The Volokh Conspiracy - 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.

	[Eugene Volokh, April 5, 2006 at 2:49pm] Trackbacks 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.