The Seventh Circuit Court of Appeals, which has jurisdiction over Illinois, Indiana, and Wisconsin Schools, in N.J. by Jacob v. Sonnabend, ruled in favor of a Wisconsin high school student who brought a constitutional challenge to restrictions on free speech when his school prohibited him from wearing a T-shirt that depicted an image of a handgun and message that favored the right to bear arms.
At issue, two Wisconsin students – a middle schooler and high schooler – were prohibited from wearing to school T-shirts that depicted firearms and conveyed messages in favor of the right to bear arms. Specifically, the middle schooler wore a T-shirt emblazoned with an image of a revolver and the inscription “SMITH & WESSON FIREARMS—MADE IN THE USA SINCE 1852” and the high schooler wore a T-shirt displaying the logo of Wisconsin Carry, Inc., a gun-rights organization, which features 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 sued the administrators in their official capacities in separate lawsuits alleging violations of their free-speech rights under the First Amendment, seeking declaratory and injunctive relief. The district court consolidated the cases and found in favor of the school administrators. In doing so, the district court declined to apply Tinker v. Des Moines Independent Community Unit School District, the landmark U.S. Supreme Court case addressing students’ free speech rights at school. Instead, it applied the standard for speech restrictions in a nonpublic forum—the most lenient test—and upheld the administrators’ actions as viewpoint neutral and reasonable.
On appeal, the Seventh Circuit vacated the district court’s decision due to its failure to apply the legal standard set forth in Tinker, which provides that restrictions on student speech are constitutionally permissible if school officials reasonably forecast that the speech “would materially and substantially disrupt the work and discipline of the school” or invade the rights of others. The Seventh Circuit emphasized that although this test is deferential to school officials and is “applied in light of the special characteristics of the school environment,” it is stricter than the test for speech restrictions in a nonpublic forum. Thus, the Seventh Circuit remanded the case back to the district court for application of Tinker, but only as to the high school student’s claim. The Seventh Circuit held that the middle schooler’s claim was moot because he no longer attended the middle school and thus was not subject to the middle school’s dress code.
Critically, the Seventh Circuit did not opine as to whether the students had a constitutionally protected right under the First Amendment to wear the shirts depicting images of guns at school, but instead simply indicated that the district court applied the wrong legal standard in ruling in favor of the school administrators’ actions. This case serves as an important reminder that even though school authorities have comprehensive authority, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools, students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
For questions about this case or student speech and school dress code policies more generally, please contact Jennifer Rosenberg in our Students/Special Ed practice group.
Source: N.J. by Jacob v. Sonnabend, 37 F.4th 412 (7th Cir. 2022)
