Public School Orders Student to Take American Flag off His Bike

[UPDATE: The school has now reversed its stance.]

KSBW (Monterey, California) reports:

Thirteen-year-old Cody Alicea put the [American] flag [on his bike] as a show of support for the veterans in his family.

But officials at Denair Middle School told him he couldn’t fly it. He said he was told some students had complained….

[T]he superintendent said he’s trying to avoid tension on campus…. Parraz said the campus has recently experienced some racial tension. He said some students got out of hand on Cinco de Mayo.

“Our Hispanic, you know, kids will, you know, bring their Mexican flags and they’ll display it, and then of course the kids would do the American flag situation, and it does cause kind of a racial tension which we don’t really want,” Parraz said. “We want them to appreciate the cultures.” …

As I wrote when dealing with a similar story from Cinco de Mayo of this year, if there is a reasonably predictable likelihood (not just a bare conjecture) that speech or expressive conduct will cause substantial disruption — which is not clear under these facts — then the school may legally restrict it without violating the First Amendment. That’s the holding of Tinker v. Des Moines Indep. Community School Dist. (1969). (I speak here only of whether the district may legally do this, not whether it should.) I didn’t hear much evidence of that in this story, but of course perhaps there is some evidence that the reporter did not mention, or that the superintendent did not mention to the reporter.

California Education Code § 48950 deliberately gives high school students more protection than the First Amendment does:

(a) School districts operating one or more high schools … shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment ….

(b) A pupil who is enrolled in a school at the time that the school has made or enforced a rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action pursuant to this section….

(d) This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected….

(f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations.

The “time, place, and manner regulations” restriction doesn’t apply here, because the restriction here was justified with reference to the content of the expression (and the supposed harm that it might cause). Time, place, and manner regulations must be unrelated to content, and focused instead on matters such as noise, blockage of hallways, and other effects of speech that don’t stem from the message that the speech communicates.

But this does not apply to elementary schools or junior high schools — in those, the test is Tinker, which provides substantial protection but considerably less categorical protection. Thanks to David Hudson (First Amendment Center) for the pointer.

UPDATE: I initially posted this too quickly, before revising the copied material to make clear that the statute applies only to high schools; very sorry about that! Just corrected it.