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.
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.
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
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?
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
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.
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.
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).
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.
Developing...
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.
I think you mean the collateral bar rule. The collateral order doctrine has to do with defining which orders constitute final, appealable judgments.
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.
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.
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.
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.
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."
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."'"
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
As for restrictions on colors in clothing, California has a major, major gang problem.
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 :)
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.
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?
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.
It might be viewpoint-neutral; how can it possible be content-neutral, since it is the content that they are banning?
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}."
According to the letter, the ban ends this Friday. This news account makes an interesting point about part of the rationale for the policy:
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.