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RECORD NO. 03-1125 In The ALAN NEWSOME, a minor by and through FRED NEWSOM, Plaintiff-Appellant, v. ALBEMARLE COUNTY SCHOOL BOARD, by and through its School Defendants-Appellees, ON APPEAL FORM THE UNITED STATES DISTRIC COURT ________________ BRIEF OF AMICUS CURIAE ________________
INDEX OF AUTHORITIES Page(s) Cases Bartels v. Iowa, 262 U.S. 404 (1923) 13 Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) 13, 14, 19 Board of Education v. Pico, 457 U.S. 853 (1982) 15 Castorina v. Madison County School Board, 246 F.3d 536 (CA6 2001) 7 Dr. Bonham's Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (C.P. 1610) 10 Epperson v. Arkansas, 393 U.S. 97 (1968) 8, 9 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978) 15, 16 Ginsburg v. New York, 390 U.S. 629 (1968) 15 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) 16, 17, 19 Meyers v. Nebraska, 262 U.S. 390 (1923) 13 Spence v. Washington, 418 U.S. 405 (1974) 6 Thomas v. Board of Education, Granville Central School District, 607 F.2d 1043 (CA2 1979) 9, 17 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) passim West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) 11 Williams v. Spencer, 622 F.2d 1200 (CA4 1980) 18, 19 Statute 42 U.S.C. § 1983 11, 14 Constitutional Provision U.S. Const. amend I passim
The Individual Rights Foundation (IRF) is a public interest law project of the Center for the Study of Popular Culture, a public benefit corporation which has tax-exempt status under section 501(c)(3) of the Internal Revenue Code. In 1993, the Center launched the IRF as a national lawyer's network to respond to the growing threat against First Amendment rights posed by school administrators and government officials. The IRF actively promotes and defends the constitutional liberties of Americans, including litigation to protect civil liberties and to prevent abridgment of First Amendment rights.
The following facts appear to be undisputed: 1) At the time of the events which gave rise to the case at bar, Appellant Alan Newsom was a pupil in the Jack Jouett Middle School. The school is operated by the Albemarle County School Board, which is a subdivision of the Commonwealth of Virginia. 2) Appellant wore a T-shirt to school which bore silhouettes of three figures shooting firearms. He received this T-shirt for participating in a camp in which he was taught firearms safety in accordance with a program developed by the National Rifle Association. The T-shirt bore the Legend “NRA Shooting Sports Camp.” 3) There was no showing, and the lower court made no finding, that the graphic on the T-shirt caused any disturbance or disruption of the instructional process from the time he arrived at the school until the lunch break. 4) During the lunch break the vice principal of the school told Appellant that his shirt violated the school dress code and he would have to change the shirt or turn it inside out. She admits that she told him that “guns and schools don't mix.” 5) The regulation in question, from the 2001-2002 Student/Parent Handbook, listed, as items of unacceptable dress: Messages on clothing, jewelry, and personal belongings that relate to drugs, alcohol, tobacco, sex, vulgarity, or that reflect adversely upon persons because of their race or ethnic group. 6) When informed that the list of prohibited items could not be construed to extend to silhouettes of individuals engaged in the sport shooting of firearms, the School Board added, to the list “ . . . weapons, violence. . .” in the Handbook for the following school year. 7) Appellant subsequently wore other items of clothing with the name of the National Rifle Association, or the initials “NRA.” He ceased wearing these items when cautioned by his counsel that the items could be construed to “relate to” weapons. 8) The school is required to display the flag of the Commonwealth of Virginia on which Nike, representing “Liberty,” with left breast exposed, holds a spear over the slain body of a king, with the Latin motto “sic semper tyrannis.” 9) Jack Jouett Middle School is named for Capt. Jack Jouett, Jr., an American Revolutionary War Hero who died in 1822. Capt. Jouett is known for his famous ride on June 3, 1781, in which despite the potential for personal peril, he rode through the night from Louisa, Virginia to Monticello to warn Thomas Jefferson, Thomas Nelson, Richard Lee, Benjamin Harrison, Patrick Henry and Edmund Randolph that the British troops had crossed the river and were on their way to arrest Thomas Jefferson and the others for signing the Declaration of Independence. I would note that, in appreciation for this act of bravery, the Virginia Legislature awarded Capt. Jouett a sword and a pair of pistols. 10) The mascot for Albemarle High School, which is located across a parking lot from Jack Jouett Middle School, is a patriot with a musket. Athletic uniforms at the high school feature a letter “A” over a pair of crossed muskets. 11) In an opinion dated December 20, 2002, the lower court denied Appellant's request for injunctive and other relief.
When school authorities make decisions which intrude upon constitutionally protected freedoms, judicial review is appropriate. School authorities may restrict speech which may disrupt the educational process, which is inappropriate speech in the context of the curriculum, which intrudes upon the protected freedoms of others, or which endangers the safety and welfare of students and pupils. The restrictions imposed upon Appellant were not justified under well settled case law. The District Court incorrectly applied existing case law and the decision of the District Court should be reversed.
Amicus will confine its argument to the defining the limits of school authority to regulate or restrict the speech of students and pupils. Amicus contends that such power is confined to such restrictions as are necessary to maintain an orderly environment in which the primary function of the school, i.e., education, may proceed unimpeded.
In his opinion in the District Court, Judge Moon said: Because this case involves conduct and not speech, it may be considered protected only if it constitutes symbolic speech. To determine whether conduct is symbolic speech, courts apply a two-pronged test: (1) whether there was “an intent to convey a particularized message,” and (2) whether “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” See Spence v. Washington, 418 U.S. 405 (1974). Assuming, arguendo, that the Plaintiff intended to convey the message he alleges (to “express an interest in lawful, non-threatening, non-violent use of 'weapons' or to openly associate with groups that advocate a lawful interest in the firearms and weapons), the Court doubts that the Plaintiff passes the second prong of the test.” With all due respect, and without conceding that the issue is conduct rather than speech, amicus suggests that the Court is looking too hard for the message. In a similar case, Castorina v. Madison County School Board, 246 F.3d 536 (CA6 2001), two students wore T-shirts to school which had a picture of Hank Williams, Jr., on the front and two confederate flags with the phrase “Southern Thunder” on the back. They said that they wore the shirts to commemorate the birthday of Hank Williams, Sr. The District Court concluded that the plaintiffs intended to commemorate Hank Williams, Sr.’s, birthday. The court found that this was a particularized message, but that this message was unascertainable based upon the plaintiffs’ decision to wear a Hank Williams, Jr. shirt. The Sixth Circuit was dismissive of the District Court’s conclusion as to the purported message. Instead, given the totality of the circumstances, the Sixth Circuit concluded that plaintiffs intended to express more than a mere appreciation for the life and music of either performer. Here, as in Castorina, and without regard to any message which the Appellant alleges, the T-shirt itself had a clear message: “NRA Shooting Sports Camp” with silhouettes of three individuals engaged in shooting sports. While it is not Cicero's oration for the prosecution of Catiline, nor Washington's farewell address to the nation, it was a message. Much can be conveyed with few words, as when Julius Caesar, upon unlawfully crossing the Rubicon River without disbanding his army, said “alea jacta est” (the die is cast). People have made fortunes selling T-shirts with short messages, most of which are trivial. But a T-shirt worn by a small child saying “My Grandpa went to Florida and all I got was this lousy T-shirt,” is a message, and can be clearly understood. The message of Appellant’s T-shirt was simple and clear. Wearing such a shirt shows “an intent to convey a particularized message.” This Court may take judicial notice that it is likely that all who saw the shirt understood the message: There are available to young people shooting sports camps using instructional materials furnished by the NRA and Appellant was proud to have visited one of these camps.” Thus, even if this were symbolic speech, it would satisfy both prongs of the test. Further, the question as to whether it was pure speech or symbolic speech is not relevant. Appellant's T-shirt conveyed a clear and simple message, and the school authorities censored it. The District Court expressed reluctance to substitute the judgment of the Court for that of the school authorities, citing Epperson v. Arkansas, 393 U.S. 97, 104 (1968): Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. Why the Court relied upon the cited material is mysterious. First, Justice Fortas, for the majority, did in fact “intervene in the resolution of (a) conflict” in deciding the case. Epperson was a biology teacher. The State had enacted a statute which forbad the teaching of evolution, or using textbooks which “taught” evolution. Since the textbook he would be using in the coming school year had a chapter on evolution. The Supreme Court held the statute unconstitutional under the establishment clause. Holding a statute regulating what may be taught in public schools as unconstitutional certainly seems to be “intervening.” Second, the meaning of the material cited changes completely if the next sentence is added: “On the other hand, “(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American Schools.” Id., at 104. The fact is, it is the purpose of the court system to intervene in conflicts, especially conflicts related to constitutional freedoms. In Thomas v. Board of Education, Granville Central School District, 607 F.2d 1043 (CA2 1979), the Court made the following observation concerning such intervention: Moreover, the subtle calculus we employ to weigh the quantum of chilling effect a free people can tolerate rests upon a fundamental axiom speech may not be suppressed nor any speaker punished unless the final determination that specific words are unprotected is made by an impartial, independent decision-maker. (cites omitted) We recognize the realities of life. Thus, when those charged with evaluating expression have a vested interest in its regulation, the temptation to expand the otherwise precise and narrow boundaries of punishable speech may prove irresistible. Further, a cautious expositor of controversy may well choose silence over expression if he knows that his words will be judged by a decision-maker predisposed to rule against him. Accordingly, the caselaw explicating the limits of governmental authority over expression counsels, both implicitly and explicitly, that the constitutional status of speech be determined by the judiciary, the one institution of government intentionally designed to render dispassionate justice. (cites omitted). In the community-at-large, therefore, the First Amendment dictates that, in cases involving expression, no prior restraint be enforced and no subsequent punishment be inflicted absent the considered approbation of an independent adjudicator. That is, one cannot be the judge in one’s own case. This is a rule first given by Lord Coke in Dr. Bonham's Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610), which set the precedent for the judicial review of legislative enactments. The question before us, then, is whether the school authorities were justified in what they did. The leading case dealing with First Amendment rights of students and pupils is Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), Justice Fortas, writing for the majority, quoted Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943): “. . . the State itself and all of its creatures -- Boards of Education not excepted . . . have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights.” Id., at 507. Three pupils in the Des Moines, Iowa public schools, planned to wear black armbands to school to protest the Viet-Nam War. The school authorities learned of the pupils intentions and developed a contingency plan which included, first, to order the arm bands removed, and, second, to suspend any pupil who disobeyed. The three refused and were suspended. Through their fathers, they brought an action under 42 U.S.C. §1983 seeking nominal damages and injunctive relief. The District Court dismissed the complaint, and the Eighth Circuit affirmed without opinion. Having asserted that the school authorities, no less than any other governmental organ, are bound by the Bill of Rights, Justice Fortas analyzed the decision of the school officials to prohibit the armbands. He noted that the regulation did “not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. . . Nor d[id] it concern aggressive, disruptive action or even group demonstrations.” Id., at 507-508. He characterized the regulation as an effort “to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.” He noted that there was no evidence on the record of 1) “petitioners' interference, actual or nascent, with the schools' work;” or 2) “of collision with the right of other students to be secure and to be let alone.” Id., at 508. He noted that there had been a few hostile remarks directed toward the pupils wearing armbands, but there had been neither threats nor violence at the school. Id. He disagreed with the District Court's reasoning that the fear of a disturbance was sufficient to justify the action of the school authorities. “ In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble . . . but our Constitution says that we must take this risk.” Id. Of course, the Supreme Court has always recognized that school authorities must have the ability to maintain order. However, when impinging upon fundamental rights, in school as elsewhere, there must be sufficient justification for restricting the right. “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly, where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained.” Id., at 509. In holding that the conduct of the pupils was protected speech, and that the school authorities were not justified in their actions to suppress such speech, he noted that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.” Id., citing Meyers v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923). The holding in Tinker was distinguished in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Fraser was a high school student who nominated a friend for elective office. He had discussed his planned nomination speech with faculty members who advised him not to deliver the speech as he had prepared it, cautioning that it could be construed as obscene and might bring down disciplinary action upon himself. He gave the speech anyway. In his speech he included “an elaborate, graphic, and explicit sexual metaphor.” Id., at 678. The speech elicited “hoots and yells” from the audience, as well as some of the audience simulating the act described. One teacher reported that it was necessary to spend a portion of class time the next day discussing the speech. The school had a policy prohibiting “conduct which materially and substantially interfered with the educational process. . . including the use of obscene, profane language or gestures.” Id. Fraser was suspended for three days and told that he could not speak at commencement. He availed himself of the administrative appeal process and the suspension was sustained. He then sued, through his father, under 42 U.S.C. §1983, for damages and injunctive relief. The District Court overturned the suspension on grounds that the suspension violated Fraser's First Amendment speech rights, that the regulation was overbroad and void for vagueness, and that the prohibition against him speaking at commencement violated due process, since he had not been told, ahead of time, that this was one possible punishment. (He subsequently was allowed to deliver a speech at commencement). The Ninth Circuit affirmed, on the basis of Tinker. It rejected the school's contention that the speech had been disruptive of the educational process, and that the school authorities had an interest in “protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school.” The Court of Appeals believed that if the school district had “unbridled discretion” to determine what discourse is 'decent' [it] would “increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in public schools.” Id., at 680. Chief Justice Burger wrote for the 7-2 majority. The Court began by noting the “marked distinction” between the political speech in Tinker and the sexual content of the speech of Fraser. The Court noted that the public school system exists to “prepare pupils for citizenship in the Republic. . . [and to] inculcate the ‘habits and manners of civility’ as values in themselves. . .” Id., at 681. The Court noted that the “habits and manners of civility” include not only “tolerance of divergent. . . views” but also “consideration of the sensibilities of others” and asserted that “freedom to advocate unpopular and controversial views. . . must be balanced against society's countervailing interest in teaching students the boundaries of socially appropriate behavior.” Id. The Court reviewed prior cases holding that sexually explicit material could be restricted in order to protect minors. Id., Ginsburg v. New York, 390 U.S. 629 (1968) (upholding prohibition on the sale of sexually oriented material to minors); Board of Education v. Pico, 457 U.S. 853 (1982)(plurality opinion, with all concurring opinions holding that a school board has authority to remove “vulgar” books from a school library); Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978)(upholding FCC citation of a radio station for “obscene, indecent, or profane” broadcast at a time when children were undoubtedly listening). Id., at 684. The Court cited the dissenting opinion of Justice Black, in Tinker, supra, which made a point that is especially relevant in this case: "I wish therefore, . . . to disclaim any purpose to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students." 393 U.S., at 526 . In his concurring opinion, Justice Brennan disagreed with the characterization of the speech as “lewd,” but supported the right of the school authorities to discipline Fraser, given the necessity to maintain order. Tinker was further distinguished in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). This case involved the censorship of two pages of a school sponsored newspaper. The stories raised certain privacy concerns, and there was insufficient time to rewrite or correct the articles. Students who had been on the newspaper staff sued for injunctive relief and monetary damages. The District Court entered judgment for the school authorities, the Eighth Circuit reversed, and the Supreme Court, in a 6-3 decision, reversed again. The Court held that school officials had “reserved the forum for its intended purpose as a supervised learning experience for journalism students.” Accordingly, they were “entitled to regulate the contents of [the paper] in any reasonable manner.” Id., at 269-270. The Court distinguished its decision here from the decision in Tinker: “the question whether the First Amendment requires a school to tolerate particular student speech -- the question we addressed in Tinker -- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.” Id., at 270-271. Educators are entitled to greater control over speech affirmatively promoted by the school “to assure that participants learn” the intended lessons, “that readers or listeners are not exposed to material that may be inappropriate” for their ages, and to ensure that “the views of the individual speaker are not erroneously attributed to the school.” Therefore, the Court held that the Tinker standard did not apply to cases --like this one -- of school sponsored speech. Id., 271-272. In a case which illustrates the connection between the school environment and the restrictions on the speech of students and pupils which would not apply to minors in another environment, the Second Circuit, in Thomas v. Board of Ed. of Granville School District, 607 F. 2d 1043 (CA2 1979), held that a periodical, published by students off campus, and distributed off campus, had only tenuous connections with a school and, therefore, the school authorities were not justified in taking disciplinary action against the student editors. Thus, Thomas further limited the power of school authorities to restrict the speech of students and pupils. The boundaries of that power were further clarified in Williams v. Spencer, 622 F.2d 1200 (CA4 1980). In that case, an off campus publication, which also contained offensive material, was being distributed in the school. The school authorities discovered that the publication included a cartoon which could have been construed as a racial parody, and an advertisement for a store which sold drug paraphernalia. School officials halted distribution and confiscated the remaining stock of the publication. Regulations required the principal to state, in writing, why distribution had been halted. He listed the parody and the ad which promoted drug paraphernalia. The students pursued administrative appeals which were unsuccessful. Thereafter, they filed suit in U.S. District Court. The District Court found that the action was justified to protect the health and safety of the students in the high school. Accordingly, they did not consider the parody. This Circuit affirmed the decision of the lower court, holding that measures to protect the health and safety of students justify restrictions upon students’ First Amendment rights, and that such measures did not require a showing of actual or threatened disruption. Thus, following Tinker, school authorities may restrict the speech of students when such speech (a) is, or could reasonably be expected to be, disruptive of the education process, or intrusive into the rights of others (Tinker), (b) is lewd or obscene (Bethel), (c) would be inappropriate in a forum which constitutes part of the curriculum (Hazlewood), or (d) would endanger the health and safety of students and pupils (Williams). Amicus contends that Appellant’s T-shirt, like Tinker’s black armband, “. . .was closely akin to "pure speech" which, [the Supreme Court has]repeatedly held, is entitled to . . .protection under the First Amendment.” Tinker, supra, at 505-506. However, even if it constituted merely “expressive conduct,” as the District court held, the message of that conduct could be readily discerned if we apply Okham’s razor and look for the simplest message, rather than the most abstruse, as the Court did. Appellant’s message, however framed, was entitled to protection. The Supreme Court, in Tinker, supra, gave the rule which has been followed, in one form or another, by the progeny of Tinker: school authorities may restrict student speech when such speech threatens 1) interference, actual or nascent, with the schools' work, or 2) collision with the right of other students to be secure and to be let alone. Id., at 508. Applying this rule, the authorities at Jack Jouett Middle School acted improperly with respect to Appellant’s T-shirt. The record shows that the T-shirt was not lewd or obscene. It was not inappropriate in a forum which was part of the curriculum, such as a school newspaper. It did not endanger the health and safety of the other pupils. It does not appear that Appellant’s shirt caused a disruption, nor that there was reason to believe that it would cause a disruption. The decision of the District Court should be reversed. Respectfully Submitted, __________________
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