Brandt v. Board of Education of City of Chicago, No. 06-2573 (7th Cir. Feb. 20, 2007)
The U.S. Court of Appeals for the Seventh Circuit has ruled that a group of students disciplined for wearing a banned T-shirt as part of a protest of the outcome of the school’s official T-shirt contest were not engaged in expression protected by the First Amendment. It also concluded that even if the T-shirt was speech, school officials had the authority to ban the shirts based on the holding in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), that "a school need not tolerate student speech that is inconsistent with its ‘basic educational mission.’" Beaubien Elementary School (BES) in Chicago, Illinois sponsors a contest each year allowing eighth graders to submit designs for a class T-shirt. The winning design is selected by popular vote of the eighth grade students. In this case, approximately 30 designs were submitted. Of the 99 eighth grade students, 27 were members of the gifted program. There were tensions between the gifted students and the rest of eighth grade class. The gifted students decided to vote in a block for a design by one of their own, reasoning that they would win because the remaining 72 votes would be split among 29 designs. However, after the first vote, the teacher in charge of the election ordered a revote of the top three designs, and the design favored by the gifted students was not chosen. After the teacher refused to explain her runoff system, the gifted students decided to protest the election by wearing T-shirts with their preferred design rather than the winning design. Both BES’s principal and an assistant principal warned the gifted students that they would be risking disciplinary measures if they wore the shirts. The principal told them that wearing the shirts would show disrespect for him and create a risk to the good order of the school. The assistant principal warned that if they wore the shirt the gifted students would be violating a disciplinary code provision prohibiting students from wearing clothing with "inappropriate words or slogans," and would be punished. The gifted students proceeded with their planned protest and received in-school suspensions over a nine day period. Eventually the school summoned a "Crisis Intervention Team" that investigated the incident and decided that the wearing of the banned T-shirt was not a safety problem so the ban on the shirt was lifted. The gifted students filed a class action alleging that school officials had violated their free speech rights by disciplining them for engaging in a protest that involved wearing the disputed T-shirts. The district court rejected their motion for injunctive relief and dismissed the suit.
The Seventh Circuit affirmed the lower court’s decision, including the imposition of the defendants’ costs on the plaintiffs. Judge Posner wrote, "[t]hey have made the defendants jump through a number of costly hoops in this protracted litigation and must bear the usual consequences of failed litigation." The appeals court began its analysis of the plaintiffs’ claim by rejecting the idea that the T-shirt itself could constitute speech entitled to First Amendment protection. It noted that the plaintiffs had not put forth that argument, and instead argued that the shirt’s First Amendment protection derived from the fact that it was worn as part of a protest of the election. The court expressed its doubt that "the constitutional privilege to engage in protest demonstrations in the name of free speech extends to eighth graders." Nonetheless, the Seventh Circuit found that the subject matter of the protest, i.e. the right to an explanation by the school for how the election to pick an official eighth-grade T-shirt was conducted, was not a legal right. It pointed out that the time honored constitutional concept of "academic freedom" includes not only the freedom of teachers, school authorities and students to express ideas and opinions, but also the right of public schools "to manage their affairs and shape their destiny free of minute supervision by federal judges and juries." Citing the Seventh Circuit’s recent decision in Mayer v. Monroe County Community School Corp., 2007 WL 162833 (7th Cir. Jan. 24, 2007), as confirming the school’s authority to regulate speech in regard to its curriculum, the appeals court concluded that even if the T-shirt constituted speech it would be subject to restriction since school officials may restrict speech that interferes with the school’s educational mission.
Brandt v. Board of Education of City of Chicago, No. 06-2573 (7th Cir. Feb. 20, 2007)
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[Editor’s Note: The issue of student speech is currently before the U.S. Supreme Court with oral argument scheduled for March 19, 2007 in Morse v. Frederick, Docket No. 06-278. In Morse the Supreme Court must balance student freedom of speech rights with need of school officials to regulate student expression that interferes with the school’s educational mission. For background on Morse, access the link below. Mayer, which involves teacher speech, supports school officials’ authority to regulate speech that strays from the curriculum and, thus, interferes with the educational mission. For background on Mayer, also see below.]
[NSBA School Law pages on Morse v. Frederick]
[NSBA School Law pages on Mayer v. Monroe County Cmty. Sch. Corp.]