A federal appeals court has ruled that a civil rights group cannot sue over a Mississippi city’s ordinance requiring officials to fly the state flag—which prominently features the Confederate battle flag as part of its design—over city-owned facilities.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit on Monday affirmed a ruling from the U.S. District Court for the Southern District of Mississippi that dismissed the lawsuit on summary judgment.
U.S. District Judge Louis Guirola Jr., sitting in Gulfport, originally dismissed the lawsuit in June, saying that the civil rights group, the Mississippi Rising Coalition, had no standing to sue the city of Ocean Springs from requiring that the state flag be flown.
Ocean Springs is a city of about 17,000 people near Biloxi, in the southeastern portion of the state.
Mississippi Rising’s lawsuit alleged that flying the flag violated the federal Fair Housing Act by, in effect, causing ”racial steering.” The flag, with its Confederate symbol, deterred African-Americans from living in or moving to Ocean Springs, the lawsuit alleged.
In an unsigned opinion, Fifth Circuit Judges Patrick Higginbotham, Jennifer Elrod and Kyle Duncan agreed with Guirola that Mississippi Rising hadn’t shown that it or anyone else had actually suffered an injury—which is a requirement for pursuing a violation of the FHA.
“We recently held that exposure to the Mississippi state flag did not constitute an injury sufficient to confer standing for an equal protection claim,” the panel said, citing the Fifth Circuit’s 2017 ruling in Moore v. Bryant.
“If exposure to a flag does not injure a plaintiff for equal protection purposes, exposure to the same flag does not injure a plaintiff for FHA purposes either,” the panel said.
Flying the Mississippi state flag “is not a ‘discriminatory housing practice’ as required by the FHA, and plaintiffs are therefore not ‘aggrieved persons’ under the statute,” the court said, adding that no one has been accused of refusing to sell homes in Ocean Springs to African-American buyers.
“Plaintiffs may believe that flying the flag in question makes living in the city less desirable, but the complained of action does not plausibly equate to making housing unavailable under the statute,” the judges said.
In one victory for the plaintiffs, the court did refuse to order Mississippi Rising to pay the legal fees the city incurred in fighting the lawsuit.
One of the city’s attorneys, Kevin Melchi, said the city was “obviously pleased with the outcome.”
“The lawsuit was without merit from the beginning,” said Melchi, of Dogan & Wilkinson in Pascagoula, Mississippi. “The raising of the flag clearly has nothing to do with the FHA.”
Mississippi Rising’s attorney, Carlos Moore of the Tucker Moore Group in Hyattsville, Maryland, didn’t return a call seeking comment.
The dispute over flying the flag over city buildings has gone on for more than a year. A city ordinance requires that the state flag be flown over any building owned by the municipality that has a flagpole.