At Tuesday’s New Hanover Board of Education meeting, members passed a last-minute motion to restrict flags and displays in classrooms and on school grounds.
The language amends Policy 7300 (staff responsibilities) and Policy 3200 (selection of instruction materials).
It requires that all district employees “limit displays in the classrooms, school buildings, school grounds, and buses, such as signs and flags, to materials that represent the United States, the State of North Carolina, New Hanover Country, the school name and mascot, and/or the approved curriculum.”
It also requires principals and teachers to enforce the same limits.
No clarity was offered beyond the policy's language. It is not clear if the policy would apply to students. The board did not discuss, for example, if it would include flags or other displays on students’ clothing, backpacks, or lockers.
Ordinarily, these issues might have been discussed in the board’s policy committee, which typically discusses proposed policies before they’re brought to the entire board. In this case, board member Pat Bradford brought the motion directly to the board, skipping the committee; in defense of the unusual procedure, Bradford said there was an emergency.
“We had an incident at UNC Chapel Hill where the American flag was dropped. And it took the interim chancellor with a police escort to put it back up,” Bradford said.
Board member Stephanie Walker disputed the claim that this was an emergency, saying the policy should have followed established board procedures.
“The proper way is you do it through the policy committee, you have a discussion, and you allow the public to weigh in on it. That is American, that is democracy,” Walker said.
Board member Josie Barnhart voted in favor of the measure, saying schools should not be places for activism.
Walker then asked the district’s legal counsel, Jonathan Vogel, if he had reviewed the policy beforehand. After initially attempting to defer to Chairman Pete Wildeboer, he confirmed he had.
In contrast to Bradford’s claim of an “emergency” need to push the motion through, planning for the policy appears to date back to September 2023. The former policy committee chair Josie Barnhart charged Jonathan Vogel with “conducting legal research re: limitation of displays in classrooms and schools and draft proposed language,” according to legal records reviewed by WHQR.
The following month, Vogel’s colleague, Terry Wallace, billed for researching and calling Assistant Superintendent Dr. Christopher Barnes on “teachers flags.” In late November, Bradford and Barnhart called and emailed Vogel about the “display of flags and signs.”
According to Vogel’s legal bills, the district spent nearly $700 researching flags and signs alone and hundreds more on broader issues including displays, but also the Parents’ Bill of Rights, the use of pronouns, and other issues. That research was itemized in legal bills from September to November 2023.
Despite objections from Walker, Stephanie Kraybill, and Hugh McManus, the policy passed 4 to 3 — and will go into effect temporarily for two weeks.
On Thursday, May 9, the principals are having a Zoom meeting with a maximum of three board members and Central Office staff about how to implement the new policy.
Constitutional concerns?
Several education and First Amendment advocates have expressed concern that the new policy language could potentially violate free speech protections.
The landmark ruling in the 1969 U.S. Supreme Court case Tinker v. Des Moines set a major precedent for students’ right to free expression; the case involved five students who were suspended after wearing black armbands to protest the Vietnam War.
"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the court argued as part of its majority opinion.
However, subsequent rulings have modified and, in some ways, curtailed Tinker. Schools can restrict student expression that is disruptive or obscene; they can also apply restrictions or prohibitions to protect other constitutional rights (including the right to an education under the Education Amendments Act).
WHQR emailed Wildeboer and Bradford to ask if they had considered Tinker and the constitutionality of the motion, but they have not responded.
Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression (FIRE), a non-profit that advocates and in some cases litigates to protect free speech, said a main concern was the scope of the policy, which extends beyond the classroom.
"If you look at the language of the policy ... I think they use the term 'in the classroom,' but also just on school grounds. So that would potentially apply to displays, say on a teacher or a staff member's car. And I think that's where the policy violates the First Amendment," Terr said.
Terr noted that schools do have "fairly broad authority" to control teachers' in-class speech, but said that "to the extent that the school is reaching into teachers' and staff members' personal expression off the clock, even if it takes place on school grounds, you have a First Amendment problem because teachers and staff members don't lose their First Amendment rights by virtue of being government employees."
Terr agreed that, for example, teachers should have the freedom to display an Israeli or Palestinian flag bumper sticker on their vehicle without fear of punishment.
"The school generally can't punish that type of speech, unless it has evidence that the speech would substantially disrupt the school's operation," he said.
Terr also agreed that the lack of clarity around how the policy would impact students could create issues.
"I think that's at a minimum, you can argue that that's vague language. And to the extent that it would apply to students' speech, that raises a whole separate First Amendment issue, because under Tinker, settled Supreme Court precedent, students have First Amendment rights, even when they're at school, and school authorities can't restrict what students can say or the viewpoints they express, as long as their speech isn't substantially disrupting the learning environment. So if a student wants to put an Israeli flag patch on their backpack, a Palestinian flag patch on their backpack, the First Amendment is generally going to protect that type of expression. And the school could not enforce a policy that says, we're going to allow flags that support the views or the causes that we agree with, and nothing else," Terr said.
The American Civil Liberties Union has also taken an interest in the new policy — although it's not clear yet if the ACLU believes it's unconstitutional. In a public records request filed on Wednesday, the ACLU requested all communication to and from board members and/or Superintendent Charles Foust concerning the new policy.
The ACLU told WHQR the request was "an effort to better understand the events leading up to the policy change, what motivated it, what it means, and how it might be enforced."
Law firm vote
The board also engaged in another contentious debate over its legal services.
The board also voted 4-3, with members McManus, Kraybill, and Walker dissenting, to retain the Vogel Law Firm until June 30 — and not renew the requests for proposals (RFP) for legal counsel. This comes after the board spent hours scoring and hearing from three firms, Tharrington Smith, Poyner Spruill, and Crossley McIntosh & Collier.
Port City Daily reported that Vogel did not resubmit his firm as part of the RFP process, as Tharrington Smith did the year before being reconsidered.
Jonathan and Leigha Sink, lawyers who worked under the Vogel Law Firm until late last year, are suing Vogel, and he has filed a countersuit. On April 17, Vogel asked for a continuance. The trial date is set for May 13.
Resources
- Link to WHQR reporting on Vogel Law Firm
