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4-20-2024 11:50pm
Attempting to Avoid Litigation, Westwood Select Board Adopts Flag Policy That Stays Middle of the Road
Darlene Cancell
Editor
At Westwood Select Board’s remotely convened meeting of April 16, 2024, the board voted 2-1 to adopt a flag policy which revises the town’s interim flag policy, and which limits flags on town-owned flagpoles to the official flags of the United States, Commonwealth of Massachusetts, Town of Westwood, POW MIA, and the Purple Heart award flag.
Select Board Chair Marianne LeBlanc Cummings and Clerk Robert Gotti both voted in favor of the language, and Member Joe Previtera voted against the policy that was drafted by Town Counsel Pat Ahearn.
The issue to codify a flag policy arose when proposed by Ms. Cummings in June last year, following the May 2023 ruling of the United States Supreme Court in ruling in Shurtleff v. City of Boston.
In Shurtleff, the Court found that the City of Boston had discriminated against and violated the free speech of a citizen and his organization when it rejected their request to fly the Christian flag. The rejection followed the city's prior approval of 284 consecutive flag flying applications. The Court distinguished flag flying that represents Constitutionally free speech of private citizens from flag flying that represents government speech.
Westwood’s Interim Flag Policy was an attempt to codify policy for flag flying as government speech rather than private speech, and was adopted one month after the Shurtleff decision. It explicitly stated that flags flown on town-owned flagpoles constitutes government speech, and gave approval for flying four specific flags. It temporarily authorized the Pride rainbow flag to be flown specifically in June 2023. It authorized the Purple Heart award flag to be flown on August 7th of every year. It also gave a blanket authorization for the official flags of the United States and MIA POW flags to be flown.
The interim flag policy was passed by the votes of Ms. Cummings and Mr. Previtera. Mr. Gotti abstained, calling the vote premature. He raised concerns that the interim policy appeared to close the door on opportunities for any other flags to be flown.
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At the board’s meeting this April 16th, in discussion before the vote on a permanent flag policy to replace the interim flag policy, Ms. Cummings explained her change in position on the issue. She cited an intern’s statewide survey of other municipal flag flying practices, her meeting with the American Legion, a Massachusetts Municipal Association webinar, and resident contact as reasons supporting her new stance. Ms. Cumming's new position, which supports a flag policy that does not provide approval to fly the Pride flag, is one which she characterized as being in the best interest of the entire town.
“I believe what we’ve made steadfastly clear is that flags flown on the town flagpoles are government speech. As a Select Board member, I believe our most important duty is to protect the town,” she explained. “And after much deliberation, I believe that this policy as drafted best protects the town legally and codifies our longstanding policy regarding flag flying in Westwood,” she said, referring to Counsel Ahearn's draft flag policy language. She followed her explanation with statements in support of diversity, equity and inclusion (DEI) and reiterated a portion of the board’s 2021 statement in support of DEI.
Mr. Gotti noted that he is “very comfortable” with the proposed flag policy drafted by Mr. Ahearn, and he said it represents where he stood on the issue last year. He, like Ms. Cummings, also referenced the DEI statement signed by Select Board. He stated that "we [Select Board] carry on the same belief” that supports that statement.
Mr. Previtera voted against the newest policy language calling it "nice" but in need of improvement. He explained that in his reading of the Shurtleff case, the City of Boston did not have a policy for content of message. Implying that Westwood could distinguish itself from the Shurtleff case and associated risk of litigation by adopting a flag policy for content, Mr. Previtera proposed that a flag policy “must have a content message consistent with any written statements, agreements, proclamations endorsed by Westwood Select Board.” He, like his colleagues, also noted the December 2021 Select Board statement in support of DEI. Mr. Previtera cited the board's stated intent to search for opportunities to advance DEI.
Counsel Ahearn offered his opinion that town flagpoles are not the place to express support for DEI. Rather, actions in hiring and retaining employees and treatment of people are the appropriate places to voice the town’s commitment to DEI, he said. Mr. Ahearn noted that it is very challenging to have a policy that allows different flags at different times. “It [DEI support] will show through your actions and not what you put up on a flagpole,” he said.
