Bentlee and Rodney Herbert, 8 and 5 years of age, went to school. So far, so good. They wore t-shirts. Fine as well. There was writing on their t-shirts. Nothing odd about that. Yet, the school’s principal, Denise Brunk, told Bentlee to turn his shirt inside out for the day, and not to wear it again.
On Monday, Ms. Herbert went to the school to ask the principal what dress-code policy her son had violated, Ms. Herbert said. Ms. Brunk referred her to the Ardmore City Schools superintendent, Kim Holland.
“He told me when the George Floyd case blew up that politics will not be allowed at school,” Ms. Herbert said on Friday, referring to Mr. Holland. “I told him, once again, a ‘Black Lives Matter’ T-shirt is not politics.”
The school district had a policy, that “sayings or logos” on shirts or tops “should be in good taste and school appropriate.” What is meant by “good taste” and “appropriate” could be anybody’s guess, but it turned out to be Brunk and Holland’s guess because schools have rules.
In an interview with The Daily Ardmoreite, Mr. Holland suggested that the T-shirts were disruptive.
“It’s our interpretation of not creating a disturbance in school,” Mr. Holland told the newspaper. “I don’t want my kids wearing MAGA hats or Trump shirts to school either because it just creates, in this emotionally charged environment, anxiety and issues that I don’t want our kids to deal with.”
Is a BLM shirt the equivalent of a MAGA hat or Trump shirt, the latter being overtly political while the former is a lot harder to pin down. But whether a message is political has nothing to do with the test of whether speech is protected in the schoolhouse.
If the school district does not reverse its policy and allow students to wear “Black Lives Matter” clothing, it must be prepared to prove in federal court how wearing the T-shirts creates “a substantial disruption of or material interference with school activities,” the A.C.L.U. said.* “Anything less than that would be found to be a violation of the students’ First Amendment rights.”
It cited a 1969 U.S. Supreme Court case, Tinker v. Des Moines Independent Community School District, which addressed the issue of a group of students who wore black armbands to object to the Vietnam War. A principal told the students that they would be suspended if they wore the armbands at school.
The court ruled 7-2 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The crux of Tinker was that speech that substantially disrupted or interfered with the school’s educational mission could be prohibits. Otherwise, it could not. It wasn’t about speech administrators didn’t like or was unpopular, not that BLM was an unpopular message. But would it disrupt school? Would it interfere with the mission?
In addition to issues with disciplinary action, Ms. Herbert said Bentlee has now been bullied at school over his T-shirt. When Bentlee returned from school on Thursday, he told his mother that two white boys had picked on him.
“One boy told him that his life does not matter, and the other one told him to just get suspended,” Ms. Herbert said.
Had the principal not made this into a big deal, would either of these things have happened? There is a good argument, given that nothing precipitated the school’s actions to force the Herbert children to not wear their BLM shirts, that the only disruption was caused by the school admins themselves. They made this an issue. They made this a problem.
The question of whether BLM shirts conveyed a political message arose during the last election, when the question arose whether it was permissible to wear to vote or whether it violated the “no electioneering” rules at polling places. As opposed to MAGA wear, which promoted a specific candidate, it was found not to violate the rules, a decision largely split down the expected lines.
In school, however, the question of its politicization is a matter of whether it’s so controversial as to give rise to disruption. It’s certainly possible that any message can be disruptive if there are others who disagree with it. But is it real, substantial and a problem? It seems that the admins at Ardmore were either taking a “nothing remotely controversial” stance to keep the school free of any ideological controversy or just didn’t care very much for the message.
Whether BLM is a benign message, one that supports what should be the entirely uncontroversial view that police should not violate the constitutional rights of black people, use unwarranted force and treat them any differently than they would people of another race, tends to breakdown along the usual polar lines. Many will distinguish the message, Black Lives Matter, from both the organization of the same name and the riots and looting done under cover of BLM. Is it political? It’s certainly not apolitical. Then again, neither is wearing a mask or a “Get Vaccinated” t-shirt. There are a great many things these days with ideological or political overtones, whether they should be or not.
But politics is hardly the test. It’s disruption. It’s interference. Otherwise, political or ideological messages, even something as banal as a black KISS tee, are constitutionally protected. The two incidents hardly arise to the level of a substantial disruption, and there was no apparent disruption involved that wasn’t created by the principal and superintendent. Indeed, if there is any controversy about students wearing BLM t-shirts, it might even be a teaching opportunity as to the underlying message of treating all people equally, without regard to their race.
Without the opportunity to wear the shirts, however, it’s all just the admins’ sense of “good taste” and “appropriateness,” and those vagaries are no basis to force the Herberts to leave their constitutional rights at the schoolhouse gates.
*Much as the ACLU is no longer remotely the organization that defended constitutional rights in Skokie, it still does some good work provided its in support of messages with which it agrees.
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