Sometimes the most worrisome encroachments on free speech occur when the Supreme Court fails to act. Yesterday, the Supreme Court denied a petition to review Palmer v. Waxahachie Independent Community School District, a decision by the Fifth Circuit Court of Appeals that upheld a high school's dress code prohibiting almost all T-shirts with messages on them.
The Supreme Court's inaction effectively validates an appellate decision that dramatically reduces high school students' free speech rights and contravenes Supreme Court precedent. In addition, it's cause for concern for those of us who have observed the trend of courts conflating student speech rights in the high school and college settings, despite the fact that college students, as adults attending institutions aimed at promoting and facilitating the free exchange of ideas, enjoy comparatively robust speech rights under the law. By allowing this case to erode high school students' speech rights, the Court's failure to intervene potentially threatens student expression in the university setting as well.
The Palmer case began when a student at Waxahachie High School in Texas was denied permission to wear T-shirts with messages including "San Diego," "John Edwards for President '08," and, ironically, the text of the First Amendment. The student sued, challenging the school district's dress code as a violation of his free speech rights, but was denied an injunction barring application of the dress code until trial. In affirming the trial court's decision, the Fifth Circuit ignored Supreme Court precedent. Instead, the court of appeals created its own rule expanding the ability of the school to regulate speech so long as the restrictions are not based on the content or viewpoint of the message.
The Fifth Circuit chose to overlook what should have been the controlling case, Tinker v. Des Moines Independent Community School Dist. In Tinker, the Supreme Court held that a school could not prohibit students from wearing black armbands intended to protest the Vietnam War because the armbands did not "substantially interfere" with the school's activities. Tinker, which recognized that students retain their First Amendment rights in school, served as a warning to school administrators eager to censor student speech, especially political speech.
The Fifth Circuit failed to apply Tinker's substantial interference test because Waxahachie High School prohibits almost all messages of a certain size, regardless of their content or viewpoint. Because the school was not trying to suppress a certain message, the Fifth Circuit believed itself entitled to give more deference to school authorities, allowing for the dress code to stand if (1) it furthers an important or substantial government interest; (2) that interest is unrelated to the suppression of student expression; and (3) the incidental restrictions on First Amendment activities are no greater than necessary to facilitate that interest. Using this test, Palmer lost his lawsuit, and Waxahachie High School remains empowered to stop students from showing their support for San Diego, John Edwards, or the First Amendment.
The Supreme Court's decision not to review this case is regrettable. Without guidance from the Supreme Court, we hope that other circuits do not follow the Fifth Circuit's example and cast aside the speech rights of high school students.
Moreover, given that some courts have imported the standards governing high school student speech into the college arena, we hope that this case does not harm college students wishing to exercise their First Amendment rights. We have written many times before that such conflation is fundamentally at odds with the university's critical role in society as a true marketplace of ideas. Former FIRE Justice Robert H. Jackson Legal Fellow Kelly Sarabyn published a terrific law journal article on precisely this issue last year, providing comprehensive research and analysis of the case law. Yet the danger continues to exist that courts will limit college students' expressive rights under a framework that is only appropriate in the high school setting. Therefore, decisions like Palmer, which erode high school students' speech rights, also threaten student expression on college campuses. As such, we are disappointed with the Court's decision not to review this case, and we hope that the Supreme Court also seizes the next opportunity to clarify that high school speech standards are inapplicable to the college setting.