Palmer v. Waxahachie Independent
School District
by Richard Fossey,
Todd A.
DeMitchell & Suzanne Eckes
— September 28, 2009
School
districts received a welcome message from a recent decision by the Fifth
Circuit Court of Appeals. In Palmer v. Waxahachie Independent School District,
the court ruled that a Texas school district has the authority to a adopt
student dress code that bans all messages on students' clothing so long as the
district offers students other means of expression during the school day.
Over the
past decade, school districts all across the United States have been engaged in
what might be called "the T-shirt wars." School districts
have been sued for prohibiting students from wearing messages on their
clothing that school authorities considered inappropriate. In most of
these cases, the students argued that they had a First Amendment right to
proclaim their messages on their clothing--generally their T-shirts. School
districts have won some of these lawsuits, and they have lost some.
In Palmer
v. Waxahachie Independent School District (2009), decided last August, the
Fifth Circuit clearly stated that a school district has the authority to adopt
a dress code that bans messages on students' clothing altogether so long as the
dress code is content-neutral and students are given some alternative means of
communication during the school day. This is good news for school districts,
and we can expect many districts to review their student dress codes in the
wake of the Fifth Circuit's Waxahachie decision.
Forty
Years of Litigation Over Students’ Free Speech Rights: From Armbands to
T-Shirts
In Tinker
v. Des Moines Independent Community School District (1969), the Supreme
Court ruled that students have a constitutional right to free speech under the
First Amendment, a right which they do not give up “at the schoolhouse gate.”
Unless the speech interferes with the rights of other students or is likely to
cause a substantial disruption in the school environment, school authorities
may not infringe on a student’s constitutional right to freedom of expression.
After
deciding Tinker, the Supreme Court addressed the free speech rights of
public-school students in three more cases. In Bethel School District No.
403 v. Fraser, the Court ruled that schools can ban student speech that is
lewd, profane, or indecent. In Hazelwood School District v. Kuhlmeier
(1988), the Court ruled that schools can censor student speech that is school
sponsored. And in Morse v. Frederick (2007), the Court held that schools
can ban student speech that advocates the use of illegal drugs. All three
decisions narrowed the scope of Tinker somewhat, but Tinker’s
core principle—that students have a constitutional right to freedom of
expression while at school—remains undisturbed.
In the
forty years since Tinker was decided, scores of students have sued
school districts, claiming some violation of their constitutional right to
freedom of expression. In a surprising number of these cases, students sued
school districts after being sanctioned for displaying messages on their
clothing—usually their T-shirts. These T-shirt messages have conveyed students’
sentiments on a wide range of issues—politics, drugs, violence, and sexual
orientation. At least four federal lawsuits have been filed by students who
were prohibited from wearing shirts that proclaimed anti-gay messages. In fact,
there has been so much T-shirt litigation that several scholars have analyzed
the cases and made recommendations to school authorities about how to deal with
controversial T-shirt messages (Lavorato & Saunders, 2006; Mawdsley, 2007;
Zirkel, 2006).
School
administrators, trying to sort through this T-shirt litigation, might ask
themselves—is it constitutionally permissible for a school to simply ban all
messages on students’ T-shirts? And if so, wouldn’t it make sense for a school
to simply adopt a dress code that prohibits written communications of any kind
on students’ clothing? This brings us to the recent case of Palmer v.
Waxahachie Independent School District (2009), in which a Texas school
district did exactly that.
Palmer
v. Waxahachie Independent School District: No Messages on Student Clothing
In the Waxahachie
case, Paul Palmer, a high-school sophomore, wore a T-shirt to school with the
words “San Diego” written on it. An assistant principal told Palmer that the
shirt violated the school’s dress code, which prohibited students from wearing
messages on T-shirts “unless they were in connection with a club, sports team,
university, or school spirit” (p. 1, fn 1).1 Paul called his
parents, who brought him a “‘John Edwards for President ‘08’ T-shirt to wear
instead” (p. 1). The assistant principal told Palmer he could not wear that
shirt either, because this shirt also contained a message. Palmer appealed to
the principal and the superintendent, but both refused to allow him to wear the
shirts.
Palmer
sued the Waxahachie School District, claiming the district’s dress code
violated his First Amendment rights. While the lawsuit was pending, the
district adopted an even more restrictive dress code. The revised code banned
“polo shirts with messages, shirts with professional sports team logos, and
clothing with university messages” (p. 1). The policy permitted messages on
students’ T-shirts or collared shirts if the messages were approved by the
campus principal and pertained to school-district sponsored “curricular clubs
and organizations, athletic teams, or school ‘spirit’” (p. 1). The new policy
also allowed shirts with logos smaller than two inches by two inches.
After
receiving the revised dress code, Palmer presented three shirts to school authorities
for approval: the original “John Edwards for President” T-shirt, a “John
Edwards for President” polo shirt, and a T-shirt that proclaimed “Freedom of
Speech” on the front and the text of the First Amendment on the back. School
authorities ruled that all three shirts violated the district’s dress code and
could not be worn at school.
Palmer
renewed his lawsuit against the school district—challenging the district’s
revised student-dress policy, but a federal trial court ruled in the school
district’s favor and upheld the district’s dress code. Palmer appealed to the
Fifth Circuit Court of Appeals, which affirmed the trial court’s decision.
On
appeal, the Fifth Circuit ruled that the Waxahachie School District had the
authority to regulate the time, place and manner of student speech in the
school environment, so long as its regulations were content neutral. Those
rules would pass constitutional muster, the court instructed, so long as they
further an “important” governmental interest. Waxahachie maintained that it
adopted its student dress code “to maintain an orderly and safe learning
environment, increase the focus on instruction, promote safety and life-long
learning, and encourage professional and responsible dress for all students”
(p. 6).
In earlier
decisions involving school uniforms, the Fifth Circuit had indicated that a
school district might be required to produce evidence that its school-uniform
policy actually furthered some governmental interest—by contributing to higher
standardized test scores, for example. In the Palmer case, however, the
Fifth Circuit said that it would not require statistical or scientific evidence
to uphold a dress code, noting that, “improvements in discipline or morale
cannot always be quantified” (p. 7). In any event, the Fifth Circuit
acknowledged, school officials are in a better position than a court to
determine whether their school district’s dress code is beneficial. In the Palmer
case, the Fifth Circuit was satisfied that the Waxahachie school district’s dress
code furthered an important governmental interest and was constitutionally
valid. In addition, students were not banned from expressing their views
through alternative means while at school—they were simply prohibited from
expressing those views on their clothing.
In fact,
the Waxahachie dress code permitted students to proclaim messages on buttons,
bumper stickers, wrist bands, and pins. This was reasonable, the court pointed
out, because the school district was preparing students “for a working world in
which pins and buttons may be appropriate at work but large, stark political
message t-shirts are not” (p. 7).
Conclusion
Palmer
v. Waxahachie Independent School District is an important decision in a line of federal court opinions
that have upheld school dress codes and school-uniform codes. According to the
Fifth Circuit, a student dress code that prohibits messages on students’
clothing is constitutional so long as it only restricts students’ attire during
school hours and permits students some alternative means of communication
during the school day.
For
school administrators, the Fifth Circuit’s Palmer decision is surely
welcome. A well-drafted dress code that bans all messages on students’ clothing
will virtually eliminate constitutional litigation about messages on students’
T-shirts. In other words, the T-shirt wars may be over. School officials should
remember, however, that schools must allow students some alternative means for
expressing their free speech rights while at school—rights that were guaranteed
by the Supreme Court in Tinker.
Note
1. Page numbers for citations to Palmer v. Waxahachie
Independent School District are taken from the Westlaw electronic
publication of the case.
References
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
Hazelwood School District v. Kuhlmeier, 484
U.S. 260 (1988).
Lavorato, C., & Saunders, J.D. (2006). Public high school
students and free speech: Untangling the knots. Education Law Reporter, 209,
1-15.
Mawdsley, R. D. (2007). Sailing the uncharted waters of free
speech rights in public schools: The rocky shoals and uncertain currents of
student t-shirt expression. Education Law Reporter, 219, 1-23.
Morse v. Frederick, 551 U.S. 393 (2007).
Palmer v. Waxahachie Independent School District, 2009
WL 2461889, (5th Cir. 2009).
Tinker v. Des Moines Independent Community School District, 393
U.S. 503 (1969).
Zirkel, P. A. (2006). T-shirts and the First Amendment. Education
Law Reporter, 207, 825-829.
Cite This Article as: Teachers College Record, Date
Published: September 28, 2009
http://www.tcrecord.org
ID Number: 15775, Date Accessed: 2/5/2013 6:54:44 PM
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