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FIRE on the School Restricting “Dont Tread on Me” and Firearms Policy Coalition Patches

From FIRE’s letter despatched yesterday to the Superintendent of Harrison College District Two in Colorado; I typically belief FIRE’s factual accounts in such issues, and I believe its authorized evaluation right here is spot on:

The Basis for Particular person Rights and Expression (FIRE), a nonpartisan nonprofit devoted to defending freedom of speech, is worried by The Vanguard College’s removing of pupil Jaiden Rodriguez from class for displaying Gadsden flag and Firearms Coverage Coalition patches on his backpack. As over fifty years of Supreme Court docket precedent makes clear, the First Modification protects Jaiden’s silent, non-disruptive expression of his views at college. FIRE calls on Harrison College District Two and The Vanguard College to verify they are going to allow Jaiden to attend faculty with the patches on his backpack with out dealing with self-discipline or removing, and for the district to revise its unconstitutionally overbroad costume code.

The Vanguard College Removes Jaiden from Class for Displaying Gadsden Flag and Firearms Coverage Coalition Patches on His Backpack

Jaiden Rodriguez is a seventh-grade pupil enrolled at The Vanguard College, a tuition-free public constitution faculty inside Harrison College District Two. {The narrative on this letter displays our understanding of the pertinent information, however we respect you’ll have extra info and invite you to share it with us.} For 2 years, Jaiden has displayed numerous patches on his backpack with out incident, together with one depicting the Gadsden flag, which exhibits a coiled rattlesnake above the phrases “DONT TREAD ON ME.” {The flag historically lacks an apostrophe within the phrase “do not.” [Now that’s a reason for banning it! -EV]} The flag was designed through the Revolutionary Struggle and symbolized the American colonies’ united resistance in opposition to the British monarchy.

Jaiden has additionally lengthy displayed a Firearms Coverage Coalition (“FPC”) patch, which incorporates a picture of a rifle. FPC is a nonprofit group whose “efforts are centered on the appropriate to maintain and bear arms and adjoining points together with freedom of speech, due course of, illegal searches and seizures, separation of powers, asset forfeitures, privateness, encryption, and restricted authorities.”

Earlier this month, one in all Jaiden’s academics complained about a few of his patches to the administration, together with patches that featured Pac-Man characters holding weapons. Jaiden eliminated the Pac-Man patches, however saved the FPC patch and a parody model of the Gadsden flag patch, which reads “DONT TELL ON ME.” When Jaiden returned to high school, the administration pulled him out of sophistication. In a gathering with Jaiden and his mom, Eden Hope Rodriguez, directors mentioned Jaiden additionally wanted to take away the parody Gadsden flag patch and the FPC patch.

On August 21, Vanguard College Director of Operations Jeff Yocum emailed Ms. Rodriguez a hyperlink to the Harrison College District Two costume code, which prohibits clothes, patches, and different paraphernalia that “[r]efer to medication, tobacco, alcohol, or weapons.” Two days later, Mr. Yocum emailed Ms. Rodriguez an inventory of patches Jaiden might proceed to placed on his backpack—which excluded the Gadsden flag and FPC patches—together with a mandate that “[a]ll different patches include symbols or pictures that may be deemed disruptive or doubtlessly disruptive to the classroom setting.”

Jaiden changed the “DONT TELL ON ME” patch with an everyday Gadsden flag patch studying “DONT TREAD ON ME” and saved the FPC patch on his backpack. On August 25, Govt Director Renee Henslee emailed Ms. Rodriguez that the varsity had once more “seen that Jaiden had two patches on his backpack that aren’t acceptable below HSD2’s Costume Code Coverage.” She warned that if Jaiden returned to high school on Monday with any unacceptable patches, he can be despatched to the entrance workplace till they have been eliminated. When Ms. Rodriguez replied to ask which patches the varsity thought-about unacceptable, Ms. Henslee recognized the Gadsden flag and FPC patches. Jaiden eliminated solely the FPC patch.

On Monday, August 28, Jaiden returned to high school and the administration once more pulled him out of sophistication for having the Gadsden flag on his backpack. In a gathering with Jaiden and Ms. Rodriguez, a Vanguard College administrator instructed them Jaiden couldn’t show the Gadsden flag patch due to its “origins with slavery and slave commerce.” Jaiden’s mom defined that the flag has its origins within the American Revolution, and Jaiden famous that college students recurrently put on different patches with out getting in hassle. In flip, Mr. Yocum emailed Ms. Rodriguez later that day to broaden on the varsity’s rationale for banning show of the Gadsden flag by offering hyperlinks to an Equal Employment Alternative Fee grievance in regards to the flag and tales describing its alleged connection to “hate teams.” [This apparently was a pointer to my Washington Post blog post on an EEOC decision. -EV]

On August 29, Connor Boyack, president of the assume tank Libertas Institute, posted video on X (previously Twitter) of the day before today’s assembly, and numerous information shops reported on the story. That very same day, in a message to college students’ households, The Vanguard College Board of Administrators recounted occasions and claimed that the board and District had “knowledgeable the coed’s household that he could attend faculty with the Gadsden flag patch seen on his backpack.” Nonetheless, Ms. Rodriguez has knowledgeable FIRE that the one communication she obtained was from Harrison College District Two Assistant Superintendent Mike Claudio, who instructed her Jaiden might proceed to show the Gadsden flag patch solely as long as no workers member or pupil complained about it. Jaiden additionally continues to be not allowed to show the FPC patch on his backpack below any circumstances.

The First Modification Protects College students’ Silent, Non-Disruptive Show of Patches on Their Backpacks

It’s well-established that public faculty college students don’t shed their First Modification rights on the schoolhouse gate. Because the Supreme Court docket just lately reaffirmed, “America’s public colleges are the nurseries of democracy.” They accordingly preserve an curiosity in defending college students’ freedom to precise themselves, particularly when that expression is unpopular. Underneath these rules, The Vanguard College could not prohibit Jaiden from displaying his Gadsden flag and FPC patches or situation his proper to show any patch on the absence of complaints from workers and college students.

Whereas public faculty directors could limit pupil speech in restricted conditions for sure restricted functions, they “don’t possess absolute authority over their college students …. Within the absence of a particular exhibiting of constitutionally legitimate causes to control their speech, college students are entitled to freedom of expression of their views.” The Vanguard College justified its prohibitions on Jaiden’s Gadsden flag and FPC patches on asserted grounds that they’re “disruptive or doubtlessly disruptive to the classroom setting.” However the faculty can not

fulfill the related constitutional customary for banning disruptive speech to justify its actions right here.

The Supreme Court docket established that customary in Tinker v. Des Moines Unbiased Group College District, holding the First Modification protected public faculty college students’ proper to put on black armbands to high school to protest the Vietnam Struggle. The Court docket made clear that college officers can not limit pupil speech based mostly on speculative, “undifferentiated concern” that it’ll trigger disruption or emotions of unpleasantness or discomfort among the many pupil physique. Slightly, Tinker requires proof of a menace that may “materially and considerably disrupt the work and self-discipline of the varsity.” Because the Court docket wrote:

Any phrase spoken, at school, within the lunchroom, or on the campus, that deviates from the views of one other particular person could begin an argument or trigger a disturbance. However our Structure says we should take this threat, and our historical past says that it’s this form of hazardous freedom—this type of openness—that’s the foundation of our nationwide energy and of the independence and vigor of Individuals who develop up and dwell on this comparatively permissive, typically disputatious, society.

America Court docket of Appeals for the Tenth Circuit—whose selections bind Colorado’s faculty districts—has likewise made clear that any forecast of considerable disruption should relaxation on a “concrete menace” of considerable disruption. One and even a number of complaints a few pupil’s expression doesn’t equate to substantial disruption. Because the Tenth Circuit defined, “Tinker rejected the concept that a ‘silent, passive’ expression that merely provokes dialogue within the hallway constitutes such a menace, notably if that expression is political.” Extra just lately, in C1.G v. Siegfried, the Tenth Circuit held that 4 emails from mother and father, an in-school dialogue, and information reviews a few pupil’s Snapchat submit fell in need of “Tinker‘s demanding customary” for substantial disruption.

As The Vanguard College Board of Administrators seems to acknowledge, Jaiden’s Gadsden flag patch is constitutionally protected expression. That is true no matter whether or not some dislike the flag—an everlasting image of the American Revolution—as a result of it has been utilized by sure disfavored teams. That reality alone doesn’t take it exterior the First Modification’s safety, any greater than an unpopular group’s choice to fly the American flag would justify prohibiting the American flag in public colleges. Absent extra, a speaker’s precise or perceived viewpoint can by no means be grounds for censorship. Viewpoint discrimination is an “egregious” type of censorship, and the “authorities should abstain from regulating speech when the particular motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

Nor can The Vanguard College situation Jaiden retaining the Gadsden flag patch on his backpack on the absence of pupil or workers complaints. With out extra, a single grievance a few pupil’s speech can not represent substantial disruption. The First Modification doesn’t permit the “heckler’s veto” as envisioned by the district’s assistant superintendent, the place anyone can suppress a pupil’s speech or viewpoint just by objecting to it.

Jaiden’s show of an FPC patch is likewise constitutionally protected. The district’s coverage prohibiting any reference to medication, tobacco, alcohol, or weapons is unconstitutionally overbroad, as turns into apparent with a couple of examples. Underneath the coverage, college students can not put on D.A.R.E. shirts or Everytown for Gun Security pins. The coverage goes far past prohibiting expression that promotes criminality or that may considerably disrupt the varsity setting.

This explains why federal appellate courts have rejected public faculty efforts to ban clothes depicting weapons, medication, or alcohol absent proof the clothes did or would trigger substantial disruption. {See, e.g., N.J. v. Sonnabend (seventh Cir. 2022) (public faculty pupil’s T-shirt bearing emblem of gun rights group, which included picture of handgun, was “materially indistinguishable from the black armbands in Tinker“); Guiles v. Marineau (2nd Cir. 2006) (First Modification protected public faculty pupil’s proper to put on at college T-shirt that includes pictures of President Bush, medication, and alcohol); Newsom v. Albemarle Cnty. Sch. Bd. (4th Cir. 2003) (costume code prohibiting any messages referring to weapons violated First Modification).}

For instance, in Newsom v. Albemarle County College Board, the U.S. Court docket of Appeals for the Fourth Circuit preliminarily enjoined a public faculty costume code prohibiting any messages that relate to weapons, observing that it excluded “a broad vary and scope of symbols, pictures, and political messages which can be fully reliable and even laudatory.” The Fourth Circuit emphasised the entire lack of proof that even clothes expressing nonviolent and nonthreatening messages associated to weapons “ever triggered a commotion or was going to trigger one” on the faculty. “Banning assist for or affiliation with the myriad of organizations and establishments that embrace weapons (displayed in a nonviolent and nonthreatening method) of their insignia,” the courtroom wrote, “can hardly be deemed fairly associated to the upkeep of a secure or distraction-free faculty.”

Jaiden’s FPC patch expresses a political message in assist of Second Modification rights. Speech on “public points occupies the very best rung of the hierarchy of First Modification values, and is entitled to particular safety.” The patch doesn’t endorse illegal exercise or convey any menace, there isn’t a proof it has triggered precise (or anticipated) substantial disruption of the varsity setting, neither is the mere incontrovertible fact that it depicts a firearm concrete proof it should. As a federal appellate courtroom mentioned of a pupil’s T-shirt with the brand of a gun rights group that included a picture of a handgun, Jaiden’s patch is “materially indistinguishable from the black armbands in Tinker” in expressing a “political opinion, identical to the armbands expressed the scholars’ opposition to the Vietnam Struggle.”


FIRE calls on The Vanguard College to right away and publicly verify it should permit Jaiden Rodriguez to show on his backpack at college his Gadsden flag and Firearms Coverage Coalition patches—and any others that trigger no substantial disruption—with out dealing with punishment or removing, no matter whether or not college students or workers complain. We additional name on Harrison College District Two to revise its costume code to eradicate the specific ban on references to medication, tobacco, alcohol, or weapons. In doing so, the varsity and district will reaffirm to college students and workers that “vigilant safety of constitutional freedoms is nowhere extra important than in the neighborhood of American colleges.”

Observe: I’ve consulted each for FIRE and for FPC earlier than, however I have not been in any respect concerned on this case.

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