Middle school employee asked to remove 'thin blue line' flag mask, later allowed to wear it

ROTTERDAM — One local school district is grappling with issues of freedom of expression after an employee wore a “thin blue line flag” mask to work, but local legal experts say this particular mask choice raises questions unique to schools and to what is permissible there.

When a Draper Middle School employee wore the mask depicting an American flag with a blue line supporting law enforcement, administrators last week asked the employee to take it off. The superintendent for Mohonasen Central School District, Shannon Shine, asked the security monitor to remove the face covering after concerns surfaced over its political nature.

“This can be a really polarizing, sensitive issue,” Shine said. “Certainly the district is not partisan, but we don’t want to be perceived that way.”

Later last week, after reviewing the district’s Code of Conduct, talking to the district’s attorney and looking at school policy, administrators decided the “thin blue line flag” mask was acceptable in school when the employee said that they did not intend for it to be a political statement.

The blue line flag on the employee’s mask has become a symbol for the Blue Lives Matter pro-police counter-movement, which was formed in 2014 in response to the Black Lives Matter movement.

Messages that could be perceived as political cannot be “banned” from schools, according to professor Stephen Clark of Albany Law School, unless administrators feel it’s distracting from the learning environment.

“Political expression lies at the very core of the protection of the First Amendment and receives its greatest protection,” Clark said. “Determining that expression is ‘political’ is not remotely sufficient to determine that a school district may ban it.”

Eventually, the district did an about-face.

“We concluded that this [‘thin blue line flag’] face covering should be just fine,” Shine said. “It has not, to use some of the legal language, substantially disrupted the educational process. It doesn’t seem to be causing an issue; the person attests that they’re not trying to make a political statement.”

The district prohibits hate symbols on masks or clothing, Shine said, but does not have restrictions for masks like the one worn by the employee.

That mask, though, could be considered as having a “disruptive effect” in the workplace and students could interpret the message as “hostile to people of color,” thereby being “disruptive,” Clark said.

“The First Amendment does not require a public employer to let its staffer make its educational environment hostile to students of color, whether that is the intention of the staffer or not and regardless what the staffer says his message means,” Clark said.

In Mohonasen’s 2018-19 school year, 4 percent of students were Black (112 students), 8 percent were Hispanic, 3 percent were Asian or Native Hawaiian/other Pacific Islander and 6 percent were multiracial, according to data collected by the New York State Education Department.

During discussion about the one mask, administrators also discussed the possibility that an employee or student might wear a Black Lives Matter mask to school. Shine said the district’s attorney said they don’t think the “school district should be in the business of determining or judging what is political and what is not political.”

“Some people say Black Lives Matters is an organization and other people say it’s a movement,” Shine said. “Other people say they’re both. So the shorter answer is, we don’t know. And we’re hoping we don’t have to be the judge of such things. And again, if students or faculty come in with Black Lives Matter [masks], my hope would be that they’re not trying to make a political statement. They’re just trying to support the good in our world, our society.”

It would be problematic if a school district were to prohibit a student or employee from wearing a Black Lives Matter mask after permitting another to wear a “thin blue line flag” mask, Clark said.

“[It] would present the most serious kind of First Amendment issue: discriminating in favor of certain political viewpoints and discriminating against opposing political viewpoints,” Clark said. “The excuse that the employee says the message is not ‘political’ under some gerrymandered definition of that concept does not avoid the serious problem of viewpoint discrimination here.”

In another local school district, Mayfield Central in Fulton County, one student wears his thin blue line flag mask about once a week, according to his mom, Angela Howard.

“It has never been an issue, it stands to represent our law enforcement and a positive thing combined with representing America,” Howard said of her son’s experience wearing the mask in their district. “I feel [Mohonasen] handled this wrong and it never should have been in question to begin with, truthfully.”

Similarly, Clifton Park resident Susan Laviolette Hartley wears a “thin blue line flag” mask just about every day, and sells the masks, along with other masks, on Facebook Marketplace. She started her businesses in March and has since sold over 700 homemade masks at $10 apiece, roughly 65 of those were the “thin blue line” design.

“Those sold out before I even finished making them,” said Hartley, who said she has gotten rude comments on Facebook.

But “hostile remarks” from other students aren’t enough to justify a ban, Clark said, as the district can only prevent political or social expression on students’ masks if administrators feel it “materially and substantially” interferes with the school’s operations.

Mike Grygiel, a local attorney at Greenberg Traurig, said the First Amendment would tip further “in favor” of an employee being allowed to wear a mask that’s perceived as political to school.

“It’s difficult to envision how an employee wearing this particular mask would, in any way, interfere with the operation of the school or the achievement of its pedagogical goals,” Grygiel said.

“In order to justify curtailing the free-speech rights of those it employs, the government has to show that it’s necessary to protect the legitimate institutional interest.”