A dress-code dispute over an anti-abortion T-shirt will head to trial in late August, after a federal district judge said it was an open question whether officials prohibited a student from wearing her shirt with pictures of fetuses because of its viewpoint or because it was too graphic.
Commentary
July 27, 2010
By David L. Hudson Jr.
In April 2008, a sixth-grade student at McSwain Union Elementary School in Merced, Calif., wore an anti-abortion shirt during the week of state standardized testing.
The shirt featured the word “ABORTION” on the front with three squares below it. The first two squares showed images of fetuses and the third was black. Below the three squares was the caption, “growing, growing … gone.” The back of the shirt read: “American Life League’s Sixth Annual NATIONAL PRO-LIFE T-SHIRT DAY April 29, 2008 www.ALL.org.”
School officials gave the student, known in court papers as “T.A.,” three choices: wear the T-shirt inside out, have her mother come pick up the shirt and give her a different shirt, or turn the shirt in to the school for the rest of the day and receive a temporary replacement shirt. T.A. took a replacement shirt from the school and retrieved hers at the end of the day.
School officials contended that the shirt violated the school’s dress code, which states: “Personal articles, clothing, or manner of dress shall make no suggestion of tobacco, drug, or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter.”
T.A.’s mother filed a federal lawsuit on First Amendment grounds and then filed a motion for summary judgment, a legal move that asks a judge to declare that a party should prevail as a matter of law before the case goes to trial.
U.S. District Judge Oliver W. Wanger refused to grant the student summary judgment in T.A. v. McSwain Union Elementary School, ruling July 16 that there were factual disputes as to the motivation for the censorship of the shirt.
“Plaintiff alleges that Defendants censored Plaintiff’s expression due to the fact that her t-shirt advanced a pro-life message, and there is some evidence on the record sufficient to support such an inference,” Wanger wrote.
However, he also said the school officials presented evidence that “the restriction imposed on Plaintiff was not based on the viewpoint expressed by Plaintiff’s shirt, but rather on the graphic pictures contained on it.”
The judge also said it was an open question whether school officials could show that the anti-abortion shirt would have disrupted school. In Tinker v. Des Moines Independent Community School District (1969), the U.S. Supreme Court established that school officials could prohibit student expression only if they could reasonably forecast that the student speech would cause a substantial disruption of school activities.
McSwain school officials contend that the T-shirt and its graphic images could have provoked disruptions among students during the particularly sensitive time of standardized testing. The student countered that this claim was simply a mask for stark viewpoint discrimination against her anti-abortion viewpoint.
As a result of the judge’s ruling, a jury will now decide whether school officials forced T.A. to remove the shirt because they opposed its anti-abortion viewpoint or whether they had a legitimate basis to conclude that the shirt would be disruptive.