Pennsylvania court: Violating the school dress code isn’t the same as protesting the school dress code

If you wear a Jeff Foxworthy T-shirt to protest your school’s dress code … you might be red-faced.

A federal judge has decided two Pennsylvania students have no First Amendment claim against their school district for discipline imposed when they wore non-conforming clothes to school — even though they say the gesture was meant to express a message of dissent.

Don Filippo Scicchitano and Caterina Anna Scicchitano were suspended and ultimately expelled from the Mount Carmel Area School District in Eastern Pennsylvania in 2000, in what they said was retaliation for opposing the school’s restrictive dress code (blue-and-khakhi colors, no messages except for the school logo and religious symbols).

While the students sometimes wore messages explicitly challenging the regulations, at other times they simply wore clothing noncompliant with the code, including T-shirts listing comedian Foxworthy’s “Top Ten Reasons You Might Be a Redneck.”

They challenged the discipline as a violation of their First Amendment rights, arguing that the Foxworthy shirts and other unapproved clothes should be understood as being a silent extension of their more explicit protesting.

In February 2011, a Pennsylvania jury disagreed and ruled in favor of the school district on all of the Scicchitanos’ claims. And on Sept. 27, U.S. District Judge James M. Munley found no basis for overturning the jury’s verdict.

If appealed, the case will head to the Philadelphia-based Third U.S. Circuit Court of Appeals — giving the circuit its second opportunity in a decade to evaluate the constitutional significance of Jeff Foxworthy T-shirts.

In 2002, the court ruled in Sypniewski v. Warren Hills Reg’l Bd. of Educ. that the First Amendment protected a student’s right to wear a Foxworthy “redneck” shirt to his New Jersey high school, over the principal’s objection that the shirt might inflame ongoing racial hostilities.

The difference is that Thomas Sypniewski’s high school did not have a general prohibition against T-shirts with messages. Because there was no reason to believe that a list of redneck jokes would actually provoke a disturbance, the school was forbidden from singling out a particular T-shirt for prohibition based on the content of its message.

The takeaway from the Scicchitano case? To oppose school clothing standards within the safety of the First Amendment, you must put the message front-and-center, such as by wearing black arm-bands or creating T-shirts with slogans of dissent. And then cross your fingers that the principal, and her lawyer, are smarter than a fifth grader.