Judge dismisses three claims in Confederate flag lawsuit

Free speech claim moving forward in court

The Phoenix-Talent school bus driver fired for displaying a Confederate flag on his pickup said he is refiling a lawsuit to regain his job after a federal judge dismissed three of his claims last week.

Ken Webber's central claim — that he should get his job back because the firing violated his First Amendment right to free speech under the U.S. Constitution — is going forward in U.S. District Court in Medford. The district and First Student Inc. bus company didn't seek a dismissal of that claim.

"God will get me through this, I have faith in that," Webber said Tuesday, commenting on the ruling. "I'm not going to back down from this. It's going to continue on."

Magistrate Judge Mark Clarke ruled July 12 that Webber has not shown that the district or bus company discriminated against him in violation of his 14th Amendment equal protection rights.

Clarke also dismissed a claim that the district and First Student had violated Webber's First Amendment rights under the Oregon Constitution, because Clarke said the claim was not filed properly, said Thomas Boardman, Webber's attorney.

"I respectfully disagree, but I can understand that the judge made his ruling, and it's nothing that we can't live with," he said.

Boardman plans to amend and re-file that claim by Aug. 1 using guidelines set out in the Oregon Tort Claims Act, he said.

Then both sides will have until Oct. 14 to gather information for the hearing, Boardman said. A date for the hearing has not been set.

Phoenix-Talent Superintendent Ben Bergreen declined to comment Tuesday on the judge's ruling, because the case is still being litigated.

The district's attorney, Morgan Smith, of the Oregon School Boards Association, said he was pleased with Clarke's ruling.

"I agree with the decision by the court," he said.

Webber was fired March 8 for refusing to remove the flag from the CB antenna on his 1997 Dodge Dakota pickup parked on district property. Bergreen had asked that the flag be removed from the parking lot, because it violated a harassment policy against displays that could be offensive to minorities.

Webber, who drove a kindergarten bus at Talent Elementary School, has said the 3-by-5-foot flag, emblazoned with the word "Redneck," is an expression of his cultural identity and is not a symbol of racism. The Rutherford Institute of Charlottesville, Va., a nonprofit civil liberties organization, is financing the lawsuit.

Webber, who remains out of work, said the flag is still on his pickup as he attends Rogue Community College to become a juvenile corrections officer.

"My flag's still flying," he said, "and it won't come down."

Reach reporter Hannah Guzik at 541-776-4459 or email hguzik@mailtribune.com.


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