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The Little Miami High School Flag Controversy - Protected Speech or a Legitimate Penalty Flag for Inappropriate Expression?

To answer the question of whether the administrators at Little Miami High School had the right to prohibit speech that supports fallen firefighters and police officers who risked and sacrificed their lives on September 11, 2001, we must first understand the First Amendment and Supreme Court case law related to student speech.

The First Amendment

The First Amendment to the United States Constitution contains protections for establishment, the freedom of speech, the freedom of the press, and the freedom of assembly. Specifically, the First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Perhaps the most important right guaranteed by the First Amendment is the freedom of speech. Freedom of speech means we are each permitted to freely and publicly express ideas and opinions without government censorship or restraint. This right, however, is not absolute. The government, under certain and limited circumstances, may reasonably regulate speech.

First Amendment and Student Speech

In the context of public schools, the United States Supreme Court in its 1969 decision, Tinker v. Des Moines Independent Community School District, held the school administrators could not censor symbolic speech when it did not materially and substantially interrupt school activities. In Tinker, the school punished a group of students who wore black armbands to protest the Vietnam War. The Court held:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. ... [S]chools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students ... are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.

This case is a warning for any school administrators seeking to prohibit student speech and provides guidance for speech regulation in public schools. Student speech is not absolute and since Tinker the Supreme Court has outlined the way public schools may constitutionally regulate speech.

In the 1986 case of Bethel School District v. Fraser, the Supreme Court found that a school could punish a student for sexual innuendo-laced speech before a school assembly because the speech was sexually vulgar, and as a result, disruptive. Two years later, in Hazelwood v. Kuhlmeier, the Supreme Court held schools may restrict speech that is inconsistent with their basic educational mission. More recently, in 2007, the Supreme Court in Morse v. Frederick held schools may restrict student speech at school-sponsored events (even if off-campus) where students promote illegal drug use. In this case the principal suspended a student for displaying a banner reading, "BONG HITS 4 JESUS."

These cases set the stage for three major relevant considerations for Supreme Court in determining whether a school may limit student speech, which are:

  • The extent to which the student's speech in question poses a substantial threat of disruption;
  • Whether the speech is sexually vulgar or obscene; and
  • Whether the speech, if allowed as a part of a school activity or function, would be contrary to the basic educational mission of the school.

Each of these considerations has given rise to a separate mode of analysis and the Supreme Court in Morse v. Frederick implied any one of these may serve as an independent basis for restricting student speech.

Little Miami High School Football

On September 11, 2020, as the Little Miami High School football team took the field, two players carried a Thin Blue Line and Thin Red Line flag. One of the players, Jarad Bentley, whose father is a firefighter, carried the Thin Red Line flag and the other, Brady Williams, whose father is a police officer, carried the Thin Blue Line flag. Prior to the game, the two boys asked permission to carry the flags onto the field but were told they could not. They were allegedly told that if they defied the order, there would be consequences. This is disputed by the boys and one of their fathers.

On Monday afternoon, the athletic director indefinitely suspended both students from the team. The superintendent, Gregory Power, stated, "We can't have students who decide to do something anyway after they've been told that they shouldn't be doing it." He further explained, "We did not want to place ourselves in a circumstance where another family might want a different flag to come out of the tunnel, one that may be [one that] many other families may not agree with from a political perspective."

According Bentley and Williams, however, there were no political motivations behind this and the support is not obviously political in nature. According to them, they simply wanted to support first responders and 9/11's fallen first responders, especially given their fathers are first responders.

Yesterday, the Little Miami Local Schools Board of Education released a statement confirming the administration reinstated the young men to the football team. Further, the school will only permit two flags to come through the football tunnel as the team enters the field-the American flag and the Little Miami spirit flag.

Were the School's Actions Constitutional?

It seems the school's strongest argument in attempting to constitutionally justify its decision would have to rely on the first factor-i.e., the displaying of the Thin Red Line and Thin Blue Line flags posed a substantial threat of disruption. This is because, presumably, the flags were perceived to be that of a political nature and the school officials wanted keep the peace as to not engender disruption caused by those with opposing political viewpoints.

This argument presumes the motivation for and effect of displaying these flags was in fact, political in nature. While it may be such that some individuals may interpret the flag display as political in nature, and from there, may disagree with the political nature thereof, it is difficult to see how such a gesture could be substantially disruptive. It seems obvious to support on September 11th for anyone killed in the terrorist attacks that occurred on that day-especially first responders. Moreover, it does not appear to not pose any threat of disruption, let alone a substantial disruption. To the contrary, it would likely yield a substantial likelihood of unity, bringing the student body and community together. This act seems no more disruptive than pledging allegiance to the American flag every day to begin the school day.

It seems the school administration was worried about opening the floodgates to an inevitable 'battle of the flags' amongst the students. In other words, displaying the Thin Blue Line flag seemed political in nature as it is associated with Blue Lives Matter movement. What happens then, when a student wants to run across the field next week with a Black Lives Matter flag? Then the next week, a Donald Trump flag, followed by a Joe Biden flag?

We believe the school board argument fails because of the circumstances surrounding the flag and the anniversary of September 11. Furthermore, a concern for future 'battle of the flags' scenario is a slippery slope argument which does not sufficiently demonstrate a present substantial threat of disruption under this scenario.

Conclusion

Based upon the relevant United States Supreme Court decisions, there is a strong case Little Miami Schools acted unconstitutionally. However, unless a Court speaks to the issue, that is for you to decide.

We are happy Little Miami School District reversed course and reinstated these young men to the team.

If you need legal representation, feel free to speak to the experienced attorneys at Rittgers & Rittgers for your consultation today at 513-932-2115.

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