On June 15, 2022, in N.J. and A.L v. Sonnabend and Bestor, Case No. 21-1959 (7th Cir. June 15, 2022), the United States Court of Appeals for the Seventh Circuit issued an important decision concerning the ability of school officials to restrict the First Amendment rights of students as to speech and expression.
The First Amendment to the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.
On May 3, 2021, United States District Court Judge William Griesbach decided N.J v. Sonnabend and A.L. v. Kaminski, 536 F. Supp. 3d 392 (E.D. Wis. 2021). Therein, Judge Griesbach decided the issue of whether middle and high school administrators (Sonnaband and Kaminski) could prohibit students (N.J. and A.L.) from wearing t-shirts bearing images of firearms and language conveying support for the right to bear arms while attending school without violating the First Amendment. As an initial matter Judge Griesbach concluded that the t-shirts constituted speech or expression protected by the First Amendment. Judge Griesbach then upheld the school administrators’ actions prohibiting the students from wearing the t-shirts as both viewpoint neutral and reasonably related to the legitimate pedagogical concerns of reducing student anxiety and preventing the aggression that results from seeing an image of firearms. In so doing, Judge Griesbach declined to apply the standard articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) (establishing the legal standard for student-speech cases). Instead, Judge Griesbach looked to the Seventh Circuit Court of Appeal’s decision in Muller ex rel. Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), relying on Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (both establishing the legal standard for speech restrictions in a non-public forum).
After initially determining that Justin Bestor should be substituted for Beth Kaminksi (because Kaminski is no longer the Principal of Kettle Moraine High School and Bestor is) and that the claim raised by N.J. is moot (because N.J. is no longer a student at Shattuck Middle School in the Neenah Joint School District and, therefore, no longer subject to the Shattuck Middle School Dress Code), the United States Court of Appeals for the Seventh Circuit remanded the appeal of Judge Griesbach’s Decision back to the United States District Court for the Eastern District of Wisconsin to apply the appropriate standard (the legal standard articulated in Tinker for student-speech cases).
The facts in this case are not in dispute. N.J. and A.L. are both gun enthusiasts and supporters of the Second Amendment to the United States Constitution. To express their support for the Second Amendment they both wear t-shirts that communicate their favorable opinions of the right to bear arms. When they wore these t-shirts to school, they got in trouble with school administrators.
In February of 2020 (when N.J. was in the 7th Grade), N.J. went to Shattuck Middle School wearing a t-shirt displaying a Smith & Wesson logo. The logo included an image of a revolver.
Around the same time, (when A.L. was a student at Kettle Moraine High School), A.L. went to school wearing a t-shirt bearing the logo of Wisconsin Carry, Inc. (which too incorporated an image of a firearm).
Administrators at both schools barred the boys from wearing the shirts because the administrators interpreted the schools’ dress codes as prohibiting clothing depicting firearms. Neither school’s dress code expressly banned clothing with images of firearms but, rather, prohibited “inappropriate” attire.
The Seventh Circuit Court of Appeals identified Tinker (a case in which the United States Supreme Court upheld the right of several high school and junior high school students to wear black armbands to school to express their opposition to the Vietnam War) as the seminal student-speech decision. Therein, the Supreme Court confirmed that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the Supreme Court held that restrictions on student speech are constitutionally justified if school authorities reasonably forecast that the speech in question “would materially and substantially disrupt the work and discipline of the schools” or invade the rights of others.
The Seventh Circuit Court of Appeals further noted in its Decision in the instant matter that since Tinker, the Supreme Court has identified three (3) categories of student speech that schools may regulate, regardless of whether the circumstances satisfy Tinker’s “substantial disruption standard. The first is “indecent[,] . . . vulgar[,] and lewd speech.” Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685 (1986). Second, school officials may regulate student speech “that can reasonably be regarded as encouraging illegal drug use.” Morse v. Frederick, 551 U.S. 393, 397 (2007). The third category is student expression that others “might reasonably perceive to bear the imprimatur of the school.” Kuhlmeier, 484 U.S. 260 (1988).
The Seventh Circuit Court of Appeals analyzed whether the student’s (A.L. as the remaining Plaintiff) claims fall within any of the above three (3) categories. The Seventh Circuit Court of Appeals concluded that they do not (i.e., the messaging on A.L.’s t-shirt is not indecent, vulgar or lewd; it cannot reasonably be regarded as encouraging illegal drug use; and no one might reasonably perceive it to bear the imprimatur of the school). Therefore, the Court of Appeals held that Tinker is controlling authority: “A.L.’s Wisconsin Carry T-shirt is materially indistinguishable from the black armbands in Tinker. It’s an expression of political opinion, just like the armbands expressed the students’ opposition to the Vietnam War.” The Seventh Circuit Court of Appeals also noted that it reached the same conclusion on similar facts in Nuxoll ex rel. Nuxoll v. Indian Prairie School District No. 204, 523 F.3d (7th Cir. 2008) (another t-shirt case in which the Seventh Circuit held that barring students from wearing t-shirts with the slogan “Be Happy, Not Gay” violated the Tinker standard).
Given the specific facts and circumstances at issue in the instant case, it is likely that, upon remand, the United States District Court for the Eastern District of Wisconsin will reach the same conclusion it previously did (upholding Bestor’s action to prohibit A.L. from wearing the t-shirt bearing the logo of Wisconsin Carry, Inc.), albeit applying Tinker (it should be noted that absent the temporal and factors and recent events present in the instant case, the United States District Court for the Western District of Wisconsin reached a different conclusion in Schoenecker v. Koopman, 349 F. Supp. 3d. (W.D. Wis. 2018) (granting preliminary injunction to Schoenecker (a student at Markesan High School) to wear his gun-themed t-shirts to class). This is because:
⸰ The Tinker standard acknowledges the broad authority of school officials to maintain order and discipline and establish conditions in the school environment that are conducive to learning. That being said, the application of Tinker must account for such factors as the age and grade level of the students to whom the speech is directed and any factors particular to the educational environment or history of the school or student body in question, including temporal factors and recent events. Moreover, the inquiry under Tinker accounts for the professional knowledge and experience of school administrators in setting and enforcing disciplinary standards.
⸰ Restrictions on student speech are constitutionally justified if school officials can show that the speech in question “would materially and substantially disrupt the work and discipline of the school.” Albeit mere speculation of material or substantial disruption will not suffice, the school official here (Bestor) will likely be able to present facts that allowed him to forecast such disruption – In this case, the underlying facts presented demonstrate that students at Kettle Moraine High School reported feeling uncomfortable around other students who were wearing clothing that depicted or associated with firearms, a shooting at nearby Waukesha South High School little more than a month before caused an increased concern about school violence and school shootings, and the day after the shooting at Waukesha South High School a Kettle Moraine High School student received an anonymous comment on a video he posted insinuating an attack at Kettle Moraine High School was going to take place.
School administrators faced with similar situations should focus on the specific facts involved – Is a student expressing a particular message (i.e., is the student engaged in speech or expression)? Thereafter, the focus should be on whether the speech or expression will result in a material and substantial disruption (i.e., what is the current environment (are students expressing fear, what is the impact of recent events (e.g., recent school shootings), etc.). In short, even if a student demonstrates that wearing clothing depicting firearms is protected speech or expression under the First Amendment, if school administrators can demonstrate they took action to prohibit the student from wearing clothing depicting firearms (restricting the speech or expression) because of the likelihood of material and substantial disruption to the school, the action of the school administrators will likely be upheld.
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