Texas high school student files new motion for right to wear Edwards T-shirt

TEXAS -- Sen. John Edwards of North Carolina may no longer be in the running for the presidency, but a Waxahachie High School junior still wants the right to wear apparel supporting his candidacy.

Paul "Pete" Palmer on July 2 filed a second motion for a preliminary injunction that would force administrators to let him wear a John Edwards 2008 T-shirt in school.

The case began when Palmer wore black jeans, a black jacket and a black T-shirt to school on Sept. 21, 2007, and was asked by Assistant Principal Brenda Johnson to change because his attire was prohibited by the dress code, according to the lawsuit. His father brought him the Edwards T-shirt to wear instead, though both he and his son knew it broke a recently adopted rule that barred students from expressing messages that did not concern colleges, universities, or the school district's "clubs, organizations, sports, or spirit."

Johnson told Palmer his shirt promoted a political candidate and thus was unacceptable. Officials offered him the options of remaining in in-school suspension for the day, leaving school or changing into acceptable clothing. He changed and returned to class, and then he and his parents unsuccessfully sought to appeal the administrators' order to the school board before filing a lawsuit.

The U.S. District Court for the Northern District of Texas dismissed the Palmers' first request for an injunction after the school district said its policy of prohibiting students from expressing political messages on T-shirts did not apply to polo shirts and said it would not prohibit Palmer from wearing a politically emblazoned polo for the remainder of the year. The court ordered the district to distribute a clarified dress code, and told Palmer to submit a list of specific logo items he wanted to wear.

But on May 19, the school district changed its policy. The new rules require that "student clothing be free of any slogans, words, or symbols" except those that "promote the school district and its instructional programs" and are "campus principal-approved." All other T-shirts and polos can only bear manufacturer's logos 2-by-2 inches or smaller.

After the new dress code was adopted, court documents say Palmer requested to wear three different political shirts to school, including the original Edwards T-shirt. Citing the new restrictions on slogans, words or symbols, the school denied the request.

When the district officials prohibited Palmer from expressing his support for John Edwards, they "not only violated the First Amendment, but also struck at the very heart of what the First Amendment was designed to protect -- core political speech," Palmer's second motion for an injunction says.

District officials did not return calls from the Student Press Law Center requesting comment on Monday. A press release posted by the district when the initial lawsuit was filed stated the dress code requiring solid colored T-shirts and collared shirts "enhances discipline and reduces distractions to the learning environment."

In Palmer's case, though, his attorney Hiram Sasser of the Liberty Legal Institute said the administrators are repressing purely political speech protected under Tinker v. Des Moines Independent Community School District. In Tinker, the Supreme Court ruled that school officials may not punish or prohibit students' speech unless they can clearly demonstrate that it will result in a material disruption of normal school activities or invade the rights of others.

Because the school district has "effectively admitted that its prohibition of Pete's speech cannot pass the Tinker test, this case presents a textbook example of a First Amendment violation," Palmer's new motion contends.

Sasser said the school district is arguing Palmer's speech falls under the standard established in a 1968 Supreme Court case, United States. v. O'Brien, in which the Court ruled that expressive conduct could be censored if the restrictions advance a substantial government interest and are unrelated to the suppression of free expression.

But Sasser argued that O'Brien has no place in student speech law, citing Supreme Court Justice Samuel Alito's concurring opinion in Morse v. Frederick, popularly known as the "Bong Hits 4 Jesus" case.

The Court declared that a high school student's banner was not protected by the First Amendment because it could reasonably be read to promote illegal drug use. Yet Alito wrote in a concurrence joined by Justice Anthony Kennedy that the majority opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue[.]"

Said Sasser, "Our argument is what Alito said in Morse."

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