FREE SPEECH -- Public educators' refusals to tolerate what they see as troublesome words or images on the T-shirts students wear to school come up with almost ritual regularity, and some lead to lawsuits arguing that the students' First Amendment rights have been abridged. The latest litigation comes from a Merced elementary school, where a then sixth grade student alleges that in April 2008 she was kept from wearing this shirt to classes:

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The three image panels on the front show, from left to right, a smaller photo of a fetus captioned as "Growing," a larger fetus, also captioned "Growing," and a black void, captioned "Gone."

The back of the shirt makes it clear that the garment was mass-produced to be worn on "National Pro-Life T-Shirt Day," leading one to speculate that the garment's primary function was precisely to provoke official reactions that could be answered with lawsuits in which the distributor/sponsor, American Life League, might play a role—perhaps paying for the aggrieved students' attorneys.

That's speculation because the closest thing to a news media breaking report on the case comes from Fox News.  Not one California newspaper—not even the Merced Sun-Star, whose pages duly chronicle censorship clashes in Russia, China and elsewhere abroad ("Lithuania OKs law to keep gay info away from kids")—has reported the dispute so far. The state's press is usually quite prompt to report school censorship incidents where it's the student press that's spiked. Is the silence because it's a measly T-shirt that's the affected medium?  Or is the message one that editors don't take that seriously?

The other puzzlement is why the case is in federal court, when the student's rights enjoy much more affirmative protection under California law.  Education Code Section 48907 states:

Pupils of the public schools shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

Not much wiggle room for educators here—if taken to a California court.  On the facts alleged, there was no clear and present danger of unlawful acts or "substantial disruption."  Obscenity in this context has been interpreted by the California Court of Appeal is meaning pornography, period, not vivid photos of developing fetuses. Libel and slander are nowhere near this issue. 

On the other hand, filing this case in federal court, asserting a violation of the student's First Amendment rights, is baffling.  The U.S. Supreme Court has ruled that student editors can be kept from publishing stories about unwed mothers, in part lest impressionable younger students be exposed to matters they're not mature enough to handle, and that a student can be disciplined for holding up a banner, "Bong Hits for Jesus" off campus at curbside while watching a parade, on the theory that it might be read as an official school encouragement of unlawful behavior.  If the court's great Tinker decision of 40 years ago—students don't shed their First Amendment rights at the schoolhouse door—isn't dead, it's on life support.

So what explains recourse to federal court and the First Amendment?  It wouldn't be fair to conclude that the Merced student's attorneys and those who back them care less about a relatively quick and satisfying win for their client, and more about making big law in the national forum, or failing that, to make a record prompting Congressional legislation.

But until there's a better explanation, it's tempting to think so.