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Seventh Circuit Clarifies Standard for Analysis of School Dress Code Restrictions

Author: Jerilyn Jacobs

The United States Supreme Court case garnered recent attention by school districts for its decision in Kennedy v. Bremerton School District, finding that a high school football coach who engaged in prayer on the school football field’s 50-yard-line following games was improperly terminated in violation of his First Amendment right. But a lesser publicized First Amendment speech decision issued last month by the Seventh Circuit Court of Appeals also warrants consideration by Wisconsin school districts.

The case, N.J. by Jacob v. Sonnabend, 37 F.4th 412 (7th Cir. 2022), involved two students’ First Amendment dress code challenges. The students attended different schools in the same school district. Both wore t-shirts bearing images of a firearm. Both were found to be in violation of each of their school dress codes and they were prohibited from wearing the shirts.  After the students filed lawsuits, the cases were consolidated. The district court found the shirt bans were appropriate.

The Eastern District of Wisconsin examined the matter under the analysis adopted in Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996).  In Muller the court held that in non-public forums a speech restriction is appropriate so long as it is reasonably related to legitimate pedagogical concerns. In reaching its conclusion, the Muller court adopted the standard of Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), wherein the Supreme Court held that a school’s newspaper carried the imprimatur (endorsement) of the school because it was sponsored, supported, and supervised by the school. Accordingly, the Kuhlmeier court reasoned that the school had the authority to maintain editorial control over the content of the high-school newspaper, and thus could restrict student speech therein.

When applying the Muller test in the N.J. by Jacob v. Sonnabend case, the district court found that the school administrators were entitled to consider the impact on students who regarded the images as a “frightening reminder” of the possibility of school violence and the potential intent by the students donning the shirts to provoke or intimidate by displaying the images. The district court held that school officials should not be second guessed when making those determinations, so long as they are able to provide a reasonable basis for their decisions.

On June 15, 2022, the Seventh Circuit reversed the district court and expressly overruled Muller. The court held that the matter had to be analyzed under the standard set forth in the seminal First Amendment student speech case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  Under Tinker, a school district may prevent speech only when school officials reasonably forecast that the speech in question “would materially and substantially disrupt the work and discipline of the school” or invade the rights of others.

The Seventh Circuit held that application of Kuhlmeier is to be limited to speech that others may reasonably perceive as bearing the imprimatur of the school, such as in the publication of a student-run, but staff-supervised, newspaper. The Seventh Circuit concluded that the students’ t-shirts could not be reasonably viewed as being sanctioned by the school district, and that, thus, Kuhlmeier did not apply.

One student’s case was dismissed due to mootness, as the student no longer attends the school that banned the shirt. The other student’s case has been remanded to the Eastern District of Wisconsin for a determination as to whether it was foreseeable that the content of the t-shirt would materially and substantially disrupt the work and discipline of the school or invade the rights of others.  Stay tuned for later developments.

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