Free Speech

High School Student "Says Teacher Threatened To Kick Him Out Of Virtual Class Over Trump Flag"

|The Volokh Conspiracy |

CBS 13 (Laura Haefeli) reported last week (including video of part of the incident that had been recorded by another student):

"You can sit up, remove the flag, or reposition your camera within the next 15 seconds or I'm kicking you out of class," the teacher said during their virtual class.

[The student's mother, Tiffany,] says the teacher then began to count and did not make it to 10 before Tiffany's son waved goodbye and exited the virtual classroom….

The teacher apparently then apologized, but the school board has declined to explain what the rules are:

Tiffany and her son … asked [at last Monday evening's school board meeting] that the board clarify the code of conduct for virtual learning.

"And he flat out told me no. We've just not been given any guidance," Tiffany said.

The Colusa County Code of Conduct includes a dress code that bans clothes with alcohol or drug symbols, sexual messages, profanity, or clothing that degrades any race, but nowhere in the 38-page document does it mention politics, elections, or campaigning….

CBS13 did reach out to the superintendent as well as the principal and vice principal of Colusa High School, but we have not yet heard back.

ABC-10 (Giacomo Luca) adds:

When requesting a comment, a Colusa High School employee referred ABC10 to the code of conduct. However, requests for comment were not immediately returned from Colusa High School, the Colusa Unified School District (Colusa USD), or the Colusa County Office of Education.

"The Governing Board believes that free inquiry and exchange of ideas are essential parts of a democratic education," the Colusa Unified School District student handbook writes regarding free speech. "The Board respects students' rights to express ideas and opinions, take stands on issues, and support causes, even when such speech is controversial or unpopular." …

The school policies generally allow students the right to free speech which includes the wearing of buttons, badgers, and other insignia. The policy bans the use of fighting words and any "expressions" that are obscene, libelous, or slanderous.

It's pretty clear that a student's having a political message as a background in one's Zoom, just like wearing a T-shirt or an armband, is constitutionally protected. The government may sometimes restrict such speech, if it's likely to cause a serious disruption (such as fights); but that's not likely to be applicable here, especially as to distance learning.

And while of course political messages may be distracting, or could lead to in-class arguments that the teacher might need to restrain, that would have been equally true of black armbands to protest the Vietnam War—yet the Court found that such "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression":

Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

I called the high school, got referred to the superintendent's office, and then left a voice-mail there—I'll post any response they give me, if they get back to me.

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  1. Yes, Prof. Volokh, please update us if they ever get back to you.

    I must say, I’d prefer a commenting system that is more like an online forum, where one could subscribe to a thread and receive an email notification if anyone posts to it. (Editing would be nice, too!)

    1. Have you considered signing up for the Deluxe Package?

    2. Call the state dept of education as well — memory is that CA regulates the regulations which school districts can impose — it is by far the most regulated state of all 51 jurisdictions I studied.

      For example, it is the only state where a teacher may not bring in unapproved (by the state) supplemental materials (e.g. newspaper).

      Most states require a copy of all discipline policies be on file with the state ED Dept.

    3. Oh, Publius. You’d drag Reason commenting software willy-nilly into the 21st century? Good Lord, man! What next? Upvotes?

      I kind of like it as is, even though it sometimes generates the auditory hallucination of a 28k modem connecting.

      1. What next? The ab8l8ty to. Go nack and edit a post younuust made?

      2. 28k? What a noob.

        I still remember the joy I felt when upgrading from 14.4…

        1. Back in the day, Real Men used 300bps modems.

        2. There I was working as a software developer … terminals were 128bps TTYs feeding fanfold paper. The single, blazingly fast 300bps TTY was reserved for ‘printing’ source code listings.

          It was a big step up from cards :-). And Nixie tube displays.

          (and cards were a step up from turning the hex dials to set a value/address pair, then hitting the ‘Store’ button).

          I suppose the generation before me thought that was a step up from getting out the soldering iron to ‘program’. I’ve only done that on a hobby basis (TTL drivers for steppers).

          1. I’ve programmed a computer once with toggle switches, but I don’t suppose that counts, as I’d built it myself as a class exercise in logic design. But, aside from that, yes, I’ve experienced it all starting from card decks and core memory. It’s been quite a ride so far, hasn’t it?

  2. Constitution Shmonstitution. Some Obama judge will rule against the kid.

    1. Because Obama appointed a lot of California judges.

      1. To the extent there’s any viable claim here, it seems like they would have one (and, if competently represented, would bring one) under § 1983.

    2. For better or for worse, at this point in American history, the greatest danger in upcoming Supreme Court nominations isn’t abortion or guns, to pick perennial issues, but rather a Democratic appointee who allows this kind of hate speech heckler’s veto to escape the contained domains of schoolastics and business into the wild in general.

      Those of you on the left who still vote no in surveys about whether hate speech should be made illegal should be aware of this.

      I sincerely hope I am wrong, but staring down the barrel of self-righteous court packing threats, I am concerned.

  3. I took a look at the video, and it says the school is the “Home of the Redskins.”

    SJW physician, heal thyself!

    1. (This is a sign in front of the school itself)

    2. Now that Washington is now home to the Washington Football Team, I guess the old name was available.

    3. Relax, they’re talking potatoes.

  4. “I’ll post any response they give me, if they get back to me.”

    Yeah, I hope you’re not holding your breath for that.

  5. Why even go to school when you can join a TikTok collective??

  6. Bottom Line: Who owns the property?

    They are violating the PARENT’S rights to own property — three steps beyond that of the child’s expressive rights. It isn’t like the state is providing a space at it’s own expense….

    And I’m waiting for Christmas decorations. Lefties seem to despise them for some reason I truly can’t understand because they evolved from a Druid fertility rite and *not* the Christian faith — which for a long time despised them. (It was the German immigrants who gave us our Christmas trees….)

    And you’re going to have children sitting in front of their Christmas tree. And lefties like this upset about that…

    Should be fun….

    1. Kill a tree for Jesus.

      1. Our is fake so we’re not killing anything for anyone. I also have a family member who uses fake trees for multiple holidays, decorating it accordingly with various holiday ornaments and colors.

        1. Made of plastic instead? So you can pretend to kill a tree for Jesus. You think he doesn’t know?

      2. It was planted so it could be cut down. Like a corn crop.
        Don’t over emote

      3. Pollock, if you ever spent an hour chatting with a licensed forester, you’d understand how asinine that comment is.

        You plant the trees a foot or so apart. Half die, and you thin out another half. Three-four years later, you thin out 3/4 again — you can’t have them too close together or they’ll all die.

        Eight to twelve years after planting, you have harvest-able Christmas trees. Except you leave a few to grow 100 ‘ tall which 40 years later you can sell for timber. And then your son starts the whole process over again. This is what a managed forest is.

        1. “Pollock, if you ever spent an hour chatting with a licensed forester”

          Ed, if you ever spent an hour chatting with a licensed forester, you wasted an hour of his or her time.

        2. ” This is what a managed forest is.”

          Christmas trees don’t come from managed forests. Except when poachers sneak in.

          Go ahead and continue your hobby, of telling people about things that they understand better than you do because they have more experience with it.

        3. Here’s an intrepid and indefatigable architect who spent years restoring 400 acres of redwoods, building his homestead, and raising Christmas trees (discussed toward the end of the doco.)

          50 years off-grid: architect-maker paradise amid NorCal redwoods
          youtube (dot) com/watch?v=2qcsWajivnI

  7. I can’t think of any K-12 schools that would allow kids to wear campaign paraphernalia and clothing to class, except in special circumstances where it was appropriate. When you are on a video teleconference what you transmit is your responsibility and you need to follow the rules the same as if you were in class.

    Not a first amendment issue.

    Imagine the kid had a display in the back playing porn. Or even something innocuous like a distracting G-rated cartoon. He would be asked to shut it off because it is disrupting the class. Kids get asked not to wear obnoxious clothes all the time.

    Again, not a first amendment issue.

    Now this probably shouldn’t have to be said but this is TVC comments section: If the teacher was suppressing Trump signs but not Biden signs that would be different. OK? This isn’t hard, really.

    1. Orbital Mechanic: (1) I can’t think of any legal basis for a K-12 school to ban campaign paraphernalia and clothing in class — Tinker v. Des Moines should make that clear. If you can wear an armband protesting the war, you can wear a T-shirt protesting Trump (or supporting Trump); the logic of Tinker applies to both. Indeed, Tinker noted that “students in some of the schools wore buttons relating to national political campaigns,” and suggested that the armbands were similarly constitutionally protected.

      Can you point me to any school speech precedents I’ve missed? (A government entity might be able to restrict its employees’ political electioneering on the job, but the precedents for government employee speech are quite different from that for K-12 student speech.)

      (2) Pornography can be restricted under Bethel School Dist. v. Fraser, as can vulgarity and sexual allusions. But that’s a separate doctrine, limited to sexually themed speech.

      (3) Likewise, the school can impose content-neutral restrictions, such as on moving backgrounds and the like (or of course noise). But it can’t ban visual expression because it involves political advocacy, whether it’s an armband, a T-shirt, or a background.

      (4) Naturally, one can make many arguments about what the law should be here. I’m speaking here of First Amendment law as it is.

      1. Is there any precedent on point about using school equipment to make one’s speech? If the school has, say a radio station, can the school prohibit the FCC’s seven dirty words from being uttered on it?

        I don’t think the matter is as settled as you suggest.

        1. Students are COMPELLED to use THEIR equipment for the school’s speech.

          1. As idiotic as ever, there, Ed.

            1. 1: Who owns the computer?
              2: Who owns the house it is sitting in?
              3: Who is paying for its internet connection?
              4: who is paying for the electricity it is using?

              A competent network person would realize this…

              1. “A competent network person would realize this…”

                Which is why you didn’t.
                1. Zoom
                2. Zoom
                3. Zoom
                4. Zoom

        2. It is likely a school can censor speech on a school-sponsored radio station because in Hazelwood School District v. Kuhlmeier, the Court held that a school may censor articles published in the school-sponsored student newspaper. I would guess this is not an exception unique to K-12 schools, but rather another application of the government controlling its own speech. That being said, the speech in this case doesn’t appear to be uttered in a school-sponsored forum.

          1. Right. digital classrooms aren’t school-sponsored fora. You sure you want to stick with that?

            1. I think digital classrooms are no more, and no less, school-sponsored fora than brick-and-mortar classrooms, where an armband protesting the Vietnam war was protected speech. Now as I noted below, perhaps there is a distinction between a background image and an armband, with the latter being like verbally uttering “MAGA” in the middle of class, which I believe is not protected by Tinker. But, that’s a different argument than the school-is-speaking-in-a-school-sponsored-forum argument.

              1. Oops, I meant the former (background image), not the latter (armband), might be unprotected by Tinker

                1. Either way, you’ve got the analogy wrong.

            2. My house is NOT school property!

              1. No. people go to school property to become educated, but nobody in your home does anything of the sort.

      2. I would think that M.A.L. v. Kinsland would be more apt to apply, which held that the school can restrict political activity to appropriate venue within school grounds. For example they can leaflet at lunch or on the bulletin board but not in the hallway or class. Any such regulation is required to be enforced even-handedly and not oriented to any particular political view.

        In your paragraph (3) I think you have brought me around somewhat. However I think subjecting people to video that they do not want is different from wearing a T-shirt. The guy three rows up from me I can ignore his T-shirt. On a video conference every time he speaks I get “MAGA” (or “Biden”) in my face and that’s different. It is more like shoving a leaflet in my face. Each time the screen switches to him.

        Regardless the rights of students who are there to learn in the class should be weighed against the first amendment right of someone wanting attention for their political views. “I’m here to learn calculus. I don’t need to learn that you are an idiot.”

        1. Thanks — M.A.L. v. Kinsland does say that “schools must meet a higher constitutional standard when they seek to foreclose particular viewpoints than when they seek merely to impose content-neutral and viewpoint-neutral regulations of the time, place, and manner of student speech,” but note that it speaks of content-neutral and viewpoint-neutral regulations. (See also Jacobs v. Clark County School Dist. (9th Cir. 2008), which does the same.) A ban on political campaign armbands, T-shirts, pins, background, etc. is viewpoint-neutral but content-based. And Frudden v. Pilling (9th Cir. 2014), a post-Jacobs case, seems to have resolved that content-based restrictions in schools are as suspect as viewpoint-based ones.

          But in any case, even if a content-based but viewpoint-neutral school policy is constitutional, notwithstanding Tinker, there was apparently no such school policy here. All we had is a one-off spur-of-the-moment prohibition by the teacher, without any assurances even of viewpoint-neutrality. Hard to see how that’s constitutional.

          1. The courts tend to fall on the side of protecting the other students’ right to learn over one person’s right to speak when the two are in conflict. This is why schools are allowed to impose discipline on students who choose to disrupt classes.

        2. Isn’t the relevant part….”the school can restrict political activity to appropriate venue within school grounds. The student was in their own home. I am not commenting on the politics here, but the fact is, the student was in their home, not school grounds. Not seeing how that directly applies in this case.

          Is that what lawyers call an ‘edge case’?

          1. ” The student was in their own home.”

            And was told to adjust the camera to alter what, exactly, was being transmitted into other students’ homes.

            The “home” thing doesn’t seem relevant.

      3. In the original post, you write:

        “It’s pretty clear that a student’s having a political message as a background in one’s Zoom, just like wearing a T-shirt or an armband, is constitutionally protected.”

        This analogy may be clear to you, but it is an example of arguing what the law should be as applied to this specific set of facts, as opposed to what the law is. If this specific case were to end up in court, your position would be an argument on behalf of one of the parties involved, and the other parties would have counsel making opposing arguments. The different sides would likely focus on different issues, with each counsel attempting to analogize from prior cases supporting their positions (like you do in your post), and distinguishing cases that might weaken their position (like you do in your post). The lovely part of our adversarial legal system is that it pits the EV’s against each other (each thinking that their position is the right position), providing a clearer articulation of the different interests and arguments. The arguments of counsel, though, are a means, not an end. The Judge(s) will say what the law is, after which losing counsel can complain about how the judge(s) said what the should be, and blah blah blah.

        You shouldn’t confuse your readers by making it seem as if your analogizing constitutes the law as it is. Even if, in some imaginary world, the exact facts of Tinker were perfectly replicated in a new case (which is impossible since time and context are never the same, but can only be analogized), a court composed of different members may ultimately rule differently. And their ruling …… wait for it ….. would be what the law is.

        1. QuantumBoxCat: That’s quite quantum boxy of you! But not very helpful, it seems to me. Yes, it’s conceivable that Tinker would come out the other way today. No real evidence that it will, but is it scientifically impossible? No, “a court composed of different members may ultimately rule differently.”

          Yet I think lawyers who are expert in a field have a pretty good sense of how likely that is, and also which distinctions courts are likely to accept and which they won’t. As someone who has read a lot of First Amendment cases (and litigated a decent amount), I doubt that a court would treat a T-shirt on the front of a person’s body differently from a background behind a person’s body. True, readers may disagree with me, and, who knows, perhaps they might be right on this and I might be wrong. But I’m pretty confident on this particular point.

          1. I thought Orbital Mechanic made what was at least a plausible, if not persuasive, distinction:

            I think subjecting people to video that they do not want is different from wearing a T-shirt. The guy three rows up from me I can ignore his T-shirt. On a video conference every time he speaks I get “MAGA” (or “Biden”) in my face and that’s different.

            Perhaps the background is analogous to verbally uttering “MAGA” in the middle of class, and thus can be censored without running afoul of Tinker?

        2. The Viet Nam war was as decisive as today’s politics. Like todays politics, leftists overplayed their hand. They claimed to be against the war, but harassed service men. People claim to be offended by President Trump, but harass a teenager that does nothing more than don a jaunty red chapeau. What is needed is not more rules to keep fights from breaking out, but education from parents to accept the views of others.
          If I get censured for my tee shirt, I am damn sure going to return the favor. Always escalating reprisals, never achieves the goal.
          Sticks and stones people. Sticks and stones

          1. “They claimed to be against the war, but harassed service men.”

            And? or are you just going to stop on the nonsequitur? What is it about being against the war that suggests they’d applaud the men who were carrying the plan into action?

        3. I take it you’re also a fan of qualified immunity?

      4. The other thing is a child protective referral and “mandated reporters.” If I see a 10-year-old around graphic porn, I am legally required (because I am a licensed teacher) to file a 51A report with the Mass Dept of Children & Families. Now I have exactly *NO* expectation they’ll deal with it appropriately, they’ll either overreact or ignore it — or somehow manage to do *both — but it is a legal mandate.

        Of course, obeying the posted speed limit is also legally mandated… 🙂

        But I’ve seen *way* to much child sexual abuse to nonchalantly ignore graphic porn in the background. Something would be done.

        1. Given that there is zero evidence of any causal relationship between child abuse and pornography (however graphic), you might be legally required to make that report but it is an illogical, immoral and scientifically unsound requirement.

          Child abuse is about power and access, not sex.

          1. “Given that there is zero evidence of any causal relationship between child abuse and pornography”

            Except that child porn IS child abuse. That’s a pretty direct link to dismiss so casually.

            1. True but irrelevant. The claim above was “graphic porn”, not “child porn”.

              Also worth noting that child porn is abuse of the child being forced into the sexual acts. Child porn is not evidence of abuse of every child who happens to be within an X foot vicinity of the picture.

              1. Please at least try to keep track of what I said when you rush off to respond to things I didn’t say.

        2. “But I’ve seen *way* to much child sexual abuse”

          Firsthand?

      5. “(2) Pornography can be restricted under Bethel School Dist. v. Fraser, as can vulgarity and sexual allusions. But that’s a separate doctrine, limited to sexually themed speech.”

        And if it’s pornography featuring their own, underage selves, that’s a felony.

    2. When I was in 4th grade (“the 60s”) we not only were allowed to wear campaign paraphernalia, but the school encouraged a school mock-voting by the 4th-6th grade students. Nixon beat Humphrey at the school. A social studies class was set aside to discuss free elections.

      I hope this sort of thing is always allowed.

  8. If I were the superintendent I would move Volokh’s email directly to my junk folder. I know that within a week some new “free speech” related situation, somewhere in the nation, will grab his attention, and he will point his spotlight in a different direction. I could then spend my time addressing the issue with students, staff, and the local community.

    1. If I were the superintendant I’d be running everything past the lawyers before committing anything to any outsider. Meanwhile, I’d be checking to see if we’d set any policy about online classes and whether we’d bothered to send it out to the teachers/students before starting online school.

  9. The lede is buried. Apparantly Trump has dispensed with old glory and now has his own flag. This is what you get when you stop forcing students to pledge allegiance to the U.S. flag.

    1. Check out biden2020flag.com. It’s just another form of political sign.

  10. Up against the wall time can’t come soon enough.

    1. November is coming soon enough.

  11. There’s a similar but worse story going around on the podcasts. A grade school student who logged into his class from his bedroom was not only expelled, but threatened with federal charges of bringing a weapon into a classroom, because the BB gun he keeps in his room got knocked off a shelf and was briefly visible to the teacher.

    A head needs to roll over this, and it’s not the boy or his parents.

    1. You can see they’re saying that wherever a class is zoomed into, IT IS GOVERNMENT PROPERTY. Has this position been made clear to parents, and has agreement been obtained?

      Is this just another case of a teacher exposed as being a fanatical, mentally unwell extremist? Haven’t the teachers, as a group, made quite a bit of noise about “acceptance, inclusion, diversity” and such things? Wouldn’t that include THEM accepting the diversity of political views amongst the parents of their clientele? Or are the parents expected to accommodate the fragilities, phobias and hysterical overreactions of the teachers?

      If the latter,then the policies of schools regarding such recently-redefined terms as “weapon” and “gun” might need to be revisited.

      1. If my house is federal property during class meetings online, then it’s a taking and I require compensation for said taking. I have 4 kids in 3 different rooms, a significant portion of my house is being taken 5 days a week. This could really add up.

        Not to mention I’d be in serious legal trouble over the 1000 feet surrounding schools gun ban law, as would probably several of my neighbors and more than a few friends who are remote schooling.

        1. Sorry I mistyped, I mean if my house is “government” property, not federal.

    2. “There’s a similar but worse story going around on the podcasts.”
      “A head needs to roll over this”

      Because somebody made up a story?!?

  12. I believe in zoom, the teacher may also be capable of selecting options that allow only their own camera to be displayed as the main viewing option. I know that this is an option on several other video conferencing softwares. That could easily minimize any plausible disruption enough without having to enforce something contrary to existing law.

  13. Sounds like this teacher has the mental capacity of a toddler and needs a time out.

  14. I’m a high school teacher, had a kid in class with a Trump flag that said “NO BULLSH*T” on the bottom. Told the kid and his parents to take that out of camera vision. It wasn’t the Trump flag itself; it was the naughty word at the bottom. Wonder if that was the case here…

    1. 1: Say that to me and there’d be a piece of duct tape across the camera.

      2: See: https://www.southcoasttoday.com/article/19960726/News/307269957

      1. “1: Say that to me and there’d be a piece of duct tape across the camera. ”

        That’ll show ’em.

  15. I see a big problem taking the rules designed for school property and extending them to the student’s home on a video session.

    Not only are the invading the home’s privacy, they are invading the home’s sovereignty over how to decorate the interior. These rules govern not only the student but everyone in the house. What gives them the authority?

    I’m sensitive to that because I live on a sailboat and I do zoom meetings. I have little or no ability to customize my background to suit the demands of a zoom meeting. I can’t put up a green screen. I am not the only occupant of the boat. If we are in motion, there can be engine noises, motion of objects, and necessary conversations that occur during zoom meetings. The Coast Guard could board us and search the boat while I’m in the middle of a meeting.

    1. Armed USCG — with real guns. Not toys.

      1. “Armed USCG — with real guns.”

        That’s the only kind of USCG there is.

  16. There has been a spate of cases where schools have claimed that when a student is doing distance learning, anything that happens in the student’s home is considered as happening in the school and subject to school rules.

    I understand a school district has called the police on a student for bringing a gun to school where there was a gun on a gun rack in the home.

    I would hope courts would intervene and end this foolishness. Schools can require attendence. They can require distance learning. But when they do, they cannot dictate what people do in their home as if it were school premises.

    In particular, there is no right to bring guns to a school, but there is a right to possess a gun in the home. Just as schools cannot dictate the food parents give their children under a theory that all hoke meals are now school meals, they cannot forbid parents from possessing guns in their home under a theory that their home is now school property.

  17. Schools can subject students to mandatory drug tests just because they want to participate in interscholastic sports.
    It seems that courts are quite willing to let schools infringe Constitutional rights for tenuous benefits.

    1. Interscholastic sports are an extracurricular activity.

      Optional — not mandated.

      1. You got me there; I totally said interscholastic sports are mandatory.

    2. Schools can subject students to mandatory drug tests just because they want to participate in interscholastic sports.

      Which constitutional right(s) is/are being infringed by that?

      1. 4th amendment. Drug tests are searches.

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