The Supreme Court of the United States has long held that public school students retain their constitutionally protected right to freedom of speech and expression. This includes the right to wear Christian t-shirts and other religious paraphernalia. See, e.g., Morse v. Frederick, 551 U.S. 393 (2007); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Widmar v. Vincent, 454 U.S. 263 (1981); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
The seminal case regarding students’ speech rights is Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). In Tinker, students wore black armbands on their sleeves to exhibit their disapproval of the Vietnam war. As a result, the students were sent home and suspended from school, and were not allowed to return to school so long as they wore the armbands. Ruling in the students favor, the Supreme Court in Tinker held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 393 U.S. at 506.
School officials do not possess complete authority over students, and students may not be required to express only those sentiments that are officially approved. In fact, school officials can only restrict student speech if it will "materially or substantially disrupt school discipline." Tinker, 393 U.S. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). "When [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions …." Id. at 512-13.
The fact that a student’s speech is religious—from a Christian statement on a t-shirt to the symbol of the cross—does not lessen its protection under the First Amendment, even when that speech takes place on a public school campus. See Widmar, 454 U.S. at 269 (1981) (citing Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981)); see also Westside Community Schools v. Mergens, 496 U.S. 226 (1990). As the Supreme Court has explained,
private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. . . . Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.
Capitol Square & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) (plurality opinion); see also Mergens, 496 U.S. at 250. In fact, the right to persuade, advocate, or evangelize a religious viewpoint implicates the very reason the First Amendment was adopted.
Accordingly, a school may not censor student expression because of its religious content unless the school can demonstrate that the speech falls within one of a few narrow exceptions (e.g., the speech causes material disruption, violates the rights of others, is vulgar, or advocates illegal conduct). Morse, 551 U.S. 393; Hazelwood Sch. Dist., 484 U.S. 260; Fraser, 478 U.S. 675. Since the Supreme Court decided Tinker, courts have upheld the free speech rights of students to wear clothing and paraphernalia with controversial messages in numerous cases, such as:
- wearing a t-shirt with the phrase "Be Happy, Not Gay," Nuxoll ex rel. Nuxoll v. Indian Prairie School District, 523 F.3d 668, 676 (7th Cir. 2008);
- wearing a button to school featuring a picture of the Hitler Youth to protest the school’s uniform policy, DePinto v. Bayonne Bd. of Educ., 514 F. Supp. 2d 633 (D.N.J. 2007);
- wearing a t-shirt that bore images of cocaine and alcohol and suggested that President Bush had used them, Guiles ex rel. Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006);
- wearing a pro-life t-shirt with the phrases: "ABORTION IS HOMICIDE," "You will not silence my message," "You will not mock my God," "You will stop killing my generation," and "Rock for Life!", K.D. ex rel. Dibble v. Fillmore Central School District, No. 05-CV-0336(E), 2005 WL 2175166 (W.D.N.Y. Sept. 6, 2005);
- wearing a t-shirt with the phrases: "INTOLERANT ... Jesus said ... I am the way, the truth and the life. John 14:6" and "Homosexuality is a sin! Islam is a lie! Abortion is murder! Some issues are just black and white!", Nixon v. Northern Local School District Board of Education, 383 F. Supp. 2d 965, 967 (S.D. Ohio 2005);
- wearing a t-shirt containing President Bush’s photo with the caption “International Terrorist,” Barber v. Dearborn Pub. Schs., 286 F. Supp. 2d 847 (E.D. Mich. 2003);
- wearing a “scab” button to protest the school’s hiring of substitute teachers during a strike, Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992);
- wearing a t-shirt displaying Jeff Foxworthy’s “Redneck” humor, Sypniewski v. Warren Hills Regional Bd. of Educ., 307 F.3d 243 (3d Cir. 2002); and
- wearing a Rosary outside clothing despite school officials considering Rosaries work outside clothing “gang-related apparel,” Chalifoux v. New Chaney Indep. Sch. Dist., 976 F. Supp. 659 (S.D. Tex 1997).
School officials “cannot suppress expressions of feelings with which they do not wish to contend,” Tinker, 393 U.S. at 511 (citation omitted), or “prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Texas v. Johnson, 491 U.S. 397, 414 (1989). As the Supreme Court has noted, “[t]he First Amendment protects expression, be it of the popular variety or not.” Boy Scouts of America v. Dale, 530 U.S. 640, 660 (2000). In other words, the fact that student expression may touch upon controversial matters is more reason to uphold the First Amendment’s protections, not less. In light of these cases, a student’s right to wear a Christian t-shirt or other religious paraphernalia is protected by the First Amendment. Rarely, if ever, will wearing a Christian t-shirt materially disrupt classwork, cause substantial disorder, or violate the rights of other students.
Moreover, school dress code policies that are overly broad and give school administrators unbridled discretion in prohibiting certain clothing may be unconstitutional vague. A New York federal district court found that a school code that prohibited “[a]ny activity, affiliation and/or communication in connection with a non-school sanctioned club/group, including fraternal organizations or gangs” was unconstitutional because it gave administrators too much discretion in implementing the policy and included vague terms. Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp. 2d 406 (E.D. N.Y. 2009) (citing Chalifoux, 976 F. Supp. 659).
The ACLJ continues to represent students around the country whose constitutional rights are being violated by school officials that wish to squelch their religious speech.
You should have had absolutely no problem having T-shirts distributed, especially if the T-shirts are distributed student-to-student. I argued a case* at the Supreme Court of the United States several years ago that we won. The Court was unanimous in affirming that students have the right of freedom of speech, including distributing T-shirts, if the school allows things to be distributed on campus. The law is very good on that. *McConnell v. FEC: "Minors enjoy the protection of the First Amendment. See, e.g., Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 511-513 (1969)."
That's a very legitimate question, and here's what I'm telling students when they ask about that particular slogan: You know the context of what you're saying with that T-shirt slogan, and I know the context of what you're saying. The school district's concern is that other people may not know what the context is, and to them it looks like profanity on a T-shirt, even though that's not what you mean it to be. In my view, it's not worth making a big enough deal about one T-shirt to go to court, because the schools have a compelling interest in not allowing profanity on a T-shirt, even though you're not using it in a profane way. You're better off wearing another Christian T-shirt to share your faith. You clearly have the right to wear Christian T-shirts; that's a right protected under law. I'm glad they are not denying you that right. We've been asked this question a lot over the years, especially with regard to that particular T-shirt. And the difficulty is, the school district has these no profanity policies, and even though hell is a real place and hell is discussed in the Scriptures, school administrators get nervous about the use of the word. So, I say "OK, let's cut the school administrators some slack, as long as they're allowing Christian T-shirts to be worn generally." Every school district is different; some T-shirts kids are allowed to wear, we consider offensive. You do have to watch it from both angles, school district to school district.
Number one, the school cannot tell a student not to wear a cross-or a star of David, for that matter, if the student was Jewish. That's perfectly allowed. We've actually litigated a case where we had to go to Federal Court in Alabama on this issue, and we won that case. Public school students have the right to wear religious jewelry without any problem. Secondly, if any student is allowed to wear any T-shirt with a slogan, advertisement or message of any kind, the school cannot deny a student the same right to wear a T-shirt with a Christian message. We've had cases about that issue over the years as well, and generally they've been resolved through letters and other correspondence. In 1995, the Department of Education issued Guidelines for Religious Expression, which have since been revised. These guidelines outline the laws concerning religious expression in public schools, including the right to wear religious paraphernalia.