ACLU of San Diego Defends 15-Year-Old High School Honors Student Disciplined for Wearing an American Flag in Her Back Pocket

April 13, 2006 12:00 am

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Student Says She Wore Flag to Protest School Censorship

Malia Fontana, a 15-year-old honor student at Fallbrook High, was written up for wearing an American flag in her back pocket

SAN DIEGO — Fallbrook Union High School officials violated the First Amendment when they ordered 15-year-old honors student Malia Fontana to remove the small American flag she was carrying in her back pocket, the American Civil Liberties Union of San Diego and Imperial Counties said in a letter delivered to the school today.

“The school had no right to stop Malia from wearing her flag,” said ACLU of San Diego and Imperial Counties Executive Director Kevin Keenan. “When schools discipline students for protected First Amendment activity, they not only break the law, they also miss out on a teachable moment.”

The ACLU’s letter calls on the San Diego County school district to stop its practice of censoring students’ wearing of flags and comply with the constitutional protection of student speech laid out in the landmark 1969 U.S. Supreme Court case Tinker v. Des Moines, which affirmed the right of students to wear black armbands in protest of the Vietnam War. The letter also demands that the school clear Malia’s school record and provide a written apology to Malia and her mother.

In a statement, Malia Fontana, a sophomore, said she wore her back-pocket flag to protest the censorship of a classmate who last month was forced to remove an American flag headband he was wearing. When Malia questioned a school security guard who told her to remove her own flag, she was escorted to the assistant principal’s office and written up in an incident report. The following week, Malia’s mother, Nikki Fontana, learned that although the school would not require Malia to serve detention, the report would remain in her daughter’s file until six months after graduation. Ms. Fontana, a secretary for a general contracting company, said she was troubled that her daughter – who has never had any discipline problems and maintains top grades – has received this black mark on her record.

“I didn’t think it was right,” Malia said of the school’s actions.

Malia has long supported young people’s rights. In 8th grade, she wrote a paper in support of the Children’s Bill of Rights for which she received a grade of A+. In that paper, she concluded, “All in all, children are the most exposed members of society and need a voice to be heard.” Malia said she thinks students should be allowed to wear any flag and express themselves in any way that does not disrupt school.

“Freedom of speech is the first principle of a free society, and our public schools have a special duty to honor the constitutional rights of students,” said the ACLU of San Diego and Imperial County’s Legal Director David Blair-Loy. “Unjustified censorship of students undermines freedom of speech for all.”

The landmark Tinker v. Des Moines ruling, which the ACLU cited in its letter to Fallbrook officials, established the principle that students have a right to express their views, so long as their speech does not “materially and substantially disrupt the work and discipline of the school.”

There were peaceful protests outside Fallbrook Union High School on at least one day during the week that Malia wore her American flag, but there was no violence or school disruption. The ACLU noted that Principal Ruth Hellams stated in an open letter on the school’s website that school activities had not been disrupted (

Earlier this week, the ACLU of San Diego and Imperial Counties, along with the ACLU of Northern California and ACLU of Southern California sent a letter to every school district in the state explaining students’ First Amendment rights, including the right to peaceful protest. That document is available at:

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