“I pledge allegiance to [which?] flag …”
By John M. Sedor of Sedor, Wendlandt, Evans & Filippi, LLC
Part one of a four-part review of the Freedom of Expression in Schools.
Speech. The freedom of speech is one of the cornerstones of our nation and integral to our form of government. This is the first of 4 articles that will outline the way speech is balanced in schools alongside a district’s responsibility to maintain order sufficient to accomplish its educational mission. This first installment addresses the constitutional framework of student speech.
You may have experienced this: sitting down to watch an NFL football game and watching a civics lesson break out. Since Colin Kaepernick sat during the National Anthem, the debate as to whether and how to protest in reference to the Anthem or Pledge of Allegiance (the school equivalent to the Anthem) has reached the sports pages as well as the highest levels of our government. It has also reached our schools.
Alaska statutes provide that “the governing body (school board) shall require that the pledge of allegiance be recited regularly.” AS 14.03.130(a). Imagine walking into your neighborhood school and watching students put black armbands on as they prepare to sit down during the pledge. Can the school do anything to stop this protest? The answer, absent some really unusual facts, is “no.”
Even the statute recognizes not all students may want to say the Pledge; thus, a “person may recite the … salute to the flag of the United States or maintain a respectful silence.” What the statute does not address is whether a student can put on an armband and sit in protest of the Pledge.
While the statute may be silent on the extent of student protests – the courts have not. Back in the late 60’s, some students in Iowa (of all places) wore black armbands to school to protest the Vietnam War. They were disciplined by the school. The Supreme Court in Tinker ruled in favor of the students and overturned the District’s action. In this now famous case, the Court found that student free speech rights were not “shed at the school house gates.” Applying the lesson of Tinker to today’s protests and given the national context of the current debate going on at the beginning of every NFL game, it is highly unlikely that schools could discipline students for silent protests (e.g. armbands, kneeling) during the Pledge.
But the Supreme Court did not hold that any student protest or speech must be allowed. Instead, the Court, noting that student speech rights are not as robust as those that exist outside of the “school house gates,” focused on the impact the speech had on the schools operation and ability to pursue its mission of delivering education to the student body. The Court found that student speech is not absolute and must give way to the school’s interests if the speech “substantially interferes with school operations.” The Court does not even require actual disruption. Speech that is reasonably forecast to interfere with school operations can be restricted. And where a school can prohibit speech (because it is disruptive or disruption is reasonably foreseeable), the school can discipline non-complying students.
Deciding whether student speech is disruptive or reasonably likely to be disruptive is a factually intensive exercise often leading to interesting results. For instance, with regard to flags, the 9th Circuit (which includes Alaska) held in 2014 that a school could ban students from wearing American flag shirts on Cinco de Mayo. (Melton) This might seem absurd … unless we understand that there was a history of violence in the school in previous years and threats of violence at the time of the restriction. Thus, and I can’t overemphasize this: facts matter.
Another flag making the news lately is the Confederate flag. Courts have addressed whether a school can prohibit students from wearing emblems of the Confederate flag. In considering these cases, the courts consider all of the applicable facts to decide whether the “speech” will reasonably cause a disruption. Thus, in communities where previous displays of the Confederate flag resulted in fights, calls for police intervention, racial tensions, race-based graffiti, or lock-downs in school, courts have allowed restrictions on student displays of the Confederate flag.
But courts do not simply “rubber stamps” district decisions. For instance, where a school administrator who had previously successfully banned the display of the Confederate flag moved to a new school and did the same thing, the ban was struck down because the facts and experiences at the new school were not the same as at the previous school. (Bragg) So, courts will not apply a “one-size-fits-all” approach and what can be restricted in one school may not be able to be restricted in another.
What is then the lesson? Students have a “good measure” of First Amendment rights while at school. Schools have the right to establish an environment that is conducive to its mission to educate. Often times, these rights can co-exist – even when it makes us uncomfortable – such as silent physical protests during the Pledge. If, however, a school can establish that a student’s expression is disruptive or likely to be disruptive to the school environment, courts will allow a school to restrict and control the speech.
Read the entire series on Freedom of Expression in Schools
Part two: Exceptions to student speech rights under Tinker
By Lea Filippi
Part three: Free Speech Rights of School Employees
By Allen Clendaniel
Part four: “Can we start our school board meetings with a prayer?”
By Clint Campion
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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.