Shannon P. Duffy

The Legal Intelligencer

School officials cannot invoke a racial harassment policy to prohibit a high school student from wearing a T-shirt emblazoned with `redneck` jokes by comedian Jeff Foxworthy unless there is proof that the shirt caused disruptions, the 3rd U.S. Circuit Court of Appeals has ruled.

In Sypniewski v. Warren Hills [N.J.] Regional Board of Education, the court stopped short of striking down the harassment policy, but found that school officials went too far when they banned speech or clothing that `creates ill will or hatred.`

Third Circuit Judge Anthony J. Scirica found that the school district had valid reasons for creating the policy because there had been a series of racially divisive incidents sparked by white students who wore clothing with the Confederate flag.

`When there is a concrete basis -- ordinarily established by a history of disruption and interference with the legitimate rights of other students -- for concluding that certain expression presents a well-founded fear of disruption, a school should be free to address the issue by adopting a formal policy, so long as the policy narrowly targets the identified problems,` Scirica wrote.

But Scirica found that the policy went too far when it banned not only `racially divisive` speech, but also speech that `creates ill will.`

`When policies focus broadly on listeners` reactions, without providing a basis for limiting application to disruptive expression, they are likely to cover a substantial amount of protected speech. Here, the inclusion of the phrase `creates ill will` causes just such a problem,` Scirica wrote.

Scirica found that Warren Hills, N.J., school officials `made a good faith effort to respond to a serious disciplinary problem without unduly restricting students` expression.`

Nevertheless, he said, `the application of the policy to the Foxworthy T-shirt appears to go too far.