Can a school board ban Washington Redskins clothing?

The board just enacted this rule, effective in the fall:

Students may not wear clothing with words, pictures or caricatures based on negative stereotypes of a specific gender, race, ethnicity, nationality, religion, sexual orientation or disability. Students may not wear shirts, hats or other attire with Native American team names, logos or mascots that depict negative stereotypes. A list of team names, logos and mascots prohibited under this provision is available at all schools and on the District website.

(The School Board tells me that “[t]he list of teams is in development in consultation with your school based and community based advisory groups.”)

But government-run K-12 schools can’t just restrict speech because they think it “depict[s] negative stereotypes.” Speech that is likely to cause substantial disruption can be restricted, as can speech that contains vulgarities, or promotes drug use or other dangerous conduct that’s illegal for minors. But speech that simply expresses views that some see as negative toward particular races, sexes, religions, sexual orientations, and so on cannot be restricted.


And though schools “are entitled to exercise discretion in determining when student speech crosses the line between hurt feelings and substantial disruption of the educational mission,” cases such as Zamecnik (which involved a student’s “Be Happy, Not Gay” T-shirt and button) show that schools can’t just assume that a broad range of speech — such as “team names, logos or mascots that depict negative stereotypes” of some identity group — will indeed be disruptive. A policy that’s this broad violates the First Amendment; I hope that it’s promptly challenged and enjoined.

By Stephen

About me

Professor and quant guy. Libertarian turned populist Republican. Trying to learn Japanese and play Spanish Baroque music on the ukulele.

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