Can Student-Athletes Wear “I Can’t Breathe” T-Shirts?

I Can’t Breathe

Several NBA players have worn ‘I Can’t Breathe’ t-shirts during their pregame routines in support of Eric Garner.

Will the controversy over “I Can’t Breathe” cause public high school students, particularly student-athletes”, to mutter “I Can’t Speak”?

Controversies have emerged across the country when members of different basketball teams have worn “I Can’t Breathe” t-shirts – a reference to Eric Garner, a 43-year-old African-American man who uttered the phrase while being placed in a neck hold by police officers.  Garner, who allegedly resisted arrest, later died.

Members of the Mendocino High School boys and girls basketball teams in California were expelled in late December from a basketball tournament hosted by Fort Bragg High School for wearing the t-shirts.

This month, Uniontown Area School District officials in Pennsylvania considered whether they could discipline members of the Uniontown High School girls basketball team for wearing the t-shirts during warm-ups.

On the one hand, students do not forfeit their First Amendment rights simply because they are in school.  The U.S. Supreme Court famously declared in Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969) that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”   The Court explained that school officials could not punish several students who wore black peace armbands because school officials had no evidence that the armbands would cause a substantial disruption.

On the other hand, school officials may claim that because the student-athletes are representing the school at a school-sponsored event, a different First Amendment standard applies.   Nearly 20 years after the black armband decision in Tinker, the Court created a more educator-friendly standard for school-sponsored speech in Hazelwood Sch. Dist. v. Kuhlmeier (1988).  In Hazelwood, the Court ruled that school officials could censor two articles in a student newspaper because they had legitimate educational reasons for doing so.

Turning to the legal standards, can school officials show that the “I Can’t Breathe” t-shirts will substantially disrupt school activities?  It is hard to see how the t-shirts would qualify as substantially disruptive.   People being offended or just not liking the shirts does not qualify as a disruption, much less a substantial one.   Unless a school district is beset with racial violence, it is hard to make the case for censoring the t-shirt under Tinker.

The closer question is whether school officials have a legitimate educational reason for banning the t-shirts.  First Amendment advocates consider The Hazelwood decision disturbingly broad in its description of educational reasons for censoring speech, including dissociating the school from any position other than neutrality on matters of political controversy. Such advocates argue education should be about teaching students to think for themselves on important public issues – a legitimate educational reason to let students wear the t-shirts and not censoring the students from expressing their viewpoints.

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute and the author of the award-winning book “Let The Students Speak! A History of the Fight for Free Expression in American Schools.”

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