579 F.3d 502 (5th Cir. 2009), 08-10903, Palmer ex rel. Palmer v. Waxahachie Independent School Dist.

Docket Nº:08-10903.
Citation:579 F.3d 502
Opinion Judge:JERRY E. SMITH, Circuit Judge:
Party Name:Paul T. PALMER, by and Through His Parents and Legal Guardians, Paul D. PALMER and Dr. Susan Gonzalez Barker, Plaintiff-Appellant, v. WAXAHACHIE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
Attorney:Allyson N. Ho (argued), Morgan, Lewis & Bockius, L.L.P., Houston, TX, Hiram Stanley Sasser, Kelly J. Shackelford, Liberty Legal Institute, Plano, TX, for Plaintiff-Appellant. Sara Louise Hardner Leon (argued), Powell & Leon, William C. Bednar, Jr., Law Office of William C. Bednar, Austin, TX, for...
Judge Panel:Before HIGGINBOTHAM, SMITH and SOUTHWICK, Circuit Judges.
Case Date:August 13, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 502

579 F.3d 502 (5th Cir. 2009)

Paul T. PALMER, by and Through His Parents and Legal Guardians, Paul D. PALMER and Dr. Susan Gonzalez Barker, Plaintiff-Appellant,



No. 08-10903.

United States Court of Appeals, Fifth Circuit.

August 13, 2009

Page 503

[Copyrighted Material Omitted]

Page 504

Allyson N. Ho (argued), Morgan, Lewis & Bockius, L.L.P., Houston, TX, Hiram Stanley Sasser, Kelly J. Shackelford, Liberty Legal Institute, Plano, TX, for Plaintiff-Appellant.

Sara Louise Hardner Leon (argued), Powell & Leon, William C. Bednar, Jr., Law Office of William C. Bednar, Austin, TX, for Defendant-Appellee.

Steven W. Fitschen, Nat. Legal Found., Virginia Beach, VA, for Amicus Curiae, Nat. Legal Found.

Eliot D. Shavin, Dallas, TX, Charles Ernest Baruch (argued), The Law Office of Chad Baruch, Rowlett, TX, for Amicus Curiae, Batmen.

Christopher Blewer Gilbert (argued), Thompson & Horton, LLP, Houston, TX, for Amicus Curiae, Tex. Ass'n of Sch. Bds. Legal Assistance Fund.

Page 505

Walter M. Weber, Am. Ctr. for Law & Justice, Washington, DC, for Amicus Curiae, Am. Ctr. for Law & Justice.

Appeal from the United States District Court for the Northern District of Texas.


JERRY E. SMITH, Circuit Judge:

Paul Palmer, a student at Waxahachie High School, submitted three shirts for approval under the dress code of Waxahachie Independent School District (" the District" ), whose administration told Palmer the shirts violated the code and could not be worn to school. Palmer sued and requested a preliminary injunction, which the district court denied. He appeals, and we affirm.


On September 21, 2007, Palmer, then a sophomore, went to school wearing a shirt with " San Diego" written on it. Assistant Principal Johnson told Palmer his shirt violated the District's dress code,1 which did not allow t-shirts with printed messages. Palmer called his parents, who brought him a " John Edwards for President '08" t-shirt to wear instead. Johnson said Palmer would not be allowed to wear that shirt either, because it contained a printed message. Palmer appealed the decision to Principal David Nix, who denied the appeal, and that denial was sustained by the District's Superintendent, Thomas Collins.

On April 1, 2008, Palmer sued the District under 42 U.S.C. § 1983, alleging that the dress code violated his freedom of speech under the First Amendment. He asked for declaratory relief under 28 U.S.C. § 2201, a preliminary injunction, a permanent injunction, nominal damages, and attorneys' fees. The District answered that Palmer's shirt violated the dress code even though it did not pose a concrete threat of substantial disruption, was not sexually explicit, was not school-sponsored speech, and did not promote illegal drug use.

The district court held a hearing on May 8 on Palmer's motion for preliminary injunction. District Assistant Superintendent David Truitt testified that, four days before the hearing, the District had adopted a new dress code for the upcoming school year. Because of the new code, the court dismissed Palmer's motion without prejudice but asked the District for a copy of the new code.

On May 19, the District submitted its new dress code, which restricted more speech, including polo shirts with messages, shirts with professional sports team logos, and clothing with university messages. The policy continued to permit " campus principal-approved [District] sponsored curricular clubs and organizations, athletic teams, or school ‘ spirit’ collared shirts or t-shirts." It also allowed logos smaller than two inches by two inches.2

Page 506

After receiving the dress code, Palmer submitted three shirts to the District for approval. One was the original John Edwards for President t-shirt, one was a John Edwards for President polo shirt, and one was a t-shirt with " Freedom of Speech" on the front and the text of the First Amendment on the back. The District rejected all three.

Palmer again sued, and Truitt again testified, admitting that the dress code did not ban political pins, buttons, bumper stickers, or wrist bands and stating that those would be analyzed under the District's policy of not allowing any item that is distracting, sexually explicit, or promoted a violation of school rules. The district court determined that Palmer had not shown that he would suffer irreparable harm because of the dress code and denied a preliminary injunction.


We review the denial of a preliminary injunction for abuse of discretion. Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 163 (5th Cir.1993). We evaluate de novo the legal principles on which the decision is grounded. Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir.2007) (citation omitted). A district court should issue a preliminary injunction only if the plaintiff establishes

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.

Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.2009) (citing Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir.2006)). The district court examined only the second prong and concluded that Palmer did not " satisf[y his] burden of proving irreparable injury in light of the Court's determination that the school district will not [prevent Palmer] or other students from conveying political messages via bumper stickers affixed to their clothing, or buttons to do the same."

The " loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction." Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov.1981) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). Because " [w]ords printed on clothing qualify as pure speech and are protected under the First Amendment," the dress code's ban on his shirts would cause Palmer irreparable injury. Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 440 (5th Cir.2001) (citations omitted). The analysis is no different just because the code permits buttons and stickers. Therefore, the district court abused its discretion in deciding that the District's enforcement of the dress code could not irreparably harm Palmer.



Both parties ask that we examine the first prong, whether there is " a substantial likelihood of success on the merits." We may do so, because " it is an elementary proposition, and the supporting cases too numerous to cite, that this court may affirm the district court's judgment on any grounds supported by the record." United States v. Dunigan, 555 F.3d 501, 508 n. 12 (5th Cir.) (citation omitted), cert. denied, __ U.S. __, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).

Page 507


Although students in public schools have First Amendment rights, this " constitutional protection is not absolute." Canady, 240 F.3d at 441. " [T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 2621, 168 L.Ed.2d 290 (2007) (citation omitted).

The Supreme Court has issued four major opinions on public school regulation of student speech. First, in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a public school punished students who wore black armbands to school to protest the Vietnam War. Id. at 504, 89 S.Ct. 733. The Court confirmed that " students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," id. at 506, 89 S.Ct. 733, and " [i]n the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views." Id. at 511, 89 S.Ct. 733. Schools can restrict student speech only if it materially interferes with or disrupts the school's operation, id. at 512, 89 S.Ct. 733, and cannot " suppress ‘ expressions of feelings with which they do not wish to contend.’ " Id. at 511, 89 S.Ct. 733 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)).

Since Tinker, every Supreme Court decision looking at student speech has expanded the kinds of speech schools can regulate. In Bethel School District No. 403 v. Fraser, 478 U.S. 675, 687, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the Court ruled that schools can prohibit " sexually explicit, indecent, or lewd speech." The Court held in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 271-73, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), that schools can also regulate school-sponsored speech. Finally, in Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168...

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