Academic journal article Phi Delta Kappan

Modern Student Speech and T-Shirt Jurisprudence: The Law regarding Students' Freedom of Expression at School Still Gives Administrators Broad Authority to Block Offensive Messages

Academic journal article Phi Delta Kappan

Modern Student Speech and T-Shirt Jurisprudence: The Law regarding Students' Freedom of Expression at School Still Gives Administrators Broad Authority to Block Offensive Messages

Article excerpt

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. …

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