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  • Can Public Schools Ban “I Can’t Breathe” T-Shirts?

    Citing safety concerns, Fort Bragg High School, a public high school located in Mendocino County CA, decided on December 26, 2014 to ban athletes from wearing t-shirts with the slogan “I Can’t Breathe” – the words uttered by Eric Garner, who died while being arrested in Staten Island. The decision was made in advance of an upcoming three-day basketball tournament, where students from a neighboring school, Mendocino High School, were scheduled to wear the increasingly popular “I Can’t Breathe” t-shirts.

    In a statement, Principal Rebecca C. Walker wrote that the “issue is too emotionally charged to allow such a demonstration to happen in our tournament and be able to ensure the safety and well-being of all involved.” Fort Bragg is “a small school district that simply does not have the resources to ensure the safety and well-being of [its] staff, students and guests at the tournament…” stated Walker.  All but one student from the boys’ team were reinstated into the tournament after agreeing not to wear the t-shirt. The girls’ team refused to acquiesce and had their invitation to the tournament rescinded.

    The school’s decision made national headlines, induced several student protests and prompted attention from the ACLU who questioned whether the school illegally prevented the students’ rights to free speech and protest. On December 30, 2014, the school reversed course and repealed its ban on the t-shirts.  The school district’s attorney noted that any litigation resulting from the initial decision would be costly and time consuming.

    Here, it seems that the threat of litigation was the driving force behind the reversal, but, was Fort Bragg High School legally required to back down?  The answer lies not in the article of clothing itself, but rather the circumstances under which it’s being worn.

    In the seminal case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court found invalid a public school regulation banning simple black arm bands, with no identifiable markings, worn to silently protest the Vietnam War.  The court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506.

    But of course, these rights are not absolute. A public school can restrict students’ First Amendment rights by demonstrating that the freedom would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or if the expression would “impinge upon the rights of other students.” Id. at 509.  Therefore, the Tinker standard requires more than just a school administration’s “undifferentiated fear or apprehension of disturbance;” more than a “desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. at 508.  There, because the school authorities did “not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities,” the court reversed. Id. at 514.

    Since Tinker, courts have had occasion to hammer out when public schools can reasonably forecast when there might be a substantial disruption.  Within the last year, the 9th Circuit, which covers California where Fort Bragg High School is located, found a school did not violate student’s First Amendment rights when officials forbid wearing clothing depicting the American Flag on Cinco de Mayo. Dariano v. Morgan Hill Unified School Dist., 767 F.3d 764, 779 (9th Cir. 2014).  There, unlike Tinker, the school presented clear evidence that the school’s atmosphere was rife with racial tension.  In fact, the record contained evidence of gang related violence occurring on the school grounds, a near-violent fight the past Cinco de Mayo, and on the day in question, the principal learned of threats of physical violence against students wearing clothing depicting the American flag. Id. at 776-77.  Given the past actions and current climate of the school, in contrast to Tinker, the school officials expressly referenced the concern for students’ safety and the possibility that an anticipated disruption might result from any violence. Id.

    So what about here? Were Principal Walker’s concerns for safety significant enough to justify her initial decision?  On one hand, the decision may fall on the non-violative side of the Tinker test because the issued statement does mention the concern for the safety and well-being of all students, staff and guests. But on the other hand, does Dariano call for more than just a school administrator’s mere concern for safety?  Principal Walker’s decision rests on a concern for safety, but comes without any reported impending crisis in the school or surrounding area that is thus dissimilar to the situation that was present in Dariano.  Perhaps she went too far and was right to reverse course.

    Free speech challenges to public school administrators’ actions are nothing new. As evidenced by this case, school districts and employers may want to seek legal advice prior to implementing any new policies or bans. If your institution would like further information, please email James G. Ryan at jryan@cullenanddykman.com or call him at (516) 357-3750.

    A special thank you to Andrew Curran, a Law Clerk at Cullen and Dykman LLP, for his assistance with this blog post.