Florida federal district court rules school district’s prohibition on students wearing t-shirts denigrating Islam does not violate students’ constitutional rights
Sapp v. School Bd. of Alachua Cnty., No. 09-242 (N.D. Fla. Sept. 30, 2011)
Abstract: A federal district court in Florida has granted a school district’s motion for summary judgment in a suit brought by students who were prohibited from wearing t-shirts in school and at school-related events captioned “Islam is of the Devil.” The court concluded that neither the school district’s prior dress code nor the current one under which the t-shirts would be subject to a ban violated the students’ constitutionally-protected free speech rights.
The district court concluded that the school district did not violate the students’ constitutional rights by applying the 2009-10 dress code to prohibit them from wearing the t-shirts in school and at a football game because school officials could reasonably forecast that the message on the shirts would be disruptive. It, likewise, concluded that application of the 2010-11 dress code to ban the t-shirts would not run afoul of the Constitution because given the “special characteristics of the school environment and the schools’ legitimate pedagogical interests,” school officials could act to protect students from hateful speech and “teach the bounds of civil discourse.”
Facts/Issues: Seven students attending Alachua County public schools wore t-shirts bearing the caption “Islam is of the Devil.” On each occasion the shirts were worn, the students were sent home for violating Alachua County School Board’s (ACSB) 2009-10 version of its dress code. The dress code was also enforced at a football game when a group of parents and students wore the t-shirts. The students filed suit against ACSB, alleging violation of their free speech rights.
The district court denied the students’ motion for a preliminary injunction on the ground that the request for prospective injunctive relief had been rendered moot as a result of the substantial changes made in ACSB’s 2010-11 dress code. The updated dress code requires all students to wear uniforms. It also contains a provision that applies to outer garments and accessories worn in school and to clothing worn after school at school sponsored activities. Such clothing and accessories cannot “have slogans, signs, images, or symbols that . . . denigrate or promote discrimination for or against an individual or group on the basis of age, color, disability, national origin, sexual orientation, race, religion, or gender.”
Both parties filed motions for summary judgment on the constitutionality of the 2009-10 and 2010-11 dress codes. The students did not challenge the portion of the 2010-11 dress code requiring students to wear uniforms.
Ruling/Rationale: The district court granted ACSB’s motion for summary judgment, and denied the students’, as to both dress code policies. As a preliminary matter, the court found that the claims of three of the students who no longer attended Alachua County schools were moot. It also found that the remaining students had standing to bring the suit and that the issues were ripe for decision as to the 2010-11 dress code without requiring the students to test the new policy by wearing the t-shirts.
Citing Morse v. Frederick, 551 U.S. 393, 405 (2007), the district court pointed out that students’ First Amendment rights are not as broad as those of adults in public forums. Citing Tinker v. Des Moines Indep. Commty Sch. Dist., 393 U.S. 503 (1969), it found that those rights should be determined “in light of the special characteristics of the school environment.” The court further noted, based on Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), that schools are not public forums and, thus, school officials may regulate speech consistent with “legitimate pedagogical concerns.”
Based on these principles guiding school officials’ authority to regulate student speech, the district court, relying on the U.S. Court of Appeals for the Eleventh Circuit’s decision in Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246 (11th Cir. 2003), concluded that student speech may be restricted under Tinker when that is a reasonable forecast that the speech will cause “appreciable” disruption to school discipline and may be restricted under Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) where the student’s speech includes “the use of vulgar and offensive terms and the use of terms that are highly offense or highly threatening to others.”
Applying the Tinker standard, the district court concluded that the school district was on solid constitutional footing prohibiting the wearing of the t-shirts under the 2009-10 dress code because there were a number of documented incidents where the shirts had caused actual disruption. Similarly, the court applied the Fraser standard to find that those incidents supported the prohibition under the 2009-10 dress code, as the message on the t-shirts was offensive and demeaning to Muslim students. “In this case,” it said, “school officials had a reasonable fear that the t-shirts were likely to interrupt school activities and appreciably disrupt appropriate discipline in the school.”
Turning to the 2010-11 dress code, the district court stressed that the students’ challenge was limited to the portion regulating clothing worn after school to school sponsored events or activities. The updated code’s language, it noted, “is similar to many anti-discrimination laws that are applied in workplaces to protect employees from harassment” and ”… furthers important governmental and pedagogical concerns.” It concluded that the school district’s interest in protecting students from “hateful speech at school and teach[ing] students the bounds of civil discourse is no less compelling than the government’s interest in protecting” employees from unreasonable harassment at work.
Given the special characteristics of the school environment and schools’ legitimate pedagogical interests, the district court concluded that the 2010-11 dress code policy “can be applied to prohibit Plaintiffs’ t-shirts (and similar outer clothing or accessories) without running afoul of the First Amendment.” It emphasized that decisions regarding regulation of speech in schools were best left to school boards rather than the federal courts.
Sapp v. School Bd. of Alachua Cnty., No. 09-242 (N.D. Fla. Sept. 30, 2011)
[Editor's Note: Many thanks to COSA member Robert J. Sniffen of Sniffen & Spellman, P.A., Tallahassee, who litigated the case and kept Legal Clips informed.
In April 2010, Legal Clips summarized a news item from the Gainesville Sun in which Howard Simon, executive director of the Florida American Civil Liberties Union, discussed the suit by the students against ACSB. Simon agreed that the slogan on the students’ T-shirts is “an atrocious piece of religious intolerance." However, he believed that “the school should have used it as a learning opportunity." He contends that instead of suspending the students, the school board should have used the situation to prompt dialogue about the variety in world religions and cultures.
In March 2011, Legal CLips summarized a decision of a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Zamechik v. Indian Prairie Sch. Dist. #204, which held that students were entitled to a permanent injunction prohibiting a school district from banning them from wearing clothing at school displaying the message “Be Happy, Not Gay,” plus nominal damages. The panel concluded that the evidence presented by the school district was insufficient to satisfy the Tinker substantial disruption standard. Evidence of past disruption, prior to the wearing of the “Be Happy, Not Gay,” shirts, was negligible. It also found that some of the evidence was barred by the doctrine of “heckler’s veto,” because it used speech that contained no fighting words, which would not have moved a reasonable person to a violent response, to justify banning the speech.]