An 8th grade student was suspended and later arrested for wearing a T-shirt with an NRA logo, picture of a hunting rifle, and sating “PROTECT YOUR RIGHTS” in bold letters. He now faces charges of obstruction and disturbing the education process. This is despite the school dress policy containing no explicit prohibitions on having images of guns on clothing. The school does have a rule against clothes that “display violence.”
What is troubling about this incident is how obviously the T-shirt is political speech. Courts have held that political speech in particular is protected under the First Amendment. While the courts have allowed limits on free speech, such as yelling “fire” in a crowded theater, political speech has always been held in the highest regard. That is, except when it comes to minors.
In 1969, the U.S. Supreme Court made a landmark ruling in Tinker v. Des Moines Independent Community School District. The case involved students wearing black arm bands protesting the Vietnam War. The court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” They further determined that only a policy that withstood “heightened scrutiny” and addressed a “substantial disruption of school operations” would be allowable.
Since then, student rights to free speech have gradually been eroded. A court ruled that lewd sexual speech was not protected in Bethel School District v. Fraser. In Hazlewood School District v. Kuhlmeier, a court ruled that school sponsored activities, such as a student newspaper, can be censored. In Canady v. Bossier Parish School Board, the Fifth Circuit Court of Appeals ruled that mandatory school uniform policies were constitutional as long as they were content neutral. Unlike the Tinker ruling, this only had to hold up to intermediate scrutiny. The test created was that 1) the dress code furthered a substantial government interest, 2) the interest was unrelated to the suppression of student speech, and 3) the incidental restrictions on free speech were no more restrictive than necessary to further that interest.
This standard was later used in Palmer v. Waxahachie Independent School District to prevent a student from wearing a John Edwards for President ’08 T-shirt, an obvious case of political speech. Palmer argued that the shirt constituted “pure speech” of which any loss of free speech rights for even a small amount of time is an irreparable injury. However, the court ruled that the school’s policy was content neutral. The school banned any writing on clothes with the exception of principal-approved shirts that promote the school and its programs (the sports team for example). Some believe that this effectively undermined Tinker, because the content of the clothes (whether it promoted the school and was principal approved) does indeed affect its permissibility.
This leads to the larger question of whether minors have rights to begin with. Technically, they have all the rights of adults… unless they are outweighed by conflicting interests. For example, a search of a student only needs to be reasonable under the circumstances, as opposed to needing a warrant or probable cause. In Georgia, you must be 18 to purchase a firearm, 21 to obtain a concealed carry permit, and there are severe restrictions to when a person under 18 may possess or operate a firearm at all. The reality is that minors have all the rights which have not been taken away by laws. More often than not these restrictions on juvenile rights are upheld, so long as a state interest can be demonstrated.
WSB Radio, 8th Grader Arrested at School over NRA T-shirt: http://www.wsbradio.com/news/news/local/8th-grader-arrested-school-over-nra-t-shirt/nXSfN/
Student Dress Codes in Public Schools:www.aallnet.org/products/pub_llj_v94n01/2002-03.pdf
The Law Office of George I. Kita, What are Your Child’s Rights? http://www.topjuveniledefender.com/juvenile_rights.html
William and Mary Law Review, Constitutional Rights of Juveniles: http://scholarship.law.wm.edu/wmlr/vol9/iss2/13/
Social Science Research Network, Can We Create Violence-Free Schools That Are Still Free? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1113167
About, What are the Gun Laws in Georgia? http://crime.about.com/od/gunlawsbystate/p/gunlaws_ga.htm
Lawyers.com, Freedom of Expression in Schools: http://education-law.lawyers.com/school-law/Freedom-Of-Expression-In-Schools.html
Maynard Holbrook Jackson High School, Student Dress Code: http://www.atlanta.k12.ga.us/Page/29340
ACLU, Tillman v. Gwinnett County Schools: http://www.acluga.org/issues/student-and-juveniles-rights/tillman-v-gwinnett-county-schools/
U.S. Legal, Protection of Core Political Speech: http://civilrights.uslegal.com/freedom-of-speech-and-expression/protection-of-core-political-speech/
First Amendment Schools, Canady v. Bossier Parish School Board: http://www.firstamendmentschools.org/freedoms/case.aspx?id=1690