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First Amendment Issue in Pennsylvania

Thanks to Rustmeister, who found it, it would appear that a Pennsylvania school is stifling student free speech:

Donald Miller III, 14, went to Penn Manor High School in December wearing a T-shirt he said was intended to honor his uncle, a U.S. Army soldier fighting in Iraq.

The shirt bears the image of a military sidearm and on the front pocket says “Volunteer Homeland Security.” On the back, over another image of the weapon, are the words “Special issue Resident Lifetime License — United States Terrorist Hunting Permit — Permit No. 91101 — Gun Owner — No Bag Limit.”

If I recall my first amendment law correct, which I might not, it’s lawful for schools to regulate dress code, but it has to do it in a content neutral manner.  In other words, it could proscribe all shirts that are not plain shirts of uniform color, it could proscribe an obscene t-shirt that could be construed as disruptive to the educational environment, but it can’t discriminate on dress based merely on disapproval of the content displayed on the shirt.

5 Responses to “First Amendment Issue in Pennsylvania”

  1. guy says:

    “it could proscribe an obscene t-shirt that could be construed as disruptive to the educational environment”

    And if you ask the Brady Bunch the image of a firearm would fit that description perfectly.

  2. gattsuru says:

    He’s lucky he got away with a two day detention: the schools I’ve been to recently would slap a suspension on that, if not an automatic expulsion under their zero tolerance policies.

    The relevant legal texts are… complicated. Tinker holds that public high schools are subject to the First Amendment’s protection of freedom of speech, protecting obvious and symbolic speech that is not ‘disruptive’. If kids were actually treated as adults for First Amendment rights law, this shirt would only need to demonstrate that it wasn’t disruptive or obscene, that it was inherently expressive, and that a ban against it was not content-neutral

    However, that protection is considered to be weaker than the protection offered to adults, in no small part due to the doctrine of ‘in loco parentis’, which gives schools the ability to act in the place of a legal guardian for some events (read: Nanny State!). Fraser made clear that non-obscene speech could be limited, in this case if it were lewd and indecent — this has been taken to the length of the Broussard decision, where a shirt saying that “Drugs suck” was worth a day suspension, because “suck” has sexual connotations, although this only provides precedent over Fourth District. The recent Morse case demonstrated that schools have the ability to limit speech at all school-sponsored events, on and off school grounds, if that speech runs contrary to the educational mission of the school and/or provides a “serious and palpable” (Robert’s words, not mine) fear of illegal action. In addition, the general viewpoint of what is or is not ‘disruptive’ conduct is also seen as a might bit weaker in schools than out of them.

    The end result is that, as in so many other cases, it’s as much about whether your speech is popular as it is about any well-applied standards. I’m sorry to say that, given the legal precedents and popular opinion, this kid’s stuck on the ‘wrong’ side of that.

  3. Sebastian says:

    Thanks for that comment. The situation is worse than I realized :)

  4. thirdpower says:

    When I was in HS, they banned Heavy Metal band T-shirts because one of the board members saw an advertisement for a store that sold satanic paraphernalia in our town.

  5. joated says:

    The two topics that were flagged in the high school and middle school in which I taught (northern New Jersey) were drugs and guns. Any shirt with even a picture of a gun or a marijuna leaf would get a student sent home to change.

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