AS IF THERE wasn't enough to worry about in 2021, a new conflict arose at one of the Texas homeowners associations represented by lawyer Lean K. Burton.
Early this year, a property owner began flying the Confederate flag atop a front yard flagpole. Board members wanted to know how they could have it removed, she says.
The bad news was the community did not have specific language on the books regulating flags. Texas law protects a homeowner's right to fly the U.S. flag, the Texas state flag, and flags representing the U.S. military branches, though homeowners associations can prohibit any others.
“If there's nothing in the governing documents that talks about flags, frankly, anyone can fly any kind of flag," says Burton, a shareholder of Roberts Markel Weinberg Butler Hailey PC based in San Antonio. “It's up to the association to adopt a flag policy."
Pursuing a flag-related amendment was still a good idea, she says, but a more immediate strategy for her client was to fall back on a basic nuisance clause targeting behavior that is deemed obnoxious.
Hopefully, the owner would comply after the community association sent notice to him. There was, of course, a chance the resident would refuse.
A lawsuit against the owner was not out of the question, Burton says, given the Confederate flag was “in public view and so offensive."
In Georgia, a homeowners association represented by lawyer Julie McGhee Howard encountered a similar situation. When an owner began displaying a Confederate flag on his property, some members of the community urged the board to adopt a rule banning “politically insensitive" flags, she says.
The board opted not to do this. They instead emailed community members announcing they would not try to regulate speech and expression; they appealed to everyone's better natures.
“They didn't want to spend the time and energy and money to get into individual flags," says Howard, managing partner at NowackHoward in Atlanta, a fellow in CAI's College of Community Association Lawyers (CCAL), and a CAI past president.
BATTLE FLAG BATTLES
It's not exactly an epidemic, but disputes surrounding the Confederate battle flag, also known as the Dixie flag or the Rebel flag, continue to surface at community associations, particularly in Southern states. With its iconography of intersecting star-laden bars on a red backdrop, the Confederate flag is associated with white-supremacist groups and the Civil War era. It was seen during the deadly Jan. 6 insurrection at the Capitol building in Washington, D.C., and brandished in a photo by Dylann Roof before the white gunman killed nine members of a Black congregation in Charleston, S.C., in 2015.
“It's difficult to make the case today that the Confederate flag is not a racist symbol," the Southern Poverty Law Center said in a 2016 report on lingering symbols of the Confederacy. “After being used sparingly for decades, it began appearing frequently in the 1950s and 1960s as white Southerners resisted efforts to dismantle Jim Crow segregation."
Some insist there is a less-sinister interpretation of the flag, as a sort of shorthand for laid-back or eccentric Southern culture. As just one example, the Southern Cross was emblazoned atop the muscle car that featured prominently in the CBS television series The Dukes of Hazzard. The well-known theme song of the show, which ran from 1979 to 1985, celebrated the main characters as “two good ol' boys, never meaning no harm."
“It's pretty hard to pigeonhole," says Harry Watson, Atlanta Distinguished Professor of Southern Culture at the University of North Carolina at Chapel Hill, who would prefer not to see the symbol publicly displayed.
“There are all kinds of relatively harmless meanings that have, from time to time, been associated with the Confederate battle flag," Watson adds. “At the same time, we do know that the Confederate flag originated in an attempt to overthrow and destroy the United States government, to tear the country in half, and that was inspired by a desire to protect the institution of slavery."
The paradigm has continued to shift after the racially charged death in 2020 of George Floyd in Minneapolis, with debates intensifying over whether monuments to historical figures from the Confederate period have any place in modern society, beyond a museum setting.
Two recording groups with a distinct Southern flair to their names rebranded: Dixie Chicks and Lady Antebellum became The Chicks and Lady A, respectively. A federal commission is in the process of relabeling U.S. military bases named for Confederate generals.
As for the Confederate flag, the number of places where it is welcome is shrinking. NASCAR in 2020 said it would no longer allow the symbol at racetracks because it “runs contrary to our commitment to providing a welcoming and inclusive environment for all fans, our competitors and our industry."
While no state government has enacted an outright ban, some have prohibited the Confederate flag on state property or on specially themed license plates. Last year, Mississippi's governor signed a measure to redesign the state flag without its longtime Confederate saltire. The new flag features a blossoming magnolia and the motto “In God We Trust."
THE BATTLE OF FORD'S COLONY
Most community associations may never see a Confederate flag in their midst, but legal experts say it behooves all leaders to think preemptively about visual cues and behaviors—from overt to subtle—that could elicit anger or fear, especially from people in minority groups.
A major reason is relatively new guidance from the U.S. Department of Housing and Urban Development on fair housing that covers at least some community associations. HUD determined in 2016 that communities may become liable for discrimination in circumstances where they “knew or should have known of the discriminatory conduct and had the power to correct it" but failed to take prompt action.
This means qualifying community associations must intervene in neighbor-to-neighbor disputes in which a member of a protected class feels harassed or threatened by another person's behavior. Failure to do so can invite a fair housing investigation.
In late 2017, such an inquiry was top of mind for Drew Mulhare, CMCA, AMS, LSM, PCAM, general manager of Ford's Colony Homeowners Association in Williamsburg, Va., a gated community dating back to the mid-1980s that promotes inclusion and diversity.
Shortly after the violent “Unite the Right" rally in nearby Charlottesville, one of the community's owners draped a Confederate flag across his back deck. A neighbor, who was white, complained to the association. To determine a response, Mulhare huddled with board members and the community's attorney, Susan Bradford Tarley, a partner of Tarley Robinson plc, and a CCAL fellow.
Ford's Colony had existing restrictions about “offensive" flags and signage. Board members adopted a change prohibiting the Confederate flag and sent a demand letter to the owner requesting that he remove the item.
The resident complied. Within weeks, this owner got provisional support to convene a “Civil War History Interest Group" at the community's clubhouse, which hosts dozens of recreational activities. About 100 people, including some Black residents, attended the inaugural meeting.
The board received negative feedback about the Civil War presentation and its inclusion of a theme known as “The Lost Cause," a debunked viewpoint putting a heroic spin on the Southern insurgence and minimizing slavery as a factor. “We probably got half a dozen complaints, and some of them were from people who were not in a protected class," Tarley says.
There also was a complaint from a Black owner, she says, which was concerning and obligated the community association to respond.
Board members voted unanimously to terminate the history group. For the next three months, a core group of residents who felt the effort had been misunderstood came to board meetings to argue for First Amendment rights. An effort to recall board members took shape.
“It was traumatic and very disappointing," Carmen Hegge-Kleiser, a board member at the time of the controversy, says in an email. “Being personally attacked as board members while acting in the best interest of the community and upholding our legal responsibilities is never a pleasant experience and, in some cases, put a strain on long-standing friendships."
With the temperature continuing to rise, Tarley contacted the Virginia Fair Housing Office about holding a workshop for residents that would explain the legal issues at play. Over the course of this crowded assembly and the next night's board meeting, owners freely discussed their feelings about the Confederate flag. Though at times volatile, the sessions represented a breakthrough, Mulhare says.
A number of attendees left saying they now understood how the symbol could trigger adverse reactions, he says. Other owners simply concluded the matter wasn't worth the time, trouble, and expense of a fair housing investigation.
“It was a combination of empathy and pragmatism," Mulhare says.
In the case of the Georgia board that effectively allowed a Confederate flag to remain on display, that homeowners association did not have a restriction or rule that would obligate them to act under the HUD guidance on fair housing, says Howard, the Atlanta attorney.
“If you don't have the restriction or the rule, then you can't affirmatively go and do anything because you don't have any authority," she says.
SETTING THE TONE
Cultural clashes and potential fair housing disputes are not limited to the display of the Confederate flag. That's why professionals says it's a good idea to regularly communicate the intent of a community association to be inclusive and supportive of diversity.
It's also wise for board members themselves to receive some kind of education or training to help them better understand discrimination, says Burton, the Texas attorney.
She has participated in seminars on racism and harassment that examine not just obvious behaviors but the types of microaggressions that can make minorities feel devalued or unwelcome. Board members themselves can harbor biases, whether they are conscious of them or not, Burton says.
She recalls one instance where leaders of a homeowners association were discussing complaints about a Vietnamese family. Members of the family had several vehicles parked on the street, which led to assumptions their home was being used as a multifamily dwelling. In fact, Burton says, it was the type of “multigenerational" household typical of some minority family structures.
“There are other homes in the community that also have cars in the street, but those other homes aren't being targeted— it's this Vietnamese family that's being targeted," she says. “I come to find out the board president lives across the street and every other day has a bone to pick with this Vietnamese family."
If workshops aren't feasible for some communities, lawyers can at least provide managers with written educational materials for board members, she says. Burton's general advice for community associations is to not shrug off harassment complaints or assume that an aggrieved party is being overly sensitive.
“You want to make sure you take it seriously," she says.
FLAG-FLYING STRATEGIES
A wide variety of flags can become flashpoints, as evinced by the contentious 2020 election cycle and the civil unrest that erupted after George Floyd's death. Regardless of intention, banners proclaiming “Black Lives Matter," “All Lives Matter," or “Blue Lives Matter" can elicit certain responses, depending on who is displaying them and who is viewing them.
Donna DiMaggio Berger, a CCAL fellow based in Fort Lauderdale, Fla., emphasizes the importance of having a flag policy as a way to head off disputes. Florida, like Texas, grants homeowners the right to fly the U.S. flag and certain military flags. Her advice to clients is to recognize the statute in their documents and specify that only the flags listed by state lawmakers are allowed.
“It's really easier to say what you do permit, rather than try to list everything you prohibit," says Berger, a shareholder at Becker.
She recalls a recent dustup at a homeowners association where a resident began flying a “Trump 2020" flag after the Nov. 3 election, which was not appreciated by some residents. The board subsequently adopted a restrictive flag policy but was obligated to grandfather in the Trump banner, the attorney says.
Grandfathering covers the life of that one flag, Berger says. It is not a carve-out for an individual property.
“Grandfathering does not mean that particular unit or home can fly that flag forever. It means you get to fly the flag that was in place at the time your restriction was changed," she says. “Once that flag becomes torn, tattered, and has to be replaced, you're now bound by the same rule as everybody else."
The political flag that raised eyebrows probably won't be around very long, considering the climate conditions of Florida. “If it's just a cloth flag, it's probably not going to make it a summer," Berger says.
A federal law from 2005, the Freedom to Display the American Flag Act, authorizes homeowners within community associations to display the U.S. flag on property for which they have “a separate ownership interest or a right to exclusive possession or use."
Georgia state laws are silent about flags at community associations, says Howard, the Atlanta attorney. But she says boards can recognize the federal act and prohibit any other kind of flag. She cautions that boards going this route should cite the federal statute, which specifically refers to the American flag as defined by the federal government.
One of her communities simply referenced the U.S. flag. This ended up allowing neighbors to fly versions of the Stars and Stripes that contained political messages or other symbols, she says.
“Under a broader rule like that," Howard says, “you can have a Blue Lives Matter flag, which is a U.S. flag with a thin blue line; you can have a rainbow U.S. flag; you can have a Black Lives Matter U.S. Flag, you can have a University of Georgia U.S. flag."
Mike Ramsey is a Chicago-based freelance writer.