Colorado public school to allow student to display Gadsden flag patch — as long as nobody complains

For most students, a new school year brings new classes, new books, and maybe a new notebook or two. For Colorado middle schooler Jaiden Rodriguez, it brought controversy after school administrators refused to allow him to display a Gadsden flag patch on his backpack. 

After video of a school administrator meeting with the student and his mother went viral earlier this week, the school relented and will allow him to sport the patch “[a]t this time.” However, the student’s mother, Eden Rodriguez, informed FIRE that the school district’s assistant superintendent told her this “permission” comes with a troubling caveat: If a student or staff member complains about the patch, it must come off. 

And that’s not all. The school is also insisting Jaiden stop displaying another patch that is equally protected by the First Amendment — this one, representing a gun rights nonprofit.

As FIRE told the school in a letter sent yesterday, public school administrators can’t ban the expression of an idea, symbol, or viewpoint just because they or others dislike it. 

Pulled out of class for … a patch? 

Jaiden Rodriguez is a seventh-grader at The Vanguard School, a public charter school within Harrison School District Two in Colorado Springs. For two years, Jaiden has expressed himself at school by wearing a variety of patches on his bookbag without incident. 

One of the patches he sometimes wears depicts the Gadsden flag, which features a coiled rattlesnake above the words, “DONT TREAD ON ME.” (He also has a parody version with the words, “DONT TELL ON ME.”) The flag was originally a popular symbol of unity and defiance among the American colonies during the Revolutionary War, and various groups with different political aims have used it over its long, subsequent history. Another of Jaiden’s patches features an image of a rifle and reads “Firearms Policy Coalition Official Member,” referring to a nonprofit focused on gun rights and related issues.

Earlier this month, one of Jaiden’s teachers complained about some of his patches, leading the administration to pull him out of class multiple times. Vanguard School Director of Operations Jeff Yocum pointed Jaiden’s mother to a district policy prohibiting clothing, patches, and other paraphernalia that “[r]efer to drugs, tobacco, alcohol, or weapons.” 

In an email to Eden, Yocum specified which of Jaiden’s patches he could continue to put on his backpack — excluding the Gadsden flag and Firearms Policy Coalition patches. Yocum said the patches not on his list “contain symbols or images that can be deemed disruptive or potentially disruptive to the classroom environment.” Jaiden removed the Firearms Policy Coalition patch. But on Monday, he again went to school with the Gadsden flag patch on his backpack. 

That’s when the current controversy heated up. 

In a meeting with Jaiden and Eden, a school administrator explained that Jaiden could not keep the Gadsden flag patch on his backpack, due to what she called the flag’s “origins with slavery and slave trade.” Libertas Institute President Connor Boyack posted video of the exchange on X (formerly Twitter). The video now has more than 11 million views. 

View video

In the meeting, Eden explained that the Gadsden flag originated during the American Revolution, but the administrator brushed aside the correction, saying she was implementing school district policy. Eden then protested that the school allows other students to wear patches of their choice, making the prohibition on Jaiden’s Gadsden flag patch “unjust” and “one-sided.” 

But the administrator held firm. And later that day, Yocum emailed Eden several links purporting to show the Gadsden flag’s connection to “hate groups.” 

Colorado Gov. Jared Polis disputed the school’s characterization of the flag when he weighed in on the patch controversy this week, noting the “Gadsden flag is a proud symbol of the American revolution and a iconic warning to Britain or any government not to violate the liberties of Americans.” 

But disagreement over whether the flag is good or bad is beside the point. The bottom line is that the actual or perceived viewpoint of a student’s accessory is not in itself a valid reason for banning it in a public school. Nor is mere existence of a student or employee complaint. School administrators may dislike the Gadsden flag because they believe it’s a symbol co-opted by disfavored groups — but that belief does not supersede Jaiden’s constitutional right to display the flag on his bag, any more than an unpopular group’s decision to fly the American flag would justify prohibiting that flag in schools. 

School decides Gadsden flag is OK — but only if no one complains 

On Tuesday evening, after the video of the administrator’s meeting with Jaiden and his mother meeting went viral, the school’s board of directors said in a statement, “At this time, the Vanguard School Board and the District have informed [Jaiden’s] family that he may attend school with the Gadsden flag patch visible on his backpack.” 

But Eden says the district’s assistant superintendent told her Jaiden could continue to wear the patch only so long as no student or staff member complains. That condition is unacceptable.

The Supreme Court has firmly established that public school students do not lose their First Amendment rights at the schoolhouse gate. In the 1969 case of Tinker v. Des Moines Independent Community School District, the Court held the First Amendment protects public school students’ right to engage in non-disruptive, symbolic speech in school — in that case, wearing black armbands to school to protest the Vietnam War. The Court also made clear that school officials cannot restrict student speech based on mere speculation it will cause disruption. 

Like Jaiden, all students should feel free to express themselves within the bounds of the law and without the looming threat of censorship. 

The Vanguard School officials’ previous, unsupported claim that Jaiden’s patches are “disruptive or potentially disruptive” does not satisfy Tinker’s standard. The school must provide evidence of actual or anticipated substantial disruption. That evidence is nowhere to be found. In fact, Jaiden’s mother says he has long displayed his Gadsden flag and Firearms Policy Coalition patches without incident.

Absent more, a single complaint from a student or staff member wouldn’t be sufficient evidence of substantial disruption. In a recent decision, the U.S. Court of Appeals for the Tenth Circuit — whose decisions are binding on Colorado school districts — held that four emails from parents, an in-school discussion, and news reports about a student’s Snapchat post fell short of “Tinker’s demanding standard” for substantial disruption.

So long as the school district maintains that Jaiden may wear the Gadsden flag patch only if no student or staff member complains, this controversy is not over. As we told the Vanguard School and Harrison School District Two, “The First Amendment does not allow the ‘heckler’s veto’ as envisioned by the district’s assistant superintendent, where anybody can suppress a student’s speech or viewpoint simply by objecting to it.”

The First Amendment also protects the student’s expression of support for gun rights

Whatever follows with Jaiden’s Gadsden flag patch, the school is still preventing him from displaying a Firearms Policy Coalition patch, which is also constitutionally protected. As we said in our letter:

The patch does not endorse unlawful activity or convey any threat, there is no evidence it has caused actual (or anticipated) substantial disruption of the school environment, nor is the mere fact that it depicts a firearm concrete evidence it will. As a federal appellate court said of a student’s T-shirt with the logo of a gun rights group that included an image of a handgun, Jaiden’s patch is “materially indistinguishable from the black armbands in Tinker” in expressing a “political opinion, just like the armbands expressed the students’ opposition to the Vietnam War.”

A policy that prohibits any reference to drugs, tobacco, alcohol, or weapons is dramatically overbroad. The policy goes well beyond prohibiting expression that is within the school’s authority to regulate. Under such a policy, for example, students cannot even wear D.A.R.E. shirts opposing the use of illicit drugs or “Everytown for Gun Safety” pins supporting gun control. 

This explains why federal appellate courts have rejected public school efforts to ban clothing depicting guns, drugs, or alcohol absent evidence the clothing did or would cause substantial disruption. The Vanguard School would do well to take note of these cases.

The Vanguard School should commit to protecting students’ First Amendment rights

FIRE calls on the Vanguard School and Harrison School District Two to stop treading on Jaiden’s rights. That means allowing him to display on his backpack the Gadsden flag and Firearms Policy Coalition patches and any others that cause no substantial disruption, without facing punishment or removal from class — regardless of whether students or staff complain. FIRE also calls on the district to revise its dress code and eliminate the unconstitutional prohibition on all references to drugs, tobacco, alcohol, or weapons. 

Students’ constitutional rights take precedence over the personal biases of school administrators. Too often, administrators seek to shut down speech they deem inappropriate when they should be encouraging students to speak their minds and grapple with a wide range of viewpoints and ideas. 

Like Jaiden, all students should feel free to express themselves within the bounds of the law and without the looming threat of censorship.