Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
And here's yet another case where the ACLU defended the rights of Christians to express their faith in school - and yet another case where the courts got it wrong on student speech (see full ruling here).
A federal appeals court ruled Monday that Clark County's school dress codes do not violate students' right to free speech after considering a case involving a junior suspended for wearing T-shirts expressing her religious faith.The American Civil Liberties Union filed the case in 2004 on behalf of Kimberly Jacobs, a Liberty High School student suspended five times for a total of 25 days for wearing shirts that violated the school's uniform policy.
The 9th U.S. Circuit Court of Appeals agreed with U.S. District Judge Roger Hunt, who ruled in 2005 that uniform requirements do not infringe on students' rights. The panel supported the Clark County School District's policy it created to promote safety and create a positive school environment.
I fail to see anything "positive" about a school environment that does not include the first amendment and teaches kids that the government can tell you what you can and can't say. The ruling clearly conflicts with the controlling precedent, Tinker v Des Moines, which says that student speech may be restricted only if it makes material disruption of the school's function imminent.
The majority opinion claimed that the policy was content and viewpoint neutral, but Judge Thomas' dissent points out that this is clearly false in light of what the policy allows:
The school policy stated that "Logos on tops will be excepted [sic] only if they are Liberty High School logos or designs." The affidavit of Donald Jacobs states that he was told that "the sole reasons for imposing discipline on Kim was that her shirts with religious messages did not conform to the Liberty School regulation that only allows pro-school messages on shirts." He further averred that he has "observed that other Liberty High School students wearing message bearing shirts, including those with slogans touting the school's athletic teams, have not been disciplined." He stated that he "was told that since these messages promoted the school, they were acceptable under the policy." The school has conceded that a design bearing a school logo with the universal "no" symbol through it (a circle with a diagonal line) would not be permitted under school policy.
First of all, isn't it sad and pathetic that a high school manual confused "excepted" with "accepted"? Do they not have English teachers at the school? More importantly, not the irony that the high school in which this occurred is called Liberty High School. The fact that they allow some messages but not others shows clearly that the policy is not viewpoint neutral - and the school admits as much. Judge Thomas is dead on:
As everyone agrees, Chandler governs the analysis of student speech in our Circuit. Chandler establishes three categories of student speech: (1) vulgar, lewd, obscene, and plainly offensive speech (analysis of which is governed by Bethel School District Number 403 v. Fraser, 478 U.S. 675 (1986)); (2) school-sponsored speech (analysis of which is governed by Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)); and (3) speech that does not fall into either of the first two categories (analysis of which is governed by Tinker). 978 F.2d at 529.Everyone also agrees that the speech at issue in this case does not fall under either of the first two categories. Therefore, under Chandler, the analysis must be controlled by Tinker. However, rather than applying the plain terms of Chandler, the district court and the majority have imported and imposed a new analytical framework that cannot be reconciled with Supreme Court jurisprudence, or with ours.
Quite so. This is a very, very bad ruling. One can only hope that the Supreme Court will overturn it.
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Although you don't quote the part of the policy that precedes the "excepted" section, it appears that their policy is you can't have anything, except for school related logos. The fact that it is further restricted to positive messages about the school seems to be the only hook to turn it into a viewpoint discrimination policy, which seems pretty weak. (It would be a different matter if the exception was for any "positive" about any topic.)
BTW, I'm not an english major, but wouldn't "excepted" be acceptable here, in the sense the school logos are exceptions to which the restriction would not apply.
Posted by: divalent | May 16, 2008 9:42 AM
Maybe I am missing something, but the school rule says "Logos on tops will be excepted [sic] only if they are Liberty High School logos or designs." That doesn't indicate what kind of logo message one might put as long as it related to a school logo.
It doesn't seem to presume a pro-school message as the man implies. So, maybe students could say something like "Where Liberty stops at school gates". Or maybe they could just put on a sentence from the Liberty rules.
Posted by: bernarda | May 16, 2008 9:55 AM
"Logos on tops will be excepted [sic] only if they are Liberty High School logos or designs."
I cannot see what is wrong with, given the context.
Try this:
"Logos on tops will be excepted [from the rgulations covering logos] only if they are Liberty High School logos or designs."
It might be a little clumsy, but if previously in the text in question they had mentioned the regulation banning logos then it makes sense.
Posted by: John Doe | May 16, 2008 10:11 AM
While I disagree with the concept of censoring one avenue of free speech with these kin of vague dress codes, I don't thinkt hey are inherently unconstitutional (in the context of a high school), and in this case, it seems it is being applied equally.
Limiting it to apparel with school related logos (I would think they would limit it to 'official' school stuff to make a few extra bucks...) does not seem like viewpoint discrimination.
My company (different rules, I know), has a similar policy for the engineers and office personell on fridays. Much as I'd love to wear my 'Friendly Neighborhood Atheist" T-shirt, I can't, but neither can all the god botherers wear their religious themed stuff.
Cheers.
Posted by: FastLane | May 16, 2008 10:16 AM
This made me smile. You deserve some good-natured ribbing for this string of sentences:
"First of all, isn't it sad and pathetic that a high school manual confused "excepted" with "accepted"? Do they not have English teachers at the school? More importantly, not the irony that the high school in which this occurred is called Liberty High School. The fact that they allow some messages but not others shows clearly that the policy is not viewpoint neutral - and the school admits as much."
1st sentence: "Excepted" is the correct usage, as in "excepted from the rule".
3rd sentence: "not the irony..."
4rth sentence: Your hyphen is in the wrong place. It should be "...the policy is not viewpoint-neutral, and the school..."
But at least the sentence "Do they not have English teachers..." has no errors!
Posted by: delurking | May 16, 2008 10:28 AM
FastLane,
Your company is in the private sector. Public schools are not. You're always free to find another another job that let's you wear your "Friendly Neighborhood Atheist" T-shirt. If it was a private school telling kids what they can and can't wear we wouldn't even be having this discussion. Public schools are an exercise of government power over people. That's why the question of rights comes into play.
Posted by: Bill in NC | May 16, 2008 10:35 AM
"Your company is in the private sector. Public schools are not. You're always free to find another another job that let's you wear your "Friendly Neighborhood Atheist" T-shirt. If it was a private school telling kids what they can and can't wear we wouldn't even be having this discussion. Public schools are an exercise of government power over people. That's why the question of rights comes into play."
I am not sure if I understand your argument correctly.
If a child attends a private school do they loose the free-speech rights they have in a public school ? If so then why ?
Posted by: John Doe | May 16, 2008 10:40 AM
delurking,
Silly, don't you know anytime you correct someone's post you will make a mistake in your own? In his 4th (not 4rth) sentence, Ed is clearly using a hyphen in place of an em-dash, and not attempting to hyphenate "viewpoint neutral" at all, which is fine since it is not a modifier preceding a noun. (Yes, I am a copy editor.)
John Doe,
That's exactly right. The first amendment prevents the government from restricting speech, not private actors.
Posted by: nicole | May 16, 2008 10:55 AM
If you mean are they prevented from wearing certain clothing that they might otherwise wear in a public school, then yes, in many private schools there is a fairly restrictive dress code, and students can be penalized for not conforming to it.
Posted by: Jason I. | May 16, 2008 10:58 AM
John Doe wrote:
"I am not sure if I understand your argument correctly.
If a child attends a private school do they loose the free-speech rights they have in a public school ? If so then why ?"
A private school is private property. The owner of the property has a right to set the rules that people on the property have to follow. So, if the child violates the rules set by the property owner, the child can be expelled from the property and forbidden from returning.
A public school is not private property. The government is forbidden from abridging the right to speak except in very narrowly-defined circumstances. School employees represent the government.
Posted by: delurking | May 16, 2008 10:59 AM
"If a child attends a private school do they loose the free-speech rights they have in a public school ? If so then why?"
In so far as private schools are private associations, not government enities, they can make rules that public schools can't. I'm not endorsing the authoritarian aspects of some private schools, only stating the difference between public and private sector enities.
As for student's rights it partially depends on the family. Parents who enroll their kids in private schools usually want those aspects of the school, whether it's prayer or military drill.
Posted by: Bill in NC | May 16, 2008 10:59 AM
"That's exactly right. The first amendment prevents the government from restricting speech, not private actors."
That still does not explain why the rights a child has at school depends on who owns the school. If there is a right to free-speech there it would exist regardless of who owns the school. I think what we are talking about here are restrictions on the government, not rights conferred on people. A child in a private school who is not allowed to wear a t-shirt is no less discriminated against than one who wears the same t-shirt but attends a public school. The only difference is parental choice and income, neither of which the child can be held responsible for. Any system that gives rights to one and not to the other is itself discriminatory.
Posted by: John Doe | May 16, 2008 11:03 AM
"In so far as private schools are private associations, not government enities, they can make rules that public schools can't. I'm not endorsing the authoritarian aspects of some private schools, only stating the difference between public and private sector enities.
As for student's rights it partially depends on the family. Parents who enroll their kids in private schools usually want those aspects of the school, whether it's prayer or military drill."
So in fact what you are saying it is not about rights at all, but about restrictions on what the government can do ?
After all a right, if it truly was a right, would not be lost simply as a result of who owns a school. It also seems to be me be a form of discrimination to say to those children who attend private schools because of parental choice that the state regards them as less deserving of protection that those who attend public schools.
Posted by: John Doe | May 16, 2008 11:07 AM
Yes, we are only talking about restrictions on what the government can do. That is all the Constitution is, and all the Bill of Rights do as well.
Posted by: nicole | May 16, 2008 11:19 AM
If you want to think of it in terms of rights, you can do that too, I suppose. A child always has the right to free speech, but not the right to speak in any private forum. If Ed were to ban a troll, would that be a violation of the troll's right to free speech? The troll would still be allowed to speak on his own time, but Ed is not obligated to give him a forum. I have the right to freely associate, but I don't have the right to set up my knitting circle meetings in your living room.
Posted by: nicole | May 16, 2008 11:22 AM
"Yes, we are only talking about restrictions on what the government can do. That is all the Constitution is, and all the Bill of Rights do as well."
So why are these treated as cases about rights, and why is the ACLU involved ? As I understand the ACLU is about fighting discrimination, not trying to ensure it becomes more entrenched. Unless the ACLU is fighting to prevent private schools from discriminating by restricting speech then in fact it is contributing to their problem, not solving it.
Posted by: John Doe | May 16, 2008 11:26 AM
There is nothing more funny than a misplaced [sic].
Posted by: Lev | May 16, 2008 11:29 AM
Do the same restrictions and freedoms apply in the workplace ? If a person is employed by the government do they have greater freedom over what they wear to work than do people working for a private company ?
Posted by: John Doe | May 16, 2008 11:31 AM
Do the same restrictions and freedoms apply in the workplace ? If a person is employed by the government do they have greater freedom over what they wear to work than do people working for a private company?
This is a good question, although the issue of what is permitted in a private workplace is irrelevant. I would be interested in knowing about the bases for a distinction between a government employer that 'neutrally' bans words and slogans on clothing and a government school that does the same. Certainly, I think that schools should encourage the expression of opinions, but are their precedents for a legal distinction between a government employer that is permitted to regulate attire in this way and a government school doing the same?
Posted by: Dr X | May 16, 2008 11:57 AM
If a person is employed by the government do they have greater freedom over what they wear to work than do people working for a private company ?
Actually, I think that it would go the other way - since the government employee represents the government, they would bne restricted in what they wear that expresses a message, since that might be mistaken for government speech.
For example, a public school teacher in the classroom is paid to express government speech on work time, not private speech.
I would imagine they should be able to wear whatever they want on their own time, though.
Posted by: Phoca | May 16, 2008 11:59 AM
nicole wrote:
"delurking,
Silly, don't you know anytime you correct someone's post you will make a mistake in your own? "
Yes. For example:
"The first amendment prevents the government from restricting speech, not private actors."
That's why it is funny.
Posted by: delurking | May 16, 2008 12:04 PM
Actually, I think that it would go the other way - since the government employee represents the government, they would bne restricted in what they wear that expresses a message, since that might be mistaken for government speech.
Thanks, that makes sense.
Posted by: Dr X | May 16, 2008 12:39 PM
So the student could write out any message she wants on her shirt as long as she used a bunch of tiny school logos to write out the message?
Posted by: Ferrous Patella | May 16, 2008 12:48 PM
Is it not true that youngsters in public schools do not have the full entitlement to constitutional rights as adults?
AFAIK, school lockers, for example, can be searched anytime the school officials want. There is no protection of privacy rights involved, no warrant needed to search a locked school locker?
Heck - we force kids to attend schools against their wishes! Surely the idea that kids have the same constitutional rights as adults is simply not true.
Why should students expect to have unrestricted free speech rights?
it seems to me that reasonable dress codes would have a demonstrable positive effect on student behavior and that this would be a good thing for schools.
What is the law on the full panoply of student constitutional rights?
Posted by: Gingerbaker | May 16, 2008 1:18 PM
Gingerbaker -
Don't confuse Ed's editorializing about the court making the wrong decision here with an analysis based on case law precedent. Ed's writings suggest that he is a pretty firm absolutist as far as freedom of speech is concerned. I'm assuming that when he says the court made the "wrong" decision here it's because of his absolutist position on freedom of speech, not because they're running afoul of precedent (because, frankly, this seems like a no-brainer for the court given what I've seen of precedent on public high school dress codes over the last few decades).
I don't want to put words in Ed's mouth, and I'd love to be proven wrong on the precedent angle for this because I think HS students are being given a raw deal by stuff like this, but that's how I take articles like this when Ed suggests the court made the "wrong" decision and he doesn't throw out specific examples of precedent - just his opinion on the basis of his philosophical leanings.
Posted by: NonyNony | May 16, 2008 1:33 PM
Gingerbaker: As in most situations where two interests collide, the courts have been all over the place on students and "rights."
First, the school has an interest in maintaining order so that they can fulfill their purpose. On these grounds school dress codes or uniforms have been repeatedly upheld as constitutional based upon a rational relationship test.
Yet, students do not give up all rights. The high water mark for free speech is Tinker, but aside from non-verbal political dissent I don't believe any court has ever insisted on pressing to its logical conclusion. Rather, the standard seems to be a muddle such as Morse v. Frederick (the "Bong hits 4 Jesus" case) where the written opinions range from "There are some subjects which may always be prohibited" to Thomas' "Students have exactly the same free speech rights as inmates." (I'm paraphrasing with just a little exaggeration).
The locker question is a red herring: The school owns the locker, so the student has no expectation of privacy in it. It is rather like a former client of mine who had decided to stash 150 pounds of pot at his mother's house in plastic garbage bags, and then was furious with mom when her live-in boyfriend (a law enforcement officer!) peeked in a bag to see if it could be stored outside in the shed.
Posted by: kehrsam | May 16, 2008 1:47 PM
"Heck - we force kids to attend schools against their wishes! Surely the idea that kids have the same constitutional rights as adults is simply not true."
Which is all the more reason we should respect students' rights and limit arbitrary control over them. It doesn't mean giving public schools carte blanche over kids. The burden should be justifying the limitations imposed on people, not justifying their rights against the limitations imposed.
Posted by: Bill in NC | May 16, 2008 1:49 PM
Of course students in school do not have the full range of constitutional rights that adults have in most situations. It would take a very long essay to detail all of the differences, but in this case the controlling precedent is Tinker and that case says that students have free speech rights except where their speech threatens an imminent disruption of the school's educational mission (yes, the "bong hits for jesus" case defined - wrongly - another category of unprotected speech, but that's not relevant to this case). I don't see how this ruling is consistent with Tinker at all. Bill in NC has it exactly right, the burden is on the government to assert a legitimate use of authority, not on the individual to assert a legitimate right. What compelling interest does the government have in preventing a student from wearing an "I love Jesus" t-shirt? None.
Posted by: Ed Brayton | May 16, 2008 2:04 PM
Hey NonyNony ( just had to say it! :D ) and kehrsam - thanks. Appreciate the explanations.
Must say that the ownership of school lockers is a bit of a headscratcher. Talk about entrapment. One might think that if the school is actually providing lockable lockers, there would be an expectation of privacy - regardless of who "owns" the lockers.
Perhaps they should rent the lockers for a penny a year. Wouldn't that fix the situation?
[Renters in an apartment complex - perhaps even one provided by government subsidy have privacy protection over their (lockable) apartments.] [Except for drug raids!?]
If so, does a penny represent the value of constitutional privacy?
May a bank search the safety deposit boxes in its vault...
Don't worry - these are all rhetorical questions!! Lawyers were in the B Ark? :D
Posted by: Gingerbaker | May 16, 2008 2:12 PM
I understand that a private company and a public school are two different things (hence my noting it in my original post).
My only real point was that as long as this policy really is uniformly (no pun intended) enforced, I don't have too much of a problem with it as it is.
I would much prefer that public school lean more towards free speech, and the responsibility that comes with it, than more restrictive speeh, thereby reducing a great many potential learning moments while these kids are still in school.
It's only really unfair if the school shows a preference in what is allowed based on any of the protected 'classes', or shows a definite preference for some individuals or groups. (In my opinion.)
Cheers.
Posted by: FastLane | May 16, 2008 2:55 PM
I think, in a way, I can understand where the school is "coming from". I used to work in a retail store. If you work with the public, and wear something that expresses support for some idea or cause you may passionately believe in, but others do not, you may be driving away customers. So there were bans on such things.
Of course, a retail business has to make money, and therefore they don't want to drive business away. Very understandable. A school is a little different, in that they aren't exactly "in business". But if it's a public school, they have to take in the children of the community. And yes, a decent school policy should encourage free speech; after all, it will be a part of their lives(or should be once they get out of school. However, the same inherent priciple applies: what one student passionately believes in, may be offensive to others. This should be understood by all, in an effort to be as "inclusive" as possible. School logos or athletic team shirts or slogans, like, say "Go, Bulldogs" would not be out of place; the "Go Bulldogs(the Bulldogs were the official school mascot at my high school)" would therefore be acceptable. I think that the girl has an absolute right to wear her t-shirt, but absolute rights don't absolutely extend everywhere; they have to be balanced by responsibilities. Be that as it may, I am in favor of as much freedom of expression at this level, as possible, as long as it's respectful and doesn't cause high school riots, so to speak.
Anne G
Posted by: Anne Gilbert | May 16, 2008 3:52 PM
"What compelling interest does the government have in preventing a student from wearing an "I love Jesus" t-shirt?"
Because then they would have to allow "I love Satan," "Jesus doesn't exist" or "Fuck your mother." Once you make an exception for one thing you have to make an exception for everything. So, either everyone gets to wear what they want or a uniform policy is instituted. If the uniforms were adopted without consulting or at least allowing parents to comment on it, then that would be a problem, but a different one. It is definitely in the best interests of the students to attempt to keep the class from being disrupted by someone who in violation of a dress code policy that uses an arbitrary definition of inappropriate clothing.
There's no free speech issue here. NOTHING is allowed.
And I do believe that making kids dress the same is appropriate to the learning environment. When you can't express yourself by wearing whatever mommy and daddy can afford to buy for you (or what will piss them off), you have to try a little harder to differentiate yourself from the herd. I see nothing wrong with that.
Posted by: bullet | May 16, 2008 6:10 PM
A school, even private, is not like a company. Children are required to go to school, or get schooling. An employee has presumably chosen their job and is not required to go to it unless they choose to remain in it.
Posted by: bernarda | May 16, 2008 6:14 PM
English professor wading into the fray. The verb "except" can indeed be used in that fashion, but it is not an everyday usage; and unless the writers of the manual (and their readers!) are familiar with sixteenth-century English prose, use of the verb may cause folks to wonder whether the writers were shooting for either 'accepted' or 'exempted' and conflating the two. If I had been editing the manual, I would have suggested that the writers choose one of those latter verbs and so avoid questions over correctness. After all, the fact that members of a well-educated audience find a usage problematic may suggest that the usage has passed its sell-by date.
Posted by: Elf Eye | May 16, 2008 6:47 PM
bullet seems to understand what happens with high school students and why either a strict dress code or a mandatory uniform policy is often necessary for good order conducive to educational excellence. Otherwise one student wears a teeshirt that says, "I love Jesus," then another one wears a teeshirt that says, "I love Jesus Ramirez," then one wears a teeshirt with nipples painted on it, and on and on. How can English grammar and usage compete with that for attention? It is, however, English grammar which will be tested on the exit exam, and not everyone will pass.
Posted by: Elizabeth | May 16, 2008 7:59 PM
"And I do believe that making kids dress the same is appropriate to the learning environment. When you can't express yourself by wearing whatever mommy and daddy can afford to buy for you (or what will piss them off), you have to try a little harder to differentiate yourself from the herd."
In other words "uniformity promotes individuality." Where's Comrade Orwell?
Posted by: Bill in NC | May 16, 2008 9:57 PM
"Liberty" High School? "Liberty?!?"
Shouldn't they change the name?
Maybe to "Temporary Safety?"
Posted by: Sam Paris | May 16, 2008 10:35 PM