Since last year, the Black Lives Matter flag has flown on a flagpole at Bellows Free Academy in Fairfax.
The flag was hoisted after the Fairfax Racial Justice Alliance, a student group, asked that it be raised, citing a “commitment to creating a community and school that is inclusive, safe, empathetic, equitable and just.”
But in early May, the U.S. Supreme Court issued a ruling in a case dealing with flags on public property, a decision that has left some Vermont school districts — including Fairfax — wrestling over which flags they can and cannot fly on school grounds.
The court case arose out of a dispute over a flag at Boston City Hall. For years, the city of Boston allowed community members to request flags to fly at City Hall — usually flags from other countries, as well as the pride flag and those honoring local organizations.
But in 2017, Boston denied a request from Harold Shurtleff, who runs a conservative organization called Camp Constitution, to fly a Christian-themed flag. In response, Shurtleff sued the city.
That case made it all the way to the U.S. Supreme Court, which, on May 2, ruled unanimously that Boston had discriminated against Shurtleff.
In Vermont, some school officials have seen that opinion as a troubling one for their schools.
“Right now, we are in a state of liability,” Orange Southwest Superintendent Layne Millington said at a board meeting May 11. “If anyone comes in and wants to put up (a) flag, I can say no, and we can get sued and have to go down that path and lose at the end.”
‘Shut it all the way down’
Flags flying on Vermont campuses and government buildings have drawn controversy for years. As officials have moved to fly flags in support of Black Lives Matter and LGBTQ+ people, some community members have responded with anger and accusations that the flags represent a politicization of public institutions.
In Orange Southwest, Randolph Union High School hoisted the Black Lives Matter flag in 2019. But after the Supreme Court’s ruling, administrators feared that if the school chose to fly some flags — such as pride flags and Black Lives Matter flags — but turned down others, the district could be held responsible for discrimination.
Some community members made a similar argument: By flying the Black Lives Matter flag and not flags that others had requested — for example, a “Don’t Tread on Me” flag and a pro-police flag — the school would be discriminating against different points of view.
The solution, board members and some members of the public said, was to bar any flags other than the American flag and the Vermont flag from flying on campus.
“You either got to open it all up or shut it all the way down,” said John Helfant, the Northfield police chief and a parent of an Orange Southwest student, according to Seven Days, at the May 11 meeting,
Last month, Orange Southwest’s board voted to adopt that restrictive policy — and to take down the Black Lives Matter flag.
In an email, Millington, the superintendent, said that his personal beliefs “don’t come into the decision-making process.”
“Obviously, the new policy was not what the (Randolph Union High School) social justice team wanted, but it was not intended to be a blow to anyone,” he said. “The district was placed in the middle and had to make a decision. In terms of the flagpole, we either must honor the free speech rights of everyone, including those whose messages may be repugnant or in opposition to (Black Lives Matter), or no one.”
The Windham Northeast Supervisory Union also adopted the same flag restrictions after the Supreme Court ruling last month.
Some state lawmakers have proposed legislation that would force all Vermont schools to adopt that policy. In 2021, Republican representatives introduced a bill that would bar schools from flying any flags other than the American and Vermont flags.
“The American flag does not get the respect that it had 30 years ago,” said Rep. Brian Smith, R-Derby, who sponsored the bill. “And I think it needs to be more respected than it is today.”
That bill died in a House committee, as did another bill Smith introduced this year that would allow other flags to be flown on a shorter “recognition flagpole.” He said he hopes to introduce new legislation on the topic next year.
“I’m going to have to sit down with someone on the other side of the aisle and try to come up with something that’s going to work for everybody,” he said. “But I want the American flag appreciated more than it is.”
Striking a balance
But Dana Decker, who taught a class on racial justice at Randolph Union until leaving at the end of the school year, said that the decision to impose the restrictive flag policy was the wrong one. Over the past few years, she said, the school has seen an “uptick in racism.”
Students enrolled in her former class had been involved in the flag raising in 2019, she said. But the school district’s new policy on flags “crushed, crushed, crushed the community that it was affecting,” she said.
Mia Schultz, president of the Rutland-Area NAACP and an organizer at the progressive advocacy group Rights and Democracy, said she began discussions with Randolph school community members about racial justice issues following the board’s decision.
The Black Lives Matter flag “is not us versus them,” she said. “It’s a symbol of recognition, and it shows what work needs to be done in our schools. And it makes BIPOC students feel heard and understood.”
There is still legal debate about how strict flag policies should be. Jay Diaz, general counsel at the Vermont chapter of the American Civil Liberties Union, said restrictive policies such as Orange Southwest’s are “an overreaction.”
The Supreme Court case hinged on whether the flags on Boston’s flagpole represented private speech or government speech, Diaz said. Until Shurtleff asked to raise the Christian flag, Boston had a “come one, come all attitude” about what flags could fly at City Hall.
Because of that, the Supreme Court ruled that the city had discriminated against private speech by refusing to fly Shurtleff’s flag. But, as long as schools don’t have similar policies, Diaz said, it’s likely that their flags will be seen as government speech — which allows them much more freedom in what flags they can fly.
“When it’s government speech, the government can say whatever it likes,” Diaz said. “And the court says, we’re going to depend on the voters to tell the government when it’s overstepped in what it’s saying, through the ballot box.”
Some school districts, such as the Harwood Unified Union School District and the Colchester School District, have adopted policies that allow students to request or suggest certain flags to be flown on campus.
In Fairfax, the school board is attempting to split the difference.
Earlier this month, school board members voted to bar any flags other than the American or Vermont flags from flying on district poles.
But Scott Mitchell, the chair of the Fairfax School Board, emphasized that the new rule was a “flagpole policy” and not a flag policy.
School administrators plan to erect a new “student interest flagpole,” Mitchell said. That pole will be operated by Fairfax students, who will draw up the procedures for requesting and flying flags. The Black Lives Matter flag will continue to fly until the new pole is built, Mitchell said.
“We are huge proponents of student-led initiatives,” Mitchell said. “And we feel really honestly that removing the adults from the equation is a great idea for student growth and student debate.”
