The Dearborn High School principal gave 17-year-old student Bretton H. Barber a choice: He could take off the T-shirt that labeled President Bush an 鈥淚nternational Terrorist,鈥� or he could go home.
A card-carrying member of the American Civil Liberties Union, the Michigan teenager refused to remove the shirt, which he said expressed his opposition to war. Instead, he called his parents and left school for the day.
The student says administrators are violating his First Amendment right to freedom of expression by refusing to let him wear the shirt to school. The ACLU agrees, and may file a lawsuit against the district. Superintendent John B. Artis, on the other hand, characterizes the Feb. 17 incident as a violation of the school鈥檚 dress code and says the shirt trumpets a message inflammatory enough to disrupt the educational process.
Who鈥檚 right?
The answer depends in large part on the judge who eventually hears Mr. Barber鈥檚 complaint, legal experts say. But many of those observers argue that even if the courts give the Dearborn administrators the benefit of the doubt, that doesn鈥檛 make the 17,600-student system鈥檚 actions a model for others.
鈥淭here are no freedom-of- expression rights stronger in America than the right to criticize your government鈥攊t鈥檚 called political speech, and it鈥檚 what the nation鈥檚 founders had in mind,鈥� said Ken Paulson, the executive director of the First Amendment Center at Vanderbilt University, in Nashville, Tenn. 鈥淵ou have to be cognizant of that as an administrator, and not just respond reflexively whenever you see something you don鈥檛 like.鈥�
Letting students have their say is not always an easy sell for administrators like Superintendent Artis, who dealt with similar discipline issues countless times during his 14 years as a high school principal.
He argues that as the country moves closer to a fiercely debated war with Iraq, principals and superintendents must do what it takes to keep order in today鈥檚 ethnically and culturally diverse public schools.
鈥淭his decision was not based on the particular content of the message [on Mr. Barber鈥檚 shirt],鈥� Mr. Artis said. 鈥淲e are a district with a significant amount of diversity, and we do pay attention to things that may cause tension in the various communities we serve.
鈥淚t comes down to a question of whether a school has the right to insist on some level of control over the dress and behavior of its students,鈥� he said, 鈥渁nd I believe we do.鈥�
Rash of Incidents
The Dearborn administrator has company in that view, judging from recent news accounts.
In November, a 17-year old Brooklyn student was pulled out of class, searched, and told she couldn鈥檛 wear a T-shirt and pin that showed the Palestinian flag, or display pro-Palestinian stickers, according to The New York Times. The school later reversed its decision.
A high school in the Chicago suburbs suspended an 8th grade student in February for wearing a T-shirt that displayed the twin towers of the World Trade Center, an airplane, and a man in a traditional Arab headdress because administrators believed it 鈥渃ould be taken as a promotion of terrorism,鈥� according to a March 2 Associated Press article.
And in Fairhaven, Mass., this month, high school administrators ordered student journalists who were videotaping a student anti-war walkout to turn off their cameras, arguing that their coverage was encouraging the student protesters, according to the Student Press Law Center.
In such situations, principals face a difficult balancing act when it comes to weighing the free-speech rights of individual students against the needs and mission of the school as a whole, Mr. Paulson of the First Amendment Center said.
鈥淵ou really have to feel for these administrators,鈥� he said. 鈥淲hat makes their jobs so tough is that the First Amendment says the government can鈥檛 pick and choose particular messages to censor.鈥�
Too many principals do just that, according to some legal experts and student-rights advocates.
鈥淭here鈥檚 really widespread ignorance about what the First Amendment does and does not allow in the school setting, and that鈥檚 always a dangerous thing,鈥� said Sam S. Chaltain, the coordinator for the First Amendment 69传媒 project in Arlington, Va., a national initiative designed to help educators model and teach the first freedoms in the Bill of Rights.
Even when administrators understand the First Amendment, Mr. Chaltain said, they are often reluctant to let students practice those rights 鈥渂ecause they think that to do so would be to invite chaos and contention in the hallways.鈥�
A Real Threat
The First Amendment of the U.S. Constitution says the government 鈥渟hall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.鈥�
In 1969, the U.S. Supreme Court decided how far those rights extend to public school students in the landmark case Tinker v. Des Moines Independent Community School District, which arose during the national divisions over the Vietnam War.
A small group of students who had been suspended in 1965 for wearing black armbands to school to protest the United States鈥� military action argued that administrators had violated their First Amendment rights.
The Supreme Court agreed, famously ruling that neither students nor teachers 鈥渟hed their constitutional rights to freedom of speech or expression at the schoolhouse gate.鈥�
The court established that symbolic dress worn to school for political reasons is expression that is protected by the First Amendment, and that student speech can only be censored when school officials can show it poses a 鈥渕aterial and substantial interference鈥� with the educational process.
That sets a high bar for administrators, according to Jamin B. Raskin, a constitutional law professor at American University Washington College of Law and the author of We the 69传媒: Supreme Court Cases For and About 69传媒.
鈥淭he threat the court was talking about has to be real鈥攊t can鈥檛 just be hypothetical,鈥� Mr. Raskin said. 鈥淭he administrators in [Tinker v. Des Moines] predicted that fights could erupt as a result of the students鈥� wearing black armbands, but unless there were actual fisticuffs or riots breaking out at school, they didn鈥檛 have a valid excuse鈥� for censorship.
Still, other experts warn that the Tinker decision, though important, is not the final word on free speech in schools.
鈥淎s we migrate the rules [for free speech and expression] from regular society into schools, they have to change,鈥� said Julie Underwood, the general counsel for the National School Boards Association in Alexandria, Va. 鈥淭he courts have recognized that school administrators have a special relationship with students, and also that school administrators have the responsibility to take care of the rest of the children in a school and to provide an environment appropriate for their education.鈥�
In 1986, the Supreme Court found in Bethel School District No. 403 v. Fraser that schools could censor and punish students for 鈥渓ewd, indecent, or offensive鈥� speech because public school students鈥� First Amendment rights are not equal to those of adult citizens.
And in the 1988 case of Hazelwood School District v. Kuhlmeier, the court decided that the free-speech rule in the Tinker case didn鈥檛 apply to school-sponsored activities such as student newspapers and yearbooks. The majority ruled that 鈥渁 school need not tolerate student speech that is inconsistent with its basic educational mission,鈥� and that censorship 鈥渞easonably related to legitimate pedagogical concerns鈥� was acceptable.
But many lower courts have also held that administrators must show they aren鈥檛 attempting to stifle a particular viewpoint鈥攁n anti-war stance, for instance鈥攚hen they curtail student speech, said Mark Goodman, the executive director of the Student Press Law Center, based in Arlington, Va.
鈥淔or something to be reasonably related to educational concerns, it can鈥檛 just be the personal concerns of an administrator or an attempt to protect the school鈥檚 reputation from a factual reporting of the truth,鈥� Mr. Goodman said.
In Dearborn, Mich., last week, Bretton Barber was back in school, but the offending T-shirt was at home, tucked away in his closet as he waited to see if administrators would change their minds.
They won鈥檛, the superintendent said. Nor will Mr. Barber, apparently.
鈥淚f they say I can wear the shirt, that will be the end of it,鈥� he said. 鈥淚f not, we are prepared to file a lawsuit.鈥�
