When Malia Fontana's friend was told that he could not wear an American flag headband at school, she protested by wearing an American flag in her back pocket. Malia was then told to remove her flag, and when she asked the security guard why she had to remove it, she was taken to the principal's office. Though not required to do detention, Malia had an incident report written that will remain in her records until six months after her graduation from Fallbrook Union High School in San Diego.
In 1969, the landmark U.S. Supreme Court case, Tinker v. Des Moines School District, established the right of students to wear black armbands in protest of the Vietnam war. Justice Abe Fortas, writing for the majority, said:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.
The Tinker decision applies to the situation at Fallbrook Union, and the ACLU has sent a letter to the San Diego County school district comply with the law, apologize to Malia and her mother, and clear Malia's school record.