It’s always dangerous to operate based on news accounts, but here’s what apparently happened:
1. Shane Kinney came to his Grand Island (New York) public high school wearing a sweatshirt that said, “Protected by Smith and Wesson.” School officials told him to remove it, as they apparently had in the past. (So reports WBEN-AM (Buffalo).)
2. Kinney removed the Smith & Wesson shirt, revealing an NRA T-shirt (apparently one with the logo shown above). School officials told him to turn the NRA T-shirt inside out or change the shirt.
3. Kinney refused, and was ordered to “serve a one-day, in-school suspension” the following school day, according to Fox News.
4. According to Fox, a letter from the school stated:
On Friday March 7th, 2014 prior to the start of school, Shane was seen wearing a sweatshirt with the logo of a firearm. Shane was asked to remove the shirt and turn it inside out, or place tape over the logo. Shane was also previously asked not to wear the shirt to school.
Shane did not listen to the administrator and was later seen wearing a T-shirt with rifles displayed on the back. Shane’s actions are insubordinate and in violation of the GICSD Code of Conduct.
A later statement from the school “den[ies] that Shane was disciplined ‘for wearing a shirt expressing a position on the NRA or gun control,’” but adds that, “The Grand Island School District recognizes this matter as an opportunity to review its policies, procedures and actions to ensure that they are consistent with our commitment to provide a safe learning environment and protect students’ Constitutional rights.”
What then of Kinney’s constitutional rights? Students have a right to wear shirts that express their views, unless (1) the school has evidence that the shirts are likely to cause a substantial disruption, (2) the shirts contain vulgarities, (3) the shirts contain apolitical advocacy of illegal drugs or similar illegal and dangerous conduct, or (4) (probably) the school imposes a content-neutral dress code that bans message-bearing shirts generally. Indeed, a federal court of appeals has specifically struck down a ban on T-shirts that depict weapons (Newsom v. Albemarle County School Board (4th Cir. 2003)) (paragraph break added):
Because there was no evidence presented at the preliminary injunction stage of the case demonstrating that clothing worn by students at Jouett containing messages related to weapons, nonviolent, nonthreatening, or otherwise, ever substantially disrupted school operations or interfered with the rights of others, the number of examples of the unnecessarily broad nature of the 2002-2003 Jouett Dress Code is practically limitless.
After examining the record as it has developed through the preliminary injunction stage of the case, it is evident that the 2002-2003 Jouett Dress Code disfavors weapons, displayed in any manner and in any context, and potentially any messages about weapons. It excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory. Under these circumstances, and in the absence of any cogent limiting construction of the 2002-2003 Jouett Dress Code, we are constrained to conclude that Newsom has demonstrated a strong likelihood of success on the merits on his overbreadth claim.
The Grand Island school district’s policies ban clothes that “encourage … illegal or violent activities,” which strikes me as not covering either the Smith & Wesson or NRA shirts. But if the prohibition is read broadly enough as to ban any positive depictions of guns (on the theory that such depictions encourage violent legal self-defense), that prohibition would be unconstitutional for the same reason the weapons depiction provision was unconstitutional in Newsom. And while a school could order a student to remove a weapon-depicting shirt that’s disrupting school, even if there is no specific policy banning such shirts, I see nothing in the news accounts that suggests there was such disruption.
What about the theory that Kinney was punished for “insubordinat[ion]“? Well, if the insubordination consisted of refusing to take off a shirt that he had a First Amendment right to wear, then it’s the school that’s being insubordinate to the Constitution, not the student who’s being insubordinate to the unconstitutional prohibition. If wearing the shirt to school is protected by the First Amendment, the school can’t punish the student for violating a prohibition that the school has no right to impose.
But I stress again that all this is based on the press accounts that I’ve seen. To the extent those are shown to be incorrect or incomplete, I’ll be glad to revise my analysis accordingly.