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Not so fast, Seventh Circuit says to judge who upheld ban on gun T-shirts at school

Last year a Wisconsin federal court upheld two schools’ bans on shirts emblazoned with firearm imagery. On Wednesday, the Seventh Circuit decided the case warranted further consideration.

CHICAGO (CN) — A legal debate over the limits of public school students’ free speech rights is headed back to a federal court in Wisconsin after the Chicago-based Seventh Circuit vacated the lower court’s ruling Wednesday.

The case at hand revolves around two public school students in Wisconsin, named by their initials N.J. and A.L. in court documents, who in February 2020 both wore T-shirts sporting firearm imagery to their respective middle and high schools.

The students claimed to be supporters of the Second Amendment and chafed at school administrators that told them to either cover up their shirts’ guns or to simply not wear the tees to school in the first place. The students and their parents filed federal lawsuits against the schools that same month, arguing the bans on gun imagery violated their First Amendment rights.

The Eastern District of Wisconsin didn’t buy it. U.S. District Judge William Griesbach tossed both suits in a consolidated ruling in May 2020, opining that the shirts only enjoyed full First Amendment protection outside of school. The George W. Bush appointee cited the schools’ dress codes prohibiting “offensive” and “disruptive” images in his ruling, as well as school administrators’ testimony that the pro-gun shirts scared other students — the litigant kids wore their gun T-shirts to school two months after two school shootings took place in eastern Wisconsin in late 2019.

Amid this fearful backdrop, Griesbach said, the infringement on the pair’s free speech rights was minor and overruled by other students’ right to a safe, non-disruptive public learning environment. The judge also pointed out that being prevented from wearing T-shirts with gun imagery does not prohibit the students from learning about or debating the Second Amendment in class. Both students could even continue to wear clothing that supported the Second Amendment to school, so long as the apparel stopped short of depicting guns.

“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,” Griesbach wrote.

The two appealed Griesbach’s decision several weeks later, and a three-judge panel of the Seventh Circuit heard oral arguments in November. The panel consisted of Chief Judge Diane Sykes, another George W. Bush appointee, along with Judges Kenneth Ripple and Amy St. Eve, Ronald Reagan and Donald Trump appointees respectively.

The trio decided to vacate Griesbach’s decision in their 24-page ruling issued Wednesday, finding that he failed to properly apply several precedent cases — particularly the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District.

Tinker revolved around the case of Mary Beth Tinker, who wore a black armband to junior high school along with other students in 1965 to protest the Vietnam War. Tinker cemented public school students’ right to free speech, as the Supreme Court ruled 7-2 in the case that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But Tinker also includes nuances that allow school administrators to ban expression that might disrupt or “substantially interfere” with school operations or discipline. In their complaints, N.J. and A.L. argued under these provisions, claiming there was no evidence their shirts interfered with school operations.

Griesbach not only disagreed, he found that because the schools were not spaces for public debate and because they prohibited all depictions of guns — on pro-gun or anti-gun tees — the “substantial disruption” test didn’t apply to the case at all.

“Images of firearms, regardless of the message intended by the wearer, are simply not allowed,” Griesbach wrote. “Because the schools’ ban on clothing bearing images of firearms is viewpoint neutral and because the schools are non-public forums, Tinker’s substantial disruption test does not apply.”

Sykes, Ripple and St. Eve rejected this assessment. The appellate judges agreed with the students that the shirts were political expressions that should be considered under Tinker.

“A.L.’s ‘Wisconsin Carry’ T-shirt is materially indistinguishable from the black armbands in Tinker,” the Seventh Circuit ruling states. “It’s an expression of his political opinion, just like the armbands expressed the students’ opposition to the Vietnam War. Tinker is the controlling authority.”

The panel decided the “prudent” course of action was to send the case back to Griesbach with the understanding that he must take Tinker into account. It also implicitly invited the students to submit new material to the court, now that Griesbach had been instructed to heed the 1969 precedent.

“With the legal framework clarified, the judge may want to invite new submissions from the parties,” the Seventh Circuit panel wrote.

It’s not a complete victory for the students, however. Griesbach’s ruling was vacated, but not reversed. There is still no guarantee they will win when his court reconsiders the case. And N.J., the younger student, can no longer hope for a win at all.

Since 2020, he aged out of middle school and entered high school, and while he is still in the same school district, his suit never named the high school as a defendant. As such, the Seventh Circuit decided Wednesday that he no longer has standing to sue.

“Because N.J. no longer has a stake in the interpretation and enforcement of the middle school’s dress code, his case is moot and must be dismissed for lack of jurisdiction,” the panel wrote.

Though A.L.’s case is still allowed to move forward, the Eastern Wisconsin District Court has not yet signaled when it will begin further proceedings.

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