Q: Several high school teachers have started to wear safety pins on their shirts in protest of the recent presidential election. The teachers have taken to Facebook to publicize their cause and it has resulted in many debates at school between students and staff. One such debate resulted in two students engaging in a fist fight. Can we prohibit the teachers from wearing the safety pins to work?
A: Probably. While not an overtly political display, wearing items with political meaning is considered “symbolic speech” protected by the First Amendment. The U.S. Supreme Court, however, has ruled that public school teachers may be reasonably limited in their protected speech if it creates a disruption to the school.
After the recent presidential election, many began wearing safety pins on their shirts as a sign of political solidarity with marginalized groups. The display is meant to signify a “link,” showing support for racial minorities, immigrants, members of the LGBT community and other minority groups. While wearing a safety pin may not be as overt a political message as, say, wearing a “Make America Great Again” hat, this type of speech may still be limited if it creates a disruption on your campus.
In Tinker v. Des Moines, the U.S. Supreme Court outlined the parameters of “symbolic speech” in a public school system. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 395 U.S. 503 (1969). In the case, five students wore black armbands to school to protest the Vietnam War. The school banned these armbands immediately before any disagreement occurred and the case ensued. The Court found that while both students and teachers “do not shed their Constitutional rights at the schoolhouse gate,” free speech may be limited by a governmental entity in certain contexts. In analyzing the case, the Court noted that the armbands were a “silent, passive expression of opinion unaccompanied by any disorder or disturbance.” The Court found that “fear of disturbance” is not enough to ban speech. To justify a prohibition of expression, the school must be able to show that “its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Ultimately, the Court sided with the students because the armbands had caused no disruption or disorder at the time the prohibition was put in place.
When directing your staff not to engage in this type of political display, make sure that your school can meet the standard of “disruption” before prohibiting the expression. As a rule of thumb, if the student population is distracted by the display to the point where class time is disrupted, the Tinker standard can likely be met. Avoid prohibiting speech or expression before any disagreement has actually occurred simply because the District expects dissention. When faced with any First Amendment issue in your schools, it is advisable to contact your local school district’s attorney to ensure that the analysis is applied correctly to your specific facts.