The Constitution in Philly’s Romney T-shirt controversy

National Constitution Center

Philadelphia has been abuzz for the past five days after a high school student claimed she was harassed by a public school teacher for wearing a Mitt Romney T-shirt to school. But what is the bigger constitutional lesson?

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Lost amid the media hubbub over the incident is a basic right that was in play: the student’s ability to wear her pink Romney-Ryan shirt to a public school in the first place.

Dress code issues in public schools have a fairly extensive recent history, dating back to a landmark Supreme Court decision from the late 1960s that set boundaries for what students can wear to school, as a matter of free speech.

In the current case, Philly.com reports that the student says she wore the Romney-Ryan shirt as part of dress-down day at Charles Carroll High School in the city’s Port Richmond section.

The teacher in question, who hasn’t publicly commented on the situation, was accused by the student of making fun of her in a public way, comparing her fashion decision as akin to “wearing a KKK shirt” in the heavily Democratic city.

Philly.com says the both sides have confirmed that the teacher apologized to the student. And it is reasonable to expect a heavy media presence (i.e., circus) at the high school when the student returns to class on Tuesday.

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So why did the Philadelphia school district avert the issue by just barring political slogans on clothing as part of its dress code? That’s not as simple as it seems.

The district’s policy is publicly available online and it appears to closely follow the legal standards set with the Supreme Court’s ruling in Tinker v. Des Moines Independent Community School District (1969).

In Tinker, three students wore black armbands to a public school to protest the Vietnam War in 1965. The case made its way to the high court three years later, as the American Civil Liberties Union helped to argue the case for the students’ parents.

The court decided in a 7 to 2 vote that the armbands represented protected free speech, since the students’ actions were passive.

“School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution,” said Justice Abe Fortas in the court’s opinion. “They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”

The Tinker decision sets general boundaries that allow students to wear T-shirts with slogans as long as they aren’t disruptive, and the slogans are part of an effort to express free speech.

Of course, the school district must allow T-shirts to be worn in school, especially if the school or district has a school uniforms policy. Philadelphia has a general uniform policy, but it does allow exemptions for events.

States have the ability to empower local public school districts to establish dress codes, as long as they don’t conflict with the Tinker decision. The Supreme Court hasn’t heard an appeal yet on the states’ powers to establish dress codes.

However, in 2010, the Supreme Court refused to hear the case of a Texas teenager who wanted to wear a T-shirt to school that had the words “Freedom of Speech” printed on its front and the First Amendment on its back. He also wanted to wear an older John Edwards T-shirt to school.

Attorneys for that school district said it could ban the First Amendment shirt because it had a neutral viewpoint, and the district had changed its dress code to bar all shirts with written messages, unless the messages were related to school activities.

An appeals court also said the teen could wear a political button to express his viewpoint.

The Tinker decision also sets some general rules that public schools can use for dress codes.

“The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment,” Fortas said in 1969.

In recent years, students have won two cases in federal appeals courts that involve pointed political slogans and T shirts.  A federal judge ruled in favor of a Michigan teenager in 2003, who wore a T-shirt to school that protested President George W. Bush’s policy on Iraq.

And in 2007, a U.S. district court ruled in favor of a Vermont student who also wore a T-shirt critical of Bush to school, saying it was protected under the First and 14th Amendments.

The Supreme Court declined to hear an appeal of the Vermont case.

In today’s situation involving that Philadelphia teenager’s Mitt Romney T-shirt, the district would have had some issues if it had barred T-shirts with basic Obama or Romney slogans.

Based on the 2010 precedent, the district might have had some grounds. Or maybe it didn’t, based on the two Bush T-shirt cases.

Either way, the district chose to allow one student to express her feelings with a T-shirt, which shouldn’t be overlooked.

For more on this issue:

http://www.firstamendmentcenter.org/clothing-dress-codes-uniforms

http://www.acluvt.org/pubs/students_rights/dress.php

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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