Right to Freedom of Speech for School Students

In the name of the First Amendment, what is going on? We're talking about the free-speech rights of high school students.

The topic seems to hang on forever, probably because high-spirited students, fiercely protective parents and the American Civil Liberties Union won't let it go. Constant readers of this column may recall the case of Joseph Frederick in Juneau, Alaska. The high school student was disciplined for unfurling a sassy poster on a public street outside a public school. The school principal lost her cool and turned a trivial incident into a federal case. The Supremes will have no problems with this one.


The companion case of Zach Guiles is a lot tougher. These were the facts:

Three years ago, Zach was a seventh-grade student at Williamstown Middle High School in Vermont. U.S. District Judge William K. Sessions describes him as a good student, "very articulate and mature for his age." On a day late in March, when the maple sap was rising and the winter snows were thawing, Zach attended an anti-war rally of Vermont's Green Party. There he purchased a T-shirt with a strange device.

There was not merely one strange device. On both the front and back, in large letters, the shirt identified President Bush as a "Chicken-Hawk-in-Chief" who is engaged in a "World Domination Tour." In smaller text, the shirt further described the president as a "crook," an "AWOL draft dodger," a "lying drunk driver," and an abuser of marijuana and cocaine. Other friendly messages were conveyed through images of oil wells, dollar signs, a martini glass, three lines of cocaine and a razor blade.

"There is no question," said Judge Sessions, "that as a whole, the T-shirt communicated a very strong political message of disapproval (if not disdain and outright loathing) of the president's character and policies."

For two months Zach wore the shirt off and on. Some eyebrows went up. The heavens did not fall. There were no fights or even minor disruptions. Finally a visiting parent noticed the loathsome garment. She complained. As you will have surmised, one thing led, as it usually does, to another. Zach was abruptly offered options: (1) turn the shirt inside out, or (2) tape over the awful images, or (3) stop wearing the thing altogether.

Zach conferred with his father. After 24 hours of temporizing, the Guiles family reluctantly accepted the second option. Briefly suspended, he returned to school with portions of the shirt taped with a new message: CENSORED! Two weeks later, as the term ended, he went into U.S. District Court and sued everyone in sight.

At trial, a witness for the school board expressed her concern that if Zach were permitted to wear the shirt in class, "students could conclude that using drugs and alcohol is acceptable because one can use them and still become president of the United States." Other witnesses for the defense testified that "unsupervised exposure to images of drugs could breed familiarity and acceptance among middle-school students."

After some backing and filling, Judge Sessions came down largely on the side of the school officials. He ordered the brief suspension expunged from Zach's record, but otherwise he found the censorship permissible. Zach and his father appealed to the U.S. Court of Appeals for the 2nd Circuit. There Judge Richard J. Cardamone spoke for a three-judge panel in largely reversing the trial court. With no one to block his metaphor, he sailed "into the unsettled waters of free-speech rights in public schools — waters rife with rocky shoals and uncertain currents." After reviewing the Tinker, Fraser and Hazelwood cases, he concluded that the rule of Tinker governs the case.

Zach's anti-Bush opinions were not expressed through a school newspaper, as in Hazelwood, or at a school assembly, as in Fraser. His T-shirt was as silently eloquent as Tinker's armband. His unspoken speech may have been disrespectful, but it was not vulgar, lewd or indecent. It had caused no "material and substantial interference" with school activities. The First Amendment lives!

Good thing, too. Or Judge Kilpatrick, meaning me, would have no column today.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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