Rights Watch: What's Disruptive?
Courts struggle over controversial teen tees.
It seems like the radical ’60s all over again. In unprecedented numbers, students nationwide are taking schools to court for cracking down on controversial T-shirts. Politics, religion, sex, drugs, and guns are just a few of the subjects that have gotten kids into trouble lately.
Some students just want to get attention, but others, like Zach Guiles, set out to make a political statement. While attending an anti-war rally, the Vermont seventh-grader picked up an anti-Bush T-shirt, which he promptly wore to school.
On the front is a picture of Bush wearing an “AWOL” helmet superimposed on the body of a chicken. Emblazoned across the top are the words “Chicken-Hawk-In-Chief.” The back describes the President as a “crook,” “draft dodger,” “cocaine addict,” and “lying drunk driver.” Small images of martini glasses, lines of cocaine, dollar signs, and oil wells also appear on the shirt. When an administrator told him he couldn’t wear it to school because of the references to drugs and alcohol, Guiles sued.
In an important ruling last fall, the Second Circuit Court of Appeals held that Guiles had the First Amendment right to wear the
T-shirt to school. The court said that, under the Supreme Court’s rulings in the Tinker (1969) and Fraser (1986) cases, school officials can censor student expression only if they can show that it is likely to cause a “substantial disruption” of school activities or is “vulgar, profane, or plainly offensive.”
Describing the shirt as conveying “an anti-drug political message,” the court ruled that it was neither disruptive nor “plainly offensive” and could not be banned.
It’s not just left-leaning student rebels who are running off to court. Evangelical Christians and conservative students are also challenging the authority of school administrators to censor their tees. In one recent California case, a student sued after school officials banned his T-shirt, which stated that “homosexuality is shameful, be ashamed our school has embraced what God has condemned.” In a similar Ohio case, the student’s shirt said, “homosexuality is a sin, Islam is a lie, abortion is murder, some issues are just black and white.”
Surprisingly, the courts hearing the two cases reached different conclusions. In the California case, the Ninth Circuit upheld the ban because the T-shirt interfered with the rights of gay students to get an education. “Speech that attacks high school students who are members of minority groups that have historically been oppressed and subjected to verbal and physical abuse can injure and intimidate them and interfere with their opportunity to learn,” the court’s ruling said.
The federal court in the Ohio case, however, ruled that the censorship was unconstitutional because there was no evidence that the controversial T-shirt was disruptive. A lawsuit over a similar shirt is currently pending in North Carolina.
Also last year, federal courts in Tennessee and Alabama upheld bans on clothing displaying the Confederate battle flag. In both cases, school officials successfully argued that the ban was permissible because the flag could inflame simmering racial hostilities and potentially disrupt the school.
Michael D. Simpson
NEA Office of General Counsel
You Be the Judge
The Supreme Court has held that while students don’t “shed their constitutional right to freedom of speech at the schoolhouse gate,” schools can ban T-shirts that may be disruptive, are lewd or vulgar, or infringe on the rights of others. So you be the judge. Here are some actual lower court cases challenging T-shirt bans. Should students have the right to wear T-shirts bearing these words or images in school? Make your ruling, then check below to see whether federal judges agree with you.
1. “Abortion is Homicide. You will not mock my God. You will stop killing my generation.”
2. Silhouettes of men holding rifles, the letters “NRA,” and the phrase “Shooting Sports Camp.”
3. Jeff Foxworthy “you-might-be-a-redneck- if...” jokes.
4. “Coed Naked Band: Do It to the Rhythm.”
5. “Somebody Went to HOOVER DAM And All I Got Was This ‘DAM’ Shirt.”
6. Image of George W. Bush over the caption “International Terrorist.”
7. Anti-Nazi patch (red circle with a line through it displayed over a swastika).
8. “Bong Hits 4 Jesus.”
Answers: 1. Yes (not disruptive), 2. Yes (not disruptive), 3.Yes (not disruptive), 4. No (vulgar), 5. No
(vulgar), 6. Yes (not disruptive), 7. No (potentially disruptive), 8. Yes (not disruptive or lewd).