The End of the T-Shirt Wars in the Public Schools?

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