Free Speech in Public Schools
The limit that a school district can impose upon free speech in public schools is in the news again, this time in a case from Morgan Hill, California. Morgan Hill is a city about an hour south of San Francisco, and is home to the Morgan Hill Unified School District and Live Oak High School. This distant California school made national news in 2010 when the administration required a handful of students to change out of clothing depicting the American Flag or risk punishment. Sensational headlines followed, condemning the “extreme” California school culture and the insult to Old Glory. Surely, this could not be the state of the law in the United States. Surely, banning the American Flag in an American school is a step too far, right?
Five years after Live Oak High School required these students to change clothes or face discipline, the case has finally reached conclusion in the court system. Procedurally, the case made it all the way to the Federal Court of Appeals for the 9th Circuit. In March 2015, the United States Supreme Court declined to accept further appeal of the case, thereby rendering the 9th Circuit’s decision the final word. Live Oak High School prevailed and the policy effectively banning clothing with the American Flag was upheld. Here’s the rest of the story.
On May 5, 2010, four high school boys went to school wearing t-shirts that many American students might own. One was an Old Navy brand t-shirt with an American Flag graphic on the front. Two were made by TapOut, a popular brand loosely associated with mixed martial arts. The TapOut shirts did not include a flag, but rather a logo for the company that stylistically uses red and white stripes, as well as white stars on a blue field. The fourth was a shirt that resembled the stars and stripes from sleeve to sleeve.
Before we delve into the logic behind the decision by Live Oak High School’s administrators to ban the shirts, a brief review of free speech in schools is in order. The review begins with the First Amendment itself, which provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although free speech is a very broad and well-defended civil right, it has never been regarded as an unlimited license to say anything that comes to mind. The classic example of a limitation on free speech is the admonition that one cannot yell “fire” in a crowded theatre, potentially causing injury in an attempt to escape the perceived danger. Defamation, libel, and slander — statements that injure a person’s reputation — are also not protected by the right of free speech in many circumstances. False advertising, perjury under oath, and misleading a police investigation are also understood to be speech that is not protected by the First Amendment. These are but a few examples of the limits that exist on free speech, especially free speech in public schools.
Within the walls of a schoolhouse, the limitations on free speech are unique. Of course, students do enjoy First Amendment free speech rights in schools. Dating back to the 1960s, the United States Supreme Court consistently held that “students do not ‘shed their constitutional rights’ at the schoolhouse door.” However, the Supreme Court has also noted that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Although these foundational legal principals are important to the court, they don’t necessarily give guidance to school administrators.
The practical legal principals governing free speech in public schools emerge in a line of cases beginning 50 years ago. In 1965, high school students in Iowa chose to wear black armbands as a symbolic protest of the Vietnam War and supporting the “Christmas Truce.” Protesting a policy of government that is highly important to the public, and important to these students, would seem to be exactly the kind of free speech the First Amendment protects. However, school administrators developed a policy banning the armbands in order to prevent the protest. The students deliberately violated the policy and were suspended. Four years later, in 1969, the Supreme Court ruled that schools cannot prohibit this expression of free speech, even if it is provocative or controversial, unless the speech “materially and substantially interferes” with school operation. The armbands were allowed and the Court, for the first time, established the standard for when a student’s free speech could be limited.
Fast forward to 2007 in Juneau, Alaska. A high school student hangs a banner across the street from the school during the procession of the Olympic Torch relay, which was to pass in front of the school. The banner read “BONG HITS 4 JESUS.” When the student refused to take down the banner, he was suspended for four days and the banner was confiscated by the school principal. The Supreme Court upheld the principal’s actions in suspending the student by applying the standard it developed in the 1969 armband case. In the Alaska case, a message directed to students during a school event, and which advocated illegal drug use, amounted to a material and substantial interference with school operations.
With these two cases setting the precedent for free speech in public schools, why would the courts believe that the students wearing American Flag t-shirts at Live Oak High School were more like the boy in Alaska advocating drugs and less like the 1960s Vietnam War protests? How could American Flags amount to a material and substantial interference with school operations? If you noticed the date that the boys wore the shirts, you may have spotted a clue that unlocks the answer. The date was May 5, 2010, or that year’s Cinco de Mayo, the celebration of the Mexican army’s unlikely victory over French forces at the Battle of Puebla, which occurred on May 5, 1862. For persons of Mexican heritage, the holiday is a source of cultural pride and importance.
Live Oak High School, as a part of its academic program, recognized the significance of Cinco de Mayo and organized activities on May 5th, 2010 to observe the historic and cultural significance of the day. The handful of boys wearing American Flag shirts on this particular day, as an expression of free speech, was a source of friction. To the extent that the Flag t-shirts represented free speech, the message conveyed by the shirts was a protest of the school’s acknowledgement of the importance of Cinco de Mayo to the school’s Mexican students. Administrators learned of actual fights, as well as threats of violence, as a result of the American Flag shirts. That message, on that particular day, rendered the American Flag shirts a substantial and material disruption to the school’s operations. For that reason, the school district acted within the law to limit free speech in public schools when it required the students to change clothes or face discipline.
What is significant about the Live Oak High School case is that the courts never questioned the school’s discretion to recognize Cinco de Mayo, or the fact that the speech at issue consisted of the American Flag. Those facts, while important to the public perception of the case, played no role in the legal outcome. Restriction on free speech in public schools is permissible when the speech materially and substantially interferes with the school operation. As a post-script, Live Oak High School never sought to impose a general ban on the American Flag at school. All that the school ever attempted to do was to maintain order in its school, and the Court vindicated its limitation on free speech when (and only when) the speech materially and substantially disrupted the school’s operation.
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