Local First Amendment law firm may get involved
A 14-year-old eighth grader in West Virginia is facing jail time for wearing a National Rifle Association t-shirt to school, and a local civil rights law firm, which has made a name for itself in cases of this sort, is looking hard at the possibility of joining the fight on his behalf.
In April, Jared Marcum, a student at Logan Middle School, was standing in the cafeteria line when he was approached by a teacher who told him “in a loud voice” to remove the shirt or turn it inside-out. Marcum refused, saying the shirt, which featured an NRA logo, a picture of a rifle and the caption, “Fight for your right,” was not in violation of the school’s dress code. He was escorted to the principal’s office, where he again stated he had violated no provision of the dress code, which specifically bans “clothing that displays profanity, violence, discriminatory messages or sexually suggestive phrases,” or “advertisements for any alcohol, tobacco or drug product.” Marcum added that, absent any such violation, he was protected by his First Amendment rights.
The school called the police.
Marcum was still pleading his case when the police arrived and told him to sit down and be quiet. Marcum replied that he was only exercising his right to free speech. “I said it calmly,” the student stated. “The only disturbance was caused by the teacher. He raised his voice.”
Marcum was suspended for a day. The next day more than 100 students across the rural county wore NRA-related shirts to school. No action was taken against any of them. School officials, however, took Jared’s case to the next level and had the local prosecutor charge him with “interfering with the educational process” and “obstructing an officer.” According to his father, local police also threatened to charge him with making terrorist threats. That charge has not materialized, but the student is due in court on July 11, facing the possibility of a $500 fine and up to a year in jail.
Enter the Southern Legal Resource Center, headquartered in Black Mountain.
“We’ve been watching this case like a hawk since it broke in April,” said Kirk D. Lyons, the Center’s Chief Trial Counsel. We’ve been in contact with Jared’s attorney and offered to help in any way we can. We recently wrote a friend of the court brief on behalf of a young man in Virginia who was suspended for wearing an NRA Sports Camp t-shirt that the school claimed violated its zero tolerance rule on firearms at the school. The [Fourth U.S. Circuit Court of Appeals] found for the student.”
The SLRC, founded in 1996, originally confined itself to providing legal assistance to victims of the rising tide of institutional suppression of Southern symbols, particularly Confederate ones. It gained notoriety for successfully representing such clients as Dr. Winston McCuen, a Greenville, S.C. teacher who was fired for using a small Confederate flag as a teaching aid; and Jacqueline Duty, a Kentucky high schooler who was refused entrance to her senior prom because she was wearing an evening gown with a Confederate flag motif. (The amount of the damages paid by the school board in the Duty case was kept secret, but is said to be the largest ever recovered in a “Southern heritage” action.) But the Center gained international attention, and set a legal precedent, in the case of Castorina v. Madison County Schools.
Been there, done that, got the t-shirt
On the morning of September 17, 1997 – by ironic coincidence the 135th anniversary of the Battle of Sharpsburg – Timothy Castorina wore a new t-shirt to class at Madison County (Kentucky) High School. The shirt, a souvenir of a recent Hank Williams, Jr., concert, showed a picture of the singer on its front. On the back were the words “Southern Thunder” above two smallish, crossed Confederate flags.
Castorina was summoned to the principal’s office along with his girlfriend, Tiffany Dargavell, who was wearing a duplicate shirt (the shirts were presents from Dargavell’s father). The two were told that the shirts’ Confederate flag graphic violated the school’s dress code, which prohibited any clothing or emblem “that is obscene, sexually suggestive, disrespectful, or which contains slogans, words or in any way depicts alcohol, drugs, tobacco or any illegal, immoral, or racist implication.” They were then given the choice of either wearing the shirts turned inside out or going home and changing. Supported by their parents, Castorina and Dargavell refused to comply and were suspended for three days.
The Castorinas sued the school board and lost; the local court issued a summary judgment in favor of the school. The Castorinas appealed, and on May 8, 2001, the Sixth United States Circuit Court of Appeals overturned the lower court’s ruling. The school board, it said, had failed to demonstrate any way in which the t-shirts violated the school’s own dress code, or any evidence to suggest that Confederate emblem, per se, was inflammatory. “Mere anticipation of disruption,” it said, did not justify infringing the students’ first amendment rights.
The SLRC served as on-brief counsel for Castorina’s legal team.
The handwriting on the wall
According to Lyons, there was little celebration after the Castorina victory because First Amendment groups and attorneys now saw the genie was out of the bottle; that the political correctness battlefield was now going to be the public educational system. “While most conservative groups have just stood to the side, the schools with their institutional bias against Confederate flags have just about erased them from their educational gulags,” Lyons said. We said at the time that if the schools got rid of Confederate symbols, Christian crosses and other emblems of traditional American culture would be next. We hate being proven right. You substitute an NRA shirt or anything else some school district says violates some totally ambiguous dress code for a Confederate flag, and you’ve got the present situation.” The SLRC, in an effort to keep up, has expanded the focus its legal advisory services. It forced a public apology from a school board that had refused a student admission to his prom because he was wearing a kilt in his family’s tartan.
“Schools have an obligation to teach the next generation about our sacred and inalienable rights,” said Jane Bilello, head of the Asheville Tea Party and co-organizer of several Second Amendment right-to-bear-arms rallies. “School is not a place to spew a political agenda that runs counter to American values.”
Bilello said the students who supported Jared Marcum by wearing t-shirts similar to his were to be commended. “They indeed understand more than the adults in the room. We all should thank the Marcum family for standing up for all of us.
“This just makes my blood boil,” Bilello said.
In a late development, various national media outlets have reported that the Logan County prosecutor’s office is now seeking a gag order prohibiting Marcum and his family from discussing the case, and that local police threatened to arrest a Charleston (West Virginia) television reporter who was attempting to cover that story.