High school basketball players wearing 'I can't breathe' warm-up shirts barred from tournament

|The Volokh Conspiracy |


This photo provided by the Fort Bragg Advocate-News shows Mendocino High School girls basketball wearing the "I Can't Breathe" T-shirts before a recent game. A high school basketball tournament on the Northern California coast has become the latest flashpoint in the ongoing protests over police killings of unarmed black men after a school was disinvited because of concerns its players would wear T-shirts printed with the words "I Can't Breathe" during warmups. The athletic director at Fort Bragg High School informed his counterpart at Mendocino High School this week that neither the boys nor girls team would be allowed to participate in the three-day tournament hosted by Fort Bragg High starting Monday, Mendocino Unified School District Superintendent Jason Morse said. (AP Photo/Fort Bragg Advocate-News, Chris Calder)
This photo provided by the Fort Bragg Advocate-News shows Mendocino High School girls basketball wearing the "I Can't Breathe" T-shirts before a recent game. (AP Photo/Fort Bragg Advocate-News, Chris Calder)

Several readers have e-mailed me about this incident (Washington Post, Early Lead, Cindy Boren):

The controversy over athletes wearing "I can't breathe" T-shirts to protest police actions in the death of Eric Garner has reached the high school level, with Northern California teams being asked not to play in a tournament over its decision to wear the shirts.

Mendocino High School's athletic director was told by the Fort Bragg [athletic director] that neither the boys nor girls team would be allowed to play in the tournament, hosted by Fort Bragg, that begins Monday. The boys team was reinstated after all but one player chose not to wear the shirt during warmups. Not enough girls players acquiesced to the request, Mendocino Unified School District Superintendent Jason Morse told the Associated Press. "I can't breathe" were the last words of Garner, who died after being placed in a chokehold by Staten Island. A number of pro and college athletes have worn T-shirts with those words during warmups over the last month.

Here's the rationale given by Fort Bragg Principal Rebecca Walker:

To protect the safety and well-being of all tournament participants it is necessary to ensure that all political statements and or protests are kept away from this tournament…. We are a small school district that simply does not have the resources to ensure the safety and well-being of our staff, students and guests at the tournament should someone get upset and choose to act out.

And here's another possible reason for the restriction (Santa Rosa Press-Democrat, Bill Swindell):

On Dec. 21, following the killings of two New York City police officers the day before, the Mendocino County Deputy Sheriff's Association also addressed the issue in a Facebook post.

The post called the actions by the Mendocino teams "very discouraging and disrespectful in our eyes." It also noted the death of Del Fiorentino. Del Fiorentino had been a member of the Fort Bragg Police Department for 10 years before joining the Sheriff's Office and was president of the local Police Activities League. A memorial service for the deputy in Fort Bragg drew more than 2,000 people, including law enforcement personnel from around the state.

In response, members of both the boys and girls teams sent a letter on Christmas Eve to the association and members of the community, saying their actions should not be interpreted as a protest against the local sheriff's office and lauding Del Fiorentino.

"We appreciate police officers and their difficult and sometimes dangerous job, but at the same time we condemn police brutality that does exist in our country and feel even small communities like ours should promote awareness of such crucial matters," the team members wrote.

As the issue generated more controversy, Fort Bragg school officials made their decision. Bruce Triplett, the Fort Bragg High School athletic director, said Saturday that he had heard that supporters of the local police may have been planning to wear their own T-shirts at the tournament.

Does the restriction imposed by the Fort Bragg team violate the First Amendment?

1. General restrictions on what messages public school students can display on their clothes may well be unconstitutional. If a student wanted to wear this sort of T-shirt to class, for instance, the school couldn't restrict that unless it had substantial evidence that the T-shirt was likely to materially disrupt the operation of the school (or unless the school had a content-neutral uniform policy).

2. But the rule may well be different for students who are chosen by the school to be part of the center of attention at a school event. Students generally have the First Amendment right to wear T-shirts saying (for instance) praising the NRA or saying "Be Happy, Not Gay" or "homosexuality is a sin, Islam is a lie, abortion is murder, some issues are just black and white". But it doesn't follow, I think, that the students may insist on wearing such T-shirts while performing in a school musical, a choir, or a sporting event; likewise for "I can't breathe."

A school is entitled, I think, to specify that, when the school brings together an audience to watch a particular sort of performance or competition, students shouldn't take advantage of the school-provided audience to express their own political messages. A school would therefore be free to mandate that students wear particular costumes and uniforms, unadorned with the student's own message. A school would be free to mandate that students wear uniforms of their own schools, whatever they may be. And a school would be free to mandate that, even when students needn't wear uniforms, they shouldn't be wearing political messages. That, I think, is the implication of the First Amendment cases that provide that in a "nonpublic forum"—a place not dedicated by the government for speech—the government may restrict speech if the restriction is viewpoint-neutral and reasonable. And I think that providing that those who participate as focuses of attention in a government-organized event must not use that event (and the government-supplied audience) to propagate their own ideological messages is a reasonable restriction.

The counterargument to this, of course, is that in a sense all students who come to school are a school-provided audience for each other; and yet a school is generally required to let students express their political views (on T-shirts and otherwise) to this school-provided audience, whenever a student's T-shirt is seen by classmates in classrooms, hallways, or a P.E. class that doesn't require uniforms. So perhaps the logic of Tinker v. Des Moines Indep. School Dist. does extend not just to students conveying their views in the classroom but also to students conveying their views as part of school-organized performances or competitions. But on balance, I don't think this is so: Those performances and competitions look very much like the "nonpublic fora" in which the government may impose reasonable, viewpoint-based restrictions, including restrictions aimed at keeping the event relatively apolitical (see, e.g., Lehman v. City of Shaker Heights (1974) and Cornelius v. NAACP Legal Defense & Educ. Fund (1985)).

Note also that the leading student speech cases involve speech by students at the school, not by students visiting from another school; but I doubt that this difference should change the First Amendment analysis.

3. So I do think that a school could insist on a viewpoint-neutral "no T-shirts with ideological messages" rule (and, of course, a "standard uniform shirts only" rule) when it comes to competitors in an actual tournament. Does this also apply to warm-ups? I'm inclined to say probably yes, given that the warm-ups were apparently held before the tournament audience (though presumably not as many people as would have been in the stands when the game began).

4. A. Nor would the so-called Leonard Law provide for a different result, to the best of my knowledge. This statute provides, among other things, that public high schools may not "make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment." Speech by California public high school students (and, indeed, many private high school students) is thus more protected than speech by other students. But I'm inclined to say that exclusion from a tournament unless one is willing to comply with the tournament dress code doesn't qualify as "disciplinary sanctions," though I should stress that there's no precedent squarely discussing this. (For a related but different case, see Lopez v. Tulare Joint Union H.S. School Dist. (Cal. Ct. App. 1995), which concluded that the requirement that students remove profanity from a student film produced for film class didn't constitute "disciplinary sanctions.")

[UPDATE:] B. But the outcome under Cal. Educ. Code § 48907 is less clear. (Thanks to commenter gdanning for pointing this out; I at first thought that the statute was inapplicable here, but now I think it might be.) The statute provides, in relevant part,

(a) Pupils of the public schools … shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, … except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

(b) The governing board or body of each school district or charter school and each county board of education shall adopt rules and regulations in the form of a written publications code, which shall include reasonable provisions for the time, place, and manner of conducting such activities within its respective jurisdiction.

(c) Pupil editors of official school publications shall be responsible for assigning and editing the news, editorial, and feature content of their publications subject to the limitations of this section. However, it shall be the responsibility of a journalism adviser or advisers of pupil publications within each school to supervise the production of the pupil staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section.

(d) There shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of pupil expression under this section….

(f) This section does not prohibit or prevent the governing board or body of a school district or charter school from adopting otherwise valid rules and regulations relating to oral communication by pupils upon the premises of each school….

This statute mostly discusses official publications, but it also covers other speech "including, but not limited to … the wearing of buttons, badges, and other insignia," which would surely cover writing on T-shirts as much as buttons on T-shirts. And on its face it might be seen as applying to people wearing such buttons, badges, and even T-shirts while performing in a play, singing in a chorus, or playing in a sporting event. But I've seen no cases applying the statute to such situations, and it's possible that a court will conclude that the statute doesn't prohibit a school's control of what performers and athletes wear on stage or on the field. [END UPDATE.]

5. So I do think that the First Amendment doesn't stop schools from imposing viewpoint-neutral "if we make you the focus of attention for a school performance or competition, you can't take over that performance or competition to spread your own views" rules. But it's not clear that the school here is indeed imposing such a general viewpoint-neutral rule.

First, the school's express rationale is a concern about "safety" "should someone get upset and choose to act out." Even if such a rationale is acceptable when there is indeed concrete evidence of some risk of violence in a nonpublic forum, I've seen nothing suggesting such a risk here. And if the school is simply saying that it's possible that there might be violent retaliation (presumably by criminal-minded pro-police-department spectators), even without any track record of such violence or express threat of such violence, I don't think such an entirely speculative restriction would be reasonable even in a nonpublic forum. Moreover, if the worry is just about some hypothetical possibility, there would be reason to doubt that the restriction would be applied in a truly viewpoint-neutral way: The school district could easily just hypothesize some risk of violence as to messages it disapproves of but deny any risk of violence as to messages it likes.

Second, the school's action seems to have in part stemmed from the Deputy Sheriff's Association's criticism of the message expressed by the shirts, as being "very discouraging and disrespectful." That's a concern about the viewpoint that the message expresses, and not just about a sporting event being used as the occasion for student political expression. If the school's real motivation tracks the Deputy Sheriff's Association's motivation, that could make the restriction viewpoint-based. Even a facially viewpoint-neutral restriction could be found to be unconstitutionally viewpoint-based if it is "in fact based on the desire to suppress a particular point of view" (Cornelius).

So if the school simply adopts a flat no-political-expression rule for student athletics or other performance, which was actually justified by a viewpoint-neutral rationale—when we gather an audience to watch you play or perform, don't turn that occasion into a political soapbox for yourself—I do think such a rule would be consistent with the First Amendment (even if the particular occasion that triggered the rule had a controversial political message). But if the school's rationale for a speech restriction is (1) some hypothetical fear of violence, unfounded in any specific evidence, or (2) is a view that some political message is "very discouraging and disrespectful" to some group, that kind of restriction is likely unconstitutional.