- by Jack Ryan
Legal & Liability Risk Management Institute

When dealing with issues of freedom of speech and expression, school officials should consider three basic concepts that have come from the foundational cases decided by the United States Supreme Court on this issue:

• Is the student’s speech or expression disruptive to the educational process?
• Is the student’s speech or expression vulgar or offensive?
• Is the student’s speech or expression contrary to the basic educational mission?

Where a school official can answer any of these questions in the affirmative and can articulate the reasoning behind that conclusion, courts will generally uphold the decision to restrict the expression or speech. 

These basic principles were enunciated in three United States Supreme Court cases:

Tinker v. DesMoines, 393 U.S. 503 (1969).
Bethel School Dist.  v.  Fraser, 478 U.S. 675 (1986).
Hazlewood School District v. Kuhlmeier, 484 U.S. 260 (1988).

It is these core concepts that are applied anytime the First Amendment is implicated in the school setting. 

A recent case from the United States Court of Appeals for the Fourth Circuit, Newsom v. Albermarle County School Board, provides an example of how a court will scrutinize the decision of a school official when these rights are implicated.ⁱ

Newsom, involved a middle school student, Alan Newsom, who attended the Jack Jouett Middle School.  As part of a dress code, outlined in the student handbook, clothing that related to weapons was prohibited.

On April 29, 2002, an assistant principal observed that Newsom was wearing a shirt which depicted three black silhouettes of men holding guns and which had the words “Shooting Sports Camp” and the letters “NRA” spelled out on it.  The assistant principal informed Newsom that he would have to change his shirt or turn it inside out.  Newsom asked what would happen if he refused at which point the assistant principal told him, that his conduct in school had always been good and that he should not take things that far.

After these events, Newsom filed a lawsuit alleging that his First Amendment rights to freedom of expression and his right to freely associate (with the NRA) had been violated.  The federal district court denied Newsom’s request for a preliminary injunction to stop the school from enforcing the dress code in this manner.  The denial led to this appeal.

In reviewing the case, the Circuit Court first noted that student’s First Amendment rights in the school setting are not as strong as First Amendment rights out of school. 

The court determined that that the images depicted on Newsom’s shirt were non-threatening in nature.  As such, the images were not vulgar or offensive.  The court noted that no evidence had been presented that the images or the wearing of the shirt had in any way disrupted school activities.  Finally the court noted that the facts here were more in line with the principle enunciated in Tinker and concluded that the school had failed to establish any disruption was anticipated or had   occurred.

 In deciding that the dress code provision was overbroad, the court discussed the fact that the dress code would be violated by a shirt depicting a military tank in the desert with the words “support our troops” as well as a shirt with the Virginia state seal which depicts a woman holding a spear.  As such the weapons provision would restrict too many otherwise innocent expressions.