Q: Our varsity cheerleaders decided to wear overalls to our homecoming pep rally and decorated them with school spirit and other personal messages in paint and patchwork. Some of the cheerleaders have decorated their overalls with small crosses and scripture messages. Are the cheerleaders’ decorated overalls considered protected speech under the First Amendment?
A: Yes. A school district’s ability to restrict religious speech is dependent upon both the content and the context of the message itself. In the above example, without evidence of disruption, and because the painting was entirely student initiated, the speech is likely to be considered permissible private student speech.
It is well-settled that students in public school maintain their constitutional rights to freedom of speech while attending school or school-sponsored events. However, the rights of students in a public school setting are not completely equal to the rights of individuals in other private arenas. Courts continue to analyze the extent of public school students’ free speech rights under the standard first adopted by the U.S. Supreme Court in the famous Vietnam protest armband case, Tinker v. Des Moines Indep. Comm. School. Since the time of Tinker, student-led school speech has typically fallen into one of three categories: (1) government speech (e.g., student delivering principal-written morning announcements over PA system); (2) school-sponsored speech (e.g., student expression in school-sponsored newspaper); or (3) private speech.
The cheerleader’s overall decorations will most likely be considered private speech because the markings are not a message made by or on behalf of the school district (overalls purchased by students and no direction given on content of decoration), nor do the decorations reflect a message that the school district affirmatively promotes. Instead, courts would view the markings as speech that the district merely tolerates. In such circumstances, a school may restrict the content of private speech only if the district reasonably forecasts that the speech: (1) will lead to substantial disruption of or material interference with school activities, (2) will impinge upon the rights of other students, or (3) is offensive to the school environment, such as vulgar language or speech that advocates illegal/criminal activity.
An example of disruption sufficient to allow the school district to restrict student speech might be an overtly offensive religious message, such as “Jesus Hates Gays.” In such a scenario, the district could prohibit the speech based on its desire to avoid disruption caused by opposing views and/or to prevent violence resulting from the hate speech. In contrast, here, the cheerleaders’ clothing decorations consisted of scripture and religious emblems only. Further, the messages/images were displayed by only a handful of cheerleaders, for presumably one school event and in small enough detail as not to be seen by the majority of the student population. Finally, the context of the decorations is clearly personal to each cheerleader – that is, each cheerleader’s overalls are different and personal to them (rather than a team-mandated theme). Taken together, the markings are clearly private speech that is non-offensive and not likely to impinge upon the rights of other students. This conclusion follows the well-known Kountze cheerleader case, in which a Texas appeals court (on remand from the Texas Supreme Court) upheld the Kountze High School cheerleaders’ right to create and decorate banners with religious messages and scripture for use during football games. The crux of the Court’s opinion focused on the fact that there was no “substantial disruption or material interference with school activities” sufficient to allow the school to restrict the speech. In August 2018, the Texas Supreme Court denied the school district’s request for review of the case, upholding the case in favor of the cheerleaders.
To conclude, most cases of student speech will be analyzed under the private speech factors, requiring a fact-intensive inquiry dependent upon both content and context and a significant fear of substantial disruption. Accordingly, for specific questions, administrators should contact their local school attorney.