TEXAS — Sen. John Edwards of North Carolina may no longerbe in the running for the presidency, but a Waxahachie High School juniorstill wants the right to wear apparel supporting his candidacy.
Paul “Pete” Palmer on July 2 filed a second motion for a preliminary injunction that would force administrators to let him wear a JohnEdwards 2008 T-shirt in school.
The case began when Palmer wore black jeans, a black jacket and a blackT-shirt to school on Sept. 21, 2007, and was asked by Assistant Principal BrendaJohnson to change because his attire was prohibited by the dress code, accordingto the lawsuit. His father brought him the Edwards T-shirt to wear instead,though both he and his son knew it broke a recently adopted rule that barredstudents from expressing messages that did not concern colleges, universities,or the school district’s “clubs, organizations, sports, orspirit.”
Johnson told Palmer his shirt promoted a political candidate and thus wasunacceptable. Officials offered him the options of remaining in in-schoolsuspension for the day, leaving school or changing into acceptable clothing. Hechanged and returned to class, and then he and his parents unsuccessfully soughtto appeal the administrators’ order to the school board before filing alawsuit.
The U.S. District Court for the Northern District of Texas dismissed thePalmers’ first request for an injunction after the school district saidits policy of prohibiting students from expressing political messages onT-shirts did not apply to polo shirts and said it would not prohibit Palmer fromwearing a politically emblazoned polo for the remainder of the year. The courtordered the district to distribute a clarified dress code, and told Palmer tosubmit a list of specific logo items he wanted to wear.
But on May 19, the school district changed its policy. The new rulesrequire that “student clothing be free of any slogans, words, orsymbols” except those that “promote the school district and itsinstructional programs” and are “campus principal-approved.”All other T-shirts and polos can only bear manufacturer’s logos 2-by-2inches or smaller.
After the new dress code was adopted, court documents say Palmer requestedto wear three different political shirts to school, including the originalEdwards T-shirt. Citing the new restrictions on slogans, words or symbols, theschool denied the request.
When the district officials prohibited Palmer from expressing his supportfor John Edwards, they “not only violated the First Amendment, but alsostruck at the very heart of what the First Amendment was designed to protect– core political speech,” Palmer’s second motion for aninjunction says.
District officials did notreturn calls from the Student Press Law Center requesting comment on Monday. Apress release posted by the district when the initial lawsuit was filed statedthe dress code requiring solid colored T-shirts and collared shirts”enhances discipline and reduces distractions to the learningenvironment.”
In Palmer’s case, though, his attorney Hiram Sasser of the LibertyLegal Institute said the administrators are repressing purely political speechprotected under Tinker v. Des Moines Independent Community School District.In Tinker, the Supreme Court ruled that school officials may notpunish or prohibit students’ speech unless they can clearly demonstratethat it will result in a material disruption of normal school activities orinvade the rights of others.
Because the school districthas “effectively admitted that its prohibition of Pete’s speechcannot pass the Tinker test, this case presents a textbook example of aFirst Amendment violation,” Palmer’s new motion contends.
Sasser said the school district is arguing Palmer’s speech fallsunder the standard established in a 1968 Supreme Court case, United States.v. O’Brien, in which the Court ruled that expressive conduct could becensored if the restrictions advance a substantial government interest and areunrelated to the suppression of free expression.
But Sasser argued that O’Brien has no place in student speechlaw, citing Supreme Court Justice Samuel Alito’s concurring opinion inMorse v. Frederick, popularly known as the “Bong Hits 4Jesus” case.
The Court declared that a high school student’s banner was notprotected by the First Amendment because it could reasonably be read to promoteillegal drug use. Yet Alito wrote in a concurrence joined by Justice AnthonyKennedy that the majority opinion “provides no support for any restrictionof speech that can plausibly be interpreted as commenting on any political orsocial issue[.]”
Said Sasser, “Our argument is what Alito said inMorse.”