Does Restricting Student Apparel Restrict Student Speech? Recent Guidance From a Wisconsin Federal Court

By Heidi Tepp, Attorney

Can a student wear a pro-gun shirt to school?  The answer is not entirely clear.  While students have a constitutional right to freedom of expression which extends to the messages they wear on their T-shirts or other clothing, their rights are not absolute.  The courts have stated that schools can prohibit students from wearing clothing with words, images, or symbols that: 

• are vulgar or lewd
• promote illegal drug use
• are likely to cause serious disruption at school or violate other students’ rights 

When it comes to T-shirts with provocative or controversial messages, it can be difficult to draw the line between what’s truly disruptive and what’s merely undesirable.  Depending on the context, courts have come to different conclusions about shirts with similar messages. Recently, two Wisconsin students sued their school districts seeking to stop them from enforcing dress code prohibitions on clothing depicting firearms.  

The Lawsuits

One student was a seventh-grader at Shattuck Middle School in Neenah.  He wore a shirt with the inscription “Smith & Wesson Firearms – Made in the USA Since 1852.”  The shirt also had an image of a revolver. The associate principal asked the student to cover the shirt and the student put on a sweatshirt and returned to class. 

The other student was from Kettle Moraine High School.  He wore a shirt that contained the words “Wisconsin Carry, Inc,” and the organization’s logo which is a handgun tucked being the inscription is if the gun were in a holster and the inscription were a belt.  An associate principal asked him to zip up his jacket to hide the shirt, and he did.  Neither of the students were disciplined for wearing the shirts.

Both districts had dress codes that permitted messages concerning the Second Amendment to the US Constitution.  However, images of guns were prohibited.  In fact, the Kettle Moraine student had previously worn a shirt that simply had the words “AR-15” written on it parodying a square on the periodic table.  He was not asked to cover the shirt or disciplined in any way for wearing the shirt.  

In defense of wearing the shirts the students contended that the dress code policies were vague.  In addition, they argued that concerns that students and staff had expressed about the images of guns causing them fear and anxiety and that images of guns can lead to increased aggression were not sufficient reasons to restrict their right to freedom of expression.  The judge, however, disagreed and dismissed their case.  

The US District Court’s Decision

The judge found that the dress code policies were viewpoint neutral.  The policy ban on clothing bearing images of firearms applied equally to all images regardless of whether they were pro-gun or anti-gun.  Since the policies were viewpoint neutral, the schools did not have to show that the wearing of the shirts caused or was likely to cause a substantial disruption at school.  They only needed to show that the restriction was reasonably related to a legitimate pedagogical concern.

The schools had argued that images of guns could disrupt learning by causing fear and worry among students, especially in light of recent shootings at two Wisconsin schools. The judge agreed finding that, to the extent such fear and anxiety among students or staff arises, whether intentionally provoked or not, it undermines in those who experience it the sense of safety and security that are essential to promoting and maintaining an effective learning environment, which is clearly an important pedagogical goal. 

The schools further argued that an additional justification for the restriction was a concern based on the “weapons effect” theory that the mere presence of images of guns increases aggression in people.  The judged agreed that reducing student aggression was also an important pedagogical goal.

The judged stated that as long as school officials offer reasonable explanations for viewpoint-neutral restrictions in student dress codes, courts should not second guess their decisions.  In this case, the judge noted that the prohibition limited to images of firearms on clothing worn by students while attending class did not prevent students form debating the value of firearms or the merits of gun control laws.   Further, the students were free to wear shirts that expressed their support for the Second Amendment as long as they did not contain the restricted images.  Since the dress code had a “relatively minor impact on student speech rights,” and, given that neither boy had been disciplined, the students’ claims were without merit and the case was dismissed. 

Deviation from Prior Wisconsin Court Decision

In a 2108 case, a student from Markesan High School sued the school district claiming that it had violated his First Amendment rights by prohibiting him from wearing non-violent, non-threatening shirts that expressed his beliefs about the value to society of the personal possession of firearms.  The student wore a shirt that said “Celebrate Diversity” on the front, underneath an image depicting several firearms.   Another shirt had the word “LOVE” on the front with the letters of the word spelled by images of weapons with the “L” made of handguns, “O” of hand grenades, “V” of knives and “E” of a rifle.  He later wore another t-shirt with no images but the message: “IF GUNS KILL PEOPLE, I GUESS PENCILS misspell words CARS drive drunk & SPOONS make people fat.” 

The student was told that he could not wear t-shirts that either depicted weapons or even mentioned the word "gun.”  At that time, the dress code did not explicitly prohibit students from wearing clothing that depicted weapons, but the principal claimed that the dress code gave him discretion to interpret it, and he exercised that discretion to prohibit such clothing.^[1]  Despite the principal’s warnings, the student continued to wear his shirts to school. When he did so, teachers required him to cover the shirts or wear them inside out. If he refused to comply, the teachers disciplined him by sending him to “the cubicle,” which was a form of in-school suspension.

The school argued that the lawsuit should be dismissed, because the shirts were not protected expression and that the wearing of the t-shirts would likely cause a substantial disruption at school.  The judge rejected these arguments.  First, the judge held that shirts themselves were pure speech, in that they contained images and words that convey a message. While the message may be ambiguous and open to interpretation, this does not deprive it of First Amendment protection. 

Next the judge found there was no likelihood of a substantial disruption as a result of the student wearing the shirts.    The school argued that staff members said that the shirts "made them uncomfortable and concerned about school safety; that students participated in a walkout to protest school gun violence after the Parkland shooting; that class instruction was disrupted on multiple occasions due to student discussions and arguments about the shirts and that after the lawsuit was filed news outlets came to the school. The judge did not find these arguments persuasive.  The judge determined that even if some staff members were uncomfortable and concerned about school safety, there was no evidence that any staff member's ability to provide instruction to students was affected. 

Likewise, while some students were concerned about school shootings in general, there was no evidence suggesting that the shirts at issue contributed to any student's anxiety.  Further, there was not sufficient facts to support the claim that class instruction was "disrupted" on multiple occasions due to student discussions and arguments about the shirts.  Finally, the judged held that any disruption related to the media presence on school grounds was not caused by the shirts, but by the school’s decision to censor the shirts and the ensuing lawsuit. 

Since the school could not show that the wearing of the shirts caused a substantial disruption or was very likely to do so the judge held that the student was likely to prevail on the merits and refused to dismiss the case.  The matter ultimately settled with the school district agreeing not to restrict the student from wearing shirts with weapons so long as the image and/or message did not advocate for violence.

Where Does This Leave Us?

Where does this leave schools? The preliminary issue is the school’s dress code and whether or not the item of clothing at issue would be a violation.  Perhaps ironically, a code that prohibits all political messages or all images on t-shirts or all images of guns, violence, and drugs, would probably be most likely to survive a First Amendment challenge.  

Based on the most recent decision, if the policy is viewpoint neutral and does not favor one side of the issue over the other then all that needs to be shown to support a restriction on student expression is that the restriction is reasonably related to legitimate pedagogical concerns. This could include factors such as:

• maintaining an orderly learning environment
• minimizing distractions
• reducing socioeconomic differences (at least in clothing), and
• teaching students to respect authority and follow community standards

If your policy is not viewpoint neutral you will need to establish that there is a likelihood of substantial disruption.  Mere discomfort is not enough.  What constitutes a substantial disruption is decided on a case-by-case basis.  The interruption of classes, threats to teachers, racially harassing conduct, significant race-based tension, fights or violent behavior on school grounds, a flood of of angry calls from parents, the canceling of school events, and emotional distress suffered by teachers have all been considered substantial disruptions under the standard adopted by the courts. Principals should gather such evidence when faced with a situation in which the First Amendment rubs up against disruption of the learning environment. 

Attorney Heidi Tepp has been practicing school law for over 25 years. The information she has provided is intended to give authoritative general information, with commentary, as a service to AWSA members. The materials and information provided in this article are subject to change without notice and should not be construed as legal advice.  If needed, legal advice regarding any topic, issue, situation or incident should be obtained from the school district's legal counsel. You may also direct your Level I legal questions to AWSA’s retained legal counsel, Malina Piontek, at 608-497-3037 or [email protected].