Judge: Confederate flag dispute should go to trial

Afired bus driver for the Phoenix-Talent School District suing to get his job back after being fired for flying a Confederate flag from his vehicle should have his case heard in court, a federal magistrate said Thursday.

U.S. Magistrate Judge Mark D. Clarke ruled against a motion to dismiss the First Amendment case and said the suit should go to trial, according to court records filed in U.S. District Court in Medford.

School bus company First Student Inc. and the Phoenix-Talent district had argued the case should be dismissed because driver Ken Webber flew the flag as an expression of what he called his "redneck lifestyle," not protected political speech.

Clarke wrote there is enough evidence to allow a jury to find that Webber flew the flag to express his feelings for history and heritage, which other courts have included in freedom of speech protections guaranteed by the First Amendment to the Constitution.

The magistrate's recommendation goes to a judge for final action. No trial date has been set.

Webber's attorney Thomas Boardman called it "a thrilling victory for the First Amendment."

Webber, the married father of four, was fired in March 2011, after repeatedly refusing to remove a 3-foot by 5-foot Confederate flag emblazoned with the word "redneck" from the CB antenna on his pickup truck. The flag was a gift from his father.

District Superintendent Ben Bergreen had seen the flag on Webber's truck parked at the bus yard, which is on property owned by the school district, and told the bus company he wanted it removed because it violated the district's anti-harassment policy.

After being suspended twice, Webber continued to refuse to remove the flag or park his truck off school property and was fired.

Clarke wrote that there are several disputed questions of fact that should be answered by a jury, not a judge. Among them is whether the flag amounted to protected speech.

Clarke noted that other courts have found the First Amendment protects the flying of the Confederate flag as a symbol of state's rights, white supremacy, history and heritage.

There is no evidence Webber is a racist or state's rights advocate, and the issue of history and heritage is a "close call," Clarke wrote.

"It is true that Webber stated that he did not intend to communicate anything by flying his flag," Clarke wrote. "Webber's decision to risk losing his job of nearly six years rather than remove his flag speaks volumes about not only the symbolic value it holds for him, it is inconsistent with the conclusion that he did not mean to convey anything to the public by displaying it."

Clarke also found that Webber's flag amounted to an expression of his personal beliefs, and could not be considered an expression of policies of the bus company or school district.

He also found that while there was evidence of racial tension and gang activity at the district's schools, there was no evidence that anyone involved in that ever saw Webber's flag while he was parked at the bus yard.

The magistrate had harsh words for Bergreen, writing that the superintendent "could not have believed that he could lawfully demand that Webber remove his flag, because a reasonable official would have known that he could not enforce the district's anti-harassment policy against Webber through the bus company."


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