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Saturday, November 28, 2009

"San Diego" Shirt -- And a Lot More -- Banned

From The First Amendment Center comes news of an interesting student free speech case from the Fifth Circuit, Palmer v. Waxahachie Ind. Sch. Dist.Palmer is another case dealing with the scope of students' rights to wear t-shirts that have statements printed on them.  The student, Paul Palmer, wore to his high school a t-shirt with the words "San Diego" printed on it.  After being told the shirt violated the District's then-existing policy severely limiting the wearing of shirts with messages, Palmer phoned his parents, who (for some reason) brought him a shirt that read "John Edwards For President '08." The principal prohibited that shirt as well, and Palmer sued.  His motion for a preliminary injunction against the policy was denied without prejudice when the district informed the court that it had changed its dress code.

The case reached the appellate court after Palmer presented the school with three possible t-shirts (the two noted above, plus, in a nice touch, one featuring the text of the First Amendment) and the school nixed all three under the new policy.  Under the new policy, which was more draconian than the earlier one, no messages were allowed on shirts except those relating to approved school clubs, "school spirit," and logos smaller than two inches by two inches.

The Fifth Circuit upheld the policy after concluding that it was content-neutral and constitutional under US v. O'Brien.  Most notably the opinion rejected the argument that the policy was content-based due to its allowance of messages related to school activities and small logos.  Instead, the court concluded it was content-neutral because it was not imposed because of disagreement with a particular message.  In particular, it concluded that the allowance of those messages was motivated by a desire to provide students "with more clothing options" then they would enjoy under a complete ban.  Applying intermediate scrutiny under O'Brien the court upheld the policy.

There are a number of interesting issues here.  Is the court's approach really the right way to determine whether a policy is content-neutral?  It cites Ward v. Rock Against Racism as the source of its inquiry, but that just raises the question whether Ward asked the right question when deciding whether the restriction on music performances in that case was content-neutral.  One would think the policy has got to be content-based if it allows a shirt saying "support the school band" but not one saying "support McCain."

More particular to the question of student speech, the court, when doing O'Brien analysis, concludes that the policy satisfies O'Brien's narrow-tailoring requirement because students can wear what they want after school, and during the school day can make their views known in ways other than wearing shirts with messages.  This is a strikingly deferential type of narrow tailoring analysis (even assuming that O'Brien narrow-tailoring is not really narrow tailoring in the normally understood "strict scrutiny" sense -- see, e.g., Ward).  The idea that the school's policy satisfies O'Brien because students can wear what they want when they leave school is not too far from just bizarre.  For its part, the idea that O'Brien is satisfied because students can speak what they want would seem to allow for all sorts of restrictions that one might have thought unconstitutional, for example, a (content-neutral) ban on armbands or stickers on backpacks.  Indeed, it would presumably allow for a ban on any (otherwise justified) student expression on the theory that students can always speak to any interested listener at lunchtime or in the hallway.

More generally, cases like this, which focus on the importance of providing a good learning environment free from even the potential of disruption, reveal the difficulty of applying Tinker's basic principle.  We all might agree (with the exception of Justices Black and Thomas) that students don't lose their speech rights at the schoolhouse door, but beyond that the analysis quickly gets complicated.  Indeed, one problem with student speech cases is that they risk infecting other areas of First Amendment law with lax applications of general standards such as O'Brien.  If if such applications are assumed to be appropriate in the school context, in the hands of careless judges they can be applied to non-custodial contexts as well.

Posted by Bill Araiza on November 28, 2009 at 12:08 PM | Permalink


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Justice O'Connor's new court website for kids has a test case much like this one.

Posted by: Joe | Nov 29, 2009 11:26:21 AM

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