BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  August 25, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          ACR 95  
          (Mathis) - As Amended July 13, 2015


          SUBJECT:  DISPLAY OF THE American Flag


          KEY ISSUE:  Should the Legislature call upon state and local  
          governments to prohibit any government entity from banning the  
          American flag on public property? 


                                      SYNOPSIS


          This resolution calls upon state and local governments to  
          prohibit government entities from banning the American flag on  
          public property.  According to the author, this resolution  
          responds to a recent incident in which a legislative committee  
          of the Associated Students of the University of California  
          (ASUC) at the Irvine campus voted to exclude all national flags,  
          including the American flag, from the lobby of a complex that  
          housed student government offices.  (The legislative committee's  
          proposal would not have banned the display of the flag anywhere  
          else on the campus.)  The legislative committee apparently  
          reasoned that flying national flags was contrary to efforts to  
          create a more "inclusive" environment at the student government  
          offices.  The committee's decision was subsequently overturned  
          by a vote of all members of the ASUC at Irvine.  Not only has  
          the issue that prompted this resolution been resolved, it  








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          appears that the resolution would never have applied to the  
          situation at U.C. Irvine.  That is, ACR 95 calls upon state and  
          local governments to prohibit any "government entity" from  
          banning the American flag from public property.  While the  
          complex that housed student government offices at U.C. Irvine is  
          public property, ASUC is not a "government entity."  Instead,  
          ASUC is organized under federal law as a private, non-profit 501  
          (c) corporation for the purpose of representing student  
          interests to the university administration.  Furthermore, while  
          this resolution calls upon state and local governments to  
          prohibit government entities, including public schools, from  
          prohibiting the display of the American flag, it would not,  
          under existing case law, prohibit a school from implementing a  
          dress code or otherwise prohibiting the display of a flag by  
          students under circumstances that would cause substantial  
          disruption to school operations.  There does not appear to be  
          any registered support or opposition to the resolution at this  
          time. 


          SUMMARY:  Resolves that the Legislature should call upon state  
          and local governments to prohibit a government entity from  
          banning the American flag on public property.  Specifically,  
          this measure:  


          1)Makes several declarations relating to the significance of the  
            presence of the American flag at critical moments in American  
            history, from the American Revolution to the September 11,  
            2001, attacks on the World Trade Center.  


          2)States that whereas the United States provides $35.4 billion  
            in foreign assistance programs to more than 100 countries  
            around the world and that these investments further America's  
            foreign policy interest while simultaneously establishing the  
            American flag as the undisputed symbol of global good will. 










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          3)Resolves that the California Legislature:


             a)   Declares that the American flag is an inseparable part  
               of California's rich history, tradition, and culture. 


             b)   Declares that the American flag represents the values of  
               freedom and liberty.


             c)   Calls upon state and local governments to prohibit any  
               government entity in the state from banning the American  
               flag from public property, including, but not limited to,  
               public schools, public colleges, public universities, state  
               beaches, public parks, public monuments, museums, and  
               government offices.  


          EXISTING LAW prohibits any law that restrains or abridges  
          liberty of speech or press.  (Article I Section 2 of the  
          California Constitution.)


          FISCAL EFFECT:  This resolution is keyed non-fiscal. 


          COMMENTS:  According to the author, ACR 95 was prompted by a  
          recent incident in which a legislative committee of the  
          Associated Students of the University of California (ASUC) at  
          the Irvine campus voted to exclude all national flags, including  
          the American flag, from the lobby of a complex that housed  
          student government offices.  (The legislative committee's  
          proposal would not have banned the display of the flag anywhere  
          else on the campus.)  The student committee apparently reasoned  
          that flying national flags was contrary to its effort to create  
          a more "inclusive" environment at the student government  
          offices.  The committee's decision was subsequently overturned  
          by a vote of all members of the ASUC at Irvine.  Not only has  








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          the issue that prompted this resolution already been resolved,  
          but more curiously, it appears that the resolution would never  
          have applied to the situation at U.C. Irvine.  ACR 95, that is,  
          calls upon state and local governments to prohibit any  
          "government entity" from banning the American flag from public  
          property.  While the complex that housed student government  
          offices at UC Irvine is public property, ASUC is not a  
          "government entity."  Instead, it is organized under federal law  
          as a private, non-profit 501 (c) corporation for the purpose of  
          representing student interests to the university administration  
          and giving students a voice on selected committees.


          Is There any Evidence of a Problem That Would be Addressed by  
          this Resolution?  Given that the U.C. Irvine issue has already  
          been resolved - and the fact ASUC is not a "government entity"  
          that would be subject to the provisions of this resolution - it  
          is not entirely clear what problem, if any, the resolution seeks  
          to address.  The Committee is not aware of any government entity  
          that has banned the display of the American flag or any  
          government entity that has expressed an intent to do so in the  
          future.  Not only do virtually all public entities fly the  
          American flag somewhere on their premises, many of them (such as  
          schools, city councils, boards of supervisors, and the state  
          legislature) begin their days or proceedings with the Pledge of  
          Allegiance to the American flag.  The vote at U.C. Irvine was  
          made by a committee that was apparently not representative of  
          the larger student government association, much less the  
          university or the student body as a whole.  This single action  
          does not seem to be evidence that, absent a resolution by the  
          state legislature, government entities across the state are  
          likely to start removing the American flag from public property.  



          Resolution Should Not Affect School Dress Codes.  ACR 95  
          specifies that the government entities barred from banning the  
          American flag includes "a public school."  As the United States  
          Supreme Court famously noted in Tinker v. Des Moines Independent  








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          Community School District (1969) 393 U.S. 503, students do not  
          shed their First Amendment rights at the school house gates.   
          However, while students clearly enjoy First Amendment rights,  
          Tinker also held this right of students to free speech could be  
          limited by a school's need to carry out its essential  
          educational functions.  Specifically, the majority in Tinker  
          held that schools may prohibit speech that "might reasonably  
          [lead] school authorities to forecast substantial disruption of  
          or material interference with school activities" or that would  
          interfere "with the rights of other students to be secure and to  
          be let alone."  (Id. at 508, 514.)  Although the Tinker majority  
          found that the students wearing black armbands to express  
          opposition to the Vietnam War did not constitute such a  
          disruption, subsequent decisions have identified several  
          instances in which a school may constitutionally prohibit some  
          forms of student expression, especially when it comes to  
          implementing and enforcing dress codes or prohibiting forms of  
          expression that the school reasonably believes could cause  
          disruption. 


          A recent example of the limits of student expression occurred in  
          California.  In Dariano v. Morgan Hill Unified School District  
          (2014), the United States Court of Appeal for the Ninth Circuit  
          upheld the decision of school administrators to prohibit  
          students from wearing shirts with the American flag under  
          conditions where the wearing of the shirts was apparently  
          intended to provoke a confrontation with other students  
          celebrating Cinco de Mayo.  Indeed, the year before this  
          prohibition, a Cinco de Mayo celebration at another Morgan Hill  
          school led to a confrontation between one group of students  
          carrying an American flag and another group of students carrying  
          a Mexican flag.  Therefore, in an effort to stave off the  
          violent confrontation that occurred the year before,  
          administrators asked students who wore shirts emblazoned with  
          American flags on Cinco de Mayo to remove them or turn them  
          inside out.  The Ninth Circuit concluded that, in light of the  
          totality of the circumstances, the experience of the previous  
          year, and reports that confrontations seemed likely to be  








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          repeated, the school's action did not violate the students' free  
          speech rights under either the California or the federal  
          constitutions.  The Ninth Circuit stressed, as did the U.S.  
          Supreme Court in Tinker, that expression could not be prohibited  
          merely because some students found it offensive, since offensive  
          expressions are precisely the ones that need First Amendment  
          protection.  But the Ninth Circuit found that, in this  
          particular case, school administrators appropriately cited  
          evidence that the expression could cause substantial disruption  
          and possibly even violence.  The United States Supreme Court  
          declined to hear the case on appeal.  (Dariano v. Morgan Hill  
          Unified Sch. Dist. (2014) 767 F.3d 764; cert. denied in Dariano  
          v. Morgan Hill Unified Sch. Dist., 2015 U.S. LEXIS 2190 (U.S.,  
          Mar. 30, 2015.)


          In sum, while this resolution calls upon state and local  
          governments to prohibit government entities, including public  
          schools, from prohibiting the display of the American flag, it  
          would not, under existing case law, prohibit a school from  
          implementing a dress code or otherwise prohibit the display of a  
          flag by students under circumstances that would cause  
          substantial disruption to school operations. 


          ARGUMENTS IN SUPPORT:  According to the author:


             As we celebrate the Nation's 239th birthday this month,  
             this resolution honors the symbol of our country's great  
             heritage, the American Flag.


             An enduring image of democracy and freedom, Old Glory has  
             been the banner under which brave men and women have  
             sacrificed their lives to defeat fascism, communism, and  
             terrorism. 










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             The Stars and Stripes has also been at the forefront of  
             America's peacetime endeavors as well. Whether it be in  
             humanitarian relief efforts in every corner of the world,  
             or at the vanguard of exploration, with the flag still  
             standing vigil upon the surface of the Moon. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file




          Opposition


          None on file 




          Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334


















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