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Fetuses and Bong Hits: Student Free-Speech Debate Wears On

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In April of 2008, Anna Amador's daughter, a sixth-grader, walked into a Merced, Calif., elementary school wearing a pro-life T-shirt showing images of fetuses and the words "Abortion: Growing . . . Growing . . . Gone." She probably wasn't expecting what happened next.

The girl, referred to as "T.A." in a pending lawsuit against the school, was allegedly led to the assistant principal's office, ordered to remove her shirt and told to never wear it on school grounds again. The lawsuit, T.A. v. McSwain Union Elementary School District, brought about by T.A.'s mother, asserts that:
"Before Plaintiff could eat [breakfast] she was ordered by a school staff member to throw her food out and report immediately to Defendant Smith's office."

"Upon arriving at the main office, Defendant Hernandez, intentionally and without Plaintiff's consent, grabbed Plaintiff's arm and forcibly escorted her toward Smith's office, at all times maintaining a vice-like grip on Plaintiff's arm."

"Smith and Rohrer ordered Plaintiff to remove her pro-life T-shirt and instructed Plaintiff to never wear her pro-life T-shirt at McSwain Elementary School ever again."

The school argues that the T-shirt violated its policy banning any clothing that promotes "suggestion of tobacco, drug or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter." Cases like these open a can of constitutional worms: How much power does a school have to regulate clothing/speech content? Is the pro-life shirt considered "vulgarity" or "other inappropriate matter"? Was T.A.'s First Amendment right to free speech violated?

The Supreme Court has ruled that individuals, especially students, are not afforded the same rights in public schools as they are in other public places. For example, student newspapers are subject to censorship and editorial control from administrators (Hazelwood School District v. Kuhlmeir, 1988) because the school is not the same as the public arena, and schools can generally ban certain items. However, this can only be done if there is evidence that the clothing or speech will cause a substantial disruption in the educational environment.

In 1969 in Tinker v. Des Moines School District, the Supreme Court determined that a school that had banned students from wearing black arm bands in protest of the Vietnam War had violated the students' constitutional rights. The school failed to provide evidence that the bands would cause a disruption in the classroom, and the Supreme Court ruled that school administrators cannot ban speech simply because they disagree with the message.

In 2007, conservatives heralded a victory in the landmark decision of Morse v. Frederick, more famously known as the "Bong Hits 4 Jesus" case. When a group of students across the street from their high school in Juneau, Alaska, unfurled a banner reading "Bong Hits 4 Jesus" as the 2002 Olympic Torch relay passed by, the school principal suspended Joseph Frederick for refusing to take down the sign. The Supreme Court ultimately ruled that the school was allowed to limit student free speech in issues involving drugs, and signaled that some of the protections of the First Amendment are checked at the classroom door.

Conservatives generally support censorship of speech in a school setting (as Kenneth Starr, the former Whitewater special prosecutor, put it in the "Bong Hits" case, schools
"must be able to fashion [their] educational mission" without undue hindsight from the courts). However, their anger rises to the surface when liberal messages seem to be given a free pass and conservative messages are censored.

The perfect example: Zoe Macknick wore a pro-life T-shirt to her Wisconsin middle school in 2006, only to be told by the principal that a student had complained, and thus she could not wear the shirt. Macknick complained that "they let stuff like [heavy-metal bands] Marilyn Manson and Slipknot be worn."

As blogger Andy Nevis asked, "Does this principal censor all clothing after a single parent complains? Would he ban a T-shirt promoting a rap artist if a parent complained?"

In Colorado, a fifth-grade student wore a T-shirt reading "Obama -- a terrorist's best friend" to school and was asked to remove it. "If I said, 'McCain is a terrorist's best friend' it wouldn't have gotten me into trouble," the boy argued. The school contends that the shirt was banned because the boy caused a disruption, and not because of the message.

In another case, a school actually banned any shirt that promotes a non-school message, hoping to avoid the difficult choices of what messages to censor. Thus, a student wearing a standard John Edwards for President shirt in 2008 was asked to remove it. Dress codes pass constitutional tests because they apply to all points of view and are content-neutral.

But back to T.A. and her pro-life shirt at McSwain Elementary. Will things play out the same as with a Michigan incident involving the exact same shirt? It ended with a court ruling that the student was allowed to wear the attire. McSwain administrators argue that abortion is too sensitive a subject for a sixth-grade classroom, and that may be true (although a group of Massachusetts girls who made a "pregnancy pact" might argue differently).

Schools have an important power to stipulate what their students can and can't wear (or display) in order to maintain a productive education environment. They need to be equally careful to apply that power fairly and effectively across the spectrum of political and cultural beliefs that comprise education communities.
Filed Under: Abortion, The Cram

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