Controversial Student T-shirts and School Discipline

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The First Amendment to the US Constitution confers upon citizens the right to freedom of speech. Public school students, as young citizens, enjoy the right to engage in many modes of expression. However, many school administrators are unsure whether students’ controversial hairstyles, armbands, clothes, buttons and jewelry are forms of “expression" and whether they should be allowed in our educational institutions. More recently, the discussion has focused on provocative t-shirts. Apparel bearing phrases like: “Do I look legal?" "Be Happy, Not Gay," and "fcuk" (the popular French Connection logo) have found their way into the classroom and produced numerous disciplinary situations in schools. Does a student have the right to wear controversial t-shirts? This article explores the First Amendment rights of students to wear such questionable apparel.

The cornerstone duty of a public school is to educate children in a safe, disruptive-free environment. Balancing school officials’ legitimate pedagogical concerns with the First Amendment rights of children is a continuing battle that rages in today’s courts. These cases focus on the equity between students’ free speech rights and the ability of school authorities to regulate the everyday school environment to ensure safety, discipline, and enforcement of the educational mission. Before school authorities can take action against the student, it is important to understand what rights both students and administrators possess in the First Amendment context.

As the cases below will show, the characteristics of student speech are not always discernible and can have many considerations. From the words a student speaks to the clothes they may wear, courts have recognized all forms of expression. It is with this broad interpretation of the First Amendment that school administrators are left to craft appropriate school dress codes and determine when controversial clothing violates the school policy. The following cases will highlight the problems administrators face in determining when to discipline a student for expressive clothing.

School Code of Conduct

Most schools have policies outlined in the School Code of Conduct that govern student dress and appearance. Generally, these rules will apply to t-shirts and provide guidelines on what is appropriate for students to wear while in school or attending school functions. Typical school dress policies will focus on school t-shirts that could cause a potential disruption to the school environment or prove counterproductive to educational goals. Specific examples may include the prohibition of t-shirts that expose parts of the body or display vulgar words and obscenities. However, a school may also seek to protect students from other harmful influences, such as gangs, by prohibiting apparel that denotes membership in such groups. Additionally, school officials may ban t-shirts advocating for illicit drug, alcohol, or tobacco use, as these substances are illegal for minors to possess.

Despite the established trend of creating broad dress code policies in Student Codes of Conduct, administrators must be careful to avoid treading on students’ First Amendment rights. Federal Courts have warned school districts about creating overbroad and vague policies governing student appearance (including students t-shirts). Newsom v. Albemarle County School Board, 354 F.3d 249 (4th Cir. 2003). Courts have also noted that school officials do not have limitless power to suppress student speech. As a result, school administrators face a difficult task interpreting and applying the specific rule or policy.

The First Amendment in Schools

A quick reading of the US Constitution will reveal that the word “expression" is nowhere to be found. It was not until the 1960s that federal courts decided to expand the First Amendment free speech clause to include a substantive right of “free expression." This new term allowed courts to recognize lawsuits that were not limited to suppression of verbal speech but also any act of seeking, receiving, or imparting information, regardless of the medium. As a result, schools were forced to amend school policies to ensure compliance with courts’ expansive interpretation.

In 1969, the US Supreme Court articulated the broadest standard of protecting students First Amendment rights when it proclaimed that “[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines School Dist., 393 U.S. 503 (1969). In this case, the Court found that school administrators violated three students’ First Amendment rights when they disciplined the students for wearing armbands in protest of the Vietnam War. The Court went on to explain that school officials may not regulate student speech, unless it “materially or substantially" disrupted the school environment. Later US Supreme Court decisions would cut into this broad rule and find exceptions for both “vulgarity"[1] and any “school-sponsored speech."[2]

Griggs v. Fort Wayne

In an Indiana case, Griggsv.FortWayneSchool Board, 359 F. Supp.2d 731 (N.D.Ind. 2005), a student was disciplined for wearing a t-shirt that displayed an image of a gun, in violation of the school’s dress code, which prohibited apparel depicting “images of violence." David Griggs, a high school student at Fort Wayne School District, wore a t-shirt to school in support of the United States Marine Corps. The t-shirt displayed an image of an M-16 rifle and included the following message;

My Rifle - The Creed of a United States Marine

This is my rifle. There are many like it, but this one is mine.

My Rifle is my best friend. It is my life.

I must master it as I must master my life.

My rifle, without me, is useless. Without my rifle, I am useless.

I must fire my rifle true. I must shoot straighter than my enemy

who is trying to kill me

I must shoot him before he shoots me. I will…

A disapproving school administrator noticed Griggs' t-shirt and asked that he either remove it or wear it inside out for the rest of the day. Griggs refused, claiming he was expressing his support of the Marine Corps. Rather than discipline him, the administrator told Griggs not to wear the t-shirt in the future because it was deemed “inappropriate for the educational setting." Although Griggs escaped punishment, he returned the next day, in protest, with the same t-shirt.

The District, having a history of incidents involving weapons, felt compelled to address the situation. In the last three years, 274 students were disciplined for weapons violations; eighteen of those involved firearms. Applying the school dress code, administrators determined that Griggs’ t-shirt depicted an “image of violence" and disciplined him.

Griggs then initiated a lawsuit against the school district, alleging that his First Amendment rights were violated by the enforcement of the school’s overly broad dress code. He argued that, by wearing the t-shirt, he was simply exercising his right to support the military. Although the court acknowledged the District’s troubled history with weapons, the court did not believe “inappropriate" clothing sparked those incidents. Furthermore, the court could not see where the t-shirt caused disruption at school. Additionally, no other student had complained about the message. The court ultimately found that the school district’s policy violated Griggs’ First Amendment right to free speech because the policy served no legitimate pedagogical purpose.

Harper v. Poway

Poway High had a history of conflict among students over issues of sexual orientation. In response to repeated incidents, the school permitted a student group called the Gay-Straight Alliance to hold a “Day of Silence" at the school. The event was intended to educate students about tolerance of those with a different sexual orientation. As a part of the event, students were allowed to wear t-shirts conveying a pro-gay message.

On the day of the event, Tyler Harper, disagreeing with the school’s message, wore a t-shirt to school with handwritten messages, “I will not accept what God has condemned," and “Homosexuality is shameful. Romans 1:27." One teacher noticed Harper’s t-shirt and observed several students “off-task talking about" the shirt. Recalling disruptions that had previously occurred in the school over sexual orientation, the teacher explained that she thought the t-shirt was “inflammatory" and in violation of the school dress code. Fearing Harper’s “negative" message could be disruptive to the school environment, District officials suspended Harper after he refused to take off the shirt.

Harper initiated a lawsuit against the school district, alleging that the school dress code violated his First Amendment free speech rights because he was being disciplined for the message the shirt contained. The Court, in Harper v. Poway Unified School Dist., 445 F.3d 1166 (9th Cir. 2006), found that “those who administer our public educational institutions need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."Accordingly, the Court held that the school district’s policy of suspension did not violate Harper’s First Amendment rights for wearing the controversial t-shirt.

Lessons Learned

The cases above both involve incidents that could fall within a School’s Code of Conduct, yet courts came to different conclusions about whether the t-shirts involved deserved First Amendment protection. Due to the complexity of these issues, schools are encouraged to seek legal advice regarding any specific situation involving students’ clothing choices and the First Amendment. This article is a general discussion of one free speech topic and is not intended to provide legal advice regarding a particular incident that may arise.

[1] BethelSch. Dist. v. Frasier, 478U.S. 675 (1986)

[2] HazelwoodSch. Dist. v. Kuhlmeier, 484U.S. 260 (1988)

Additional Resources

Jill K Osborne, Esq., is a partner with the law firm of Udall, Shumway & Lyons. Jill’s practice is primarily focused on school law and employment law. She can be contacted at jko@udallshumway.com or (480) 461-5300. Originally published in Charter School Monthly, June 2011. Reprinted with permission. To read additional articles published by Ms. Osborne, visit http://www.udallshumway.com/practice-areas/schools/charter-schools/.

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