In September of 2023, at the WASDA New Superintendents Academy, Kirk Strang presented on the topic of Student Rights and Responsibilities in the Era of Polarized Political Landscape.
In this five-part series, we’re recapping Kirk’s presentation, which focuses on the different facets of student speech and expression, including:
- Part 1: Basic Principles, Seminal Case Law & Building Your Defense
- Part 2: Oral or Written Speech
- Part 3: Clothing
- Part 4: Prayer
- Part 5: Summary of Speech Schools Might Be Able to Regulate (Sometimes)
In Part 3 of the series, we’re tackling student speech and expression as it relates to clothing with a focus on student clothing case law.
We’ll take a look at three clothing case law examples:
- N.J. by Jacob v. Sonnabend, 37 F.4th 412 (7th Cir. 2022)
- Schoenecker v. Koopman, 349 F. Supp. 3d 745 (E.D. Wis. 2018)
- Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874 (7th Cir. 2011)
Student Speech & Expression: Clothing
STUDENT CLOTHING CASE LAW
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N.J. by Jacob v. Sonnabend, 37 F.4th 412 (7th Cir. 2022).
Two students, N.J. and A.L., who were enrolled in different schools, wore shirts bearing images of guns. Both schools decided that the shirts violated their respective dress code policies. The students sought a permanent injunction against the enforcement of the dress code policies on the basis that the prohibitions violated their First Amendment free speech rights.
The district court initially found in favor of the districts. However, on June 15, 2022, the Seventh Circuit Court of Appeals vacated and remanded the district court’s decision to be considered under the Tinker Test.
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Schoenecker v. Koopman, 349 F. Supp. 3d 745 (E.D. Wis. 2018).
A student wore three t-shirts to school: one reading “Celebrate Diversity” with various types of guns depicted, another reading “LOVE” spelled out in guns, and a final shirt reading, “IF GUNS KILL PEOPLE, I GUESS PENCILS misspell words CARS drive drunk & SPOONS make people fat.” The student sought injunctions against the school district’s prohibition of the t-shirts.
Holding/Reasoning: The t-shirts did not create a substantial disruption under Tinker.
- News media coverage stemmed from the defendant’s decision to censor the shirts, not the shirts themselves.
- The record did not indicate that students felt threatened by or anxious about the shirts.
- The district provided no proof that classrooms were disrupted.
- Staff members’ concerns related to school shootings in the country were unreasonable given that the shirts did not promote gun violence.
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Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874 (7th Cir. 2011).
The Seventh Circuit held that a district could not prohibit a t-shirt with anti-LGBTQ sentiments (i.e., “Be Happy, Not Gay”) while promoting t-shirts for an event designed to bring attention to the mistreatment of the LGBTQ community (i.e., “Be Who You Are”).
Holding/Reasoning: Although the t-shirt could result in “hurt feelings” amongst the LGBTQ community, the shirt did not amount to a substantial disruption, and was thus protected by the First Amendment.
- Applying Tinker, the court rejected the district’s argument that incidents years prior allowed school officials to forecast a substantial disruption. The court found that evidence of those incidents was unreliable and negligible.
- The court rejected the district’s argument that the prohibition was warranted because it protected the student wearing the “Be Happy, Not Gay” t-shirt from retaliatory harassment. The court identified that the Tinker test could not be met with a “heckler’s veto” argument.
These are just three examples of the nuance (and complexity) of clothing case law — and ultimately all of the student speech and expression topics we’re covering in this series. It also identifies the types of evidence that the court expects in order to rule in favor of a district in cases like this — thus, due diligence is critical if a district is going to argue for prohibition of articles of clothing.
This brings us to the end of Part 3 of our series. Next up in Part 4 we talk about prayer, with a focus on student prayer — generally and in specific contexts — as well as student religious expression.
Additional articles based on WASDA Conference presentations that may be of interest: