In response to questions prompted by recent decisions of some school administrators to ban the display of flags and other expressive symbols, ACLU Legal Director Mark Silverstein made the following statement:
Students have a right of expression that includes the right to express their views on the controversies of their times, and they can do so through symbols as well as words. Students’ right of expression in public schools should be given as much room as possible. Thus, instead of restricting expression, school officials should encourage students to reflect, to analyze, and to express their views. Schools should also teach students how to grapple appropriately with controversial issues and with persons who hold opposing views.
School administrators should be required to justify any restrictions on students’ right of expression by pointing to specific facts that show that restrictions are necessary to ensure students’ safety or to prevent disruption of classes. In the ACLU’s view, many schools are too quick to restrict students’ right of expression. Unfortunately, federal courts interpreting the First Amendment tend to defer too much to school officials who claim a need to restrict students speech.
A Colorado statute guarantees the right to display the American flag “on an individual’s person.” Thus, even if a court finds that a “no flags” rule is consistent with the First Amendment, such a rule violates Colorado law. The Colorado statute, however, applies only to American flags, which raises another constitutional issue. The Constitution prohibits what the case law calls “viewpoint discrimination.” This means that the government cannot silence one side of a debate while allowing speakers who favor an opposing viewpoint. Thus, to the extent that personal display of American or Mexican flags now symbolizes opposing views on the current national debate about immigration issues, the Colorado statute cannot constitutionally protect the right of students to display the American flag while allowing a school to ban the display of a different flag.