BILL ANALYSIS Ó
ACR 95
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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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