Free Speech

School District Bans All "Political Speech" on Student T-Shirts

Pretty clearly unconstitutional, it seems to me, whether applied to pro-Trump T-shirts (as in a recently-filed lawsuit) or to other such material.

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The Mifflin County (Pa.) School District policy reads:

Starting Monday October 5, 2020, no masks, articles of clothing or other items may be worn or otherwise brought to Mifflin County School District property, which contain political speech or symbolize a particular political viewpoint, including but not limited to confederate flags and swastikas, as well as BLM logos or phrases associated with that movement.

This action is being taken due to complaints that have been received about such items and how those items have disrupted the education of students within the Mifflin County School District.

Morgan Earnest, a 10th-grade student, is suing over the policy, which was applied to her for wearing a pro-Trump mask and T-shirt; here's the shirt:

I think she's likely to win:

[1.] Under Tinker v. Des Moines Indep. School Dist. (1969), the government generally can't restrict student speech unless there is specific reason to believe that the speech is likely to be substantially disruptive. (It also has extra power to restrict lewd or vulgar speech in schools, as well as pro-drug speech, but those exceptions don't apply here.) The policy may be justified by a concern about disruptiveness, but it isn't limited to speech that has been specifically found to be disruptive; it therefore is facially overbroad. (The Third Circuit, which has authority of cases from Pennsylvania, has indeed struck down even narrower K-12 school speech policies as unconstitutionally overbroad, see Saxe v. State College Area School Dist. (3d Cir. 2001) (panel opinion written by then-Judge Alito).)

[2.] Content-neutral dress codes have been upheld by some courts; but this policy is content-based. Some courts have said that certain content-based but viewpoint-neutral policies in public schools (chiefly having to do with distribution of leaflets, not with clothing) might be permissible, on the theory that such schools are "nonpublic fora." But the Third Circuit seems to view restrictions on student speech as presumptively impermissible if they are content-based (unless they fit within the Tinker substantial disruption doctrine or one of the other exceptions). See S.G. v. Sayreville Bd. of Ed. (3d Cir. 2003) ("content- or viewpoint-based restrictions are subject to the most exacting First Amendment scrutiny").

[3.] The Supreme Court has also struck down prohibitions on "political speech" even in nonpublic fora, because what is "political" is so vague, and so subject to viewpoint-based applications. (Bans on speech mentioning a candidate or a party wouldn't be vague, but this ban obviously goes beyond that.) Would clothing that depicts the American flag be banned? What about clothing with logos of the U.S. military academies? Clothing that expresses a gay pride message? It's possible that the school might avoid this objection by delineating much more precisely just what counts; but I doubt that it will be any more successful in this than the Minnesota election authorities in Minnesota Voters Alliance v. Mansky (2018), or the transit authority in Center for Investigative Reporting v. SEPTA (3d Cir. 2020).

Here, by the way, is my video summarizing the basic rules of free speech in K-12 schools:

Earnest has moved for a temporary restraining order, so I assume we'll see at least a preliminary decision fairly quickly.

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  1. "how those items have disrupted the education of students "

    Could have at least put a "substantially" in there to at least try to conform to Tinker.

  2. Perhaps the School Board should fire their exiting lawyer

  3. So everyone wear a t-shirt with a rainbow on it.
    Conservatives can complain it is left wing gay marriage propaganda.
    Socialists can complain it is jeudo-Chriatian proselytizing.
    Everyone loses is the same as everyone wins, tight?

    Oh, yeah:
    P.S. Joe Biden is a crook

    1. Tight = right

      (I guess the edit feature is in the fourth year of beta-test)

      1. Well tight is slang for "we cool".

        https://www.urbandictionary.com/define.php?term=Tight

        P.S.: Joe Biden is a crook.

  4. Why do you assume that lawyer deserves to be fired?

    Fledgling bigots have rights, too, but if there is anything in this report to the motion that indicates a lawyer was involved -- let alone did anything objectionable -- in this context, I missed it.

    In particular, there is no assertion that any lawyer was involved in or consulted with respect to the notice issued by the school. There is no assertion anyone attempted to engage the school before filing the motion. Or, a lawyer might have advised the school against issuing the notice, or advised the school to refrain from sending the student home, without success.

    This censorship is bad, and seems unlikely to stand. But the lawyer problem here might be a grandstanding plaintiff's lawyer rather than a substandard school lawyer.

    1. Why do you assume that lawyer deserves to be fired?

      Because he should have stopped this dead-bang loser of a case before it hit the news — ideally before the policy was promulgated at all, but in any case, before it became a lawsuit.

      Fledgling bigots have rights, too

      Not everyone who wears a BLM shirt is a bigot. Some small minority is probably genuinely concerned about police brutality.

      Or, a lawyer might have advised the school against issuing the notice, or advised the school to refrain from sending the student home, without success.

      Then he should have resigned. This is a constitutional infringement and he should not have allowed himself to be involved with it.

      1. It has been alleged that adult Trump supporters are afraid to disclose their allegiance to Mr. Trump to pollsters because of the repercussions being known as a Trump fan, and a member of the blackboard jungle goes out in public dressed like this?
        Isn't it Republican policy that if a girl goes out dressed provocatively, she deserves the attention she gets for it?

        1. No, that’s not Republican policy, just something dreamed up in a leftist’s fevered brains.

        2. " Isn’t it Republican policy that if a girl goes out dressed provocatively, she deserves the attention she gets for it? " Joe and Hunter Biden, Bill Clinton and Antony Weiner approve this message.

          1. Your guy is the one who has to pay out six figures to get any.

            1. Go ahead dumb-ass. Cite where he has to pay any amount to get sex. Paying go-away money doesn't count.

  5. While generally supportive of the right to display a political affiliation or position by students, particularly those at the college level it seems perfectly legal, logical and appropriate that a high school or lower level school could ban political displays on clothing that it deems are disruptive.

    We are talking about minors here who may well react disproportionately to political speech in a manner disruptive to education, and if the ban is only on school property it seems the damage to free speech is minor and temporary. Despite what the free speech extremists say, sometimes it is not ok to yell 'fire' in a crowded theater.

    And maybe, just maybe, the free speech absolutists ought to train their anger and vigor on a bigger issue, like the horrific, anti-democratic suppression of the vote by one party. That is far more dangerous to democracy and freedom than this is.

    1. "on clothing that it deems are disruptive."
      But they can't assume all political clothing is disruptive. That's where that breaks down. And as a policy matter, school is where students should be learning how to handle differences of political opinion appropriately.

  6. Simply adopt uniforms. Problem solved.

    1. Black pants, black shirts, black shoes & socks, black beret?

      1. One of my favorite songs!

        Back in our home New York
        Walking these streets forlorn
        We all in our uniforms
        Black and black

      2. That's pretty much the Goth Uniform and without ornamentation the SS uniform also adopted by the Black Bloc of antifa.
        Of course you also could adopt a khaki or O.D. uniform to match the BSA/desert forces.
        The classic Catholic girls school uniform is another option. The skirts on male students could be designated kilts, in conformity with current gender policy. It worked for Brittany Spears.

    2. This.

      At the time I thought it was restrictive, but I've come to appreciate the wisdom of my middle and high school's dress code (which was just this side of being a uniform).

      For tops, you had to wear a polo or button-down shirt (short or long sleeves). For bottoms, you could wear a skirt (must go to at least the knees), or slacks. Solid colors for all, with a logo or emblem no larger then a folded dollar bill on the shirt. Acceptable colors were black, white, khaki, hunter green and navy blue.

      The only exceptions were athletic team uniforms (so cheer leaders could go around in uniform) and "spirit wear" (shirts distributed/sold by an approved school club).

      So just short of being a uniform. And honestly, I think the only reason they didn't go whole hog is that the schools would have had to provide students with uniforms, whereas with the "dress code" they could avoid that expense.

      At the time, I thought it was restrictive. Now I think they cutting off nonsense at the pass.

  7. I sympathize with Justice Black's dissenting opinion in the famous Tinker case, but alas, that was a *dissenting* opinion.

    If a kid can go to school and criticize his or her country's side in an ongoing war, then I'd think all sorts of political speech would be protected.

    Is "Vote Trump" more disruptive than protesting a war in which many fellow-students' brothers and fathers may be fighting?

  8. Where does Harper v. Poway factor into this analysis? Surely Judge Reinhardt, if he were still here, would hold that supporting Trump violates the rights of women and minority students. As ever, the law is what the judge says it is.

    1. It doesn't. (1) It was vacated on mootness grounds by the Supreme Court. (2) Harper is a Ninth Circuit case, and I think the Third Circuit Saxe case takes a different approach than Harper does. (3) Whatever the scope of Harper might have been, it can't justify a policy as broad this one.

      1. Would not one way to settle this controversy be to require that school demonstrate that the type of student clothing it wishes to bar has caused disruption and problems with the educational mission of the school?

        In this way a school would be required to first operate without a ban on political clothing, and if there were no problems, so be it. But if there were documented problems then the school could implement its policy and the restriction on speech is justified due to the speech's inteference with the legitimate and necessary mission of education.

  9. Morgan is going to be disappointed for most of next month. But, in four years she can vote for someone who is not Mr. Biden, assuming the liberals who control the educational system don't drub the interest in politics right out of her.

  10. "symbolize a particular political viewpoint"

    Presumably that would include anything with the colors red or blue which symbolize the two major parties. And, of course, there's a minor party actually calling itself the Greens, so that color too is out.

  11. My concern is the "substantial disruption' portion of Tinker. Turns an issue into a Hecklers Veto if, for example, a bunch of Mexican-Americans wear Mexican Flag shirts and, riot when, others wear American Flag shirts on May 5th? https://www.americanfreedomlawcenter.org/press-release/ninth-circuit-upholds-ban-on-american-flag-shirts-in-a-california-high-school/

  12. Those which it deems disruptive in nature may be banned from wearing them.
    Nevertheless, they can't assume that all political clothes are disruptive. There is a problem with that. Students should learn how to deal with differences in political opinion at school, as a matter of policy.
    https://harrystylesmerch.net/

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