CABE Journal
December 2013

The new teacher evaluation plan was driving Mr. Principal crazy, but it did have one upside for Mr. Principal. Given the need to conduct so many formal and informal observations of teachers, he was out and about, seeing students and teachers hard at work. However, that was how the trouble started.

Sitting in the back of a senior honors English class, Mr. Principal watched Sam Smart make a presentation to the class on bullying. He was shocked, however, when he noticed that Sam was wearing a T-shirt with “BITCH” written in large letters on the front, in a circle with a line through it. As soon as the class ended, he told the young man to come with him to the office for a little “talk.”

“Why on earth are you wearing that vulgar T-shirt?” Mr. Principal demanded as soon as he and Sam were in his office.

Sam asked pointedly, “Don’t you get it? The slash means ‘No Bitches,’ and my T-shirt protests girl-on-girl bullying. Bullying is a terrible problem in our school, and girl-on-girl bullying is the worst. Girls can be SO mean to each other. Through my T-shirt, my Facebook account and my Instagram account, I am reminding my fellow students, and especially the girls, always to be nice. So what’s the problem, old man?”

“Watch yourself!” Mr. Principal cautioned. “The problem is that your T-shirt is vulgar and insulting to women, which I will not allow in my school. Your choices are to turn the T-shirt inside out or be suspended for a day. What will it be?”

Sam Smart scoffed at Mr. Principal’s benighted view that “Bitch” in this context was pejorative, and he chose suspension. He also warned Mr. Principal that he would be using his free time to meet with the American Civil Liberties Union to discuss how best to deal with Mr. Principal’s violation of his First Amendment rights. Sure enough, Mr. Principal got a demand letter from the ACLU the next day, threatening litigation if Mr. Principal did not relent and permit Sam to wear the T-shirt.

Bob Bombast, veteran member of the Nutmeg Board of Education, heard Sam and his lawyer being interviewed on the radio, and he decided that Mr. Principal needed the cover of a Board policy to protect him. That very night, at Bob’s insistence Mr. Chairperson convened an emergency meeting of the Nutmeg Board of Education. At the meeting, Bob reminded Board members that children should be seen but not heard, and he proposed a new policy stating: “School is a place of business. Students may not wear T-shirts that are vulgar or that raise controversial topics that could distract students or disrupt the educational process.” The policy passed unanimously.

Mr. Principal announced the policy over the intercom the next morning. After reading them the new policy, he informed students that they had a one-day grace period, but that the policy will be effective and enforced as of tomorrow.

Is Nutmeg all set now?

* * *

Yes — if being “all set” means being a defendant in constitutional litigation. Otherwise, the Board and the Principal should reconsider and change the policy.

The United States Supreme Court changed the legal landscape in 1969, when Justice Fortas famously observed in Tinker v. Des Moines Independent Community School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”While the premise is inarguable, its application in specific situations can be a challenge for school administrators, who may have to make decisions about student speech.

In Tinker, the Court ruled that Mary Beth Tinker, her brother and their friend had the right under the First Amendment to wear black armbands to school to protest the war in Vietnam. It held that school officials can regulate student speech only when they can reasonably forecast that the speech will violate the rights of others or cause substantial disruption or material interference with the educational process. Since Tinker, the Court has established three exceptions, holding (1) that vulgar speech can be prohibited irrespective of disruption (1986), (2) that school-sponsored speech can be regulated simply upon a showing of legitimate pedagogical interest (1988), and (3) that speech can be prohibited if it can be interpreted as advocating the illegal use of drugs (2007). While the Tinker rule and its exceptions are easily stated, student free speech cases are a challenge, as school officials struggle in specific cases to determine whether they can prohibit student speech that they consider either vulgar or disruptive.

For example, is “No Bitches” vulgar? We are not sure. Is it vulgar to refer to female breasts as “boobies”? School officials in Easton, Pennsylvania thought so, and they prohibited two middle-school students from wearing bracelets with the slogan, “I [Heart] Boobies (KEEP A BREAST).” But the students said that they were acting to heighten awareness of breast cancer, and they sued, claiming that the prohibition violated their free speech rights. The lower court agreed with the students, finding that the bracelets were neither vulgar nor disruptive, and this year the Third Circuit Court of Appeals affirmed. By contrast, this year the federal district court for the Northern District of Indiana considered a prohibition against the very same bracelets, and it ruled in favor of the school district. Clearly, reasonable people can differ on what is vulgar.

By way of further example, last year a student in Wolcott Connecticut protested the Day of Silence by wearing a T-shirt that referred to a Day of Excessive Talking and depicted a rainbow with a slash through it. The student claimed that he was told that he could not wear the T-shirt, but after the ACLU got involved, school officials sent a letter clarifying that the student would be permitted to wear the T-shirt.

School officials have a right to maintain an orderly school environment, but they must pick their fights carefully when it comes to the free speech rights of students. They may prohibit disruptive or vulgar speech, but those terms are not self-defining. The only way to answer the question definitively in a particular case may be litigation in federal court, an exercise that can cost tens or hundreds of thousands of dollars. As a consequence, in close cases school officials are well-advised to allow student speech.

Notably, Bob’s policy prohibiting T-shirts with controversial topics provides no help here. Student free speech rights are defined by constitutional rulings, not Board policies. Moreover, the Nutmeg policy was too vague to be enforceable in any case.

Finally, in its eagerness to address this situation, the Nutmeg Board of Education violated the Freedom of Information Act. In emergencies, public agencies can meet without posting the meeting twenty-four hours in advance. However, Bob’s dyspepsia over this free speech controversy was no emergency, and meeting should have been properly posted.