Can A Teacher Fly A Black Lives Matter Flag At School? A Florida Court Will Consider

Apr 30, 2021
Originally published on April 30, 2021 4:38 pm

Robert E. Lee High School in Jacksonville, Fla., was segregated — whites only — until the 1971-1972 school year. Its school colors are blue and gray, the colors of the Confederacy, and its sports teams are called the Generals.

But a lot has changed since the 1970s: Now, the student body is 70% Black. Students run an Instagram page to document racism they experience at school. And a student group called the EVAC Movement, focused on reframing Black youth in Jacksonville from "at risk" to "at hope," met with then-President Barack Obama in 2016 and presented before the U.S. Office of Juvenile Justice and Delinquency Prevention.

In January 2020, a former member of the EVAC Movement, Reginald Boston, was killed by the Jacksonville Sheriff's Office.

That fall, Amy Donofrio, an English teacher at Lee and co-founder of the EVAC Movement, hung a Black Lives Matter flag outside her classroom to mark it as a safe space for students to process Boston's death.

"His life mattered. Period," Donofrio said. "Walking beside his family, his mom, and seeing what it looks like in real life, there's no possible way that you can't stand by the belief that Black lives matter."

This March, Jacksonville's public school district told Donofrio to take the flag down, saying it violated district policy on political speech by employees.

Donofrio said no. So she was taken out of the classroom and reassigned to non-teaching duties.

Donofrio is now represented by the Southern Poverty Law Center in a lawsuit filed in the U.S. District Court for the Middle District of Florida. The suit alleges the flag's removal was a violation of her First Amendment rights.

Donofrio alleges that the school district consistently undermined the EVAC program by demoting it from a class to a club to an informal group, turning down private funding and blocking her from using non-teaching days to take students on field trips. It felt like the school didn't support its Black students. The conflict over the flag was just the final straw.

"It's a question of whether or not this is a matter of great public significance, whether or not this speech is protected," said Cathleen Scott, a civil rights attorney who is representing Donofrio alongside the Southern Poverty Law Center. "Ms. Donofrio was speaking out against racism. And that's a very important value."

That argument might face an uphill battle in court, said Rachel Arnow-Richman, a professor of labor and employment law at the University of Florida.

"We think of the First Amendment as a foundational principle of our democracy, and it is, but it's subject to many limitations," Arnow-Richman said.

Until recently, the free speech rights of public employees were balanced against the interests of the government as an employer. Courts could consider, on a case-by-case basis, whether a public employee's speech was disruptive to the government's interests in that workplace.

But in 2006, the Supreme Court took the position that when they're on the job, public employees speak for the government, not themselves.

Because of that case, Arnow-Richman said, "public employment is one of the most profound limitations on First Amendment rights."

In her lawsuit, Donofrio is pushing back against that, citing a Florida statute that says school districts may not infringe upon school staff's rights under the Constitution in the absence of written consent.

Arnow-Richman said the law may not have fully wrestled with society's conflicting goals.

"That's to say, this general rule that public employees do not speak for themselves but speak for the government and lack First Amendment protections is at odds, I would say, with our societal interest in wanting teachers to have leeway to communicate and teach students about current issues, bringing to bear their expertise as educators," the professor said.

The school district declined to comment for this story.

Amy Donofrio (center) and former students stand outside Robert E. Lee High. Donofrio is wearing a shirt that reads "Black Lives Matter at school." She was reassigned to non-teaching duties after refusing to take down a Black Lives Matter flag she had put up outside her classroom.
Sydney Boles / WJCT News

For Amiyah Jacobs, a senior at Robert E. Lee High, the Black Lives Matter flag was comforting and she felt the school taking it down was disrespectful. She said she missed seeing Donofrio at school.

"Since we are a Title I school, not everybody has access to the right resources. So she helps out with kids who need hygiene or food or even help applying to college," Jacobs said. "She was just very sweet. And she cared for the students. It wasn't always just about 'Do your work.' "

Jacobs is one of more than 16,000 people who have signed a student-led petition to bring the teacher back to the classroom.

Donofrio said it's stressful to sue her employer, but it also feels like a relief.

"There are educators all over this country that want to stand with our children, that are advocating for our children, and are being retaliated against and pushed back against as a result. And so my goal, my hope, is that by doing this, we can empower more educators to stand beside our kids."

Copyright 2021 WJCT News 89.9. To see more, visit WJCT News 89.9.

AUDIE CORNISH, HOST:

Amid the increased awareness of racial justice issues across the country, displaying a Black Lives Matter flag has sometimes generated arguments over free speech. In Jacksonville, Fla., a white high school teacher was disciplined after she put one up outside her classroom and refused administrators' orders to take it down. Now the case is in court. From member station WJCT news in Jacksonville, Sydney Boles reports.

SYDNEY BOLES, BYLINE: In her nine years teaching at Jacksonville's Robert E. Lee High School, Amy Donofrio has built up a reputation. In 2016, her life skills class met with then-President Barack Obama and presented at Harvard University. Students at the predominantly Black, low-income school counted on her for everything from packets of ramen noodles to career counseling. And when one of her students, Reginald Boston, was killed by the local police last year, the Black Lives Matter flag outside Donofrio's classroom marked it as a safe space for students to process his death. Here's Donofrio.

AMY DONOFRIO: His life mattered - period. And I think walking beside his family and his mom and seeing what it looks like in real life, there is no possible way you can't stand by the belief that Black Lives Matter.

BOLES: Then this March, the Duval County School District told Donofrio to take the flag down, saying it violated district policy on political speech by employees. Donofrio said no, so she was taken out of the classroom and reassigned to nonteaching duties. The school district says it won't comment because of ongoing litigation. A lawsuit filed in federal court by the Southern Poverty Law Center alleges the flag's removal was a violation of Donofrio's First Amendment rights. Civil rights attorney Cathleen Scott is representing Donofrio alongside the SPLC.

CATHLEEN SCOTT: It's a question of whether or not there's a matter of great public significance as to whether or not the speech is protected. Ms. Donofrio was speaking out against racism. That's a very important value.

BOLES: But that argument might face an uphill battle in court, says Rachel Arnow-Richman, a professor of labor and employment law at the University of Florida.

RACHEL ARNOW-RICHMAN: We think of the First Amendment as a foundational principle of our democracy, and it is, but it's subject to many limitations.

BOLES: Arnow-Richman says public employers, like school districts, have a lot of leeway to regulate their employees' speech. But, she argues, the law may not have fully wrestled with society's conflicting goals.

ARNOW-RICHMAN: And that's to say this sort of general rule that public employees do not speak for themselves but speak for the government and lack First Amendment protection is at odds, I would say, with our societal interest in wanting teachers to have leeway to communicate and teach students about current issues, bringing to bear their expertise as educators.

BOLES: Back at Robert E. Lee High, Donofrio says it's stressful to sue her employer, but it also feels like a relief.

DONOFRIO: There are educators all over this country that want to stand with our children, that are advocating for our children and are being retaliated and pushed back upon as a result. And so my goal, my hope, is that by doing this, we can empower more educators to stand beside our kids.

BOLES: Meanwhile, Donofrio's students are leading their own campaign. An online petition to bring her back to the classroom has garnered more than 16,000 signatures.

For NPR News I'm Sydney Boles in Jacksonville, Fla. Transcript provided by NPR, Copyright NPR.