November/December 2009
How to avoid the T-shirt wars

T-shirts have become human billboards. They can advertise products, promote political causes, praise and honor, or criticize and demean. Like bumper stickers, T-shirts have become a major means of self-expression. Which, of course, is free speech protected by the First Amendment, right?

At the mall, the answer to that question is surely “yes.” But a recent decision from the 5th Circuit makes it clear that a school district can adopt a “content neutral” dress code even if that means that students’ rights of free expression are, thereby, limited.

The case started up when Paul Palmer, a student in Waxahachie, showed up at school wearing a T-shirt with “San Diego” written on it. Now that’s a pretty innocuous message. We doubt that Palmer’s shirt would cause any sort of problem at school. As you readers know, student free speech, as a general rule, cannot be inhibited unless you can reasonably forecast a “material and substantial” disruption. But the assistant principal informed young Palmer that the T-shirt violated the school’s dress code, which prohibited any printed messages on clothing.

Enter the Palmer parents, whom I suspect were familiar with Tinker v. Des Moines ISD, the famous black-armband case. The parents brought their son a new T-shirt to wear at school. It read: “John Edwards for President ’08.”

Keep in mind that this happened when Edwards was a viable candidate for president. Thus, the T-shirt was a political statement just like the black armbands in Des Moines, Iowa. The U.S. Supreme Court clearly stated that kids can express political views in school as long as those expressions are not likely to lead to a “material and substantial” disruption of school.

Undeterred, Waxahachie ISD school officials stuck to their dress code and rejected the Edwards campaign T-shirt. Off to court we go. However, to make sure the issue was clearly drawn, the parents offered another T-shirt for their son to wear at school. This one stated “First Amendment” on the front with the text of the amendment on the back. Oh, boy.

The 5th Circuit ruled for the school district in an opinion that is a must-read for campus administrators. The case is Palmer v. Waxahachie ISD, and it was decided on Aug. 13. The 5th Circuit provided a good history of the subject of student free speech, noting the four types of speech that can be regulated or prohibited by school officials. They are (1) speech likely to lead to a major disruption; (2) lewd and offensive speech; (3) school-sponsored speech, such as in a school play or a yearbook; and (4) speech that promotes drug use. Each of these four categories was established by a U.S. Supreme Court case. And then the 5th Circuit added a new category: Schools can regulate student expression in ways that are viewpoint- and content-neutral.

The key to the district’s success in the litigation was that the dress code was absolutely content neutral. The district didn’t care whether a student’s clothing promoted John Edwards, Ron Paul or John McCain. It didn’t care if a T-shirt read “San Diego” or “San Antonio.” Policy simply prohibited all printed messages other than those promoting school-sponsored teams or organizations.

I count this as a very good, commonsense decision. There have been many reported cases involving students who have worn T-shirts to school with very offensive and inflammatory messages on them. The messages may be left wing or right, but regardless of which side of the culture wars they advocate, they deal with hot button issues such as race, abortion, religion and homosexuality. Bringing such emotionally charged issues into the school setting distracts from the primary mission of the school. There is a time and place for students to learn how to discuss such issues in a civil and respectful way. But many school officials have concluded that slogans on T-shirts do not advance that cause.

JIM WALSH is editor in chief of Texas School Business and the managing editor of Texas School Administrators’ Legal Digest. Also a school attorney, he co-founded the firm of Walsh, Anderson, Brown, Gallegos & Green, P.C. He can be reached at jwalsh@wabsa.com or by visiting www.walshanderson.com.