By Eugene Volokh
Sapp v. School Board of Alachua County (N.D. Fla. Sept, 30, 2011), which was just made available on Westlaw today, holds that (1) a public school properly restricted the wearing of “Islam is of the Devil” T-shirts because they led to substantial disruption, and (2) the school’s broader policy banning “clothing or accessories that ... denigrate or promote discrimination for or against an individual or group on the basis of age, color, disability, national origin, sexual orientation, race, religion, or gender” was constitutional.
Decision 1 strikes me as correct, given Tinker v. Des Moines Indep. Comm. School Dist. (1969), which allows speech in K-12 schools to be restricted if it seems likely to cause substantial disruption. To be sure, this allows a “heckler’s veto” that wouldn’t be allowed outside K-12 schools — here, for instance, the disruption included (among other things) a student’s telling one of the T-shirt wearers, “My friend is a Muslim, and he’s going to kill you”; if this happened outside school, that would only be justification for punishing the threatener, not suppressing the speech of the threatened. Nonetheless, Tinker does allow student speech to be restricted when it causes disruption, and hostile reactions might well be quite disruptive.
Decision 2, though, strikes me as incorrect, because it isn’t limited to speech that causes disruption; indeed, the policy is much like that struck down by the Third Circuit in Saxe v. State College Area School Dist. (2001). Indeed, the policy is so broad that it would ban display of messages that say “Preserve Traditional Marriage” (in a context where this is understood as opposing proposals to allow same-sex marriage), even if such messages create no disruption — after all, such a message “promote[s] discrimination ... against ... [a] group on the basis of ... sexual orientation. For that matter, the policy would likewise ban display of messages that support race-based affirmative action, since that likewise would be “promot[ing] discrimination for ... [a] group on the basis of ... race.” That can’t be constitutional, even given Tinker.