We recently discussed a controversy over a teacher being told to remove an Antifa flag and Gay Pride flag. We now have the inverse case. A teacher in Washington was told to remove a “Blue Lives Matter” flag that she put up to support her brother who was a former police officer. The flag was surrounded by pictures of her brother. She was told to remove the flag as a “political statement” that would disturb some students. These controversies raise questions of content-based discrimination over speech, particularly after the Washington teacher was reportedly told that she could have Black Lives Matter or Gay Pride flags in her class but not a Blue Lives Matter flag.
A conservative host said that the teacher objected after an assistant principal at the school first took issue with a “Thin Blue Line” sticker on her laptop.
A second assistant principal later ordered the flag to be taken down, and an HR representative reportedly said in a Letter of Clarification that the district was “highly concerned about the impact of this political symbol on students, staff, and families of Marysville Middle School.” She was allegedly told to “refrain from using the ‘Thin Blue Line Flag’ symbol” unless she was willing to face “further disciplinary action.”
What makes this case interesting from a free speech standpoint is that she claims that she was told that she could have BLM flags on the walls. The teacher also had a Gay Pride flag on the wall in support of a gay relative. That was also viewed as acceptable.
The case presents a familiar problem for officials who seek to regulate expressions. It is easier to ban any expressions of political or public causes rather than distinguish between approved and unapproved messages. The government is generally barred from regulating speech because of its message, its ideas, its subject matter, or its content.
Police Dep’t of Chicago v. Mosle, 408 U.S. 92, 95 (1972). Justice Harlan explained this difficult line in Konigsberg v. State Bar of California, 366 U.S. 36, 49–51 (1961):
Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. . . . On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.
In Chaplinsky v. New Hampshire, the Supreme Court followed a “two-tiered approach” that allowed for restrictions in certain defined areas like fighting words and obscenity. 315 U.S. 568, 571-72 (1942). However, these were well-defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth.
Since Chaplinsky, the Court has largely avoided such exceptions and has held the line against content-based rules limiting free speech.
The key issue here is that this is not just a government space but a school setting where officials have considerable latitude in controlling some forms or symbols of expression. Where schools get into trouble is often in limiting the expression of students themselves, particularly content-based limits. In 1969, the Court famously declared in Tinker v. Des Moines, that students “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the Court also recognizes the need for officials to maintain a learning environment without disruption or distractions.
Schools, however, can sometimes limit students’ right to free speech and expression when necessary to achieve legitimate educational goals. In Mahanoy Area School District v. B. L. (2021) the Court stated:
Schools have many responsibilities: They must teach basic and advanced skills and information; they must do so for students of different backgrounds and abilities; they must teach students to work independently and in groups; and they must provide a safe environment that promotes learning.
See also Bethel School District v. Fraser (1986); Hazelwood School District v. Kuhlmeier (1988).
If the school did distinguish between flags based on their content, this could present a viable case for challenge. However, a court could well declare that all such flags or displays can be barred by the school district … or all allowed. It is the line drawing that triggers the greatest concern over content-based regulation of speech.
Freedom requires tolerance of those with differing views. The “woke” nonsense is all about intolerance.
Education not Indoctrination.
The double standard is alive and well in our schools. Two years ago, NYC allowed students to skip School for a climate protest. I wonder if it would do the same for a Second Amendment protest. Hmm.
Honestly, I think all personal political beliefs need to be left at the door. School should be for teaching reading, writing, literature, math, science, and a decent unbiased history curriculum bipartisan approved.
67% of CA 4th graders are not reading at grade level. The schools are having a hard enough time educating students.
The only flag in a classroom should be Old Glory.
I agree with the blue lives matter movement, but think that teachers need to keep all personal politics out of class. Valuing the lives of law enforcement shouldn’t be considered a political statement, but it is considered such in modern society, unfortunately.
My K-12 public school education occurred during the 60’s and 70’s in Minneapolis. We had a very diverse student body. I can honestly say that I have no recollection of being taught any political or economic philosophy other than our U.S. constitution and capitalism. We may have been introduced to Marxism or Communism or Socialism, but they wouldn’t have been taught as a positive alternative. We had American flags in every classroom and we recited the Pledge of Allegiance every day. We were taught about slavery, racism and civil rights. I recall reading Black Like Me and The True Believer I don’t recall if those were assigned reading or not. I do recall that I checked out both from the public library and not that they were provided to us in class. I have no idea what the personal beliefs, sexual orientation, marital status, religious status, etc. of any of my teachers. I have no recollection of the personal or political philosophies of my classmates. In other words, is was an uncontroversial standard education.
For what it’s worth; fast-forward to today and the classmates I graduated with that I still communicate with lean liberal to progressive. Few are what I would consider conservative. Incidentally, most of those that lean conservative did not go on to get a college degree, but rather went into the trades. Something happened on the way to adulthood and after conversations with them, it all depends on where they were taught their worldview after high school.
I was caught off guard when a couple of my classmates I hadn’t seen since high school had gone into the deep Left end of the pool. During school, the pledge was no longer required, but not completely banned, either. We considered at least one teacher to be gay, but thought nothing of it since it didn’t come up as a topic during class. There were a few minority students…they made friends like anyone else, some easier than others. During the Vietnam war, you could tell how a few of the faculty felt about it but it wasn’t yet part of the curriculum except for Kennedy sending ‘advisors’ over to help the French. When did it all change…? There’s a pretty good correlation to the creation of the Department of Education and the rise of the Teachers Union in the late 70’s as contributing factors at a minimum and wouldn’t you know it it’s about the same time as the hippies who said to not trust anyone over thirty finished theie PHD studies and became either college professors earning tenure, or moving to DC to join the new Dept. of Ed. Suddenly, they were ‘in charge’ far more than the local teacher and local school district and they could ‘teach’ whatever they wanted instead of learning how to get along in life and earn a living. Since then, no one is to doubt their intentions regardless of how well or poorly our kids read or perform simple math.
Teach our children the THREE R’s, other than that keep your mouth shut. When school is over go home and fly whatsoever flags you want!
John “Dudley Do-Right” Durham, where are you in your investigation of the Obama Coup D’etat in America?
_____________________________________________________________________________________
“We are five days away from fundamentally transforming the United States of America.”
– Barack Obama
The Obama First African Expeditionary Invasion Force was forward deployed to Del Rio, Texas then released en masse to all points beyond and throughout America.
Just a reminder about the large # of conservatives who had a fit because Colin Kaepernick kneeled during the national anthem but seem perfectly fine with the “thin blue line” / “Blue Lives Matter” flag, which violates section 8(g) of the Flag Code. That alone should be reason not to have it hanging in a classroom.
“It is the line drawing that triggers the greatest concern over content-based regulation of speech.”
The Flag Code is part of US law and draws a line. Any legal analysis of the “thin blue line” flag should address it.
Just a reminder that a large # of conservatives are OK with the removal of the blue lives matter flag, too.
Not true. Read more carefully.
I don’t know how it turned out. But I remember several years back, a school demanded children remove US flags from their bicycles. The reason given, the flags ‘might’ offend (there’s that word again) “ immigrant” students. As noted in your post, the problem is officials malleable standards. Not surprisingly, that’s exactly why the cure for bad speech is more speech. Amazing prescience from the founders. Again.
So the new reality.
School Administration says they will determine what is political and what is acceptable speech within a classroom.
Meaning that there is no ‘free speech’.
Seems that there are a couple of SCOTUS cases that would tell the school admins to suck it and let her hang the flag.
The issue that people are getting triggered by police is more of a myth and perception problem.
On a slightly different topic…
I saw that there were a bunch of new Brooklyn99 episodes we hadn’t seen from this year.
Way too political and liberal self loathing going on. Looks like they lost their focus and funny bone.
Think we’ll stick w Ted Lasso which is a much better comedy.
-Gumby
The short answer is that none of these flags should be allowed into the classroom. It is not the job of the teacher to indoctrinate their students. Their job is to teach the curriculum. The separation of church and state policy would be a good pattern to follow. If my children were young, I would be disturbed if a teacher brought in any kind of flag, poster or any material that promoted a political or religious ideology.
If the school allows any flag other than the flag of the United States or from the state in which the class is being taught, then their policy must allow all flags, regardless of political or religious ideology. While they are at it, the teachers should be allowed to teach the children their religious beliefs and philosophy…or not. This is the “Shoe is on the other foot’ test. What is good for the goose is good for the gander.
This
Separation of church and state comes from the 1st Amendment, but there is nothing in the Constitution about separation of politics and state. Indeed, it would be a contradiction in terms, since the state is itself a political entity. Teachers who teach social studies teach political ideology. It is literally required as part of the curriculum. You can certainly argue that some political issues are not part of the curriculum and shouldn’t be in the classroom, but that’s a different argument than the one you’re making.
The doctrine of separation of church and state is not legally the same as the separation of a teacher promoting their personal political agenda but it appears that the intent is very much the same. As a matter of policy the school must allow all or nothing at all otherwise they open Pandora’s box and create more headaches than solutions.
So, “Tinker” just had to label armbands as political speech, and we would have a whole different SCOTUS stare decisis ruling the masses
Please explain the Tinker case.
Tinker; students protesting the Viet Nam kinetic military action, wore black arm bands in school to show solidarity against baby killing GI’s, School administration banned said armbands. Finally reaching the supreme court, the court determined constitutional rights do not stop at the school house door. Thus destroying the legal principle of in loco parentis.
Now the courts are ignoring the very core of ‘freedom of Speech, as protected by the 1st amendment. Bad speech, upsetting speech, even vulgar speech fall under the protection of the 1st. But the need, triggering the protection (barring of Government abuse) was political speech. A nation cannot be ran by the people through representative republicanism. If that same government can control political speech.
Now the courts are saying political speech is a category that the government can censor. ???WTF?