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Big Sky High School junior Mitchell Ballas, 17, continued to wear his Confederate flag sweatshirt to school despite receiving a one-day suspension Tuesday. Ballas says it is his First Amendment right to wear the sweatshirt.

COLTER PETERSON, MISSOULIAN

A Big Sky High School student was suspended from school Tuesday for repeatedly wearing a Confederate flag sweatshirt, despite the administration’s requests that he take it off.

Mitchell Ballas, 17, said he’s wearing the sweatshirt to stand up for students’ First Amendment rights to freedom of speech. After one of his friends at Big Sky was asked not to wear a Confederate flag hat, Ballas bought the sweatshirt and began wearing it to school every day.

“I know what the school is doing is wrong,” Ballas said. “I’m doing everything in my legal right to wear this sweatshirt. The school is in the wrong for saying they can dictate me wearing this sweatshirt. They're saying it’s offending kids and it’s derogatory and all that, but it's not. It's my First Amendment right.”

Ballas said he’s not wearing the sweatshirt to be racist, and that the flag has been used for the wrong reasons.

“Whatever they think this flag stands for, it doesn’t,” he said.

Big Sky Principal Natalie Jaeger said she can’t discuss issues related to specific students, but that in the last month several students have been displaying the Confederate flag on clothing and cars. Each time, other Big Sky students have reported it to the administration because they felt “alarmed,” Jaeger said.

In total, about 30 students have come to the administration feeling anxious or afraid because of the Confederate flag displays, Jaeger said. This is the first time she’s dealt with this kind of issue at Big Sky.

“I have had disagreement from a couple of students and a couple of parents, based on the fact that the Confederate flag is misunderstood,” Jaeger said. “We’re going to continue to disagree on that. Regardless of the intent of the students displaying the flag, the flag is a symbol in 2018 that is used to express racism and oppression, and that has no place in an educational environment.”

Ballas said he began wearing his sweatshirt last Wednesday, and was asked to take it off. He said he did, but then wore it to school the next day, when he was again asked to take it off. When he wore it to school again on Friday, he said he was given detention for two days.

When he didn’t stop wearing it, he was given in-school suspension, which he attended wearing the sweatshirt. In response, he was given out-of-school suspension on Tuesday.

Tomorrow, I’m going to wear the sweatshirt again, and if they suspend me longer, they suspend me longer, but I’m not going to give in to them,” he said Tuesday. “What they're doing is wrong, and I won’t allow it.”

Ballas said he looked through the school handbook and dress code and found nothing prohibiting him from wearing the symbol. Jaeger said she consulted with Missoula County Public Schools Superintendent Mark Thane and the school district’s attorney, Bea Kaleva, to make sure she was within her rights.

Kaleva did not respond to a telephone message seeking comment Wednesday afternoon.

“I was supported by both the district and our counsel about my interpretation of disruption of the school environment,” Jaeger said.

School policy states that if a student’s “behavior or its ramifications constitutes a disruption of the learning environment, administrators reserve the right to discipline students who threaten and/or harass their classmates regardless of where or how the specific behavior occurs.”

Ballas said that to him, the flag represents the apostle St. Andrew, who was crucified in the shape of an X because he didn’t feel worthy of being crucified the same way Jesus was. “That hits home for me,” he said.

“I don't wear it to threaten people, I don't wear it for white supremacists, I wear it because it’s my First Amendment right, I have the right to wear it, I’m doing it to show the school that you cannot dictate our First Amendment rights.”

Ballas went home and researched several Supreme Court cases, including the Tinker v. Des Moines 1969 decision that protects students’ free speech rights in schools.

The court ruled 7-2 in favor of the students who were suspended for wearing black armbands to protest the Vietnam War, saying in order to censor speech, school officials must be acting on more than a “desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

The majority opinion went on to say that school officials can, however, censor speech if they show that it “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.”

Alex Rate, legal director for the Montana ACLU, said it's a high bar for schools to demonstrate substantial disruption to the school’s operations.

“There has to be significant interference with the ability of the school to perform its essential function of educating the students,” Rate said. “So if someone is wearing an anti-gun sweatshirt or a Confederate flag sweatshirt, even if the school may disagree with the speech that brings, it doesn’t necessarily substantially interfere.”

The issue becomes more complicated with symbols that are racially charged, Rate said. There isn’t a clear way for administrators to decide what substantial interference with school function looks like.

In 2013, in Hardwick v. Heyward, the U.S. Court of Appeals for the Fourth Circuit sided with school administrators in South Carolina who prohibited a student from wearing a Confederate flag sweatshirt because of its potential to cause a disruption at the school, which had a long history of segregation.

In that case, the prediction of disruption was reason enough to prohibit the student from wearing the symbol.

“This is an opportunity for schools to engage in a dialogue with students about what free speech and freedom of expression mean, and to work through significant and important conversations that are happening related to racism, to gun ownership, school shootings, what have you,” Rate said. “From our perspective, any time something like this occurs, it presents an opportunity for the school administration to discuss what lawful speech is.”

Jaeger said every year for the last 15 years Big Sky freshmen have received training from Empower Montana around anti-bullying and anti-oppression, which helps students have conversations around some of those issues.

To Ballas, wearing the sweatshirt is a way of supporting his peers who have been told not to wear Confederate insignia.

“A strong man stands up for himself, a stronger man stands up for others, so I’m standing up for others and their rights.”

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