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Seventh Circuit Reinstates Lawsuit Over School Ban on T-Shirts That Depict Guns,
and reverses a precedent that suggested that viewpoint-neutral speech restrictions in public K-12 schools are generally permissible.
From N.J. v. Sonnabend, decided today by the Seventh Circuit (Judge Diane Sykes, joined by Judges Kenneth Ripple and Amy St. Eve):
The plaintiffs are two teenagers who attend Wisconsin public schools. Both are gun enthusiasts and supporters of the Second Amendment. To express that support, they own and wear T-shirts that communicate their favorable opinion of the right to bear arms. When they wore those shirts to school, however, they got into trouble with school officials.
In February 2020 when plaintiff N.J. was in seventh grade at Shattuck Middle School in Neenah, he went to school wearing a T-shirt displaying a Smith & Wesson logo. The logo included an image of a revolver. Around the same time, A.L., a student at Kettle Moraine High School in Wales, went to school wearing a T-shirt bearing the logo of Wisconsin Carry, Inc., a gun-rights group. This logo too incorporated an image of a handgun.
Administrators at both schools barred the boys from wearing the shirts, explaining that any clothing depicting firearms is forbidden. Neither school's dress code expressly bans clothing with images of firearms. Rather, the dress codes prohibit "inappropriate" attire, which the administrators interpreted to bar any clothing with an image of a firearm regardless of whether it conveys support for or opposition to gun rights….
The students argued that their T-shirts weren't disruptive and thus couldn't be restricted, given Tinker v. Des Moines Indep. School. Dist. (1969), but the district court held that Tinker didn't apply to viewpoint-neutral speech restrictions, citing Muller v. Jefferson Lighthouse School (7th Cir. 1996). But on appeal the Seventh Circuit reversed, overruling Muller in relevant part:
[T]he Court has recognized three categories of student speech that may be regulated without regard to the Tinker standard. {The first and perhaps most obvious category is "indecent[,] … vulgar[,] and lewd speech." Bethel Sch. Dist. No. 403 v. Fraser (1986)…. Second, the Court has held that school officials may regulate student speech "that can reasonably be regarded as encouraging illegal drug use." Morse v. Frederick (2007)…. The third category is student expression that others "might reasonably perceive to bear the imprimatur of the school." Hazelwood Sch. Dist. v. Kuhlmeier (1988).} The Kuhlmeier category is plainly limited to "speech that others may reasonably perceive as 'bear[ing] the imprimatur of the school,' such as that appearing in a school-sponsored newspaper." The Muller majority did not apprehend this limitation; the church fliers at issue there could not reasonably be perceived as bearing the imprimatur of the school.
Muller … led to the judge's doctrinal misstep in this case, so clarification is warranted. Because Muller mistakenly applied Kuhlmeier and speech-forum analysis [to viewpoint-neutral restrictions on K-12 student speech], it is overruled. {Because this opinion overrules circuit precedent, we circulated it to the active members of the court under [7th] Circuit Rule 40(e). No judge requested to hear this case en banc.} …
It follows that it was error for the judge here to apply Muller and Kuhlmeier. Unlike the high-school student newspaper in Kuhlmeier, nothing about A.L.'s T-shirt bears the imprimatur of his school. No observer would construe the message on his T-shirt as school-sponsored or school-endorsed speech. Rather, A.L.'s Wisconsin Carry T-shirt is materially indistinguishable from the black armbands in Tinker. It's an expression of his political opinion, just like the armbands expressed the students' opposition to the Vietnam War. Tinker is the controlling authority….
We return, then, to the Tinker standard: 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" or invade the rights of others. It's not necessary to prove "that unless the speech at issue is forbidden[,] serious consequences will in fact ensue." But mere speculation won't do, and there's no "generalized 'hurt feelings' defense to a high school's violation of the First Amendment rights of its students." Rather, school officials must present "facts [that] might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities" or the invasion of the rights of others. It's an objective inquiry, and Tinker places the burden of justifying student-speech restrictions squarely on school officials.
At the same time, 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. "[W]e must not ignore the Supreme Court's admonition that 'a school need not tolerate student speech that is inconsistent with its basic educational mission.'" 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. Temporal factors and recent events might be relevant. And the inquiry accounts for the professional knowledge and experience of school administrators in setting and enforcing disciplinary standards.
Because the judge did not apply Tinker, the prudent course is to remand to allow him to do so in the first instance. The parties' arguments on appeal mostly concerned the choice of legal standard rather than its application; the briefing contains only limited analysis of A.L.'s case under the substantial-disruption standard. With the legal framework clarified, the judge may want to invite new submissions from the parties….
(Note that the court held that N.J.'s case was moot, because he sued only over the middle school policy and he's out of middle school now, but that A.L.'s case isn't moot.)
Note: I was commissioned by the Firearms Policy Coalition and Firearms Policy Foundation to file an amicus brief in this case, which argued that viewpoint-neutral restrictions on K-12 student speech should indeed be subject to Tinker. Congratulations to John R. Monroe, who represented the students.
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Great idea, kudos kids!
Sounds like it worked well for them: They helped advance a cause that they care about (or perhaps even two causes, if they care about student free speech rights as well as gun rights). They likely got to learn something about the legal system in the process. And to the extent they got pushback from administrators, teachers, or classmates, they got more experience in standing up for what they believe in, and strengthened their courage muscle.
Yes, this might be the high point of their lives, something they can look back on for a smile a couple of decades down the road when fondling their guns in backwater Wisconsin, wondering how to make the payment on that used pickup after the factory closed and took every decent job out of town, angling to score that handful of street pills needed to navigate another day in what’s left — after another generation or two on the wrong end of bright flight — in white, rural, conservative, Republican, gun-loving America.
Your “betters” (or at least “Youngers” ) must not have been listening in Texas’s 34th district where they elected Mayra Flores, first Repubiclan to win that area since 1870, you know, Your “Prime”
And it’s a district Sleepy supposedly carried by 4 points in 0-20, Flores won by 8, funny how things change when you have to actually show up in person.
It’ll be funny when the “Reverend” inevitably gets the Bill Cosby/Jerry Sandusky treatment, and we find out he lives in (literally) “Dumbfuck, Egypt”
Frank “Shit, I wish I lived in a city with a bunch of “Klingers” do you know one?”
Or perhaps “I’m a Patriot. Weapons are part of my Religion” promotes a culture where gun rights are defined broadly to the point of harming society (but they should have nonetheless won the case).
Well, obviously people disagree on this point. Presumably they think it’s the right position; perhaps they’re mistaken; or perhaps it’s hard to tell. (Even if you think there’s convincing evidence in favor of banning some weapons, I expect the question whether that T-shirt promotes a culture that indirectly promotes a bad result is a very hard question to answer with great confidence.)
So I think what we have is a very common scenario: Some people believe in something; it might be right or might be wrong, but they think it’s right and they are willing to express themselves and to defend their right to express themselves. Does sound like a good idea, for which the kids do deserve kudos.
If the shirt had read “Jews will not replace us” would you be so quick to congratulate them for expressing an idea they believe in? I’m guessing not and also guessing you would distinguish my hypothetical by arguing the kids are most certainly wrong.
Guess what? Although the gun shirt is not on the same scale as the hypothetical, I believe the kids are nonetheless clearly wrong. So, I am not going to congratulate them even though I agree they have the right to express themselves.
They have the right to express themselves, but are wrong for doing so?
At least you don’t hide your hypocrisy.
As for your hypothetical, it is not even remotely comparable, and an honest poster would know that before even commenting.
They aren’t wrong for expressing themselves. It’s the idea they express that is wrong. Fight bad speech with more speech.
That’s… not hypocrisy. The Nazis had the right to march in Skokie, but were wrong for doing so.
That’s the thing: A lot of gun control activists think that merely peacefully owning a gun is a heinous act.
And many of us don’t. But, we believe treating gun ownership as a religion in the name of patriotism is very wrong (but still not heinous).
Do you deny that Jews are disproportionately leftists, and leftists aim to replace the white population with third world immigrants?
Professor Volokh, please take time to find out first-hand what guns are. Find out why the people most accustomed to using guns are the people who find them most worrisome.
See what guns do. Seek permission to ride with EMTs who frequently respond to shootings. Visit the scenes, see the bystanders, ride with the victims, see them into the emergency rooms, into surgery, or into the morgue. Honest advocacy on a topic so important can only be founded on first-hand experience.
Guns are not tools of expression. They are tools of intimidation, compulsion, injury, dismemberment, and death. To understand that by first-hand experience is to understand as well why it is not a close question whether to permit gun advocacy in schools, where students must routinely enact active-shooter drills.
Anyone without that first-hand experience ought to be asking instead if it is proper to do pro-gun advocacy on no better basis than ignorance and inexperience about the subject. Try to understand. Entertainers cannot afford to show gun truths to audiences. If gun use were portrayed realistically in popular entertainments, only psychopaths would watch them. Ask yourself, how much about this subject do you actually know?
Nice emotional appeal. Meaningless on a constitutional level. Nice try though.
Do you feel just as strongly about anti-gun advocacy on ignorance and inexperience? Because that’s where most of it comes from.
tkamenick — Actually, I do feel strongly about that. You can find advocacy by me against ignorant anti-gun advocacy. I have commented on that more than once. Less evidently (I hope) I yell at my TV screen about it. I have to watch out for that, lest I undermine a good marriage.
Sigh.
What on earth do you think that has to do with the topic? This is about t-shirts, not guns.
Look, Lathrop comes down against speech, yet again! Has there ever been a time when you supported the speech of anyone other than newspaper publishers?
There is no screening test for whether someone is entitled to express an opinion.
Nieporent, as you know, there is a screening test applied in schools. Whether that test is challenged by pro-gun advocacy T-shirts is what I wish to discuss.
Wow, that is one of the most irrational (and off-topic) diatribes you’ve ever managed. As one of those people “most accustomed to using guns”, nothing you said was true. You have only demonstrated that you don’t actually know squat about the topic beyond your own fears.
Rossami, tell us about your accustomed use of guns. Combat infantry? For how long? Hunting experience? How much game have you killed and what kind, in what kind of terrain, in what kind of weather? How many years in the field?
Ever been shot at yourself? How many times? Ever seen anyone killed by a gun? How about injured or maimed, maybe someone with his jaw shot off? How many folks do you know who have lost friends or loved ones to gun murder? How about gun suicide?
Especially, tell me how much experience you have had with situations where you lost control of your gun, or fired it accidentally, or saw someone else do that near you. Ever see a cop put a bullet through the back window of a car with four people in it, as it was driving away?
I am not much interested in gun range training, or other experience so routine it is almost impossible to make mistakes. I am much more interested in insight which comes from experience which tests human inattentiveness, irresponsibility, fecklessness, and incompetence—with certain knowledge that at some level of challenge we all become insufficiently competent.
Is that what you have got? If so, I do not see much sign of it in your commentary. Too much bluster, not enough humility. If gun use does not make you humble, I don’t think you have been doing it right, or doing it enough. Or doing it for real, to kill.
“Is that what you have got? If so, I do not see much sign of it in your commentary.”
Pot->Kettle.
Slyfield — Say more. If I have more of that kind of experience than Rossami, why is it Pot/Kettle to respond when he claims to be a person, “most accustomed to using guns?” And then dismisses my comment with no other discussion. He could be what he says. I do not claim to know. So I gave him a taste of the standard I think he needs to match, to see if he wants to be specific.
The Solution’s Obvious,
Background check and be 21 to wear a t-shirt depicting a firearm, problem solved!
Better still, background check and over 21 to attend a public school.
And 21 or older to vote.
And 21 or older to…
I’d include male/property owner, but I’m an “Originalist”, and Senators should be chosen by the State Legislatures (otherwise, what’s the point, they’re just “Super Representatives”
“[W]e must not ignore the Supreme Court’s admonition that ‘a school need not tolerate student speech that is inconsistent with its basic educational mission.'”
Since it is clear that the basic educational mission is to indoctrinate the political views of the left, both t-shirts are, in fact, inconsistent with that mission.
Fledgling gun nuts and candidates to be part of the depleted human residue in America’s can’t-keep-up backwaters have rights, too — but not, if right-wingers, have their way, the right to mention “Bong Hits 4 Jesus” or to sport a t-shirt with the reality-based observation that Jesus is a character in a fairy tale for gullible children of all ages.
No disapproval of the pseudonymity in this case, Prof. Volokh? Do these young gunners qualify for your Publius (right-wing litigant) exemption?
Carry on, clingers. So far as you betters permit, as usual.
Clingers.
Drink.
Rev, you’re turning into an alcoholic.
As I’m sure you’re aware, this anonymity is expressly permitted by rule, and I believe Prof. Volokh has noted as much in his posts. (I don’t feel like verifying, they’re tedious enough to go through when they’re new.)
Prof. Volokh has plenty of criticism for permitted pseudonymity — although not so much in the context of right-wing litigants.
He is a captive of his partisan polemics.
Rainbow flag shirts, Smith & Wesson shirts, all the same to me.
I can see banning all of them from K-12. I can see allowing them.
What I can’t see is allowing one but not the other.
Vee Haff Vays ov mak-een yu Com-Plyyyyyyyyyyyyyyy!!!!!!!!
Zum Gulag mit Dir!!
Herr Kommissar Drackman-o-vich
Exactly. Could a school ban an ACLU T-shirt? In light of Tinker, the answer is a clear, “No.”
Some odd procedural issues:
1. A circuit court panel rather than an en banc court overruling circuit precedent.
2. The panel saying the district judge erred, when it appears the district judge correctly applied circuit precedent, the precedent that this court is overruling.
It would be helpful for the appeals court to acknowledge the district dourt’s duty to apply binding circuit precedent even when that precedent is questionable, and hence not to characterize the district court’s doing so as an error.
re: 1 – Already resolved. See note reading “{Because this opinion overrules circuit precedent, we circulated it to the active members of the court under [7th] Circuit Rule 40(e). No judge requested to hear this case en banc.}”
re: 2 – Also already resolved. The text of the opinion makes very clear that “Muller … led to the judge’s doctrinal misstep in this case”.
1. That’s the way the 7th circuit operates. A panel can overrule a previous panel as long as it first runs it past the entire court. It makes a lot more sense, frankly, than the way other circuits handle it.
2. The district court’s duty is to apply binding SCOTUS precedent. Only if there is no such precedent should it apply circuit precedent.
A better question is how the hell the 7th circuit got Tinker so wrong in Muller.
In most circuits, the opinion of a three judge panel is binding until the en banc court overrules it. Does any other circuit follow this procedure of allowing a three judge panel to overrule precedent unless the en banc court vetoed it?
Hard to ban speech highlighting the Bill of Rights.
The opposite position. Both the 1st and 2cnd amendments are optional and the government gets to decide who is allowed to exercise their rights.
The Bill of Rights bars the govt from taking specific actions.
Imho Tinker is often interpreted way too generously (for schools). These T-shirts should be allowed just like that Bong Hits 4 Jesus shirt should have been allowed. Like Tinker, I’m not opposed to schools stepping in in certain heckler’s veto situations, where speech results in actual disorderly conduct among students, but I very much doubt that there was any evidence of that here.
Tinker does not require actual disorderly conduct; just a reasonable fear that it will occur.
There’s a problem with the SCOTUS criterion, ‘a school need not tolerate student speech that is inconsistent with its basic educational mission.’ Because in many cases, the basic education mission of public schools is indoctrination in progressive dogma like LGBT supremacy, disarming Americans, atheism, and pro feticide.
I.e., the kind of education that produces ‘Rev Kirkland’s.
What next? No bans on shirts depicting alcohol, drugs, or sex toys if they are not disruptive?