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Texas student appeals T-shirt ruling to high court

By David L. Hudson Jr.
First Amendment scholar
10.20.09

The U.S. Supreme Court could resolve a pressing First Amendment conflict and help guide school administrators, teachers, students and parents in dress-code controversies nationwide if it accepts the case of Palmer v. Waxahachie Independent School District.

A dispute arose in September 2007 when then-sophomore student Paul T. “Pete” Palmer wore a T-shirt that said “San Diego.” Waxahachie, Texas, school officials sent him home for noncompliance with a broad dress code that prohibited T-shirts with printed messages. Palmer returned with a “John Edwards for President 08” T-shirt. Again officials prohibited his shirt because it bore a printed message.

Palmer challenged the dress code in federal court in April 2008, alleging it violated the First Amendment. The school district responded with a new dress code that restricted even more speech, including polo-style shirts with any messages, shirts with professional sports-team logos and clothing with university names. Interestingly, the dress code did permit some message shirts — those promoting campus-approved curricular clubs and organizations, athletic teams or school spirit shirts.

After reading the new dress code policy, Palmer submitted three T-shirts for review: (1) the first Edwards for President shirt, (2) a “John Edwards for President” polo shirt and (3) a T-shirt with “Freedom of Speech” on the front and the text of the First Amendment on the back. The school district rejected all three.

Palmer contends that the case should be evaluated under the Supreme Court’s four pure student-speech cases: Tinker v. Des Moines Independent Community School District (1969), Bethel School District v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988) and Morse v. Frederick (2007).

In Tinker, the Court ruled that public school officials violated the First Amendment by suspending students for wearing black armbands to school. The Court created the Tinker standard, which has guided many courts for 40 years — that public school officials cannot restrict student speech unless they can reasonably forecast that it will cause a substantial disruption.

In Fraser, the Court ruled that school officials did not violate the First Amendment when they suspended a student for making a vulgar speech before the school assembly in nominating a fellow student for elective office. The Court found that schools can prohibit student speech that is vulgar or lewd. In Hazelwood, the Court ruled that a school did not violate the First Amendment by censoring two articles from a school-sponsored student newspaper. The Court ruled that educators have much greater leeway to regulate school-sponsored student speech than student-initiated speech. In Morse, the Court said school officials did not violate the First Amendment when they punished a student for displaying a banner with the message “Bong Hits 4 Jesus” just off school grounds during a school-sanctioned event. The Court held that public school officials can restrict student expression that they reasonably believe advocates illegal drug use.

These four cases comprise the legal universe for many student-expression cases. Palmer asserts that his political T-shirts were not substantially disruptive, lewd, school-sponsored, or pro-drug within the meaning of the Supreme Court student-speech cases. Thus, he argues he should have the right to don these shirts, which feature pure political speech — the type of speech at the core of the First Amendment.

However, a federal judge and later the 5th U.S. Circuit Court of Appeals ruled in its opinion that those cases did not control another broad type of student-speech regulation — regulations that are content-neutral and viewpoint-neutral. The court reasoned that a uniform or dress code that applies across the board, and prohibits a vast array of student speech regardless of content or viewpoint, is content-neutral.

According to the 5th Circuit, Palmer’s case must be evaluated through the analytical prism of a non-student-speech case, United States v. O’Brien (1968). In that case, an anti-war protester burned his draft card on the steps of a South Boston courthouse. The Court created a standard for evaluating restrictions on expressive conduct that involves both speech and conduct. Under the O’Brien test, a regulation is constitutional if it furthers a substantial government interest, the government’s interest is unrelated to the suppression of free expression and the incidental restrictions on free speech are no more than are necessary to further the government’s interest.

In previous cases, the 5th Circuit has used the O’Brien standard to evaluate and reject First Amendment-based challenges to school-uniform and dress-code policies.

In his petition to the U.S. Supreme Court to grant his case a hearing, Palmer contends that the Court should take the case to decide whether school officials and lower courts can avoid Tinker and its progeny and instead apply the more lenient O’Brien standard.

In school districts that adopt uniforms or restrictive dress codes, students may lose the right to wear T-shirts proclaiming even pure political speech because the regulation is deemed content-neutral. Some student-rights advocates fear that the continued application of the O’Brien standard waters down and reduces Tinker to a case purely about viewpoint discrimination.

Gary Klahr, an attorney who has handled challenges to school uniforms and dress codes, warns that “Tinker will be a dead letter unless the U.S. Supreme Court takes the Palmer case and sets forth clearly that the O’Brien test has no place in student speech cases.”

It could be argued that the 5th Circuit erred even in finding that the dress code at Palmer’s school was content-neutral, as it exempted shirts of student curricular clubs, school athletic teams and the like. (The opinion mentioned but did not discuss the original disallowed “San Diego” shirt.) Allowing student dress with approved messages but disapproving of student messages about political candidates seems to constitute content discrimination.

The panel did say that students could still wear small logos, such as appear on polo shirts. However, perhaps most ominously, the 5th Circuit ruled that “so long as a dress code does not restrict student dress outside of school and provides [students] with some means to communicate their speech during school, it passes” the O’Brien test.

This reasoning intensifies the urgent need for Supreme Court review, because such a rationale could swallow even a narrow reading of Tinker to prohibit even the wearing of logos or black armbands. “Under the Fifth Circuit’s approach, the prohibition on armbands struck down by the Court in Tinker would have survived scrutiny because the students could have worn their armbands after school and at home, and could have expressed their views to the small number of students with whom they conversed during the school day,” Palmer’s petition reads.

The petition adds: “The Court’s review is needed now to settle the important legal issues at stake and provide clarity about the scope of student-speech rights for students, parents, and school officials alike.”


Related

5th Circuit backs Texas school in T-shirt dispute

Paul 'Pete' Palmer had argued free-speech right to wear John Edwards campaign shirt; panel found dress code 'content neutral' and intended to avert distractions from education. 08.14.09

Clothing, dress codes & uniforms


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