Rulings emphasize Tinker standard


Courts find that clothing depicting weapons, anti-Bush messages do not cause a material disruption





Erasing any uncertainty between the boundary of school authority and students’ right to free speech, two federal courts ruled this fall that schools cannot prohibit students from wearing controversial T-shirts. 

Both rulings closely followed the Supreme Court’s 1969 landmark decision in Tinker v. Des Moines Community School District, which said school officials cannot regulate student speech out of an unfounded fear of disruption. 

In December, a three-judge panel for the U.S. Court of Appeals for the Fourth Circuit ruled unanimously that the Albemarle County School Board in Virginia could not enforce a dress code that prohibits students from wearing clothing that depicts weapons while 13-year-old Alan Newsom challenges the policy in court.

The National Rifle Association filed the lawsuit in September 2002 on behalf of Newsom, alleging that school administrators at Jack Jouett Middle School in Virginia violated Newsom’s right to free speech and expression when they ordered him to turn his T-shirt inside out.  The T-shirt showed three black silhouettes of men holding guns and the words, “NRA Sports Shooting Camp.”  In the lawsuit, Newsom is also seeking $100,000 in compensatory damages and $50,000 in punitive damages.

The court wrote that the district failed to show that Newsom’s shirt or any other shirt worn by a student showing weapons created a material disruption.  In addition, the court said that the school’s policy is too broad and will likely be found unconstitutional. 

Under the policy, the court said students could be prohibited from wearing clothing showing items such as the Virginia state seal, which shows a woman armed with a spear, and the crossed sabers of the University of Virginia logo.

According to court documents, the case began in April 2002 when the vice principal at Jouett Middle School approached Newsom and told to him to change his T-shirt or turn it inside out.

The vice principal believed that the shirt had the potential to create disruption and feared that other students would associate the images with incidents of school violence.

At the time, the school’s dress code did not specifically prohibit clothing depicting weapons. However, the district has since amended the policy to ban such clothing.

 In a similar case in Michigan, a U.S. District Court judge granted a preliminary injunction in September, upholding a Dearborn High School student’s right to wear a T-shirt to school with a picture of President George W. Bush’s face framed with the caption “International Terrorist.”

The American Civil Liberties Union of Michigan filed the lawsuit in March on behalf of Bretton Barber, 17, claiming the Dearborn Public Schools violated his First Amendment rights when administrators asked him to conceal his T-shirt. The ACLU and Barber are also seeking unspecified damages and attorneys fees.

District officials said they were worried the T-shirt could ause an outbreak in violence even though Barber had worn the shirt for three hours without incident. 

In granting the preliminary injunction, the judge wrote that the school district failed to show evidence the “T-shirt created any disturbance or disruption.”  The court also rejected the school district’s claim that school grounds are an inappropriate venue for political speech.

The case began when Barber, then 16, wore the T-shirt to his English class to present a “compare and contrast” essay. Barber chose to compare Bush to Saddam Hussein, the former Iraqi leader. School administrators asked him to turn the T-shirt inside out, take it off or go home.  Barber went home.

David L. Hudson, a research attorney for the First Amendment Center at Vanderbilt University in Nashville, Tenn., said both rulings are important because they emphasize the importance of Tinker.  In that decision, the justices ruled that public school students, “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.”

“[These] are cases in which judges realized that the Tinker standard should apply to student expression that is not school-sponsored or pervasively vulgar,” Hudson said.

Student free-speech advocates in other cases will use both of the court decisions issued this fall, Hudson said.

Hudson said in Dearborn, the judge compared the similarities between past and present circumstances of the cases in writing, “the tension between students who support and those who oppose President Bush’s decision to invade Iraq is no greater than the tension that existed during the United States’ involvement in Vietnam between supporters of the war and war protesters.”  The Tinker case involved the right of students to wear black armbands to school in protest of the Vietnam War.

The district court’s ruling went against the recent lower court trend of applying the Bethel School District v. Fraser standard to prohibit any speech that is offensive, Hudson said.  In Fraser, the Supreme Court ruled in 1986 that a school district’s punishment of a student for using vulgar language at a school-sponsored assembly was not a violation of students’ right to free speech.

“Many courts are applying Fraser very broadly and almost swallowing the protection of Tinker,” said Hudson, who co-authored “The Court’s Inconsistent Treatment of Bethel v. Fraser and the Curtailment of Student Rights” in the 2002 John Marshall Law Review.

Hudson cited the decision in 2000 by the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, which said a student did not have the right at school to wear a T-shirt of the shock rock band Marilyn Manson.  The court ruled that public schools may prohibit students from wearing shirts that are offensive, even if they are not obscene or do not cause a substantial disruption.

The district court, on the other hand, interpreted Fraser more narrowly and determined Tinker applied, Hudson said. 

“Basically the court upheld the spirit and the message of Tinker,” Hudson said. 

CASES: Newsom v. Albemarle County School Board, 2003 WL 22839241, No. 03-1125 (4th Cir. Dec. 1, 2003)

Barber v. Dearborn Public Schools and Judith Coebly, 2003 WL 22305162, Case No. 03-CV-71222-DT (E.D.Mich. Sept. 30, 2003)   


reports, Winter 2003-04