Can a School Board Ban Wearing Safety Pins?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The safety pin has been recognized as an expression of support for the "vulnerable," becoming popular in the UK in response to xenophobic incidents after the Brexit vote and now in the US after reports of similar incidents. While some deride it as being a mere (and insufficient) fashion accessory without accompanying actions, the Shawnee Mission School District in Kansas has issued a message to its employees essentially prohibiting them from wearing safety pins as a form of expression. Here is the statement from the school district's Facebook page, seemingly crafted in consultation with its local NEA chapter:

"Recent events require us to remind our employees of their rights and responsibilities. As a staff member, you do not give up your first amendment right to free-speech on matters of public concern. However, your communication inside the classroom on school time is considered speech on behalf of the school district and there is a limitation on that speech.
The wearing of a safety pin as a political statement is the latest example of such political speech. Although wearing the safety pin as political speech is not the problem, any disruption the political statement causes in the classroom or school is a distraction in the education process. We ask staff members to refrain from wearing safety pins or other symbols of divisive and partisan political speech while on duty--unless such activity is specifically in conjunction with District curriculum.
Further, the use of district owned devices and accounts is strictly forbidden for anything other than District business. If you have questions regarding appropriate use, please see BOE policies IIBF and GAT.
NEA-SM and the Board of Education are committed to the safety of every student. Thank you in advance for your careful review of this statement and for working with all students of the Shawnee Mission community.”

The Kansas ACLU has sent a letter to the school district urging it to "reconsider the prohibition on the wearing of safety pins."   The ACLU letter argues that the safety pin is not partisan political speech and is "highly vulnerable to legal challenge" under the classic case of Tinker v. Des Moines Independent Community School District (1969).   In Tinker, involving students wearing black armbands to protest the Viet Nam war, the Court ruled that public schools could not curtail students' symbolic speech unless the speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or infringe on the rights of others.  The Supreme Court famously stated that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and the Tinker standard has been applied to teachers as well as students.

The ACLU has the better argument here.  As I've written in Dressing Constitutionally, the Tinker standard has been applied to teachers as well as students.  Moreover, the school district's contention that  teachers' expression "inside the classroom on school time is considered speech on behalf of the school district," is an overstatement (and is at odds with doctrine limiting government liability for teacher speech unless it is official policy).  Importantly, the school's communication recognizes the "safety pin" as conveying a specific meaning  - - - contrasted with cases involving teacher dress in which the expression is debatable (e.g., long hair or mustaches for male teachers) - - - and thus the First Amendment clearly applies to the safety pin as expression.  As for disruption, the Tinker standard requires the school officials "had reason to anticipate" a substantial disruption rather than merely "an urgent wish to avoid the controversy which might result from the expression."  There do not seem to be any facts indicating that there would be disruption - - - again, contrasted with cases in which there was a history of racial violence and student Confederate flag attire could be banned - - - and thus the Tinker standard is not satisfied.

The school board is on shaky First Amendment ground in its banning of safety pins as symbolic expression.