firstamendmentcenter.org: Student expression in Speech - Topic
Some courts apply the Tinker standard to determine if school officials can regulate student clothing. This standard asks whether school officials can reasonably forecast whether the student expression will cause a substantial disruption or material interference with school activities. For instance, a three-judge panel of the 4th U.S. Circuit Court of Appeals recently struck down a portion of a school’s dress code in Newsom v. Albemarle County School Board that prohibited clothing depicting weapons.
The controversy arose after school officials forced student Alan Newsom to quit wearing his National Rifle Association T-shirt, which depicted three silhouettes of men holding guns and bore the message “NRA Sports Shooting Camp.” The school policy prohibited “messages on clothing, jewelry, and personal belongings that relate to … weapons.”
In its December 2003 decision, the 4th Circuit determined that the policy was too broad and was not necessary to prevent disruptions at school. The court explained that the language of the school dress code would prohibit clothing bearing the state seal of Virginia, which depicts a woman holding a spear, or clothing bearing the athletic mascot of the University of Virginia, which contains two crossed sabers.
Many courts will analyze student dress cases under a threshold test established by the Supreme Court in flag-desecration cases. This two-part test asks: (1) whether the student intended to convey a particular message, and (2) whether reasonable observers would understand this message. A federal district court in New Mexico applied this standard to rule that a public school student did not have a First Amendment right to wear sagging jeans.
In Bivens v. Albuquerque Public Schools, the judge questioned whether sagging pants conveyed any particular message: “Sagging is not necessarily associated with any single racial or cultural group, and sagging is seen by some merely as a fashion trend followed by many adolescents all over the United States.” The judge said that even if sagging somehow constituted a message, the student failed to establish that reasonable observers would understand any message coming from the wearing of sagging pants.
Other courts have applied a test developed from the U.S. Supreme Court’s 1968 decision on draft-card burning, U.S. v. O’Brien, to determine whether a school dress code is constitutional. Under the O’Brien test, a school dress code or uniform policy is constitutional if it:
Is authorized under state law.
Advances an important government interest.
Is not related to the suppression of free expression.
Only incidentally restricts free expression in a minimal fashion.
The 5th U.S. Circuit Court of Appeals has used the O’Brien test more than once to uphold a school-uniform policy against constitutional challenge, as in Canady v. Bossier Parish School Board:
“The School Board’s purpose for enacting the uniform policy is to increase test scores and reduce disciplinary problems throughout the school system,” the appeals court wrote in Canady. “This purpose is in no way related to the suppression of student speech.”
Another legal standard is sometimes applied to student dress-code disputes. Courts will apply the Supreme Court’s 1986 decision Bethel School District v. Fraser, which allowed a school to punish a student for giving a vulgar speech before the student assembly. Some courts will use the Fraser precedent to prohibit students from wearing any clothing that contains vulgar, lewd or plainly offensive expression. For example, a federal judge in Virginia ruled that Norfolk school officials could prohibit a student from wearing a shirt with the anti-drug message “Drugs Suck.” According to school officials and the federal judge, the word “suck” was a vulgar term with sexual connotations that could be prohibited by school officials.
When applying these varying legal standards, many courts have upheld school dress policies, rejecting constitutional challenges by students. For example, the 5th Circuit has upheld school-uniform policies in Louisiana (in Canady) and Texas. Many students have lost when they challenged their suspension for wearing Confederate flag clothing. The 11th U.S. Circuit Court of Appeals recently upheld a school district’s flat ban on the Confederate flag.
However, sometimes students do prevail in dress-code disputes. Because the Tinker decision emphasized that the students wearing the black armbands were engaged in political speech — the type of speech the First Amendment was most designed to protect — students wearing clothes containing political slogans and other messages can argue that a reviewing court should apply the Tinker standard to protect their right to wear political-slogan clothing.
For example, Michigan high school student Bretton Barber successfully obtained a preliminary injunction in a federal district court that prevented school officials from banning his T-shirt showing a photograph of President George W. Bush with the words “International Terrorist.” U.S. District Judge Patrick J. Duggan ruled in October 2003 in favor of the student because, he said, school officials had silenced Barber’s expression more out of a dislike of its message than fear that it might disrupt school.
In other words, Duggan applied the Tinker standard and determined that the school officials failed to meet that test. In fact, the judge compared Barber’s shirt opposing President Bush’s policies in Iraq to the students from the Tinker case who opposed the Vietnam War.
“Clearly the tension between students who support and those who oppose President Bush’s decision to invade Iraq is no greater than the tension that existed during the United States’ involvement in Vietnam between supporters of the war and war-protestors,” Duggan wrote, adding that “students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.”