Dear Legal Mailbag:
Local elections are coming up and a teacher in my school came to me with an interesting question. One of the students in her class is the daughter of someone running for mayor against an incumbent; and, another student in her class is the son of whom else? The incumbent! To make it even more interesting, the incumbent’s time in office has not been without scandal, and the girl has been wearing a T-shirt with a big picture of a broom, with the words “Time to clean up! Vote for [daughter’s father]!”
The teacher is worried that the boy will be offended or teased about his father’s scandals, and she wants to tell the girl to leave the T-shirts at home. Since we tell teachers not to bring politics into the classroom, her plan seems reasonable to me. But one never knows what the courts will rule, and I write for some free legal advice. Can the teacher prohibit the girl from wearing the T-shirt?
Silence is Golden
We don’t know what the courts will rule in the future, to be sure. But we do know what the courts have ruled, and the answer to your question is now fifty years old. In 1969, the United States Supreme Court issued its seminal ruling on student free speech rights in Tinker v. Des Moines Independent School District. There, Mary Beth Tinker wore a black armband to school to protest the war in Vietnam, and when she was suspended for violating an ad hoc prohibition against wearing black armbands, she sued, claiming that school officials had violated her right of free speech under the First Amendment. As Legal Mailbag thought everyone knew, the Court agreed with Mary Beth, famously saying, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Over the last fifty years, the Court has refined the rules concerning student free speech. It has held that school officials can prohibit speech in school that is vulgar or that advocates drug use, and that school officials can regulate school-sponsored speech for legitimate pedagogical reasons. However, the basic rule of Tinker remains intact: students have a right of free speech in the school setting unless school officials reasonably forecast substantial disruption or material interference with the educational process or invasion of the rights of others.
Here, despite the teacher’s concern, Legal Mailbag is not convinced that you can make a winnable case for restricting the student’s “speech,” i.e., her wearing the T-shirt to class. The teacher’s worry about the other student taking offense is hardly a forecast of disruption. Moreover, adjectives matter, and the standard is not simply a forecast of “disruption,” but rather school officials must forecast substantial disruption. On the facts you shared, Legal Mailbag encourages you to advise the teacher not to raise the issue here. More generally, Legal Mailbag advises you and others to relax about students’ wearing political buttons or T-shirts in school unless and until they cause a problem. School officials can indeed prohibit speech that in fact is disruptive. But this is not such a case.