T-Shirts: Dress Code and Court Rulings

Recent Court Rulings on Student T-Shirts

Tinker Meets Marilyn Manson, ICP and
Hank Williams, Jr.
T-shirts bearing the likenesses of Marilyn Manson, Insane Clown Posse, and Hank Williams, Jr. have been subject to recent federal court litigation involving public schools in Ohio, Indiana, and Kentucky. While the bans against the Marilyn Manson and Insane Clown Posse t-shirts were upheld, the Hank Williams, Jr. t-shirt case was remanded to the trial court for additional proceedings.

Legal Standards. All three cases are strikingly similar in the courts’ analysis of student speech rights under the First Amendment. In upholding a student’s right to wear a black armband to school, the United States Supreme Court developed a test to balance student expression within the unique nature of the school environment: “[A student] may express his opinions . . . if he does so without materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.” Tinker v Des Moines Indep Comm Sch Dist, 393 US 503, 513 (1969).

Subsequent Supreme Court decisions have clarified this standard. Distinguishing between the political message of Tinker’s armbands and the sexual content of a student’s nominating speech, the Supreme Court ruled that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” Bethel Sch Dist No. 403 v Fraser, 478 US 675, 683 (1986). The Supreme Court later noted that First Amendment rights of students must be “applied in light of the special characteristics of the school environment.” Hazelwood Sch Dist v Kuhlmeier, 484 US 260, 266 (1988).

Marilyn Manson. On March 22, 2001, the U.S. Supreme Court declined to hear the appeal of a high school student who was barred from wearing Marilyn Manson t-shirts to school. Boroff v Van Wert City Bd of Ed, No. 00-1020. The Court’s action leaves in place a strong ruling by the U.S. Court of Appeals for the Sixth Circuit which upheld a principal’s right to prohibit such objectionable clothing. (Sixth Circuit decisions are binding precedent in Michigan.)

Nicolas Boroff wore to school a t-shirt of a Gothic rock group, whose lead singer performed under the name Marilyn Manson. School officials told Boroff to remove the shirt, turn it inside out, or go home. For the next three days, Boroff returned to school wearing different Marilyn Manson t-shirts. School officials sent him home each time. Boroff’s mother sued, claiming that the school’s action violated her son’s First Amendment speech rights. Boroff never returned to school.

A panel of the 6th Circuit ruled that school officials had the authority to prohibit t-shirts that “contain symbols and words that promote values that are so patently contrary to the school’s educational mission.” The court ruled that the “record demonstrates that the school prohibited Boroff’s Marilyn Manson t-shirts generally because this particular rock group promotes disruptive and demoralizing values, which are inconsistent with and counterproductive to education.” Boroff v Van Wert City Bd of Ed, 220 F3d 465 (CA 6, 2000).

ICP. On April 17, 2001, a federal court dismissed a student’s lawsuit against an Indiana school district. Draper v Westview Sch Corp, No. 1:00-CV-296 (ND Ind, 2001). Joshawa Draper alleged that school officials violated his First Amendment speech rights when he was suspended and ultimately expelled for wearing “Insane Clown Posse” (“ICP”) paraphernalia to school. The court noted that ICP songs are “replete with extremely graphic references to violent sexual conduct, rape, sodomy, necrophilia, misogyny, murder, mayhem, and dismemberment of bodies.”

Although acknowledging that the wearing of such attire was speech protected by the First Amendment, the court found that school officials were justified in banning the ICP t-shirts because they “materially disrupted the educational process.” The court found “ample evidence” to determine that school officials could reasonably believe that a student’s display of ICP apparel “might cause disruption in the school and interfere with the rights of students to be secure in their school environment.”

The court concluded that “the history of school disturbances and inappropriate behavior linked to ICP was sufficient evidence to warrant concerns about future disturbances.” This evidence included:

• Incidents of vandalism containing death threats referencing ICP
• Student confrontations about the vandalism contents
• Vulgar and violent essays written on school computers, some of which referenced ICP
• Statements by teachers and students that they felt intimidated, threatened, harassed, and otherwise fearful of the students wearing the ICP apparel

In light of these incidents, the court ruled that school officials “had every reason to forecast that continued disturbances, perhaps more serious in nature, may occur if students continued wearing ICP apparel.” Likewise, the court found it “reasonable” for school officials to infer that the wearing of ICP paraphernalia would “promote the violence and other inappropriate messages associated with the ICP’s songs.”

Hank Williams, Jr.On March 8, 2001, the Sixth Circuit reversed and remanded a ruling by a Kentucky federal court upholding the actions of school officials who banned the concert shirts of country music signer Hank Williams, Jr. because they displayed the Confederate battle flag. Castorina v Madison Co Sch Bd, __ F3d __ (CA 6, 2001). The Sixth Circuit found the evidentiary record to be insufficient to determine whether the Tinker standard of “material and substantial interference” had been satisfied.

Conclusion.School officials should not interpret these latest decisions as judicial approval to automatically ban Marilyn Manson and ICP apparel from the public schools. Rather, the Boroff, Draper, and Castorina cases reinforce the importance of meeting the Tinker standard which “requires a specific and significant fear of disruption.” Saxe v State College Area Sch Dist, 240 F3d 200, 211 (CA 3, 2001). An “undifferentiated fear or apprehension” of a disturbance is not enough to overcome a student’s right to freedom of expression.” Tinker, 393 U.S. at 508.