Gregory S. Madsen
Education Law Attorney
Kennedy & Graven, Chartered

School officials who encounter students coming to school with tasteless or objectionable messages or words on their t-shirts often respond by informing students to turn them inside out or remove them.

If the student complies, that usually ends the discussion. However, if a student refuses to comply—and claims to have a First Amendment right to wear, for example, a t-shirt depicting a Confederate flag—what seems like a run-of-the-mill dress code dispute may ripen into a constitutional challenge to the school’s authority to suppress the message on the student’s t-shirt.

The First Amendment prohibits rules that suppress freedom of speech merely because the speech is offensive or disagreeable. However, sometimes student speech clashes with the rights and responsibilities of schools to keep students and staff safe from disruption that may be created by certain types of speech.

Fortunately, the courts have identified some types of speech that are off-limits for student expression at school, whether on t-shirts or otherwise. Students have no constitutional right to use “fighting words” — words that advocate or threaten violence toward others—just as they have no right to wear t-shirts emblazoned with profanities, obscenities or words that harass, threaten or denigrate other students or members of the school community.

Apart from these types of speech, however, exactly what crosses the constitutional line is not nearly as clear, especially where the t-shirt’s content constitutes political expression.

Courts that are asked to resolve First Amendment challenges by students to actions taken by schools to restrict their content-laden t-shirts or other clothing most often have done so by following the standards set forth by the U.S. Supreme Court in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

In Tinker—the 1969 case that gave us the ubiquitous reminder that students “do not shed their constitutional rights to freedom of speech or expression at the school house gate”—students were suspended and not allowed to wear black armbands to school in protest of the Vietnam War.

The Supreme Court in Tinker rejected the school’s right to suppress such political expression because it was judged not “necessary to avoid material and substantial disruption with school-work and discipline” and because it did not “intrude upon” or “collide with” the “rights of other students to be secure and to be left alone.”

Deciding when a particular political message may cause material or substantial disruption or whether the message intrudes upon or collides with student rights is not always easy.

Most cases involving school prohibition of the Confederate flag on t-shirts or other apparel have upheld a school’s right to do so, but not necessarily because the content or symbol is itself subject to suppression. Instead, courts have usually upheld suppression of such expression by making a fact-specific inquiry using Tinker to determine if a school’s forecast of material disruption is reasonable. Where a school can show evidence of, for example, a school history of racial disruption or violence triggered by the Confederate flag—a symbol associated by many with support of slavery—courts have found such evidence to be sufficient to justify stopping students from wearing t-shirts displaying the Confederate flag at school, or imposing discipline on those who refuse to remove them. See Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013) and Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010)(substantial disruption was shown by evidence of race-related fights; OCR complaint alleging disparate treatment of black student in fight with white student; racist graffiti with slurs and threats; “hit lists” with student names; increase in black student absenteeism; and school lockdown resulting from threat of race-related violence).

On the other hand, efforts by a school to prohibit a student from wearing a t-shirt stating the “Top 10 reasons you might be a redneck sports fan” was blocked by a federal appeals court in Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243 (3rd Cir. 2002). The school argued that the term “redneck” was barred by its policy prohibiting apparel that is “racially divisive or creates ill will or hatred.” The Third Circuit responded by acknowledging that the school’s history of racial incidents would have supported banning clothing with the Confederate flag because of the substantial risk of disruption. However, the court stated that there was conflicting and ambiguous evidence of whether the term “redneck” had any direct association with racial conflict or hostility. “[W]hen a school seeks to suppress a term merely related to an expression that has proven to be disruptive, it must do more than point to a general association. It must point to a particular and concrete basis for concluding the association is strong enough to give rise to a well-founded fear of genuine disruption in the form of substantially interfering with school operations or with the rights of others.”

Stated another way, the Tinker, Hardwick, Defoe, and Sypniewski decisions demonstrate that when it comes to the suppression of student political speech, courts usually are not willing to take a school’s word for it that the t-shirt expression being suppressed is constitutionally permissible. A school instead must provide a direct connection between the message being suppressed and the likelihood that the same message will substantially disrupt school operations or the rights of others.

This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.

Greg Madsen is an attorney and shareholder at Kennedy & Graven, Chartered, who practices education and employment law, and is certified by the Minnesota State Bar Association as a Labor and Employment Law Specialist. For more information, please contact him at (612) 337-9305 or www.kennedy-graven.com.

© Gregory S. Madsen (2017). Used by permission.

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