Friday, June 18, 2021

Madison board bans shirts with Indian teams


We congratulate the Chicago Blackhawks of the National Hockey League on winning their third Stanley Cup championship in six years, as reported on the Learning Network of the New York Times. What an achievement.

A Sports Illustrated video explains how this Chicago sports dynasty ranks among those of all time. They can’t quite match those of all time, but as the magazine points out, other dynasty teams didn’t have a salary cap to deal with.

Over 2 million people were reported to have joined in the festivities during a rally in Chicago a few days after the victory over the Tampa Bay Lightning on June 15 at the United Center in Chicago.

If anybody who’s both a Blackhawks fan and a student at a public school in Madison, Wis., wears his Blackhawks T-shirt or jersey to school this fall, however, he’ll have to change or face suspension or expulsion, the Associated Press reports.

That’s because the school board in the state capital of Madison, a relatively blue stronghold in a sea of red, plans to make available by the start of school later this summer a list of logos and designs that will be considered “banned” in the new dress code. At this point, they have generally banned sports T-shirts or jerseys that include references to Native American mascots.

“The existence of these mascots destroys our self-esteem,” the AP quoted Gabriel Saiz, a junior at Madison West High, as telling the board about symbolism in the sports team mascots in May, just before it voted unanimously to adopt the policy. “The existence of these mascots shows us how people really think of us.”


There’s a lot of history here. In ancient Rome, for instance, soldiers used men who lived in conquered territories as gladiators. And Europeans as they moved west from New England “conquered” the Native Americans who inhabited the land, sometimes with brutal force.

So, how this comes down is that some people think using Native Americans as mascots is a sign that European Americans view Native Americans as some sort of conquered people. Most Native American tradition would not assign ownership of the land to people anyway, since we are all entitled to share in nature, so the idea of “conquering” a territory or a people is quite foreign to their tradition.

If we assume a typical Native American position, then, the use of mascots is honorable, like USC using a Trojan or Stevenson High School using a Patriot. If we assume a more Roman position, the use is derogatory, implying Native Americans are a conquered people, not great warriors.

This is why we can’t seem to agree on eliminating Native American mascots from our professional, collegiate, or other teams. It’s different, for example, to use the “Fighting Irish” to refer to Notre Dame’s teams than it is to use the “Fighting Illini” to refer to teams at the University of Illinois. The Irish aren’t generally thought of as a “conquered people.” Well…

Anyway, if I were a public school district in the US, though, I would have stayed out of the argument. It’s probably a no-win situation for the Madison Public Schools in that some student’s going to get suspended or expelled because of this dress code, sue the district, win or lose, and leave the district footing the bill for a case that could very well make it all the way to the US Court of Appeals for the Seventh Circuit.

The questions before the court would go something like this: Is banning T-shirts from certain teams and not from others a suppression of speech based on viewpoint, which the First Amendment generally prohibits? Is the restriction of speech content-based or content-neutral? In a case like this, these questions would lead to some pretty gray areas of the law.

Take the First Amendment case of banning the “i ♥ boobies” bracelets. Two federal courts (Third Circuit and a district court in Indiana) reached different conclusions as to whether schools could prohibit students from wearing the bracelets. It’s somewhat different in that “boobies” isn’t the real name for the thing being described, but dress codes are usually First Amendment cases all the same. (The Supreme Court of the United States denied an appeal in the Third Circuit case, leaving the matter with the appellate court.)

If the bracelets had said “i ♥ breasts” to raise awareness of breast cancer research, we wouldn’t even be having this discussion. The word “boobies,” though, in many people’s view, is vulgar and describes women as sex objects, which is as derogatory as the Native American references being banned in Madison. Some actual women, however, don’t feel offended at the use of the word “boobies” to refer to their breasts, which explains why we have two lawsuits on our hands with two different outcomes.

Wearing Native American mascots on T-shirts in Madison’s new dress code, I believe, would be closer to the hypothetical “i ♥ breasts” slogan, which would be protected speech, than to the “i ♥ boobies” slogan, which was constitutionally banned in one case and not in another. So, even if it turns out a Blackhawks jersey is closer to “i ♥ boobies,” a court could still rule that, even though that’s the team’s real name and it’s protected speech to express being a fan of a sports team, the school district isn’t violating students’ First Amendment rights by banning the T-shirts.

It could find that, but I seriously doubt it, knowing that the jury is still way out in deciding whether this is a derogatory or honorable reference. Besides, the picture on any T-shirt refers to a real-world sports team, not to the indigenous people of the US. However I look at it, this is protected speech. Whether teams should be named after Native American tribes is still a valid question, but it is, ultimately, a different question.

School districts are allowed to ban speech that is disruptive to the operation of the school in a “material and substantial” way, but expressing that one is a fan of a sports team is no more disruptive now than it has ever been in the past. See Tinker v Des Moines Independent Community School District, 393 U.S. 503 (1969). In order to justify the suppression of speech, school officials must be able to prove that the speech would “materially and substantially interfere” with the operation of the school.

The free speech rights granted in Tinker have been curtailed by more recent decisions, but if students and teachers aren’t distracted “materially and substantially” by the shirts, banning them will be found to violate students’ First Amendment rights. They are not plainly lewd, vulgar, or offensive, although they may be judged offensive at some future point in time.

But it’s not our place at this point to argue the merits of any case that will certainly be challenged. It is our place, though, to look after schools and the education kids receive. If the school district in Madison spends money to defend itself in a lawsuit for this case, it’s not able to spend that money on some educational progam.

Furthermore, the Madison board seems to be picking a fight by changing the dress code in this way. I have to conclude that the Madison board wants to take this question to the courts, which is a complete waste of money. Until a state legislature acts on this issue, it will be difficult for courts to find in favor of the new dress code. The board needs to reverse this change to the dress code before any student gets suspended or expelled and, failing that, before any lawsuit is filed in connection with those students being suspended or expelled.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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