Benjamin Franklin once wrote that "Justice will not be served until those who are unaffected are as outraged as those who are." Well, I am outraged and I hope that you are as well.
The Dolores High School policies outlined in the "Blue Letter" that was sent home to parents on Dec. 12 demonstrate a disregard for the constitutional rights of students. This isn't about the Confederate flag or the Black power fist. This is about free speech. The new policy is censorship, plain and simple. The DHS administration is censoring symbols simply because they do not like them.
Censorship, the suppression of words, images, or ideas that are "offensive," happens whenever some people succeed in imposing their personal, political or moral values on others. Censorship by the government is unconstitutional. Freedom of speech is protected in the First Amendment, and is guaranteed to all Americans. Students have the right to peacefully and quietly express themselves, even when that expression may be unpopular. This is especially true, when, as the Dolores school superintendent noted in his Dec. 13 Dolores Star interview, there was no evidence that the banned symbols were used in the alleged hate crime incident.
In Tinker v. Des Moines Independent Community School District, a landmark 1969 decision by the United States Supreme Court, the court defined the constitutional rights of students in U.S. public schools. The court held that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate ... in the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views." The court went on to develop the Tinker Test, which is the benchmark used by courts today to determine whether a school's disciplinary actions violate students' First Amendment rights.
Under the Tinker Test, the justification for the regulation of student speech must be more than "a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." School officials must show that the expression would cause a "material and substantial disruption" with the discipline and educational function of the school. The court went on to say "that 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."
In Bragg v. Swanson, a 2005 case from the Southern district of West Virginia, United States District Court Judge John Copenhaver applied the Tinker Test in striking down the school policy that banned a student from wearing an image of the Confederate flag, stating that "to suggest that a ban is warranted simply because some associate it with racism proves too much for First Amendment purposes."
The unconstitutional DHS policy has had, and continues to have, a "chilling" effect on free expression at the high school. Since being put into effect, the rainbow flag as well as images of Che Guevera have been removed from classrooms. Who knows how much permissible speech was unjustifiably silenced through student self-censorship because of fear of this policy? The real travesty is the adverse impact this is policy is having on students, and their understanding of their basic civil rights as guaranteed under the U.S. Constitution.
As someone who was born in Hawaii and grew up in New Jersey, the Confederate flag carries no special meaning for me; but as the parent of three DHS students, a combat veteran and an American, I do care deeply about the individual freedoms guaranteed by the U.S. Constitution. More than 25 years ago, I took an oath to uphold and defend the Constitution of the United States. That oath is as relevant today as it was on the battlefields of Iraq. I have expressed my concerns about this policy to the school administration and to the Board of Education. Their silence has been deafening. No matter. As a good soldier, I will continue the mission to see that this policy is either rescinded or overturned. If you care about free speech; about the individual rights guaranteed in the U.S. Constitution; about the rights of current and future students at Dolores High School; then it is time to get off the sidelines and get into the fight. I hope to see you on the high ground.
Bill Nelligan is the father of three Dolores High School students, and lives and works in Montezuma County. Nelligan, who retired from the U.S. Army Reserve as a lieutenant colonel, is a graduate of the U.S. Army Command and General Staff College. He holds a master's degree in history from the University of Maryland.
