1

Prior to 1879, Georgia militia units sometimes carried an unofficial state flag that consisted

of the state seal emblazoned in the center of a blue background. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-8149.

James Andrew COLEMAN, Plaintiff-Appellant,

v.

Zell MILLER, Governor, State of Georgia, Defendants-Appellees,

Georgia Division, Sons of Confederate Veterans, et al., Proposed Intervenors.

July 21, 1997.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-cv1673-ODE), Orinda D. Evans, Judge.

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior Circuit Judges.

PER CURIAM:

James Coleman brought this action to enjoin the flying of the Georgia state flag over

Georgia's state office buildings. Coleman, an African-American, alleges that the flying of the

Georgia flag, which incorporates the Confederate battle flag emblem, violates his constitutional

rights to equal protection and freedom of expression. The district court determined that Coleman

had failed to produce sufficient evidence to maintain his claims and granted appellees' motion for

summary judgment. Because we likewise conclude that the record contains inadequate factual

support for appellant's constitutional claims, we affirm.

I.

In 1879, Georgia adopted as its first official flag a variation of the Confederate national flag

consisting of three horizontal red and white stripes and one blue vertical band.1

 The General

Assembly added the state seal to this flag in 1902, and this combination of the Confederate national

flag emblem and the Georgia state seal remained the official flag of Georgia until the current flag

design was adopted in 1956. The 1956 flag statute replaced the Confederate national flag emblem

with the Confederate battle flag emblem, which is commonly referred to as the St. Andrew's Cross.
 2

The different versions of Georgia's flag are depicted in Appendix A. 

 3

In 1954, the Supreme Court declared racially segregated public schools unconstitutional, see

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ("Brown I "),

and, a year later, the Court ordered that the desegregation of public schools proceed "with all

deliberate speed." Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed.

1083 (1955) ("Brown II "). 

Ga.Code Ann. § 50-3-1. The red and blue St. Andrew's Cross, which the Confederate troops carried

during the Civil War, now covers two-thirds of the Georgia flag, and the state seal containing the

words "Wisdom, Justice and Moderation" covers the remaining third.2

The current flag design was adopted during a regrettable period in Georgia's history when

its public leaders were implementing a campaign of massive resistance to the Supreme Court's

school desegregation rulings.3 In the 1956 state of the State address, then-Governor Marvin Griffin

declared that "there will be no mixing of the races in public schools, in college classrooms in

Georgia as long as I am Governor." Later, while addressing the States' Rights Council of Georgia

at the beginning of the 1956 legislative session, Governor Griffin announced that "the rest of the

nation is looking to Georgia for the lead in segregation." The 1956 General Assembly passed

several bills and resolutions as part of its resistance package, including the Interposition Resolution

declaring the Supreme Court's school desegregation rulings in Brown I and Brown II null and void.

Introduced as the General Assembly was considering the flag bill, the Interposition Resolution

passed both houses over a single dissent.

As many of Georgia's politicians and citizens openly resisted the Supreme Court's

desegregation rulings, increasing numbers of white Southerners began expressing renewed interest

in their Confederate heritage. It was in this environment of open hostility to the Supreme Court's

civil rights rulings and of developing interest in Confederate history that the Georgia General

Assembly acted to redesign its state flag. It chose as an official state symbol an emblem that

historically had been associated with white supremacy and resistance to federal authority.

The debate over the flag legislation in the two houses of the General Assembly focused on

the upcoming Civil War centennial, the cost of changing the flag, whether the designer owned a

copyright in the flag, and whether, because the Confederate battle flag belonged to all Southern
 4

James Mackay, who was a member of the General Assembly in 1956, testified that "there

was a movement across the South: "Let's adopt the Confederate battle flag as a symbol of

resistance to the law of this land.' " (R7:27). 

 5Dan Carter, a professor of Southern History at Emory University testified that "[b]y the mid1950's, the Confederate battle flag had become the single most important symbol of white

supremacy and defiant opposition to federally mandated laws on non-discrimination." Professor

Carter concluded that "the well-known symbolic role of the flag at the time makes it difficult for

me to imagine that this action was anything but an attempt to bolster the morale of those

Georgians struggling to maintain white supremacy." (R2:31). 

states, it was an appropriate symbol for the state flag of Georgia. The bill passed the Senate with

three dissents and passed the House with 32 dissents and 61 abstentions. Several members of the

1956 General Assembly maintain that factors such as segregation and white supremacy played no

role in the decision to adopt the current flag design. One member of the 1956 Assembly, however,

insists that the flag was adopted as a symbol of resistance to integration.4 At least one scholar of this

period has concluded that the flag legislation was enacted as a symbol of resistance to the Supreme

Court's civil rights rulings.5

Roughly forty years after the passage of the flag statute, appellant brought this action under

42 U.S.C. § 1983 alleging, inter alia, that the continued presence of the Georgia flag and its

Confederate battle flag emblem atop and within Georgia's public buildings unconstitutionally

infringes on his rights to equal protection and freedom of expression. Coleman contends that the

flag's Confederate symbol, which is often used by and associated with hate groups such as the Ku

Klux Klan, inspires in him fear of violence, causes him to devalue himself as a person, and sends

an exclusionary message to Georgia's African-American citizens. He also asserts that the flag's use

of the Confederate symbol forces him to adopt a message—namely, the endorsement of

discrimination against blacks—that he finds morally offensive.

 After conducting two hearings to evaluate Coleman's claims, the district court concluded

that he had failed to present sufficient specific factual evidence to support them and granted

appellees' motion for summary judgment. We review the district court's grant of summary judgment

de novo, applying the same legal standard as the district court. Martin v. Commercial Union Insur.

Co., 935 F.2d 235, 238 (11th Cir.1991). Reviewing the record evidence in the light most favorable
to appellant, we must determine if there are any genuine issues of material fact that preclude

judgment as a matter of law for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In order to survive summary judgment, appellant

must present more than "mere allegations." Id. at 248, 106 S.Ct. at 2510. He must come forward

with specific factual evidence sufficient to establish the existence of each element essential to his

case on which he will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 320, 106 S.Ct.

2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(e).

II.

 Appellant first contends that the continued display of the Georgia state flag violates the

Equal Protection Clause of the Fourteenth Amendment. Because, as appellant concedes, the flag

and the 1956 statute adopting the current design are facially neutral, he must satisfy a two-pronged

test in order to maintain an equal protection claim. He must first demonstrate that the flying of the

Georgia flag produces disproportionate effects along racial lines, and then must prove that racial

discrimination was a substantial or motivating factor behind the enactment of the flag legislation.

See Hunter v. Underwood, 471 U.S. 222, 225-26, 105 S.Ct. 1916, 1919-20, 85 L.Ed.2d 222 (1985);

Lucas v. Townsend, 967 F.2d 549, 551 (11th Cir.1992); East-Bibb Twiggs Neighborhood Ass'n v.

Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264, 1266 (11th Cir.1989).

In order to demonstrate disproportionate impact along racial lines, appellant must present

specific factual evidence to demonstrate that the Georgia flag presently imposes on AfricanAmericans as a group a measurable burden or denies them an identifiable benefit. For example, in

Hunter, the Supreme Court held unconstitutional a provision of the Alabama Constitution that

disenfranchised voters who had been convicted of crimes "involving moral turpitude." In finding

the requisite discriminatory impact, the Court relied on the fact that in certain Alabama counties at

the time of the litigation, "blacks are even by the most modest estimates at least 1.7 times as likely

as whites to suffer disenfranchisement" under the challenged section. Hunter, 471 U.S. at 228, 105

S.Ct. at 1920 (quoting Underwood v. Hunter, 730 F.2d 614, 620 (11th Cir.1984)); see also United

States v. Byse, 28 F.3d 1165, 1169 (11th Cir.1994) (discussing racial disparities in sentencing).
 6

We recognize that a government action may in some instances violate the Constitution

because it encourages private discrimination. See Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct.

1627, 1634, 18 L.Ed.2d 830 (1967); Creek v. Village of Westhaven, 80 F.3d 186, 193-94 (7th

Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 180, 136 L.Ed.2d 120 (1996). There is no evidence in

the record of this case, however, that connects the Georgia flag to private discrimination or racial

violence. 

 7In Hunt, the court first determined that the "entire claim is precluded by res judicata." 891

F.2d at 1561. Nevertheless, the court continued to examine all of the claims on the merits. Id. at

1562 ("Because of the controversial concerns raised in this case, it is important that all issues be

laid to rest on the merits."). Because the ensuing discussion of the flag controversy does not

appear to have been necessary to the disposition of the case, we conclude that it is properly

construed as dicta. See Whiting v. Traylor, 85 F.3d 581, 584 n. 4 (11th Cir.1996) (characterizing

Hunt's malicious prosecution discussion as dicta). It goes without saying, however, that we

consider Judge Johnson's discussion of the flag issue to be instructive. 

After carefully reviewing the record, and drawing all inferences in the light most favorable

to appellant, we find no evidence of a similar discriminatory impact imposed by the Georgia flag.

Appellant relies on his own testimony to demonstrate a disproportionate racial effect. He testified

that the Confederate symbol in the Georgia flag places him in imminent fear of lawlessness and

violence and that an African-American friend of his, upon seeing the Georgia flag in a courtroom,

decided to plead guilty rather than litigate a traffic ticket. This anecdotal evidence of intangible

harm to two individuals, without any evidence regarding the impact upon other African-American

citizens or the comparative effect of the flag on white citizens, is insufficient to establish

"disproportionate effects along racial lines." See Hunter, 471 U.S. at 227, 105 S.Ct. at 1920.

Coleman also offered the affidavit of another witness who testified that, in his opinion, the flying

of the flag promotes violence against blacks and continues to represent a symbol of Georgia's efforts

against integration. This mere allegation, without any accompanying support, also is not sufficient

to demonstrate a disproportionate racial effect.6

We addressed a similar argument in NAACP v. Hunt, 891 F.2d 1555 (11th Cir.1990), in

which a group of African-American plaintiffs challenged the flying of the Confederate flag above

the Alabama capitol dome. We concluded that plaintiffs had failed to prove discriminatory impact.

For a unanimous panel, Judge Johnson wrote: "[T]here is no unequal application of state policy;

all citizens are exposed to the flag. Citizens of all races are offended by its position." Id. at 1562.7

Like the plaintiffs in Hunt, Coleman has presented "no specific factual proof" in support of his claim
 8

Having concluded that appellant has failed to demonstrate that the Georgia flag presently

imposes a discriminatory racial effect, we need not decide whether discrimination against

African-Americans was a motivating factor in the flag bill's passage. See Palmer v. Thompson,

403 U.S. 217, 224, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971) (race-motivated legislation

violates Constitution only when it "affect[s] blacks differently from whites"). 

that flying the Confederate symbol causes disproportionate racial impact. See id. at 1563.

We recognize that the Georgia flag conveys mixed meanings; to some it honors those who

fought in the Civil War and to others it flies as a symbol of oppression. But because the Confederate

battle flag emblem offends many Georgians, it has, in our view, no place in the official state flag.

We regret that the Georgia legislature has chosen, and continues to display, as an official state

symbol a battle flag emblem that divides rather than unifies the citizens of Georgia. As judges,

however, we are entrusted only to examine the controversies and facts put before us. Based on the

record presented to us in this case, we hold that appellant has failed to produce sufficient facts to

allow a reasonable trier of fact to conclude that the state has violated his equal protection rights. We

therefore conclude that the district court properly granted appellees summary judgment on his equal

protection claim.8

III.

 Appellant next argues that the Georgia flag violates his First Amendment rights by

compelling him to endorse a message that he finds morally objectionable. The First Amendment

prohibits governments from forcing an individual to be "an instrument for fostering public adherence

to an ideological point of view he finds unacceptable." Wooley v. Maynard, 430 U.S. 705, 711, 97

S.Ct. 1428, 1434, 51 L.Ed.2d 752 (1977) (holding that state could not inflict criminal penalties on

citizens who covered up license plate motto). Similarly, a government cannot force individuals

affirmatively to acknowledge a message with which they disagree. See Board of Education v.

Barnette, 319 U.S. 624, 640, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943) (prohibiting forced salute

and pledge of flag).

 Appellant has demonstrated no such governmental compulsion in this case. He has pointed

to no government action that "requires affirmation of a belief and an attitude of mind." Barnette,

at 632, 63 S.Ct. at 1183. For example, there is no evidence that Georgia requires appellant to carry
or display the flag or to participate in ceremonies honoring the flag. The mere fact that appellant

may on some occasions be required to enter public buildings that fly the Georgia flag does not

infringe upon his First Amendment rights because entering public buildings does not manifest any

particular attitude or belief and does not associate appellant with the flag's message. We therefore

conclude that the district court properly granted appellees summary judgment on appellant's First

Amendment claim. See Hunt, 891 F.2d at 1566 (rejecting First Amendment challenge to flying of

Confederate flag because "[t]he government of Alabama does not compel its citizens to carry or post

the flag themselves, or to support whatever cause it may represent").

IV.

Accordingly, we AFFIRM the district court's order granting appellees' motion for summary

judgment.

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