The parents of a third grader who was banned from wearing the “Jesus Loves Me” mask are suing; You can read their request for injunction and see the policy attached to the complaint. (The claim that the “Black Lives Matters” masks are worn without objection from the school is in the complaint, although the analysis would ultimately be the same even if banned as “political”, even a fairly vague one and possibly point of view based term.)
I think the policy is clearly unconstitutional. Tinker v. Des Moines Independent School District (1969) makes it clear that such speech can only be banned in K-12 schools if it “significantly disrupts class work or entails significant disruption or violation of the rights of others,” and this appears to be no reason to believe that this mask would qualify. And while content-neutral and unofficial dress codes are generally considered constitutional, the Fifth Circuit (where Mississippi is located) has made this clear
- “The crafting is triggered by content or viewpoint regulation,” and this policy is based on content.
- Policies targeting religious language to achieve particular restrictions are based on point of view, not just content
- These principles apply to elementary school students and not just to high school students.
Seems like a strong case; I look forward to reading (and maybe blogging about) the district response as it comes in. Many thanks to Prof. Adam Scales for pointing this out.