HERITAGE NOT HATE.  That was the slogan accompanying the Confederate flag reportedly worn  by students at Nixa High School, in Nixa, Missouri to a Board of Education meeting.  The students were protesting the school dress code provision:  “Clothing with racially inflammatory or verbally harassing material such as Confederate flags or swastikas shall not be worn.” One parent said the shirts were about “Dukes of Hazzard-style stuff” rather than “hate crimes,” while two students spoke about racially-motivated bullying at the school.

The board retained the ban.

Many courts have ruled on the constitutionality of school dress codes banning confederate flag attire. The Fourth Circuit recently ruled on the constitutionality of school bans of clothing depicting the Confederate flag in Hardwick v. Heyward. In that case, a student repeatedly wore various shirts depicting the Confederate flag, including one depicting the flag flying on the South Carolina capitol grounds. Her South Carolina school banned student dress that could “cause disruption,” interpreted to include images of the Confederate flag, and she was disciplined for violating the dress code. The student and her parents sued, claiming violations of her First Amendment rights to free speech and expression, and her Fourteenth Amendment rights to due process (for an overbroad and vague dress code) and equal protection (banning Confederate flag shirts but not other “racially themed” shirts).

The court applied the Tinker substantial disruption standard in upholding the ban, as have other circuits faced with the issue in recent years. The court looked at evidence of racial tension in the school, including past incidents involving depictions of the Confederate flag and during the 2000 South Carolina debate about the flag displayed on its capitol dome, and concluded that “school officials could predict that the Confederate flag would cause a disruption.” It further ruled that the ban was not overbroad or vague and, because it found the dress code to be viewpoint neutral on its face and its enforcement to be viewpoint neutral, it found no violation of equal protection.

[image via]

Can a student wear a pro-gun shirt to school?   The preliminary issue is the school’s dress code and whether or not such a shirt would be a violation.  This may not have a simple answer.

In the recent controversy surrounding Jared Marcum, an eighth grader in Logan, West Virginia, was  reportedly  suspended and arrested for wearing a t-shirt portraying an assault rifle with the slogan “NRA Protect Your Right.”  More recently an attorney for Logan County Schools reportedly said that “the T-shirt did not violate the school’s rules,” and that “Marcum was not suspended for his t-shirt, but confidentially prohibited him from saying anything more.”

And in another situation, in Connecticut, 18-year-old high school student Matt Zingarella wore a shirt portraying an assault weapon with the slogan “I Plead the 2nd.” As reported, he also argued that he had “read the handbook, there was nothing against it.”

Both students, like most people, quickly articulated a First Amendment rationale for their dress.  Marcum reportedly initially explained to police that he would not sit down and be quiet, stating “No, I’m exercising my right to free speech” and has since become a media advocate, saying  “What they’re doing is trying to take away my rights, my freedom of speech and my second amendment.”  Similarly, Zingarella argued  he was “expressing [his] beliefs through the shirt.”

The watershed case of Tinker v. Des Moines Independent Community School District involved the wearing of black armbands by school students in protest of the Vietnam War. Decided by the United States Supreme Court in 1969, Tinker established the substantial and material disruption standard for evaluating school speech. While the Court actually uses the word “interfere” more often than “disrupt,” and uses the terms synonymously, what has become known as the Tinker disruption standard requires that in order to curtail student speech, school authorities must show that the student speech would materially and substantially interfere with appropriate school discipline.  In Tinker itself, the Court noted that “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities” because a few students wore black armbands.

Yet the Court in Tinker also noted that the black armbands did not implicate the “rights of other students to be secure and to be let alone,” thus suggesting this should be a factor.  Additionally,  Tinker found it “relevant” that the school did not prohibit the wearing of all symbols of political or controversial significance, and had allowed the wearing of “buttons relating to national political campaigns,” and even “the Iron Cross, traditionally a symbol of Nazism,” thus raising the specter of viewpoint discrimination.

Thus, the “substantial disruption” standard is only part of the relevant doctrine.  The “rights of others” consideration  should also factor into any decision.  In cases about Confederate flag t-shirts and other clothing, courts have looked at incidents of racial violence in the schools.  In the case of gun-rights t-shirts, the question of previous gun violence in the school and perhaps in the community, might also be relevant. Wearing a pro-gun t-shirt in Connecticut – – – home of the December Newtown massacre of 20 first graders and 6 teachers in a school – – – should be viewed as infringing on the rights of others who might have been personally affected and may still be reeling from the violence.

Further, what the school dress code actually provides is exceedingly relevant for First Amendment purposes.  Perhaps ironically, a code that prohibited all political messages or all images on t-shirts or all images of guns, violence, and drugs, would probably be most likely to survive a First Amendment challenge. 

As for Jared Marcum, he has presented a straightforward narrative that he was immediately disciplined merely for wearing a pro-NRA shirt.  The school board attorney suggested that it may not be so simple.  What if Jared himself has a history of violence at the school?  Or what if Jared made threats involving firearms?   After the Columbine High School massacre in 1999, schools began looking more closely at students’ violent propensities despite students’ First Amendment rights.  The threat of a very substantial disruption – – – another school shooting – – – is one that the school officials are not going to take lightly.

[image via]

Laws restricting tattooing and body modification are in the works in at least three states. Arkansas would ban dermal implants, a procedure where jewelry is implanted under the skin, and update its procedures for licensure of artists and tattooing of minors, including increased penalties and fines. West Virginia would likewise ban tattooing for minors under 16 and specify parental consent procedures for 17- and 18-year-olds, including written consent at the time of tattooing. The Utah legislature has passed a similar bill updating its consent requirements for minors. Meanwhile, a Texas father was reportedly arrested for felony injury to a child and felony aggravated assault for allowing his teenaged daughters to be tattooed.

Certainly, tattoos are an increasingly accepted and widespread form of self-expression.  In holding unconstitutional a municipality’s ban on tattoo parlors, in 2010 the Ninth Circuit Court of Appeals in Anderson v. City of Hermosa Beach held that tattoos were expressive activity and thus protected by the First Amendment.  Applying a strict scrutiny standard, the court concluded that the total ban on tattoo parlors was unconstitutional.  Interestingly, the court found that the expression was not merely the words or images, but the “tattoo itself, the process of tattooing, and the business of tattooing.”  

But whether all courts would accept this rationale, or extend it to other practices such as dermal implants  and scarification is uncertain.  Moreover, given children’s lesser constitutional rights, the government’s ability to regulate tattoos on minors – – – with or without parental permission – – – is also uncertain.   Yet the arrest of a father for allowing teenagers to have “body art” is sure to raise a variety of constitutional questions, not to mention policy ones.

[image via]