The Demise of Palmer v. Waxahachie ISD

It is with a heavy heart that I report to you the death of Palmer v. Waxahachie ISD.  The 5th Circuit has “abrogated” this landmark dress code case.  I had to look that word up.  I thought perhaps an ‘abrogator” was a Florida swamp creature.  Nope.  Merriam-Webster says that “abrogate” means “1. To abolish by authoritative action; 2. To treat as nonexistent.”  So an “abrogator” could be a judge. 

Dadgummit. I love Palmer v. Waxahachie ISD.  I guess I should put that in past tense.  I loved Palmer v. Waxahachie ISD.   Let me explain why. 

It started when a student wore a T-shirt to school that said SAN DIEGO.  School officials told him that the innocuous message on the T-shirt violated the dress code, which prohibited printed messages on T-shirts, with few exceptions.  Enter the parents, who see an opportunity to stick it to the man. They send their boy back to school wearing a “John Edwards for President” T-shirt.  This was in 2008 when Senator Edwards was a viable candidate for president.  A shirt bearing a political message nicely tees up a First Amendment case….if school officials take the bait.  Anybody in Waxahachie ever hear of Mary Beth Tinker?  Anybody know about black armbands?  The school told the kid that his political message was off limits also.   Off to court we go!

Do you think a ruling on that issue might be relevant right now?????  Do you think it might shed some light on how to handle MAGA masks and BLM T-shirts?  It certainly would, which is why I mourn the “abrogation” of this decision.

In the Palmer case the 5th Circuit ruled in favor of the school district. The school had the right to tell the kid he could not wear that shirt, even though there was no evidence of any disruption of school.  Hmmm.  How could that be?

The WISD had a dress code at the time that prohibited any message on any T-shirt, other than a brand name logo or a school spirit message. There could be no T-shirt for John Edwards, Barack Obama, Hillary Clinton or John McCain.  You were not even allowed to promote the Texas Longhorns or the Aggies.  Not even the Dallas Cowboys.  Nothin.  The school emphasized that its dress code was content neutral, and the 5th Circuit agreed. Based on that neutrality, the court ruled for the district.

This could have come in handy this election season.  But alas, Palmer was “abrogated” in Footnote 3 in Reagan National Advertising of Austin, Inc. v. City of Austin.  In a Footnote!  How undignified.

The Reagan case has nothing to do with schools or dress codes.  It’s about a city ordinance regulating signs.  I’m not going to bore you with the details of the issues. Suffice it to say that the 5th Circuit noted that the U.S. Supreme Court has changed the law pertaining to First Amendment issues.  SCOTUS held that before we get to “content neutrality” the courts first have to examine if a regulation is “content based.”  If it’s “content based” the regulation is subject to “strict scrutiny.” Any first year law student can tell you that if your regulation is subject to “strict scrutiny” it’s going down.

What makes a regulation “content based”?  If you have to read the content to figure out if the regulation applies, then the regulation is “content based.”  So apply that reasoning to Waxahachie’s dress code.  You could wear a shirt with a school spirit message (“Go Indians!!”) but not one that says “Hook ‘Em Horns!” So to figure out if the student violated the dress code, the assistant principal has to read the content of the words on the shirt.  Therefore, it’s “content neutral” (we don’t care if you like the Horns or the Aggies), which is good, but it’s also “content based,” which is bad.  It won’t withstand “strict scrutiny.”

Sigh.  I guess you could have a dress code that prohibits any message whatsoever on a T-shirt.  If no content at all is permitted, then perhaps your code is not content-based.  Moreover, lawyers will argue that public schools and their dress codes are way different from cities and their sign ordinances. Maybe the courts will take that into account.

But any lawyer who cites Palmer v. Waxahachie ISD is going to have to deal with Footnote 3.   Sigh. 

The Palmer case was decided by the 5th Circuit on August 13, 2009, and now rests comfortably in its abrogated state at 579 F.3d 502.  The Reagan case was decided by the 5th Circuit (a.k.a. “The Abrogators”) on August 25, 2020. It can be found at 2020 WL 5015455.