8th Circuit Rules Students May Wear Black Armbands to Protest School Policy

The U.S. Court of Appeals for the 8th Circuit ruled Sept. 2, 2008 that students have a right to protest by wearing black armbands to school, calling a 40-year-old landmark U.S. Supreme Court decision on the same issue “dispositive.”

In Lowry v. Watson Chapel School District, 540 F.3d 752 (8th Cir. 2008) a three-judge panel ruled unanimously that students in the Watson Chapel School District in Central Arkansas may wear black armbands to protest a school uniform policy. The opinion by Judge Lavenski R. Smith upheld the Oct. 31, 2007 decision of a federal district court to permanently enjoin the school district from disciplining any student for wearing a similar armband.

Citing Tinker v. Des Moines Community School District, 393 U.S. 503 (1969), the 8th Circuit found that the students’ conduct in wearing an armband in protest was a symbolic act protected by the free speech clause of the First Amendment. “We hold that Tinker is so similar in all constitutionally relevant facts that its holding is dispositive,” the 8th Circuit opinion said.

The plaintiffs in Lowry were three junior high and high school students who wore black armbands on Oct. 6, 2006 to protest the school’s adoption and enforcement of a mandatory school uniform policy. The school’s policy stipulated that students were required to wear their uniform in school, on school buses, and at designated school bus stops in order to “promote equal educational opportunity through economical access to appropriate school clothing and orderly, uniform apparel standards for students,” according to the 8th Circuit’s opinion. The school uniform policy states that students may wear jewelry and wristbands, but they cannot cover the school uniform. The three students wore the armbands to school on their wrists, forearms, or biceps, not over the uniforms, but they were suspended for one day for wearing them.

On Oct. 10, 2006, the students and their parents filed a complaint in the U.S. District Court for the Eastern District of Arkansas, alleging that the school district’s discipline had violated their First Amendment rights. The school district stipulated at trial on Sept. 11, 2007 that the wearing of the black armbands did not cause material disruption or interference with school.

In Tinker, the Supreme Court held that a school’s decision to suspend students who refused to remove black armbands they wore as an act of protest against the Vietnam War was unconstitutional because it violated the students’ right to free expression. That case also arose in the 8th Circuit, but there the district court had held that school officials acted within their authority if they punished the students in order to maintain school discipline. A divided appeals court had affirmed.

Defendants in Lowry argued that Tinker did not apply because the students in Tinker wore armbands to school to protest the federal government’s Vietnam War policy, while the students in Lowry wore armbands to protest a school dress code. However, the 8th Circuit said the distinction was immaterial. “Whether student speech protests national foreign policy or local school board policy is not constitutionally significant,” the opinion said.

Although the court noted that Tinker does not protect certain types of student speech, including speech that promotes illegal drug use or speech that is sexually explicit, it classified the type of speech at issue in Lowry as “non-disruptive student protest that violated no school policy based upon student viewpoint.” Therefore, it found Tinker controlling. The 8th Circuit also affirmed the district court’s award of nominal damages to the plaintiffs and its award of $37,500 for attorneys’ fees to the plaintiffs.

Ivy Lincoln, an assistant superintendent with the school district, said that the district expected to appeal the decision to the U.S. Supreme Court, according to a September 8 story by the Student Press Law Center.

Holly Dickson, a staff attorney with the American Civil Liberties Union (ACLU), which represented the students in Lowry, said that the school district’s decision to appeal the case was unsurprising. “They are so deeply offended that students dared to question their actions, they’ll stop at nothing in order to not hear commentary,” she told the Student Press Law Center.

Lincoln contends Tinker is not on point. He distinguished the situation of student protests of a school dress code policy from the circumstances at issue in Tinker, which concerned student protests of the Vietnam War – a national controversy.

“If a second-grader wants to protest the War in Iraq tomorrow, then that kid won’t get in trouble here,” he told the Student Press Law Center.

But Rita Sklar, executive director of ACLU of Arkansas, said “The 8th Circuit was clearly rebuking the school district for claiming that punishing students for protesting an apparel policy was not as serious as punishing students for protesting national policy,” according to a September 2 ACLU press release.

– Amba Datta
Silha Research Assistant

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