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Julie Hilden

A Federal Appeals Court Wrongly Allows A Public High School to Ban Message T-Shirts


Wednesday, December 30, 2009

Can a public high school ban its students from wearing T-shirts bearing printed messages, unless those messages support the school or its teams, clubs, or activities?

A Texas case raises this interesting question - and the high school student who brought that case, Pete Palmer, would like to see the case go all the way to the U.S. Supreme Court. If the Court does take the case, Palmer should prevail.

The Facts of the Case

In 2007, Waxahachie, Texas public high school officials told then-sophomore Pete Palmer that he could not wear a "San Diego" T-shirt to school.

Palmer's parents then bought him a "John Edwards for President" T-shirt to wear instead - but the board told him that this shirt, too, was against its policy.

At the time, the school's policy banned the wearing of message-bearing T-shirts. However, the policy made exceptions for T-shirts bearing messages supporting universities; sports teams; school clubs or activities; or school spirit generally.

The policy did not reach messages that students might wear in other ways (such as on an armband), or even messages that students might wear on polo shirts, rather than T-shirts.

In 2008, Palmer sued the school district under a federal statute allowing suits to be brought for violations of constitutional rights, contending that his First Amendment rights had been violated.

In the midst of the litigation, the school board adopted a new policy. The new policy did not distinguish between message polo shirts and message T-shirts; both were banned. It also narrowed the category of message-bearing shirts that students were permitted to wear -- to cover only those shirts that supported a school club or team, or school spirit generally. This narrowing of the policy left the school with a cleaner litigation position, as it no longer had to explain why a student could support a professional sports team but not a presidential candidate.

Palmer lost at the preliminary injunction hearing; the federal district court upheld the school's policy. He later received an adverse decision from the U.S. Court of Appeals for the Fifth Circuit.

Now, as noted above, Palmer is seeking Supreme Court review.

The Supreme Court's Prior School Speech Decisions

In its opinion in the case, the Fifth Circuit reviewed the four key prior Supreme Court cases regarding permissible restraints on public school students' speech.

First, there is Tinker v. Des Moines Independent Community Sch. Dist., decided in 1969. There, the Court held that it violated students' First Amendment rights for a public school to suspend them for peaceably wearing armbands to protest the Vietnam War. The Court set forth the basis for a test to determine when such demonstrations cross the line: School officials can only censor student speech when they reasonably foresee that it will cause substantial disruption.

Second, there is Bethel School District v. Fraser, decided in 1986, which held that schools can prohibit "sexually explicit, indecent, or lewd speech" - regardless of whether such speech is predicted to cause disruption.

Third, there is Hazelwood School Dist. v. Kuhlmeier, decided in 1988, which held that when schools sponsor speech, they can also regulate that speech.

Fourth, and finally, there is Morse v. Frederick, decided in 2007, which allowed a school to punish speech that it interpreted as advocating illegal drug use. In an earlier column, I explained some reasons why I strongly disagree with the Court's holding in Morse. One reason is that the message sent - "Bong Hits 4 Jesus" -- was arguably more in the vein of humor and political commentary, than of simple advocacy of illegal drug use.

Is There a Trend Toward More Repressive School Speech Regulation?

The Fifth Circuit saw a trend in the four cases described above: After Tinker, the court wrote, "every Supreme Court decision looking at student speech has expanded the kinds of speech schools can regulate."

This comment suggests that expansion is the trend, and foreshadows the Fifth Circuit's ultimate decision to hold against Palmer.

But is the expansion of school authority - and the corresponding diminution of students' speech rights -- really the trend the Supreme Court is following? Not necessarily, I will argue. And if that is the trend, it surely should be broken.

Importantly, Tinker and two of the three post-Tinker cases are in line with the governing law in other areas of Supreme Court First Amendment doctrine: Each case borrows a principle applicable to adults and then waters it down, allowing more incursion on the rights of young students than would be permitted if they were adults.

These cases, then, do not, in my view, provide precedents to broadly justify further incursions on student speech that the Court has not yet authorized with respect to the speech of adults. Instead, each precedent is best looked at in the context of the broader First Amendment doctrine from which it borrowed.

To begin, Tinker itself is in line with cases that allow the government to ban the advocacy of violence in certain limited circumstances and to ban "fighting words." But Tinker allows a looser connection between speech and anticipated violence in the school context than advocacy doctrine does in the context of, say, the streetcorner speaker.

In turn, Bethel's holding that lewd speech can be banned in schools mirrors the Court's development of a special obscene-as-to-minors standard, and of a unique legal approach to child pornography. It is the context of these related doctrines that Bethel should be viewed.

Hazelwood's holding resonates with a classic free speech principle that applies to adults too: The government can control the message it sponsors. After all, the First Amendment is a right to speak, not a right to receive government funding to speak. (The decision also turned on the fact that the particular school-funded newspaper at issue was not considered a "public forum" under the unique circumstances of that case. And Hazelwood may be close to a dead letter, in any event, in light of modern students' access to free means of publication, such as social networking sites, YouTube, texting and the like.)

Here, too, the Court translated general free speech doctrines into the school context, rather than simply furthering a purported trend of constricting the realm of student speech.

Only Morse is - in my view - truly in line with the Fifth Circuit's claim that the trend in the Court's precedent is to limit student speech, pure and simple. And that case is very unlike this one. Pete Palmer wanted to support a presidential candidate; Morse plaintiff Robert Frederick - if we take the Court's view of the message he sent -- wanted to support an illegal drug.

The Supreme Court Should Reaffirm Public School Students' Right to Political Speech

In the end, then, the only school speech precedent that is truly relevant to Palmer's case is Tinker itself - where the students prevailed. Indeed, in many ways, this case is the same as Tinker: It involves the peaceful sending of a political message, without any advocacy of lawbreaking or violence and without any mention of sex.

The Fifth Circuit nevertheless upheld the school policy on the ground that it was viewpoint-neutral and content-neutral. And it's true that Palmer's shirt would have been banned no matter which presidential candidate he had supported. But in Tinker, I doubt that the Court would have been satisfied if the school at issue had simply had a policy of suppressing both pro-Vietnam-War and anti-Vietnam-War armbands alike - effectively taking the topic off the table - or of suppressing all forms of political protest. Rather than encouraging viewpoint-neutral bans on student speech, the Court in Tinker made clear that student speech has a rightful place in our system.

The Supreme Court should grant review in this case, in order to reiterate that Tinker's rule still lives, and that student protest remains fully covered by the First Amendment.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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