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Appeals court rules in favor of students banned from wearing gun shirts to school

A Neenah student was barred from wearing this shirt to school.
A Neenah student was barred from wearing this shirt to school.(Federal court documents)
Published: Jun. 22, 2022 at 7:00 AM CDT|Updated: Jun. 22, 2022 at 6:53 PM CDT
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CHICAGO, Ill. (WBAY) - A federal appeals court has sided with Wisconsin students who filed suit after being told they could not wear shirts with gun logos to school.

The suit was filed by a former student at Shattuck Middle School in Neenah and a student at Kettle Moraine High School. Principals at the schools are named as defendants.

In February 2020, a seventh grade student at Shattuck Middle School wore a shirt with a “Smith & Wesson” logo to school. The logo featured an image of a revolver.

Around the same time, a student at Kettle Moraine High School wore shirt with the logo of Wisconsin Carry, Inc., with an image of a handgun.

Administrators at both schools banned the students from wearing the shirts “explaining that any clothing depicting firearms is forbidden.” The judges noted that neither school’s dress code “expressly bans” clothing featuring firearms.

In the Shattuck case, the student was referred to the associate principal for dress code violations. The student was told he could not wear clothing showing guns and was asked to cover up the shirt. He was not disciplined.

“The Shattuck Middle School dress code for the 2019–2020 school year is found in the school’s parent handbook; the relevant portions are in the record. Nothing in the policy specifically prohibits students from wearing clothing depicting firearms. Instead, the dress code is stated in very general terms: student attire must be ‘appropriate for a professional atmosphere and not disruptive to the learning environment,” reads the appeals court ruling.

The students filed suit, saying the administrators violated their rights to free speech under the First Amendment.

“The government, including public schools, is not allowed to tell people that they can’t wear clothing just because the message is not what the government would prefer for the people to say,” said John Monroe, the plaintiffs’ attorney.

The principals stated in court that they acted due to the “alarming increase in school shootings in recent years.” They also noted a “history of behavior problems” with the two students.

Shattuck’s principal cited “an incident at Oshkosh West High School in December 2019 in which a school resource officer shot and wounded a student who stabbed him during an altercation. Oshkosh West is about 10 miles from Shattuck Middle School.” The principal stated that other students did not feel safe when the student wore shirts with images of guns to class.

Eastern District of Wisconsin Judge William Griesbach ruled in favor of the school administrators. The case was appealed to the 7th District Court of Appeals. On June 15, a panel of three judges ruled Griesbach erred by not applying Tinker v. Des Moines Independent Community School District--the standard for student speech cases.

“Tinker provides legal standard 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 judges state “substantial disruption” requires “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

“Applying the standard for speech restrictions in a nonpublic forum—the most lenient test—he upheld the administrators’ actions as viewpoint neutral and reasonable,” says Chief Judge Diane Sykes.

“This case raises a constitutional challenge to restrictions on student speech. The plaintiffs are two teenagers who attend Wisconsin public schools. Both are gun enthusiasts and supporters of the Second Amendment. To express that support, they own and wear T-shirts that communicate their favorable opinion of the right to bear arms. When they wore those shirts to school, however, they got into trouble with school officials,” Sykes writes.

“After we’ve demonstrated that the clothing at issue is protected by the First Amendment, then the burden shifts to the schools to prove that they reasonably forecast a substantial disruption. If they can’t do that, then we win,” said Monroe.

In the July 15 ruling, the panel stated the former Shattuck student’s case is moot because he no longer attends the school. The case was dismissed for lack of jurisdiction.

The Kettle Moraine student’s case, however, remains active. The panel vacated the judgment and remanded for further proceedings. The judges ruled costs should be awarded to the plaintiff.

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