CBS Los Angeles reports that Haley Bullwinkle, a sophomore at Canyon High School in Orange County, California, was ordered to remove a t-shirt promoting the National Rifle Association and depicting “a buck, an American flag and a hunter’s silhouette.” The school took the action pursuant to its ridiculously overbroad dress code, ((This isn’t the first time Canyon High School has run into trouble with its students’ clothing. In August of 2012, it nixed “Señiores and Señoritas Day”, an annual (and apparently officially-sanctioned) event during seniors’ week wherein students, as high school students are wont to do, often dressed in patently-offensive stereotypes. I wager that the development and rigid enforcement of its dress code is an overreaction to that event.)) which prohibits, among other things:
Clothing or Jewelry that promotes or depicts: gang, drugs, alcohol, tobacco, violence, criminal activity, obscenity, the degrading of cultures, ethnicity, gender, religion and/or ethnic values. (In general, anything that is divisive or offensive to a staff member).
Canyon High’s principal emailed Bullwinkle’s father, stating, in part, that “The shirt had a gun on it, which is not allowed by school police.” Note that the principal invokes, ominously, the authority of the school police – it’s the police, not administrators, who are enforcing this rule! Nevermind that administrators wrote the dress code and that the principal, according to CBS, enforced it. Pass the buck on the shirt about shooting bucks, if you will.
This dress code — and its application to prohibit a shirt promoting the NRA — cannot pass muster under either the First Amendment or California statutory protections for student speech. ((Notably, the dress code cites “Board Regulation #51321″ as the regulatory basis for its enactment. That policy, if it exists, can’t be found among the online Orange County Unified School District Board Policies. Perhaps the dress code meant to refer to BP 5132, which provides two options to OCUSD schools: require uniforms or ban gang-related apparel. Unless a wildly expansive policy was enacted and is not online, Canyon High School’s dress code is outside the First Amendment, outside of the California Education Code, and outside even the OCUSD board’s policies concerning student apparel.))
While current First Amendment jurisprudence provides high school administrators some leeway in restricting student speech where it interferes with the educational process, it does not provide administrators an unrestricted ability to ban “anything that is divisive or offensive to a staff member.” As Eugene Volokh pointed out when a West Virginia school overreacted to a similar NRA t-shirt in April, the Fourth Circuit Court of Appeals has held that a dress code banning “messages on clothing […] that relate to […] violence” likely ran afoul of the First Amendment. To be sure, a prohibition against messages promoting violence (as in Canyon High School’s case) may be distinguishable from messages relating to violence (as in the Fourth Circuit case), although Canyon High’s dress code prohibits both depiction and promotion of violence.
Further, Canyon’s dress code is ridiculously overbroad, banning anything that offends any staff member and essentially granting officials unchecked authority to punish students for views they dislike. ((The principal’s justification that a t-shirt endorsing a particular political view (that gun owners have a right to bear arms) may be banned because it “promotes” gun violence may also be viewpoint discrimination. I doubt that a t-shirt endorsing the view that guns should be outright banned would not be seen as ‘promoting’ gun violence, although it may well be prohibited under the dress code because it ‘depicts’ gun violence. Perhaps this school is populated by other overly-sensitive staff members, ones who might be dedicated NRA members who would be happy to boot a teenager wearing an anti-gun shirt. Such is the danger of subjective I-know-it-when-it-hurts-my-feelings policies addressing speech: any view can be silenced.))
Moreover, California provides statutory protection to student speech, beyond that provided to high school students by the First Amendment. Education Code § 48950 provides, in part:
School districts operating one or more high schools and private secondary schools shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment [or the California Constitution].
The legislature, in enacting this law, specifically declared an intent that “a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus.” There are some exceptions laid out in Education Code § 48907, but these largely track with well-defined exceptions to the First Amendment in general: obscenity, defamation, incitement to violence, and substantial disruption of a school’s orderly operation. Wearing an NRA t-shirt approaches none of these boundaries.
In short, if you can wear an NRA t-shirt off-campus without a police officer measuring your wrists with shiny, uncomfortable metal, you can wear it on-campus without interference from overly sensitive high school administrators.