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 ACR 95 Page 2 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 ACR 95 Page 3 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 Page 4 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 ACR 95 Page 5 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 ACR 95 Page 6 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 Page 7 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 Page 8 Support None on file Opposition None on file Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334