Inside the First Amendment: T-shirt rebellion in the land of the free
Charles Haynes
Naples News
March 15, 2004

If you think students are apathetic these days, you haven’t been reading their T-shirts.

From the Confederate flag to gay rights, student shirts are walking billboards for every conceivable cause – blaring messages that are often provocative, sometimes funny, but always difficult to ignore.

School officials are not amused. Eager to prevent controversy or conflict, many administrators overreact by banning all messages in the name of "safety, order and discipline." But in the land of the free, it’s hard to censor without a fight. Even kids who don’t know much about the First Amendment or current law know a lot about "free speech." Heavy-handed school administrators often find themselves fighting a lawsuit.

The Albemarle County, Virginia school district probably didn’t think twice when they passed a dress code policy that, among other things, prohibits students from wearing clothing that depicts images of weapons.

But when 13-year-old Alan Newsom was recently told to turn his National Rifle Association T-shirt inside out, he refused. Alan’s lawsuit is working its way through the courts, but he won an important victory when a federal appeals court barred the school district from enforcing the policy while the lawsuit is pending. The court indicated that the dress code is too broad – and may be unconstitutional.

Sweeping attempts to shut down student speech frequently backfire. About a year ago, a Georgia school district decided to ban all T-shirts with the Confederate flag. Overnight the most popular T-shirt was one that says: "Jesus and the Confederate Battle Flag: Banned From Our Schools But Forever In Our Hearts." Meanwhile in North Carolina, a principal told students that he wouldn’t allow "gay, fine by me" T-shirts in his school. A New Jersey school banned a T-shirt with the word "redneck." And so it goes around the nation.

School districts may win some of these lawsuits and fights – but they’ll probably lose most of them. Here’s why: In 1969, the U.S. Supreme Court ruled in Tinker v. Des Moines Independent School District that students don’t "shed their constitutional rights to freedom of speech and expression at the schoolhouse gate." The Tinker case involved several students who decided to wear black armbands to school to protest U.S. involvement in Vietnam. Hearing about the planned protest, school officials quickly enacted a no-armband policy. When the students were told they couldn’t wear their armbands (even though other symbols were allowed), they sued.

In finding for the students, the Court made clear that school officials may not ban student expression just because they don’t like it – or because they think it might cause conflict. The school must have evidence that the student expression would lead to either (a.) a substantial disruption of the school environment, or (b.) an invasion of the rights of others.

The Tinker standard gives strong protection to political and religious speech by students in public schools. And most courts are likely to view a wide range of student expression from "redneck" to "gay, fine by me" as protected speech – unless the school can demonstrate with reasonable evidence that the speech will cause a "substantial disruption."

Tinker isn’t the last word, however. In a 1986 case (Bethel v. Fraser), the Supreme Court ruled that school officials could prohibit vulgar speech at a school assembly. Such speech, said the Court, is different from the purely political speech protected under Tinker. The Court put it this way: "

[T]he freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior."

Where does that leave school officials? The courts have given them a free hand to ban student speech that is clearly vulgar, lewd or obscene. And the courts mostly defer to administrators to regulate student speech that is "school-sponsored" (as in the school newspaper). But all other student speech is still protected under Tinker.

Consider the case of Elliot Chambers, the Minnesota student who was told that he couldn’t wear a shirt with the message "Straight Pride." The school claimed that the shirt offended some students and pointed out that there had been several hostile incidents involving gay students.

But Chambers sued, saying that the ban on his shirt was unconstitutional. A federal district court agreed. Applying Tinker, the judge found that Chamber’s shirt was not directly connected to the disruptions claimed by the school.

"While the sentiment behind the ‘Straight Pride’ message appears to be one of intolerance," wrote the judge, "the responsibility remains with the school and its community to maintain an environment open to diversity and to educate and support its students as they confront ideas different from their own." Is ensuring "an environment open to diversity" sometimes messy or offensive? Of course it is. That’s what freedom is all about. Most Americans wouldn’t have it any other way.