BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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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  








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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:












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          Support


          None on file




          Opposition


          None on file 




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