SCA 2: Public postsecondary education: United States flag.

Existing law establishes the University of California, under the administration of the Regents of the University of California, the California State University, under the administration of the Trustees of the California State University, and the California Community Colleges, under the administration of the Board of Governors of the California Community Colleges, as the 3 segments of public postsecondary education in this state.

This measure would provide that the display of the Flag of the United States of America on the grounds of a campus of the University of California, the California State University, or the California Community Colleges shall not be prohibited.

The California Constitution provides that all political power is inherent in the people and that government is instituted for their protection, security, and benefit. The California Constitution provides that the people have the right to alter or reform government when the public good may require.

This measure would make technical, nonsubstantive changes to this provision.

Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 201516 Regular Session commencing on the first day of December 2014, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended 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.

Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 201516 Regular Session commencing on the first day of December 2014, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

Display of the Flag of the United States shall not be prohibited on the grounds of a campus of the University of California, the California State University, or the California Community Colleges.

Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 201516 Regular Session commencing on the first day of December 2014, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

All political power is inherent in the people. Government is instituted for their the peoples protection, security, and benefit, and they benefit. The People have the right to alter or reform it government when the public good may require.

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: SCA 2 (Author:Nguyen)

Version: April 20, 2015

Hearing Date: July 14, 2015

Fiscal: No

Urgency: No

Consultant: RD

SUBJECT

Public postsecondary education: United States flag

DESCRIPTION

This resolution proposes a constitutional amendment that would provide that display of the Flag of the United States of America on the grounds of a campus of the University of California, the California State University, or the California Community Colleges shall not be prohibited.

BACKGROUND

Earlier this year, a University of California (UC) campus student group narrowly passed a resolution that resolved to make every effort to make the Associated Students main lobby space as inclusive as possible and, as a result, to ban the flags of any nation from the lobby area of student government offices. (See Associated Students of UC Irvine (ASUCI) R50-70 <http://www.asuci.uci.edu/legislative/legislations/R50-70.html> [as of Jun. 1, 2015].) Like resolutions passed in this body, the student group’s resolution made various statements supporting the action. The statements included:

• flags are a symbol of a nation, are used as decorations and have a wide range of cultural significance;

• flags are typically viewed as patriotic symbols of a single nation, are often associated with government and military due to their history and have a wide variety of interpretations;

• flags not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments;

• flags function specifically for a nation and people are assimilated into national ideologies by deployment of this cultural artifact;

• flags construct paradigms of conformity and sets homogenized standards for others to obtain which in this country typically are idolized as freedom, equality, and democracy;

• symbolism is interpreted differently by different groups or persons based on individual unique experiences;

• a common ideological understanding of the United [S]tates includes American exceptionalism and superiority;

• the American flag has been flown in instances of colonialism and imperialism;

• symbolism has negative and positive aspects that are interpreted differently by individuals;

• displaying a flag does not express only selective aspects of its symbolism but the entire spectrum of its interpretation;

• designing a culturally inclusive space is taken seriously by ASUCI;

• designing a culturally inclusive space aims to remove barriers that create undue effort and separation by planning and designing spaces that enable everyone to participate equally and confidently;

• designers should be careful about using cultural symbols as the symbols will inherently remain open for interpretation;

• a high-quality culturally inclusive spaces is essential in any society that embodies a dynamic and multifaceted culture;

• freedom of speech is a valued right that ASUCI supports; and

• freedom of speech, in a space that aims to be as inclusive as possible can be interpreted as hate speech. (Id.)

The resolution triggered enormous controversy and widespread news coverage, and even resulted in security concerns for the students involved, prompting the cancellation of the school’s legislative council meeting in the immediate aftermath. According to reports, by the next day, it had formed a trending topic on Twitter and many students and faculty members across the campus denounced the idea. Notably, the resolution has never taken effect as the Executive Cabinet of the student government promptly vetoed the ban on the display of flags within two days of its passage. (See Shine and McGreevy, Does UC Irvine Hate the American Flag? Not Exactly, Los Angeles Times (Mar. 10, 2015) <http://www.latimes.com/local/lanow/la-me-ln-does-uc-irvine-hate-the-american-flag-not-exactly-20150310-story.html> [as of Jun. 23, 2015].)

Two days after the ASUCI resolution was vetoed, this measure was introduced, seeking to put forth a constitutional amendment for consideration by voters, which would make the prohibition of a display of the U.S. flag on the grounds of a UC, California State University, or California Community College campus unconstitutional.

CHANGES TO EXISTING LAW

Existing federal law provides that the flag should be displayed daily on or near the main administration building of every public institution and also provides that the flag should be displayed during school days in or near every schoolhouse. (4 U.S.C. Sec. 6(e), (g).)

Existing California law requires the American and California State flags be prominently displayed during business hours upon or in front of the buildings or grounds of, or at specified places, including: at the entrance or upon the grounds of each campus of the University of California and at the entrance or upon the grounds or upon the administration building of every university, college, high school, and elementary school, both public and private, within the State. (Gov. Code Sec. 431(c), (d).)

This resolution would, contingent upon voter approval, amend the California Constitution to provide 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.

COMMENT

1. Stated need for the bill

According to the author:

On Thursday, March 5th the Legislative Student Council of the Associated Students of UC Irvine (ASUCI) passed Resolution 50-70 entitled “Flags and decoration adjustment for inclusivity,” which prohibited the display of any flag in the student government building. The resolution’s preamble placed extensive emphasis on the American Flag, labeling it as a symbol of hate speech. UCI’s Chancellor Howard Gillman swiftly issued a statement defining this resolution as “outrageous and indefensible.” On Saturday, March 11th, the Executive Cabinet of ASUCI vetoed this resolution. However, the ASUCI legislature still retains the authority to overturn the veto with a 2/3 majority vote. Although public comments from the administration deem it unlikely that this veto will be overturned, this unfortunate event draws attention to the fact that similar actions could easily be repeated without further action.

Senate Constitutional Amendment 2 would provide that the display of the United States Flag on the grounds of a campus of the University of California, the California State University, or the California Community College shall not be prohibited.

2. First Amendment implications

This constitutional amendment seeks to enact that no University of California, California State University, or California Community College can prohibit the display of the American flag at any time or under any circumstances. As a practical matter, flags convey messages and, in that regard, can be as expressive as artwork or clothing. While this measure is focused on the American flag, the impact it might have is not necessarily as limited. By making it unconstitutional to prohibit the display of the U.S. flag in any instance, this measure could inadvertently force these public institutions to also grant all other requests to display more controversial flags, if a denial of those requests would constitute a content-based restriction in violation of the First Amendment.

The U.S. Supreme Court has held on numerous occasions that at the very core of the First Amendment is the principle that the government may not regulate speech based on its content, and that content-based restrictions are presumptively invalid. (See RAV v. City of St. Paul (1992) 505 U.S. 377, 382.) A law regulating speech is content-neutral if it applies to all speech regardless of the message. A law making all picketing, except labor picketing, unconstitutional, would be content-based. A law prohibiting anti-war protests would be both content-based and a viewpoint regulation. So, too, would a law that prohibits any speech about war (subject matter regulation). In contrast, a law prohibiting the posting of all signs on public utility poles would be content- and viewpoint neutral. Here, a problem could arise if a public school were to allow one student group to display the American flag in a common area, but deny another group’s request to display a different flag. Whereas a policy prohibiting the display of all flags in a particular common area would be an example of a content-neutral and viewpoint neutral restriction, a policy prohibiting the display of all flags except the American flag, would not.

Consistent with those principles, it should be noted that the student resolution that this measure is brought in response to, prohibited the display of all flags, not just the American flag, in what appears to be a content neutral and viewpoint neutral manner.

3. First Amendment principles embodied by the American Flag

Aside from First Amendment implications discussed above, this measure raises a question as to the need to address what the marketplace of free ideas has already corrected. Indeed, the fundamental rationale underlying principles of free speech and free expression, which are embodied by the flag that this measure seeks to defend, is that the free marketplace of ideas can do a better job than the government in weeding out the good ideas from the bad; that free and open public discourse will allow those ideas based in truth to rise to the top, and cause false ideas to falter. In the words of Chief Justice Oliver Wendell Holmes in his famous Abrams v. United States dissent:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. (Abrams v. United States (1919) 205 U.S. 616, 629-630 (J. Holmes, dissenting) (emphasis added).)

In the instance of the ASUCI resolution, it in fact appears that this free speech theory has prevailed, given that the resolution was vetoed within two days of its passage. Allowing for open discourse to continue on college campuses and correct itself as it did at this university, is consistent with the ideals that the American Flag symbolizes. Schools, and particularly public universities, are in many ways intended to provide a safe environment for young people to form and challenge their ideas of the world and of right and wrong.

A coalition of veterans, including the American Legion-Department; AMVETS-Department of California; California Association of County Veterans Service Officers; California State Commanders Veterans Council; Military Officers Association of America, California Council of Chapters; VFW-Department of California; and Vietnam Veterans of America-California State Council, writes in support of the resolution: “As veterans, we put our lives on the line for the United States of America and for the freedoms that our flag represents. It is appalling the anti-Americanism and hatred of our nation and its values that is fomented on our college campuses, especially those which are funded by American taxpayers. If Americans are taxed to pay for the school, the school is in America, then they should not ban our flag. “

Support: American Legion-Department; AMVETS-Department of California; California Association of County Veterans Service Officers; California State Commanders Veterans Council; City Council of the City of Buena Park; City Council of the City of Cypress; City Council of the City of Garden Grove; City Council of the City of Huntington Beach; City Council of the City of Irvine; City Council of the City of La Habra; City Council of the City of Laguna Niguel; City Council of the City of Los Alamitos; City Council of the City of Mission Viejo; City Council of Tustin; City of San Clemente; City of Westminster; Military Officers Association of America, California Council of Chapters; VFW-Department of California; Vietnam Veterans of America-California State Council

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation: None Known

**************