Fifth Circuit upholds Texas district’s dress code
The U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX) has ruled that a school district’s student dress code prohibiting T-shirts and polo shirts with printed messages, but making an exception for “campus principal-approved [District] sponsored curricular clubs and organizations, athletic teams, or school ‘spirit’ collared shirts or t-shirts,” does not violate students’ First Amendment free speech rights. Paul Palmer, a student at Waxahachie High School (WHS), ran afoul of Waxahachie Independent School District’s (WISD) dress code when he wore a T-shirt to school with “San Diego” printed on it. When Paul was told that the shirt violated the dress code, his parents brought him one with “John Edwards for President ‘08” printed on it. WHS’s principal and WISD’s superintendent both upheld the assistant principal’s decision that this shirt also was not allowed. Paul sued WISD, alleging the dress code violated his free speech rights. Because WISD had revised the code for the upcoming school year, the U.S. district court dismissed the suit but requested that WISD provide a copy of the new code. Paul then submitted three shirts to WISD for approval: the original John Edwards T-shirt, an Edwards polo shirt, and a T-shirt with “Freedom of Speech” on the front and the text of the First Amendment on the back. When, not surprisingly, the district rejected all three, Paul filed a second lawsuit. WISD conceded that political pins, buttons, bumper stickers, or wrist bands were not banned by the code and would have analyzed them under U.S. Supreme precedent governing student speech. But the district court denied Paul’s motion for a preliminary injunction on the ground he had failed to show he would suffer irreparable harm.
The Fifth Circuit affirmed, but on different grounds. Unlike the district court, the appeals court concluded that Paul’s assertion of his loss of First Amendment freedoms was sufficient to satisfy the “irreparable injury” prong for the preliminary injunction. However, the court concluded that he failed to demonstrate the likelihood of his success on the merits of his claim. Specifically, the dress code was constitutional, because it was a content-neutral regulation of student speech. Relying on its earlier ruling in Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001), the Fifth Circuit stated that under United States v. O’Brien, 391 U.S. 367 (1968), content-neutral regulations are subject to the relatively lenient “intermediate” standard of review. Under O’Brien, a uniform policy will pass constitutional scrutiny if: (1) it furthers an important or substantial government interest; (2) the interest is unrelated to the suppression of student expression; and (3) the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest. The court rejected Paul’s arguments that this standard should not apply to student speech. Canady was controlling precedent in the Fifth Circuit, and because three other federal circuits follow the case, it “has effectively become the national standard for analyzing content-neutral student speech.” The court rejected Paul’s contention that Justice Alito’s concurring opinion in Morse v. Frederick, 127 S. Ct. 2618 (2007), had overruled Canady, observing that: (1) Morse did not involve content-neutral regulation of student speech; (2) Alito never mentioned Canady; and (3) his concurrence in fact “recognized that Tinker ‘does not set out the only ground on which in-school student speech may be regulated.’” Paul’s attempt to distinguish Canady as involving a uniform code rather than a dress code amounted to a distinction without a difference, and the fact that Canady involved a facial challenge while the present case involved an “as applied” challenge also was irrelevant, since the intermediate level of judicial scrutiny would still apply.
WISD’s dress code was content-neutral, the Fifth Circuit, found. The exceptions for shirts with small logos and for school-related shirts did not violate content neutrality; three other federal courts had upheld similar exceptions as content-neutral. Applying the three-part Canady test, the court determined that (1) WISD had “provided more than enough evidence to establish its important governmental interests”; (2) Paul had not argued that the dress code was intended to suppress expression; and (3) the code “does not restrict student dress outside of school and provides them with some means to communicate their speech during school.” Even if the court found “the distinction between messages on shirts and messages on buttons odd,” it recognized that the teachers and administrators who establish these rules know better than the court how the distinction will function in schools.
Palmer v. Waxahachie Indep. Sch. Dist., No. 08-10903 (5th Cir. Aug. 13, 2009)
[Editor’s Note: Background on the case is available below.]
NSBA School Law pages on Palmer v. Waxahachie Indep. Sch. Dist.