In 2008, Paul “Pete” Palmer—a sophomore at Waxahachie High School in Texas—wore a shirt supporting presidential candidate John Edwards. The shirt displayed the innocuous message “John Edwards 08.” Although the message was neither disruptive, nor offensive, the Waxahachie Independent School District informed Pete that the shirt contained “unapproved words” violating school district policy. That policy prohibited students from wearing clothing displaying slogans, words and symbols not promoting the district and its instructional programs. Pete challenged the district’s policy alleging that it amounted to unauthorized censorship of political speech in violation of the First Amendment.

A federal district court in Texas rejected the challenge and the case moved to the Fifth Circuit Court of Appeals. Because the school district’s policy of banning all political speech was content-neutral, the Fifth Circuit ruled that intermediate scrutiny applied. The Fifth Circuit also held that the district’s policy of restricting student political speech was no more strict than necessary to achieve the district’s goals of improving the educational process, and therefore, the policy was constitutionally acceptable. By holding that policies prohibiting student political speech are subject to intermediate scrutiny, the Fifth Circuit joined the ranks of decisions from the Sixth and Ninth Circuits, in conflict with the decisions from the Second and Third Circuit on the issue.

Last week, Allyson N. Ho of Morgan, Lewis & Brokius LLP, filed a petition for writ of certiorari in Palmer v. Waxahachie Independent School District, No. 09-409, asking the Court to review the Fifth Circuit’s decision. The petition contends that the Palmer case is “an ideal vehicle for re-affirming

[First Amendment political speech] principles, resolving the conflict among the Circuits about the proper application of Tinker [v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969)], and bringing badly needed clarity to an important area of the law—one that daily impacts millions of students, their teachers, and school administrators.”

The petition should conference later this year or early next.