Turning free speech rights inside out

Dress codes at public schools across the country are rising to the forefront of a national debate as they pit students’ First Amendment rights against school authority.

The Tinker v. Des Moines Independent Community School District precedent set the standard for free speech in schools, preventing schools from restricting free speech unless it “materially and substantially” disrupts educational activities. But many schools are stretching the bounds of the Tinker standard — and eroding students’ free speech rights in the process.

At Harmony School for Advancement in Houston on Sept. 4, the halls were lined with blue as students wore blue shirts in a tribute to slain police officer Darren Goforth. But to administrators, four blue shirts stood out among the rest. Senior Fatimah Bouderdaben, along with three classmates, wore a blue T-shirt emblazoned with the phrase “#BlackLivesMatter” on the front and the names of police brutality victims on the back, in reference to the movement centered on police killings of unarmed African-Americans.

Bouderdaben said Dean of Students Meredith Millspaugh told her and her classmates to remove the shirts or turn them inside out. Only Bouderdaben refused.

“I wasn’t doing anything wrong,” Bouderdaben said. “If everyone in the school could wear blue to showcase their political statement, then I should be able to do the same.”

The dean then “verbally attacked” her until she began crying, Bouderdaben said. Timothy Lankford, a school spokesman, said there was no personal attack and that administrators tried to defuse the situation.

“The safety and well-being of our students comes first,” Lankford said in a statement.

“Administrators felt that while the front of the shirts, which read #blacklivesmatter, was reasonable, a listing of those allegedly killed at the hands of police (which was on the back) was intended to be controversial and inciting and did not meet our published dress code.”

Bouderdaben, however, said administrators told her that the front of the shirt was the problem, not the back.

Students who were family members of police officers complained about the shirts, Lankford said in the statement. Bouderdaben said that no one seemed to notice her shirt until Millspaugh did.

Her school’s dress code, like many others across the country, forbids clothing with “pictures, emblems or writing … that is lewd, offensive, vulgar, or obscene” and “inappropriate language, logos, messages or advertising.” The school maintains it did not punish Bouderdaben for wearing the shirt, but she missed classes after being sent home, which she said left her unprepared for future assignments.

More than half of American public secondary schools enforced a dress code in 2011-12, according to the National Center for Education Statistics. In the same year, 12 percent of public secondary schools reported that they required school uniforms. Uniform requirements were more prevalent in low-income public schools.

Free speech on a t-shirt

The 1969 Tinker case was the first major U.S. Supreme Court case involving school dress as a freedom of expression issue — Mary Beth Tinker and a group of other students were suspended from school for wearing black armbands to protest the Vietnam War. The Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In the almost 50 years after that case, free speech and school dress codes have continued to stoke legal debates. In the 2011 Frudden v. Pilling case, a federal appeals court ruled that mandatory school uniforms bearing the slogan “Tomorrow’s Leaders” violated students’ free expression rights.

Parents Jon and Mary Frudden of Reno, Nevada, sued Roy Gomm Elementary School after the school removed their children from class for wearing soccer uniforms, which administrators said violated the school’s mandatory uniform policy. Attorneys for the Frudden family argued that the required uniform, which bears the slogan “Tomorrow’s Leaders,” unlawfully compelled the students to display a school-enforced message.

In an amicus curiae brief on behalf of the Fruddens, the Student Press Law Center emphasized the right of students to use their clothes as vehicles for free expression.

“The canvas upon which students in America’s public schools may safely express their views has been shrunken in recent years almost to the point of nonexistence,” the brief said. “In this case, the School District seeks to deprive students of those final few uncensored inches. If the ruling below is allowed to stand, then the area within the school where Tinker applies will be essentially an empty set.”

The U.S. District Court for the District of Nevada ruled in favor of Pilling, arguing that “Tomorrow’s Leaders” was viewpoint neutral. But in 2014, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s ruling, finding, among other things, that the mandatory display of the school motto was compelled speech.

An exception to the uniform policy specifically allowed Boy Scout and Girl Scout uniforms in place of school shirts, which violated the requirement that dress code rules remain “content-neutral,” said Louis Bubala, a volunteer attorney in the Student Press Law Center network who worked on the Ninth Circuit appeal.

He said the Fruddens demonstrated that the school motto on the uniform was compelled speech under the First Amendment, departing from the typical narrative of free-speech issues in dress codes, where the issue is usually students being silenced rather than students being forced to say something.

“There are two sides to the First Amendment: one, you have the right to say what you want to say with certain restrictions and limitations,” said Bubala, who is with the Reno law firm Kaempfer Crowell. “This case goes to the other side: ‘the government can’t make me say something I don’t want to say.’”

‘Censorship is not going to fly’

In recent years, many students have faced punishment for wearing shirts with slogans supporting lesbian, gay, bisexual and transgender rights. Briana Popour, a student at Chesnee High School in Chesnee, South Carolina, was suspended for wearing a shirt that read, “Nobody Knows I’m a Lesbian.” But the school later reversed its action.

“That particular disciplinary decision was overturned later when administration realized that although the shirt was offensive and distracting to some adults in the building, the students were paying it little attention,” said district spokeswoman Rhonda Henderson in an email.

But in other districts, the battle over pro-LGBT rights clothing has gone to court. In December, a federal district judge in Tennessee ruled that a student had a constitutionally protected right to wear a shirt to school that read, “Some People Are Gay, Get Over It.”

The American Civil Liberties Union of Tennessee had filed the lawsuit against Richland High School in Lynnville, Tennessee, for censoring senior Rebecca Young.

Young said she was reprimanded in a crowded cafeteria by principal Micah Landers, who told her she could not wear the shirt or any other clothing referring to LGBT rights, claiming he was protecting her from harassment — but Young had not received any hostile reactions from other students. The school forbids clothing that disrupts the education process, but Young has maintained that her shirt did not cause any disruption.

Young, who is openly gay, said she wants to ensure that other LGBT students feel safe expressing their identities at school.

“My ultimate goal with this [lawsuit] is not to satisfy myself, but to make it so that future LGBT students here at the school are able to express themselves and not have to fight with the school about it,” Young said in an interview before the judge’s decision. “In the end, it’s going to be about the future students here being able to feel they can express themselves without somebody that’s supposed to keep them safe bullying them.”

Young said she didn’t believe Landers was trying to protect her from harassment, but rather, “shut me down so I couldn’t express myself,” she said.

The district’s superintendent, Phillip Wright, supported Landers’ decision, saying that pro-LGBT rights clothing violated the dress code’s ban on sexual content.

“Wright stated that pro-LGBT messages are sexual in nature and, therefore, prohibited by the dress code,” the lawsuit said.

School officials did not respond to the Student Press Law Center’s requests for comment, and the school board never submitted a defense to court.

Judge Kevin H. Sharp ruled that the only disruption in the incident stemmed from the principal reprimanding Young in the cafeteria. Also, he wrote in his opinion, the school only prohibited pro-LGBT rights messages, which is viewpoint discrimination and unconstitutional.

Tom Castelli, legal director of Tennessee’s ACLU chapter, said that while LGBT rights are a particularly controversial issue in his state, he’s seen school dress codes violate the First Amendment on both sides of the political spectrum.

“When anything’s a hot issue, you start seeing a crackdown from school administrators, who may have concerns that ‘I don’t want a fight,’” Castelli said. “You see both sides of it sometimes. A school might say, ‘You can’t wear that pro-life shirt, because we don’t want to have an argument.’”

Clothing displaying the Confederate flag has also ignited public debates about dress codes and free speech, particularly in Southern states like Tennessee, Castelli said.

The Virginia chapter of the ACLU sent a letter to Christiansburg High School in Christiansburg, Virginia, after officials suspended 17 students in September for wearing clothing displaying the Confederate flag. The October letter asked the school to explain its reasons for banning the flag on students’ clothing and on car bumper stickers in the parking lot. “Although the Confederate flag is unquestionably associated with racism, slavery, and violence against African-Americans, it is also a form of speech protected by the First Amendment,” the letter said.

The school contended that banning the flag was necessary to ensure a peaceful learning environment.

“We value our students’ First Amendment rights, but we must maintain an orderly and safe environment for all students,” said school spokeswoman Brenda Drake in a statement. “We are not issuing a judgment on the flag, but know that not allowing it at CHS supports a peaceful educational environment in the building. Continued racial friction suggests that lifting the ban of this particular symbol would cause significant disruption at the school.”

The ACLU letter cited previous cases where courts ruled depending on the record of racial tensions at the specific schools. Confederate flag bans, like other school dress code controversies, still stand on shifting legal ground.

Jaegur Goode, a junior at Seagoville High School in Dallas, was sent to in-school suspension in September for wearing an American flag T-shirt. His school’s dress code requires solid-color shirts except those supporting the military and bearing college or school logos. After hearing widespread outcry about the incident, principal Michael Jones quickly clarified that the administrator in question had misinterpreted the dress code.

“Please be assured that t-shirts with the American flag always [have been] and continue to be an appropriate symbol to wear at our school,” Jones said in a statement. “We apologize for any misunderstanding this may have caused.”

American flag clothing was also the center of controversy in the 2014 case Dariano v. Morgan Hill Unified School District, when the U.S. Court of Appeals for the Ninth Circuit ruled that school administrators who ordered a group of students to remove American flag T-shirts during a Cinco de Mayo celebration in 2010 did not violate the students’ First Amendment rights. The administrators cited safety concerns due to a verbal spat that happened the year prior, when students waved an American flag and chanted “U-S-A!” at the Cinco de Mayo festivities.

In March 2015, the U.S. Supreme Court declined to hear the case, leaving the Ninth Circuit ruling as a binding precedent for the nine states covered by the California-based circuit.

Since Tinker, the keystone case in student dress codes and free speech, dress codes have clashed with free speech in the context of the contentious social issues of the day, Castelli said. But, he said, administrators’ fear of controversy doesn’t justify silencing students’ speech.

“What’s causing people to have arguments on Facebook and around the Thanksgiving dinner table — that’s trickling into the schools, and the schools might try to censor it,” he said. “Whether a popular or unpopular cause, censorship is not going to fly.” 

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