The law regarding students’ freedom of expression at school still gives administrators broad authority to block offensive messages.  

 

Judicial standards of analysis have stayed fairly consistent on student freedom of expression. But the how and what of student speech has changed over time. When first recognized as an issue in the 1960s, the form of student speech was armbands, sit-ins, newsletters, and formal speeches. Now, students are expressing their views on T-shirts, banners, wristbands, web sites, and social media. The content of the speech has shifted, too. The student speech challenged through the courts is not just political speech; it now includes social issues and just plain silliness.  

For the sake of space, consider some of the issues presented in recent student T-shirts reported in cases and in the media. 

Courts upheld the school’s decision to ban shirts that were adorned with these words and/or images:  

  • Volunteer Homeland Security
  • Special issue resident lifetime license, United States terrorist hunting permit, gun owner no bag limit
  • NRA — with a picture of three gunmen
  • Islam is the devil
  • Old Glory flew over legalized slavery for 90 years! — with an American flag
  • Honorary member of the FBI: Federal Bigot Institutions
  • Southern chicks — with a Confederate flag
  • Dixie Angels — with a Confederate flag
  • A picture of Robert E. Lee — with a Confederate flag
  • Daddy’s little redneck — with a Confederate flag
  • American flag on the day the school was celebrating Cinco de Mayo
  • Julius RIP — shown to be in support of a specific gang

Courts supported the student’s right to wear shirts that were adorned with these words:  

  • Be happy not gay
  • Jesus is not a homophobe

There are no reported judicial decisions when students wore shirts adorned with these words and/or images:  

  • Some people are gay, get over it
  • Nobody knows I’m a lesbian
  • Lesbian 1 and Lesbian 2 — worn on school’s twin day
  • Protect your right — with image of a rifle
  • Twin Peaks — in support of Breast Cancer Awareness Month
  • Big or small save them all — in support of Breast Cancer Awareness Month
  • Save the scenic views — in support of Breast Cancer Awareness Month

Standard of analysis  

The standard the U.S. Supreme Court set in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) remains good law. To prohibit student speech, the Court held that public schools must make a reasonable showing that they expect the speech to substantially disrupt the educational process or setting. Building on this standard, the Supreme Court held in 1986 that a public school could restrict plainly lewd or vulgar student speech in Bethel School District v. Fraser, 478 U.S. 675 (1986). The Supreme Court set further limits on speech in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Court said a school can limit expression in a school publication and other school-sponsored venues to further its legitimate pedagogical concerns. In its most recent student speech case, the Supreme Court said public schools could, at school functions, restrict speech that promotes illegal drug use in Morse v. Frederick, 551 U.S. 393 (2007).  

Analysis in application 

Predicting the outcome of litigation is difficult if you are just reading the speech that is in question. Because of the analysis, each case is heavily dependent on the particular situation and the contextual facts of the case.  

First, if the school can make a reasonable argument that they expected the speech to be substantially disruptive, the school can ban the speech. In Dariano v. Morgan Hill Unified School Dist. (767 F. 3d 764 (9th Cir. 2014), cert. denied 135 S.Ct. 1700 (2015)), the court upheld the school’s ban of wearing American flag T-shirts during the school’s observance of Cinco de Mayo. The school showed a history of violence among students, some gang-related, some racial. During Cinco de Mayo the year prior, there was an altercation between white and Mexican-American students after the white students displayed an American flag and began chanting “U-S-A!”  

A group of Mexican-American students had been carrying a Mexican flag around the school. When the groups came together, there were threats and profanity. The group was broken up before a physical altercation occurred. Fellow students told the plaintiffs to avoid certain areas of the building because they would be in danger if they were wearing the American flag T-shirts. The flag-wearing students were told to turn their shirts inside out and received no other disciplinary action. They were threatened by other students during the school day and after school. This record of threats and violence was sufficient for the court to uphold the school’s action.  

The Circuit Court of Appeals used the Tinker standard in upholding the school’s actions. One judge dissented claiming the school should have protected the flag-wearing students rather than squelching their speech and said failure to do so amounted to a “heckler’s veto” of the students’ speech. 

Lewd, not disruptive 

There are two lines of analysis when speech is lewd or vulgar but not disruptive.  

When facing the issue of whether students could be barred from wearing bracelets inscribed with the message “I (heart) boobies,” the 3rd Circuit Court of Appeals melded together the Supreme Court’s analysis in Fraser v. Bethel (involving lewd speech) with language from Justice Samuel Alito’s concurrence in Morse v. Frederick (involving speech at a school function promoting drug use).  

In ruling against the school’s actions of banning the bracelets, they were willing to provide students more liberty to speak when the language used was arguably lewd but had a plausible social or political message (B.H. v. Easton Area School Dist., 725 F. 3d 293 (3rd Cir. 2013)). The 3rd Circuit held that speech that was plainly lewd could be categorically banned under Fraser v. Bethel. But speech that was only ambiguously lewd and could be interpreted as commenting on political or social issues could not be banned without a finding that it would be disruptive as described in Tinker. However, two district courts within the 7th Circuit, K.J. v. Sauk Prairie School Dist., (W.D. Wis. 2012) and J.A. v. Ft. Wayne Community School, (N.D. Ind. 2013), both upheld the school district’s banning the exact same bracelet. These courts found that a school could ban speech that was ambiguously lewd, even if it fell short of being disruptive.  

Schools may ban student speech that promotes violence or illicit drug use. The speech involved in the Supreme Court case, Morse v. Frederick, was a banner with the phrase “Bong hits 4 Jesus.” The Court underscored the importance of deterring student drug use and upheld the district’s policy of prohibiting expression that advocated illegal substances.  

Application to practice 

Taking a broad look at what you can learn from these cases, one judge has summarized the student speech analysis simply in this way: A fair look at Tinker, Fraser, Hazelwood, and Morse suggests that the general rule is that school administrators can limit speech in a reasonable fashion to further important policies at the heart of public education Defoe v. Spiva (concurrence) 625 F. 3d 324 (6th Cir. 2010).  

Recommendations for practice 

  • If a school has a content-neutral dress code, the school should enforce the dress code.
  • If educators can make a reasonable showing that the speech would be disruptive, the school can ban the speech.
  • If student speech is clearly lewd and without social or political expression, the school can ban the speech.
  • If the speech contains sexual innuendo or is ambiguously lewd and contains social or political expression, the school can ban the speech if educators can show it would be disruptive.
  • If the speech advocates violence or student use of drugs, educators can ban the speech.

 

Citation: Underwood, J. (2016). UNDER THE LAW: Modern student speech and T-shirt jurisprudence. Phi Delta Kappan, 97 (8), 76-77. 

 

ABOUT THE AUTHOR

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Julie Underwood

JULIE UNDERWOOD is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.