Standing to Challenge the Lost Cause

Note — Volume 105, Issue 6

105 Va. L. Rev. 1177
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In this Note, I contest the constitutionality of the public Confederate symbols that are pervasive throughout the South. Just months before the Charlottesville “alt-right” rally protesting the removal of a Confederate monument, the Fifth Circuit held that a plaintiff challenging the constitutionality of the Mississippi flag, which contains the Confederate battle flag in its top left corner, lacked standing. The decision prevents courts from remedying the unconstitutional harms inflicted by Confederate memorialization. It is particularly consequential in communities like Hanover County, Virginia, in which most residents are white and favor keeping Confederate symbols in two public schools: Stonewall Jackson Middle School, Home of the Rebels, and Lee-Davis High School, Home of the Confederates. I argue that courts should utilize the coercion test from Establishment Clause doctrine to analyze the harms caused by racially discriminatory government speech, satisfying Article III standing requirements. I further argue that the coercion test is particularly useful when applied to racially discriminatory government speech by public school boards, like in Hanover County, because the heightened harmful effects of Confederate symbolism on children mirror those of religious coercion.

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  Volume 105 / Issue 6  

Insincere Evidence

By Michael D. Gilbert & Sean P. Sullivan
105 Va. L. Rev. 1115

Standing to Challenge the Lost Cause

By Amanda Lineberry
105 Va. L. Rev. 1177

Garbage Pulls Under the Physical Trespass Test

By Tanner M. Russo
105 Va. L. Rev. 1217