School district responds to attorney's letter

Mari Newman, Esq.

KILLMER, LANE & NEWMAN, LLP

1543 Champa St., Suite 400

Denver, CO 80202

Re: Dolores School District RE-4A

Dear Ms. Newman:

This firm represents the Dolores School District, and I have your letter of February 27, 2013. The School Board has asked me to respond.

We are well aware of continued unrest in our community and, apparently, throughout the nation, concerning the District's action in banning the Confederate Flag (sometimes referred to herein as the "Flag"). Those who have challenged our authority to issue such a ban have been consistent in acknowledging that the Flag ban would be constitutionally permissible, if the Flag had been associated with a substantial disruption of the District's educational program. I assume you have read the applicable cases upholding bans on the Confederate Flag and similar expression in schools, and that you concur in that assessment. However, those challenging the District's action have uniformly voiced the opinion that the District had an insufficient factual basis on which to associate the Confederate Flag with any such disruption.

As in all situations involving student discipline matters and/or the juvenile authorities, the particulars of any incident are confidential. The District is not at liberty to disclose specific information regarding the manner in which the Confederate Flag was related to the incident or incidents that occurred at school. If this were to come to a lawsuit, of course those facts would be the core of the case. At this time, all we can say to the public is that the Confederate Flag was associated with a number of incidents of disruptive anti-gay and racial misconduct in the school setting, and was used as a "signature" in an anti-gay incident that was reported to the police. It was after that incident that the ban was instituted, though school officials had been concerned before that occurred about the growing apparent use of the Confederate Flag by some students as a symbol of intimidation against members of protected categories. This has been confirmed recently by an incident in which a book about Stonewall Jackson was left propped against a teacher's door, where he would find it in the morning. The book bears the image of the Confederate Flag on its jacket. This is the same teacher who was the victim of the earlier "hate crime" in which the Flag was used as a signature. Obviously, the Confederate Flag symbol is still being used as it was before: to threaten and intimidate vulnerable individuals. The District is simply acting to protect these individuals to the extent it can do so by refusing to allow students to wear or display the Flag. We believe these facts place our situation squarely among those in which Confederate Flag bans have been upheld.

For instance, in West v. Derby Unified School Dist. No. 260, 23 F. Supp. 2d, 1223, 1233-1234 (D. Kansas 1998), the court held that "Part of a school's essential mission must be to teach students of differing races, creeds and colors to engage each other in civil terms rather than in terms of debate highly offensive or highly threatening to others." (internal quotations and citations omitted). In that case, the court found that a district's policy prohibiting the display of the Confederate Flag was not an attempt to suppress civil debate on racial matters, but that the school appropriately concluded that "the display of certain symbols that have been come associated with racial prejudice are so likely to provoke feelings of hatred and ill will on others that they are inappropriate for the school context." The 10th Circuit upheld the District Court's decision in West v. Derby Unified School Dist. No 260, 206 F.3d 1358 (2000). The Derby courts upheld the Confederate Flag ban following a pattern of racial tension and intimidation similar to the pattern of tension and intimidation directed primarily at homosexuals and involving the Confederate Flag in the Dolores schools. Because of the apparent tension and intimidation, we believe the ban is in fact Constitutional and does not infringe on the First Amendment rights of the students at the school.

You are the first to question the ban insofar as it extends to the Black Power Fist, the Swastika, and Iron Cross. You obviously have a point. None of those symbols has, to our knowledge, actually been used at Dolores High School. It is my understanding that the Superintendent will, if he has not already done so by the time you receive this, lift the ban on those symbols.

Your letter contains a number of factual allegations, which I will address briefly.

. There has been no censorship of the student newspaper; or, if there has been, it has been unknown to the Administration or Board. No member of the Administration or Board has been made aware of any article or editorial that was denied publication nor has any member of the Administration or Board specifically instituted a ban on publication of articles related to the Flag ban. It is true that the Principal discussed the tone of some of the newspaper's content with the two faculty sponsors, wondering why the paper couldn't include more "positive" school news articles. It is also true that at least one of the faculty sponsors gave him an earful on freedom of the press as it applies to student newspapers, and he made no further attempt to address either the tone or content of the newspaper. As I'm sure you know, student newspapers in Colorado are protected by CRS 22-1-120, and we know of no evidence of any violation of that statute in the Dolores School District.

. Prior to your letter, neither the High School Principal, the Superintendent, nor the Board had heard about students being threatened with discipline or told not to circulate a petition regarding the Flag. As far as we have been able to learn after questioning teachers as of this writing, that is not true. If you have specific facts about that, the administration will intervene and make sure no First Amendment rights are going infringed.

. Similarly, neither the High School Principal, the Superintendent, nor the Board had previously heard about the JC Penny T-shirt with the word "Rebel" on it. So far, that allegation also is unsubstantiated. Again, if you know what staff member is accused in this matter, please let me know.

. The former High School Football Coach did voice opposition to the Confederate Flag ban at a School Board meeting, but it was a month after his coaching assignment had been terminated. Thus his termination was not related to his opposition to the Flag ban.

. No one recalls the preschool teacher you mentioned ever saying anything about the Confederate Flag situation. There were, as you mention, "other issues," none of them implicating the First Amendment.

. It is certainly true that Mr. Nelligan has been an enthusiastic advocate of the Confederate Flag. That had nothing to do with his wife's being released from the responsibility for typing the minutes of Board meetings.

. The delay in writing Rachel's recommendation letter is not something the District is proud of, but it also didn't have anything to do with the Confederate Flag situation. The Principal was distracted by other things, and had delegated the recommendation letter to another staff member who had volunteered to write it, but then it slipped through the cracks and was not completed in a timely manner. Unfortunately on the day that the parent came to school demanding that the letter be done immediately, the Principal was tied up with another matter. The Board and Superintendent have made it clear to the principals that letters of recommendation must always be completed in a timely manner in the future.

. It is true that the Superintendent used the phrase "stalking and harassing" with one parent, and the term "harassing" with one or two others. This had no relationship whatsoever to the Confederate Flag ban. It had to do with stalking and harassing a school employee.

In short, there has not been any retaliation or censorship against anyone.

Turning to your requests concerning steps the Board might take, I can assure you the Board would like nothing better than to see the Confederate Flag ban lifted. We know that not everyone who displays the Confederate Flag, whether on their person or their vehicle, is or was involved in any "hate crime" or disciplinary incident at school. We acknowledge those to whom the Confederate Flag is an important symbol of regional heritage and battlefield valor, and for whom it is an insult to associate the Flag with racism or any anti-minority sentiments. The Board understands and sympathizes with those points of view. And while the Board recognizes that courts across the country, including the 10th Circuit Court of Appeals, have consistently upheld Confederate Flag bans in circumstances not unlike the one before us here, the Board would far prefer to reach a solution that is perceived as satisfying the interests of all concerned. Or, perfection being out of human reach, at least some approximation of that objective.

Of course the Board and Administration still have the obligation to protect the members of all minority groups, and to ensure that the school is a place where they can be safe, and where their educational experience is not subject to the constant disharmony and intimidation. If the ban is lifted, it cannot be lifted in a way that leaves those compelling interests unprotected.

Since the Flag ban was instituted, many students and community members have expressed their opposition to the Flag ban and have focused on the relevant historical significance of the Confederate Flag rather than the negative viewpoints associated with it. Thus, it appears to the Board that perhaps for the most part, except for a very isolated one or two youngsters, there already has been a culture shift in Dolores that has stripped the Flag of its disruptive power as a hate symbol. In fact, I would venture to say that with all of the study and argument that has been going on about the Confederate Flag, Dolores, Colorado, is probably one of the places in the country where the historical significance of the Flag is most known and appreciated. Superintendent Cooper remarked to me that with all of the impassioned seeking of authority to support the great value of the Confederate Flag as a national historical treasure, many of the students have become Civil War experts. It is our hope that this debate has made true what the Flag advocates have been asserting: That there simply are no discriminatory overtones in the use of the Flag as a signature or symbol. If we can all accept that as true, then we have basically defined away any power of the Flag to threaten or intimidate anyone and the Flag ban may no longer be necessary. So long as the majority of the students and Flag supporters acknowledge and recognize the Flag as a non-discriminatory historical symbol, it may be possible for the District to deal with those who may still attempt to use the Flag for intimidation on an individual basis.

We do not believe there is any lack of a proper awareness of civil rights issues among the staff and leadership in the District. In fact, it is an acute awareness of civil rights concerns coupled with consultation with counsel and a review of applicable case law that led to the ban in the first place. The District therefore respectfully declines your specific requests, and will deal with this matter going forward in its own way.

Darryl L. Farrington

Simple, Farrington & Everall, P.C.

Attorneys at Law

The Chancery Building Suite 1308

1120 Lincoln Street

Denver, Colorado 80203