Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
All this talk about student rights has me confused. As a faithful reader of Legal Mailbag, I now understand that students don’t “shed their constitutional rights of freedom of speech or expression at the schoolhouse gate” and all that. But it is hard to know when obnoxious T-shirts meet the Tinker standard, i.e., a reasonable forecast of substantial disruption or material interference with the educational process. I sort of want to be respectful of student free speech rights, but I really don’t want to be sued.
Just yesterday, I had a run-in with a student who was wearing a questionable sweatshirt. The sweatshirt proclaims the student’s solidarity with the Second Amendment by showing an American Flag (albeit in black and white) on the front and the slogan “I support and defend the Constitution of the United States and this I’ll defend!” on the back. I was especially concerned because the slogan on the back was flanked by the outline of two firearms. While I am fairly certain that the wording on the sweatshirt is protected by the First Amendment, are the images of the firearms used to represent the stance on the Second Amendment right also protected?
Not Quite Knowing my Rights from my Lefts
Your question illustrates the challenge of the Tinker standard, which you have correctly summarized. Whether you can reasonably forecast that student expression will cause substantial disruption or material interference with the educational process will depend upon the specific facts of the situation. A message on a T-shirt may be fine in one town, but may cause a disruption in another, depending on all the facts and circumstances. Legal Mailbag does not envy the tough decisions school administrators must make, but that is why you get the big bucks.
Looking at the facts here, Legal Mailbag would want you to articulate specific reasons for forecasting disruption before advising you that it would be fine to prohibit the student from wearing the sweatshirt in question. The expression on the shirt is clearly protected unless and until you can reasonably forecast disruption, and on these facts, Legal Mailbag is not convinced.
A federal case decided just last year on remarkably similar facts gives Legal Mailbag significant pause for concern. In Schoenecker v. Koopman, 349 F.Supp.3d 745 (E.D. Wisconsin 2018), the federal court considered a request by a student to enjoin the school principal from enforcing his ban against the student’s wearing two T-shirts with images of guns (shown below) and a T-shirt that stated “IF GUNS KILL PEOPLE, I GUESS PENCILS misspell words CARS drive drunk & SPOONS make people fat.” The court made short work of the T-shirt with just text, holding, first, that the message on the T-shirt was clearly political speech, and, second, that the principal did not show that the message would be disruptive in any way.
From the court’s perspective, the issue of the images of weapons was more complicated but, ultimately, the court ruled that the school principal violated the student’s rights by prohibiting the wearing of the T-shirts. The court allowed that the principal can be guided by a more lenient standard of “disruption,” i.e., a “reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school.” That was a standard applied by the Seventh Circuit in an earlier T-shirt case, and Legal Mailbag is not convinced that our federal appeal court here in Connecticut, the Second Circuit, would adopt that more lenient standard for “disruption.” Significantly, however, even under that standard the court rejected the principal’s claim of disruption. The principal offered various justifications for his prohibition. However, the court found that there was no evidence that students felt threatened by the T-shirts and that “there [was] no evidence that any staff member’s ability to provide instruction to students was affected.” Accordingly, the court ruled in the student’s favor.
To be sure, this ruling was on a request for the injunction against the prohibition (which was granted), and the case was apparently settled after this ruling. However, the case illustrates the issues that you must consider before restricting the speech on the sweatshirt in question. Legal Mailbag advises you that a blanket ban on images of weapons would likely not be permitted, and a prohibition against any specific image of a weapon will be permissible only if you can persuasively demonstrate that it is reasonable to forecast that the image will cause substantial disruption or material interference with the educational process. Aren’t you glad you asked, and good luck!