Flag Censorship in Schools: HB 41 Fact Sheet

1. Bans certain flags in public K-12 schools. Flags that promote religious, political, or ideological viewpoints are prohibited on school property, which includes classrooms, hallways, entryways, and sports fields. Banned flags include (but are not limited to): those that depict political parties, race, gender, sexual orientation, or political ideologies.
2. Allows for certain flags and banners to be displayed in public schools. Permitted flags include the official flags of the U.S., any U.S. state, U.S. military; of Idaho Indian tribes, of recognized foreign nations; achievement flags recognized by the Idaho state department of education; and flags that represent official school mascots and colors.
3. Grants new power to the Idaho Board of Education. The law gives the Idaho Board of Ed sole authority to enforce the law. The law also states that schools that violate the law must remove the offending flag, although it does not offer additional guidance.

The law does not provide clear definitions for “political, religious, or ideological viewpoints,” but does specify that flags or banners that represent “political parties, race, gender, sexual orientation, or political ideologies” are explicitly banned under HB 41.

Because the new law contains some terms that are explicitly defined, but not others, there is a risk of overapplication of the law by school officials. Terms like “ideological viewpoints” are ill-defined—the law could be used to censor flags based on subjected ideas of what is “political” or “ideological.” The risk of censorship increases if the flag represents or is seen as representing a controversial or divisive viewpoint. 

The Idaho Department of Education has the sole authority over which flags and banners can be displayed on school property and can demand removal of an improper flag or banner under this new law. The Idaho Department of Education has not yet released guidance on how a flag or banner gets removed from school property or outlined the processes for the removal.

Attempts by law enforcement or school officials to enforce the new law should be considered improper enforcement.

Yes. Students have the right to express themselves at school, including through their clothing; the law should not impact your First Amendment rights. Students have the right to wear clothing and pins to school—and otherwise express themselves.

The law should not impact electronic displays of banned flags on computers or other devices, nor should it impact flags hung in school parking lots. 

While the law should not impact the First Amendment rights of students to express themselves at school, it does not designate personal items worn or displayed by teachers as allowed or banned. The vague guidance could lead to overly cautious approaches to compliance and self-censorship in classrooms, so it is important that school staff know their rights.

Dress Code. Public schools must enforce dress codes equally, regardless of gender, sexuality, race or ethnicity, which means you have the right to express yourself (within the perimeters of your school’s dress code). Public schools can implement certain rules about what to wear at a prom, but they must be applied equally to different kinds of students (e.g., boys and girls). Similarly, students cannot have different dress code standards applied to them because of their race or other factors.

LGBTQ+ Students’ Rights. LGBTQ+ students have the right to: attend school free of harassment due to their sexual orientation and/or gender identity, organize Gay-Straight Alliances and other clubs, wear the gendered type of clothes that they feel comfortable in at prom or other dances, and take who they’d like to prom, regardless of gender. LGBTQ+ students also have the same speech rights as other students, meaning regulations around personal clothing choices (so long as they adhere to the school’s dress code) should be the same as any other student.

First Amendment Rights in School. You do not lose your right to free speech just by walking into school. You have the right to speak out, hand out flyers and petitions, and wear expressive clothing in school—as long as you don’t disrupt the functioning of the school or violate the school’s content-neutral policies. 

Other things to know: 

• You have the right not to be bullied or harassed. Your school is required to have a student harassment policy in place. Look in your student handbook or school district’s website for your school’s bullying and harassment policies, as well as procedures for filing a complaint or grievance. 
• Students have the right to establish Gay Straight Alliances. If your school has non-curricular clubs (like Key Club or Drama Club), you can form a GSA. Stopping a GSA or treating it differently from other clubs is illegal.