BILL ANALYSIS Ó
ACR 95
Page 1
Date of Hearing: March 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ACR 95
(Mathis) - As Amended July 13, 2015
PROPOSED CONSENT
SUBJECT: 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 author-sponsored 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 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
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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
appears that this 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 UC 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. In addition, 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 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
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flag as the undisputed symbol of global good will.
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: As currently in print this resolution is keyed
non-fiscal.
COMMENTS: According to the author, ACR 95 was prompted by a
recent incident in which a 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
ACR 95
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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 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 a Problem That this Resolution Seeks to Address? Given
that the U.C. Irvine issue has been resolved - and, in any
event, 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 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. 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 constitute evidence that, absent a
resolution by the state legislature, government entities
throughout the state are inclined to remove the American flag
from public property.
Resolution Should Not Affect School Dress Codes: ACR 95 defines
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a "government entity" to include "a public school." As the
United States Supreme Court famously noted in Tinker v. Des
Moines Independent Community School District (1969) 393 U.S.
503, students do not shed their First Amendment rights at the
school house gates. However, while students indisputably enjoy
First Amendment rights, Tinker also held that student speech
could be limited if it interferes with the school's 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 create such a disruption,
subsequent case law has 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 and
displays of the flag 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
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year, and reports that confrontations seemed likely to be
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).)
Comparison with SCA 2: This resolution is both similar to, yet
significantly different from, SCA 2 (Nguyen 2015). SCA 2 was
referred to, but never heard by, the Senate Judiciary Committee.
Like the resolution under review, SCA 2 responded to the
now-reversed student action at U.C. Irvine. However, SCA 2
differs significantly from ACR 95 in that it proposes a binding
constitutional amendment and conceivably applies to private
entities as well as government entities. Specifically, SCA 2
would have added Section 10 to Article IX of the California
Constitution to read as follows:
Display of the Flag of the United States of America shall
not be prohibited on the grounds of a campus of the
University of California, the California State University,
or the California Community Colleges.
The passive construction of SCA 2 makes its intended application
ambiguous and problematic. That is, SCA 2 states that display
of the flag "shall not be prohibited" - but prohibited by whom?
Presumably, therefore, SCA 2 could prohibit any person or
ACR 95
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entity, private or public, from banning the display of the flag
on areas of the campus under its purview or control. It could,
for example, apply to a student association organized as a
private association or even to a private concessionaire that
operated a restaurant or coffee shop on campus. SCA 2,
therefore, would interfere with the free expression of private
entities, and thus raises potential First Amendment issues. ACR
95, on the other hand, is simply a statement of legislative
aspiration that calls upon state and local governments to
prohibit "government entities" within its jurisdiction from
banning the American Flag.
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.
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:
ACR 95
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Support
None on file
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334