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California School District Seems To Be Violating California Law:

NBCSanDiego.com reports:

In the wake of last week's immigration-reform protests, one school district is taking drastic measures, banning all symbols of patriotism, both U.S. and Mexican.

Beginning Monday, the Oceanside Unified School District is banning all flags and patriotic clothing. According to school officials, some students are using the garments and flags to taunt classmates.

Some critics of the move are calling it a violation of free speech protections guaranteed by the Constitution.

The American Civil Liberties Union points to the landmark Supreme Court case Tinker v. Des Moines. In that case, school officials attempted to stop students who were protesting the Viet Nam War from wearing black armbands.

"The school has to be able to show a strong likelihood that there is going to material and substantial disruption of school, and if they don't meet that standard, then they can't censor student speech," said Kevin Neenan of the ACLU....

School officials are saying that the ban is just temporary and that they were just trying to prevent violence. They would not say how long the ban would be in effect.

[NOTE: I originally omitted the first paragraph from the quote, but added it because some comments suggested that it was important.]

The ACLU is right that under Tinker v. Des Moines Indep. School Dist. (1969), the First Amendment protects student speech (including the display of symbols) unless the speech seems likely to be disruptive (or, a later case holds, vulgar). But California state law (Education Code § 48950) provides extra protection to public high school students:

(a) School districts operating one or more high schools ... shall not make or enforce any rule subjecting any 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 to the United States Constitution or Section 2 of Article 1 of the California Constitution....

(d) Nothing in this section prohibits 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.

So California high school districts can't restrict display of the American or Mexican flags just on the theory that it might be used in a threatening (or "harass[ing]," whatever exactly that means) way — it can only restrict such display that is itself threatening or harassing. (The time, place, and manner exception probably doesn't justify even a temporary ban on flag, display, since "time, place, and manner regulations" is a First Amendment term of art that refers only to content-neutral regulations, and a ban on the display of particular flags is not content-neutral.)

Thanks to reader Cory Andrews for the pointer.

Thorley Winston (mail) (www):
Here's the letter from the School Superintendent announcing and explaining the rationale behind the decision.

Dear Oceanside School District Parents:

I want to tell you why I closed our middle and high schools last Thursday and Friday and then advise you of our expectations for all students for the coming week.

Students used last Tuesday and Wednesday to leave school in large groups and march in opposition to immigration policies and proposed legislation. In addition to causing traffic problems and disrupting school and instruction, some students pelted police officers with food, bottles, and rocks on Wednesday afternoon. Students who threw objects at police officers have been arrested and will be recommended for expulsion from school. Other students involved in the demonstrations will be suspended or assigned to Saturday school. These violent acts added to information I had received that the walk-outs and demonstrations would increase with a culminating event on Friday, the birthday of Cesar Chavez, and that racial problems were brewing among many of our other students on campus. I decided to close our middle and high schools for those two days for the safety of our students and staff. It worked. Without the schools for staging areas, there have been no demonstrations in Oceanside.

All of our schools will be open the week of April 3, and our expectations are that all students will be safe in a business-as-usual atmosphere. We expect all students to report to school and to class on time and prepared to work with their teachers. Students who do not report to class on time or who leave class without permission will be subject to disciplinary action ranging from detention to expulsion from school for the rest of the semester for threats or acts of violence. Failure to obey any school employee's direction will be considered defiance of authority and will result in five days of suspension from school at minimum. Anyone carrying a weapon or dangerous object to school will be arrested and recommended for expulsion. That is the law.

To prevent disruption of instruction or school operations, no students may bring or wear items that could be disruptive, including clothing, face paint, signs, placards, or flags, all of which were contributing factors to last week's disruptive behavior. American flags are already positioned in every classroom and on each school's flag pole. Any of these objects brought to school by students and not issued to a student by a school official will be confiscated, placed in the office, and returned to the student after school.

It is now time for the healing process to begin. Teachers will be prepared to lead classes in an organized, supervised discussion of the issues surrounding the demonstrations. They will help students begin discussions to express their concerns in ways that are safe, orderly, and peaceful. Some of those issues are serious and bear serious discussion. However, we will not permit open forums to be conducted during the lunch period since the demonstrators used lunchtime to conduct the walk-outs. The schools will allow supervised forums on campus, after school, for students who want that. Our middle and high school principals will hold meetings for parents, where there is an interest, to receive their input and to explain their plans to maintain a safe, positive environment for students.

I regret the inconvenience that closing our schools caused for many of you. I hope that there is never a need to do that again. Please talk to your children. Encourage them to come to school, to stay in school, and to take every advantage of the expertise and talents of our faculty and staff.

Thank you for your continued support of our teachers and schools. If you have any questions or concerns, please call me at [Phone Number Omitted].
Respectfully,

Kenneth A. Noonan
Superintendent
4.5.2006 4:21pm
Dylanfa (mail) (www):
I must be even dumber than usual today. I don't understand how you arrive at this from the quoted statute:

So California high school districts can't restrict display of the American or Mexican flags just on the theory that it might be used in a threatening (or "harass[ing]," whatever exactly that means) way -- it can only restrict such display that is itself threatening or harassing.
This is not at all clearly the case. The only thing this statute appears to prohibit are disciplinary sanctions, not speech restrictions. This law asays only that you can't be suspended or put in detention for wearing a shirt with a flag on it; it says nothing about whether the shirt itself may be banned. Why you think that would be a "disciplinary sanction" escapes me; it's certainly beyond the plain, common understanding of the phrase.
4.5.2006 4:28pm
Fern:

and a ban on the display of particular flags is not content-neutral

They're banning all flags, which is still content-based, but since it's viewpoint neutral, might that make a difference in the constitutionality of the ban? I'm thinking of cases like Renton and Hill v. Colorado and Erie v. Pap's AM where the court said that regulation of certain types of speech was content-neutral if it had a valid secondary purpose.
4.5.2006 4:28pm
Dylanfa (mail) (www):
Your mistake is even clearer with respect to subsection (d):

(d) Nothing in this section prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected....
Which you interpret thus:

it can only restrict such display that is itself threatening or harassing.
This seems pretty clearly wrong. Discipline or punishment for speech is something quite different from restriction of the same speech.
4.5.2006 4:31pm
Thorley Winston (mail) (www):
Dylanfa makes a good point. The letter that I posted from the School Superintendent announcing the policy states that "[a]ny of these objects brought to school by students and not issued to a student by a school official will be confiscated, placed in the office, and returned to the student after school." There is no mention of any disciplinary proceedings brought for possessing the objects even though the letter details punishments for tardiness, unexcused absences, defying a school employee's directions, and bringing weapons to school.
4.5.2006 4:35pm
Philistine (mail):
Dylanfa said:


This is not at all clearly the case. The only thing this statute appears to prohibit are disciplinary sanctions, not speech restrictions. This law asays only that you can't be suspended or put in detention for wearing a shirt with a flag on it; it says nothing about whether the shirt itself may be banned. Why you think that would be a "disciplinary sanction" escapes me; it's certainly beyond the plain, common understanding of the phrase.



Isn't the point of banning something in a school that if it is worn, a student will be disciplined? If not, what is the point of the ban, and why would any student feel bound by it?

--Philistine
4.5.2006 4:37pm
Zubon (mail) (www):
Maybe there is a legal distinction I am missing here, but what is the difference between enforcing a restriction on X or disciplining a student for X? A student wears a shirt with a flag on it to school and refuses to take it off or go home. The school presumably claims to be disciplining him for failing to obey a school employee's order, but that order is not to wear the shirt.

Is there really a legal difference that says I cannot punish you for wearing the shirt but I can punish you for disobeying my order not to wear the shirt?
4.5.2006 4:43pm
Philistine (mail):
Thorley Winston said:


Dylanfa makes a good point. The letter that I posted from the School Superintendent announcing the policy states that "[a]ny of these objects brought to school by students and not issued to a student by a school official will be confiscated, placed in the office, and returned to the student after school." There is no mention of any disciplinary proceedings brought for possessing the objects even though the letter details punishments for tardiness, unexcused absences, defying a school employee's directions, and bringing weapons to school.


So apparently a failure to willingly give up a patriotic item (and how would they react if it were a pair of pants or a shirt) would constitute "defiance of authority and will result in five days of suspension from school at minimum."

Still seems to me that any actions taken to enforce the ban would likely result in "discipline."

--Philistine
4.5.2006 4:44pm
Thorley Winston (mail) (www):
Isn't the point of banning something in a school that if it is worn, a student will be disciplined? If not, what is the point of the ban, and why would any student feel bound by it?


The point of the ban is to prevent objects from being brought into the school that have been determined to be disruptive. If a student violates the ban, the Superintendent's letter says that their object will be confiscated and then returned to them at the end of the day which is not the same as a "disciplinary sanction" anymore than making a student remove a ball cap while in doors.
4.5.2006 4:44pm
anon) (mail):
I think that VC readers need to find a way to vilify the ACLU, and quick!
4.5.2006 4:45pm
Dylanfa (mail) (www):
Isn't the point of banning something in a school that if it is worn, a student will be disciplined?
Not really. I'm reasonably certain that the most common response to dress code violations, which seems directly comparable, is to require the offending item to be removed. If that would make them unable to attend (no shirt/pants/etc.) they're sent home to change, and probably counted absent for any classes they miss, but not punished in any meaningful sense.
4.5.2006 4:46pm
Greedy Clerk (mail):
I am waiting for Clayton Cramer to comment and tell us that the ACLU are still a bunch of homo-loving commies despite this.
4.5.2006 4:54pm
Thorley Winston (mail) (www):
Is there really a legal difference that says I cannot punish you for wearing the shirt but I can punish you for disobeying my order not to wear the shirt?


Possibly, say for example that a court issues an injunction and you violate it and are sanctioned by the court for being in contempt. In some cases it is possible that if an appellate court finds the original injunction to be unconstitutional, the sanctions issued for violating might still be upheld.
4.5.2006 4:55pm
Hans Bader (mail):
Banning something expressive is the same as disciplining someone for it.

You can't get around free speech rights, as some of the above posts suggest, by punishing a person not for the speech itself but for "insubordination" for refusing to stop displaying the speech.

In the Sypniewski case, for example, a boy was disciplined, not for wearing a Redneck-pride T-shirt, but for refusing to hand over that T-shirt.

The school said he was punished for insubordination, not speech.

The school lost that argument, and the Third Circuit heard his challenge to the underlying speech restriction on the merits.

(Although the boy's free speech challenge to the school's racial harassment code was only partially successful, owing to the school's purported history of bad race relations).
4.5.2006 4:56pm
Greedy Clerk (mail):
say for example that a court issues an injunction and you violate it and are sanctioned by the court for being in contempt. In some cases it is possible that if an appellate court finds the original injunction to be unconstitutional, the sanctions issued for violating might still be upheld.

Actually, that is the normal course in the federal courts --- people can be and usually are sanctioned for violating federal court orders even if the order was void ab initio --- indeed, even if the court had no jurisdiction over the case at all and thus had no power to order an injunction. This is the collateral order doctrine and it is often invoked in free speech cases.

California courts, for what it is worth, do not follow this doctrine and sanctions for violating an order will be vacated if a court order is voided or later overturned.
4.5.2006 5:01pm
Mike Smitherson:
How is this different from a school banning the wearing of "gang colors"? And also, for the record, the drudgereport headline for this story was incredibly deceiving ("Schools Ban Red, White, Blue Clothing").

Developing...
4.5.2006 5:01pm
Greedy Clerk (mail):
The Drudge Report was misleading? I am shocked . . . Next thing you'll tell me is that Instapundit is misleading too and PowerLine's "legal analysis" is biased . . .
4.5.2006 5:03pm
Mike Smitherson:
Heck, it was so misleading, even for drudge, that I was forced to comment on it here...
4.5.2006 5:04pm
Erick:
So having my property confiscated isn't discipline?
4.5.2006 5:07pm
K Bennight (mail):
For what it's worth, Oceanside is near Camp Pendleton. Many of the students in the school are probably Marine dependents.
4.5.2006 5:17pm
Niiiiiiiiiiiiiiiiiiiiiiiiiiick:
I haven't taken my school's Con Law / 1st Amendment class yet, so I could be completely wrong, but I fail to see any tenable distinction between "disciplining someone for wearing an article of clothing" and "disciplining someone for failing to heed a ban on a particular article of clothing."

The "gang colors" argument can be easily distinguished because gang symbols probably wouldn't be covered by Tinker - they're not just an expression of speech. They're diruptive, inciteful, etc.

Similarly, general dress codes should be perfectly acceptable under Tinker because they're viewpoint neutral. Banning "all skirts that come above the knee" or "all muscle tees" is not the same as banning "all skirts with an American flag print" or "all muscle tees with pictures of Che on them."

Again, I could be wrong here, but I think these distinctions are very easy to make.
4.5.2006 5:17pm
Christopher M. (mail):
This is the collateral order doctrine and it is often invoked in free speech cases.

I think you mean the collateral bar rule. The collateral order doctrine has to do with defining which orders constitute final, appealable judgments.
4.5.2006 5:24pm
Luke R. (mail) (www):
I haven't taken my school's Con Law / 1st Amendment class yet, so I could be completely wrong, but I fail to see any tenable distinction between "disciplining someone for wearing an article of clothing" and "disciplining someone for failing to heed a ban on a particular article of clothing."

There is no distinction. If there were, the government could get around any/all Constitutional provisions by passing laws that punished transgression of laws, not the acts themselves ("we're not punishing you for criticizng the president, but for failing to heed our order not to criticize him, etc.."). I predict a quick and well-deserved loss in the courts for the school.
4.5.2006 5:30pm
Mike Smitherson:
The "gang colors" argument can be easily distinguished because gang symbols probably wouldn't be covered by Tinker - they're not just an expression of speech. They're diruptive, inciteful, etc.

I'm not talking about gang "symbols" but gang "colors. E.g., you can't wear solid red (or blue) shirts b/c those are the colors of the Bloods (or Crypts). The reason for banning gang colors is slightly different, but in both cases, you have a school district banning certain clothing, not because of the particular message it sends, but because of a fear of incitement/harrassment that wearing that clothing will provoke/provide.
4.5.2006 5:37pm
Greedy Clerk (mail):
Chris M -- good point. It's the collateral bar doctrine. I was just researching the collateral order doctrine, and that threw me off.
4.5.2006 5:43pm
SG (mail):
I just wanted to elaborate on K Bennight's comment above. Oceanside is the town immediately bordering the Marine Corps' Camp Pendleton, which I believe has had more casualties in Iraq/ Afghanistan than any other US military installation. Most Marines stationed at Camp Pendleton who live off base live in Oceanside. Most Marines who live on base's kids would go to Oceanside HS (though some would go to San Clemente HS in Orange County). Having been stationed there, I would be very surprised if Oceanside HS's student body was not at least 1/3 Marine dependents, and not at all surprised to hear that it is more than 1/2. So banning patriotic clothing at that school carries far more import than simply debates over immigration. The students at that school are more personally involed in the war in Iraq than just about any other definable group in America.
4.5.2006 5:46pm
Bryan DB:
I'm going with the City of Renton. Clearly Oceanside isn't banning the flags, etc. It's merely implementing a time, place, and manner restriction that is targeted at the secondary effects of the speech. Slam dunk. Crappy Supreme Court decisions are good for something after all.
4.5.2006 5:49pm
Tocqueville:
There's way too much lawyerly hair splitting going on here. Eugene's initial point still holds up, and no one (especially Dylanfa) has impeached it. Eugene's basic point is this:

Under Tinker, a school may ban political speech if that speech is LIKELY TO BECOME disruptive. This establishes the Constitutional floor, which a state like California may wish to raise thanks to Brennan's "New Judicial Federalism."

California has chosen to raise that floor with Education Code 48950, which allows a school to ban political speech ONLY if such speech is IN FACT threatening (not merely disruptive). So although the school's policy does not run afoul of the Constitutional limit established in Tinker, it is apparently in violation of California law.

Dylanfa's tortured semantics over the term "discipline" are misplaced. To constructively suspend a student is to discipline them. Any student who refuses to remove their flag are effectively suspended from the school's campus.
4.5.2006 5:50pm
Brian G (mail) (www):
What about Hazelwood? I think that Hazelwood might provide some protection for the school officials if they can relate the ban to legitimate pedagogical interests. I, of course, think this ban is unconstitutional, but Hazelwood can't be ignored.
4.5.2006 6:12pm
Tocqueville:
Again, you're missing the point. There is simply no Constitutional problem with the school's policy in light of Tinker or Hazelwood. The only relevant question is whether the policy violates California law, specifically Education Code 48950.
4.5.2006 6:17pm
KingOfMyCastle:
(non-lawyer speaking...) I'm torn on this. I'm sympathetic to the students who would want to express their patriotism, etc., but I'm also sympathetic with the school administration doing what it can to maintain a safe environment. I'm not so concerned with the 1st amendment rights of minor children so much as their safety. I know my daughter doesn't have any free speech rights in our home (My wife and I trump the bill of rights in our household0, so I'm not so concerned about her having them at school. They'll have plenty of time to express themselves when they are out on their own. I'd personally be in favor of a clause added to the first amendment stating that free speech rights come into play at the same age as voting rights...
4.5.2006 6:54pm
Houston Lawyer:
Apparently we're well down the road to Hell already if American flags must be banned from campus in order to keep the peace.

The American people have tolerated the illegal immigrants because of their hard work and willingness to fit in. It they start acting like the student protestors in Paris, they may wear out their welcome.
4.5.2006 7:06pm
Daniel Chapman (mail):
Hazelwood allows the school to pass rules "reasonably related to legitimate pedagogical concerns" in situations where the speech could be interpretted as "school sponsored."

I don't think it's applicable here.

Also, where is this "strong likelihood of a material disrutpion" stuff coming from? Tinker says nothing about a "strong likelihood."
4.5.2006 7:18pm
Eugene Volokh (www):
(1) Hans Bader et al. are quite right: If you're told "hand over that T-shirt, or else we'll discipline you," and you refuse, then you're being disciplined for the speech. If the school can avoid that by saying "No, we're disciplining you for the refusal to hand over the T-shirt," then the entire statute is pointless, since you could always be disciplined not for your speech, but for your refusal to obey the order not to speak.

Of course, if you're told "hand over that T-shirt, but if you don't, nothing will happen to you," then the statute I cite won't apply; but is that really what would happen? Finally, if the school enforces the law by ripping the T-shirt off the student, then perhaps that wouldn't be impermissible "discipline," but it would pose obvious other problems.

(2) No dice with secondary effects. As R.A.V. (and Forsyth County and Boos v. Barry) held, "'Listeners' reactions to speech are not the type of 'secondary effects' we referred to in Renton.' 'The emotive impact of speech on its audience is not a "secondary effect."'"
4.5.2006 7:32pm
NickM (mail) (www):
"To prevent disruption of instruction or school operations, no students may bring or wear items that could be disruptive, including clothing, face paint, signs, placards, or flags, all of which were contributing factors to last week's disruptive behavior."

That rule doesn't even meet the Tinker standard (could is less than likely to be), and is exceedingly vague.

I would also love to know how you would confiscate and return face paint - or a tattoo.

Nick
4.5.2006 7:45pm
Tom Holsinger (mail):
Does anyone else recall the fuss over "disrespectful" use of the American flag on clothing? On the part of pants which normally impacts furniture?

As for restrictions on colors in clothing, California has a major, major gang problem.
4.5.2006 11:09pm
The Drill SGT (mail):
Beyond the ironic location of the school next to a major Marine base, I was fascinated that the birthday of Cesar Chavez would be the focus of what I assume are demonstrations supporting illegal immigrant rights etc.

Cesar Chavez, a third generation American, was a farm labor organizer in the Central Valley. He and his United Farm Workers Union were violently opposed to illegal immigrants whom they saw as agents of the growers and who depressed wages and broke strikes.

How times change and folks forget.

My Uncle used to rent a house to Cesar Chavez in Delano :)
4.5.2006 11:29pm
Richard Aubrey (mail):
Greedy Clerk.

You can't judge the entire ACLU by the actions of one chapter. They aren't run from on high, you know. This is probably one of the rogue chapters.
4.5.2006 11:32pm
Dutch (mail):
I'm surprised, given the erosion of students' Fourth Amendment rights in cases like Vernonia and Earls, that their First Amendment rights have not been similarly eroded. I guess in loco parentis does have SOME limits.
4.5.2006 11:35pm
Bryan DB:
Houston Lawyer, American flags aren't banned from campus.
4.5.2006 11:45pm
Bryan DB:
Eugene,
I take issue with your last sentence: "The time, place, and manner exception probably doesn't justify even a temporary ban on flag, display, since "time, place, and manner regulations" is a First Amendment term of art that refers only to content-neutral regulations, and a ban on the display of particular flags is not content-neutral."

The school is banning all student-brought flags; is that not content neutral?
4.5.2006 11:50pm
Niiiiiiiiiiiiiiiiick:
Bryan DB: The first sentence of the article is more instructive than the first sentence of the snippet Prof. Volokh quoted:


In the wake of last week's immigration-reform protests, one school district is taking drastic measures, banning all symbols of patriotism, both U.S. and Mexican.


I assume, then, that the "all flags" mentioned in the snippet quoted in the blog post refers only to "all U.S. and Mexican flags." As such, the action is not content neutral, because there's no indidcation that the school would do anything if a student wore a shirt with, say, an Italian or Greek flag on it.
4.6.2006 12:52am
Brian G (mail) (www):
I forgot about the Hazelwood holding that it also concerned school-sponsored speech. Thanks for the clarification.
4.6.2006 3:24am
go vols (mail):
Bryan D,

It might be viewpoint-neutral; how can it possible be content-neutral, since it is the content that they are banning?
4.6.2006 10:23am
Bryan DB:
go vols,
Good point. I said "content neutral" because of the school's statement that "no students may bring or wear items that could be disruptive, including clothing, face paint, signs, placards, or flags." Perhaps you could say that "could be disruptive" is a "content" but I didn't go that far.

Eugene, my understanding of R.A.V. is a little different than yours. That case looked like it was saying that you can't discriminate among classes of fighting words. The problem with St. Paul's ordinance was: "But 'fighting words' in connection with other ideas - to express hostility, for example, on the basis of political affiliation...[is] not covered [by the First Amendment}."
4.6.2006 1:11pm
mariner (mail):
It seems to me that if the school maintains an environment in which display of an American flag may be disruptive, we have much bigger problems than whether this regulation is legal.
4.6.2006 2:29pm
Thorley Winston (mail) (www):
Yesterday school superintendent out a letter clarifying the issue of flags on clothing:

Our district has received a large volume of calls from concerned citizens and the news media regarding this issue. Our response has been consistent and direct: flags are flying at all our campuses and in virtually every classroom. Clothing that has a flag on it is permitted. Clothing with flags AND inflammatory wording is NOT permitted. Students will not be punished for wearing patriotic clothing that they may have worn in the past.


According to the letter, the ban ends this Friday. This news account makes an interesting point about part of the rationale for the policy:

"Our goal was to get rid of the Mexican flags on campus because they were causing such heated feelings," Noonan said.

Noonan said he was advised by legal counsel that the district couldn't just temporarily bar Mexican flags, so he extended the ban to all. And it's the ban on American flags that has generated the uproar.


The article also states that during the protests and altercation with police last week which lead to this temporary ban, they have suspended 224 students "[f]or defying authority, disobeying campus security and throwing objects at law enforcement officers" and recommended another 14 for expulsion.
4.6.2006 3:15pm