger flags.

                One serious thing that would actually go a long way toward preserving the memory of the veterans in Richmond would be a full-length, scholarly history of the home, something like Rusty Williams’ book but much more in depth. The Flaggers always seem to be able to pull out a document or photograph to make a particular point, so the material is surely there, although the logistics of researching would probably require someone local to do it.

              • Rob Baker said, on April 1, 2013 at 12:54 pm

                It’s really disconcerting to see as well. I’m sure you have witnessed what good the SCV and UDC can be sa far as heritage activism. Their ability to rally support/money to resurrect broken monuments, clean cemeteries/battlefiends, and other community projects for the sake of history is encouraging.

              • Andy Hall said, on April 1, 2013 at 1:48 pm

                Rob, anytime you look up some Confederate’s CSR on Fold3, say a quiet thank-you to the UDC, because they were the ones who, decades ago, sponsored having all Confederate CSRs microfilmed. Ever wondered why all the extant Confederate records are available and the Union ones aren’t? Because of the “heritage traitors” at the UDC, that’s why.

  4. rubewaddell said, on March 30, 2013 at 12:47 pm

    Hey Andy,
    I wandered hereabouts after reading your great piece at Civil War Monitor about Robert E. Lee’s heartwarming and healing gesture at St. Paul’s Episcopal Church. (Sorry I’m leaving this comment in an inappropriate place; I couldn’t find the right spot.) Just wanted to offer a word of praise.
    A couple days ago I had the pleasure of chatting with the passionate mayor of a small North Carolina town. He’s a retired history teacher, and he worked himself to the brink of tears when sharing the tale of old Marse Robert kneeling at the alter in a heroic gesture of interracial brotherhood. In this retelling, Bobby Lee actually put an arm around the interloper’s shoulder.
    I remain impressed by his passion, and the way we cling to our peculiar mythologies as if our lives depended upon them.
    Take care,

    • Andy Hall said, on March 30, 2013 at 12:54 pm

      John, thanks for stopping by. There are lots of historians who think the incident at the church never happened at all. I’m agnostic on that point, but if we do assume it really occurred, then we have to understand it as the people who witnessed it (or claim to have witnessed it) did. Lee’s action, as it was understood at the time, was one seen as an act of defiance and resolution to ignore the black man’s presence, not one of Christian reconciliation.

      • Mike Musick said, on April 1, 2013 at 3:03 pm

        Just a footnote regarding the UDC and the microfilming (later the digitization by others) of Compiled Military Service Records. The Daughters stipulated that all CSRs for Southern and border states be filmed. This resulted in the filming, in addition to CSA records, of CSRs for all the white Southern Union regiments (e.g. 1st Alabama Cavalry, USA, etc.), as well as Union regiments with Kentucky, Missouri, Maryland, and Delaware designations.

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