By DUNCAN MANSFIELD
Associated Press Writer
KNOXVILLE - A full federal appeals court refused Friday to hear a lawsuit by three Tennessee students threatened with suspension if they wore Confederate flag T-shirts.
In a dissenting opinion, however, the court's chief judge suggested the case needed to go to trial.
Students Derek Barr, Craig White and Chris White argued that their free speech rights were violated by William Blount High's ban on clothes with the Rebel flag, which is considered a symbol of racism and intolerance by some and an emblem of Southern heritage by others.
The students were threatened with suspension in 2006 amid growing racial tensions and violence at the majority-white high school in Maryville, south of Knoxville. Graffitti appeared threatening the lives of black students, fights broke out between black and white students and police were called in to lock down the school.
Barr and the Whites were not accused of participating in those activities, only of wearing Rebel flag clothing, which school officials viewed as "disruptive."
In 2007, a federal judge issued a summary judgment in their case without a trial affirming the school dress code. A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati upheld the ruling in August. On Friday, that appeals court refused in a two-paragraph order to give full-court reconsideration.
However, Chief Judge Danny Boggs wrote that he was concerned that the facts of the case were still in dispute - whether there was a specific connection between the students' flag clothing and school disruptions.
"The court says that evidence of disruption is 'uncontested,' but the record suggests otherwise," Boggs wrote. "It should be left to a jury to determine whether this disagreement both constitutes a disruption and was sufficiently related to the Confederate flag to justify a ban."
Boggs said a jury might be persuaded that Blount High officials were trying "to avoid political or public controversy" by suspending the students rather than trying to avoid school disruptions - "a reasoning not sanctioned" by previous court rulings.
"This is basically what I am going to say in my petition" to the U.S. Supreme Court, said Van Irion, a Knoxville attorney representing the students.
Irion said he was disappointed in the court's decision Friday, but "I am more optimistic than I would normally be that the Supreme Court will hear this" because of Boggs' dissent.