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Appeals court hears challenge to school ban on gun T-shirts

The Seventh Circuit is weighing whether public school students have a First Amendment right to wear shirts with images of guns on them.

CHICAGO (CN) — A three-judge panel of the Seventh Circuit heard arguments Friday morning over whether two Wisconsin public school students wearing shirts with gun imagery in class are protected by free speech rights.

The questions before the panel included both whether these specific students' shirts were protected, and whether gun imagery on students' clothes should be considered protected speech in general.

The issue stems from two students - identified in court records as N.J. and A.L. - wearing shirts with depictions of guns on them to school to show their support for Second Amendment rights. Both students' respective middle and high schools ordered them to cover those depictions or not wear them to school at all. The students, through their parents, sued their school districts on the grounds that those orders violated their First Amendment rights.

However, U.S. District Judge William Griesbach in Green Bay ruled that the students' shirts were only definitively protected by the First Amendment outside of school.

"Wearing them is... entitled to constitutional protection outside the school context," the George W. Bush appointee wrote in his May 2021 opinion on the matter. "The question of whether wearing them in the school setting is likewise entitled to constitutional protection requires consideration of the law governing student speech and [the school districts'] asserted justification for prohibiting them."

Griesbach ultimately sided with the school districts, citing administrators' testimony that the shirts were creating fear and disruption among the student body, particularly in light of two school shootings that took place in eastern Wisconsin in late 2019. This climate of fear, the judge said, overruled the students' right to this form of free speech in a public learning environment. He also pointed out that being prevented from wearing a pro-Second Amendment shirt in class does not prohibit N.J., A.L. or other students from learning about or debating the Second Amendment in class.

"A prohibition limited to images of firearms on clothing worn by students while attending class does not prevent students from debating the value of firearms or the merits of gun control laws. Students remain free to speak and write on the issue, as appropriate in classroom discussions and essays, or privately among themselves," Griesbach wrote. "Indeed, unlike students in schools that have adopted dress codes that prohibit all printed or pictorial messages on clothing worn by students, N.J. and A.L. even remain free to wear shirts that express their support for the Second Amendment in other ways."

Ronald Stadler, lead attorney for the Neenah School District and Kettle Moraine School District, hit similar beats in his arguments Friday morning before the Seventh Circuit, pointing out how images of guns that may have seemed innocent 50 years ago have taken on a different context in 2021.

"Our public schools have changed dramatically from the time that Mr. Monroe, myself, or any of you were in school," Stadler told the three-judge panel, referring to the students' lead attorney John Monroe. "Our schools have been shaped, and some might say disfigured, by Columbine in '99, Sandy Hook in 2012, Marjorie Stoneman Douglas in 2018, and the hundreds of school shootings that have occurred around the nation since then."

Chief U.S. Circuit Judge Diane Sykes, another George W. Bush appointee, posed this issue to Monroe, asking if the court should consider the reality of school shootings in the context of deciding whether to overturn Griesbach's decision. Monroe waved the question away, saying isn't aware of any link between images of guns on shirts and actual school shootings.

"There would have to be some kind of correlation demonstrated between wearing a T-shirt that depicted a gun and a school shooting. I'm not aware of any such correlation," Monroe said, also arguing that even the school administrators in the case could not provide hard evidence of the shirts causing a substantial disruption to the student body.

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He pointed out that Kettle Moraine High School, which A.L. attends, even has a student trap shoot team that uses real shotguns as part of their sport.

"[The school districts] at least have to show how the speech in the case could result in falling test scores, the uptick in truancy or other symptoms of a sick school," Monroe said. "And in this case both of the principals involved deposed that... they didn't think anything like that was happening here."

"It's just pure speech," he continued. "It's just an image of a firearm, just like an image of a sports player or a car or something like that. There might be people who react one way or another about it, but if people don't like it, that's not enough to overcome a First Amendment challenge."

Sykes, the most vocal judge in the hearing, was more amenable to Monroe's arguments than Stadler's. On several occasions she seemed incredulous, even offended, at the idea that an image of a gun could cause an actionable disruption to the school environment.

"High school students are not exposed to images of guns on a routine basis? They're ubiquitous in our society," the judge said, challenging Stadler's argument that A.L. and N.J. - the latter of whom also wore a necklace and belt with shell casings - were frightening their classmates enough to surrender their First Amendment rights.

"Away from school it's probably more of a matter of choice. They're not a captive audience. I mean, we require them to go to school... at home they can turn off the TV, turn off the Xbox," Stadler retorted.

When Stadler pointed to Griesbach's finding that students can still debate gun rights in class and see pictures of guns in their history textbooks, Sykes' demeanor turned openly caustic.

"So some speech can be suppressed when it implicates firearms, but not all speech implicating firearms?" she asked, before U.S. Circuit Judge Amy St. Eve defused the heated exchange by asking Stadler where the line was between discomfort and disruption.

"Where's the line between discomfort, discontent with images and how they make you feel uncomfortable, and disruption to the school? Because that's really the test," said St. Eve, a Donald Trump appointee.

Stadler conceded that he didn't have hard figures to back up the school districts' claims of the shirts producing a disruptive environment. Monroe characterized this lack of evidence as making the districts' arguments "basically anecdotal."

But Stadler fell back to school administrators' testimony that multiple students complained about N.J. and A.L.'s shirts. He argued that, per the 1969 Supreme Court decision Tinker v. Des Moines Independent School District, the substantial disruption test does not require absolute proof.

He also repeated, for his closing arguments, that laws do not exist in a vacuum and that the current political climate must be taken into account in the panel's decision.

"The gun T-shirts interfere with the rights of other students to attend school free of fear, free of anxiety, and not having to look at an image every single day that tells them their school might be the next one that's shot up," Stadler said.

Senior U.S. Circuit Judge Kenneth Ripple, a Ronald Reagan appointee, joined Sykes and St. Eve on the panel. The judges did not say when they would issue a ruling.

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Categories / Appeals, Civil Rights, Education

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