More on the medical marijuana t-shirt confiscations

In the case of the two South Dakota high school students whose shirts displaying support for SD Initiated Measure 4 were confiscated by their principal, in my judgment the school district hasn't got a legal leg to stand on. I believe that these two students' constitutional right to free speech was restricted by their school administration, and I hope that the courts rule this way and remedy the injustice that was done.

The Supreme Court ruled in 1969 in Tinker v. Des Moines that public schools may make no prohibitions on the expression of student opinion unless that expression "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Moreover, the school must be able to demonstrate that the prohibition itself "is necessary to avoid substantial interference with school discipline or the rights of others" (emphasis mine). The curtailment of speech that happened in South Dakota simply don't pass either of the tests.

In my (admittedly lay) opinion, the ban on clothing depicting drug-related images ought to be lifted. Even if the district administration does have a sincere concern for ensuring that their students don't get the message that teen drug use is OK, not all depictions of drugs do advocate their use by the students. The t-shirts in question are a perfect example that "depiction = advocacy" isn't necessarily always the case. But a better example would be the drug education materials and D.A.R.E. presentations that are often accompanied by pictures and even samples for students to view up-close. Does the principal or the district consider these materials and presentations to be advocating drug use as well? The district's concern that all depictions of drugs necessarily advocate their use is not justified, and not even internally consistent.

The students' t-shirts, if anything, ought to enjoy the greatest First Amendment protection possible. They are political speech and, of all the different types of speech that the Constitution protects, political speech is the one that lies closest to the very heart of our democracy. The only grounds on which I could envision a court ruling against the students would be if it found that the pictures of marijuana leaves simply didn't constitute speech. But given the context (t-shirts with messages favoring the passage of an initiative to regulate marijuana for medical use), it hardly seems plausible to me that the courts could deny that the shirts--pictures and all--constituted speech. After all, if the principal weren't concerned that the display of the images were communicating something, she never would have confiscated the shirts in the first place.

There are no legal grounds on which the school district ought to prevail in this case, should any of the aggreived parties decide to take it to court. If that happens, though, it should be a fun case to watch. If it makes its way all the way to the Supreme Court, it'll be an interesting test of what the court with its current makeup thinks of Tinker. Here's hoping that justice prevails.