January 08, 2004, 9:29 a.m., National Review Online. Kopel's amicus brief in the Newsom case.
First Amendment rights and Second Amendment values won a big victory, and political correctness suffered a harsh defeat, last month in the Fourth Circuit Court of Appeals. In the case of Newsom v. Albermarle County School Board the Fourth Circuit ruled 3-0 in favor of a public-school student's First Amendment right to wear a shirt from an NRA shooting-sports camp. The unanimous panel rejected the school's preposterous argument that banning the shirt was necessary for school safety.
Alan Newsom was a sixth-grader at Jack Jouett Middle School, in Albermarle County, Virginia. In April 2002, he was having lunch in the cafeteria, wearing a T-shirt bearing the words "NRA Shooting Sports Camp." The T-shirt showed three silhouettes of men aiming their firearms — one each for rifle, shotgun, and pistol, the three broad categories of the shooting sports.
An assistant principal noticed the shirt, and felt reminded of Columbine, since both the T-shirt and Columbine involved "sharpshooters." The teacher was quite wrong; the Columbine murderers were not precision-target shooters. To the contrary, they were very poor shots who killed almost all of their victims at a very close distance. As demonstrated by a recently released video of the killers and their friends shooting guns a few weeks before the murders, the killers and their scurvy associates had nothing in common with sharpshooters at a sports camp. One of the future killers came close to killing himself though incompetent and unsafe gun handling, and the killers had no skills or training in any shooting discipline.
For the assistant principal to equate a safe, controlled, sport shooter at an NRA camp with the Columbine murderers was bigoted and irrational. It was like seeing a Beethoven T-shirt, and claiming to be reminded of the Holocaust, because both involved Germans.
The assistant principal ordered Newsom to remove the T-shirt, or turn it inside out. She told him that the T-shirt was inappropriate because it had "pictures of men shooting guns." She threatened Newsom with suspension if he refused to comply.
Newsom's parents contacted the NRA, and NRA staff attorney Daniel Zavadil took their case at no charge.
The school soon discovered that Newsom's shirt was entirely legal under the school's existing dress code, which banned messages on clothing which related to drugs, alcohol, tobacco, sex, or vulgarity, or which "reflected adversely" on a person's race or ethnicity. So the school added a dress-code amendment which banned "messages on clothing, jewelry, and personal belongings that relate to...weapons." The NRA filed suit on Newsom's behalf in September 2002, after the school refused to stop its unconstitutional suppression of student speech.
In December 2002, the federal district court for the western district of Virginia denied Newsom's motion for a preliminary injunction (an order for the school to respect his free speech rights, pending final resolution of the case). Newsom appealed to the Fourth Circuit Court of Appeals, which reversed the lower court, and on December 1, 2003, ruled 3-0 that Newsom was entitled to a preliminary injunction.
Legally speaking, this was not a complicated case. In the 1969 decision Tinker v. Des Moines Independent School District, the U.S. Supreme Court upheld the right of students to wear black armbands as part of a Vietnam War protest. In Newsom v. Albermarle, the school district spent a great deal of effort arguing that this frequently cited Supreme Court case from 34 years ago was no longer relevant.
Tinker allowed schools to ban genuinely disruptive speech. A subsequent case, Bethel School District No. 403 v. Fraser(1986), said that schools could also punish student speech which, although not disruptive, violated standards of civility. The Court upheld a school's authority to discipline a student for delivering a student-government election speech filled with lewd sexual metaphors. Lower courts have elaborated Bethel to allow schools to ban "lewd, vulgar, and plainly offensive speech," but not to ban speech because of its political content. The 1988 Supreme Court case Hazelwood School District v. Kuhlmeieri allowed censorship of school newspaper articles, on the grounds that the newspaper is part of the school curriculum.
As the Fourth Circuit explained, Tinker was the controlling precedent. Newsom's T-shirt was not vulgar or lewd (Bethel), nor was it sponsored by the school, or part of a school program (Hazelwood).
The school district essentially tried to turn the clock back to before the civil-rights era. It argued that the T-shirt was conduct, not speech, and therefore not entitled to any First Amendment protection. But several cases, including Tinker, have recognized that messages can be communicated through clothing; Tinker, after all, involved black arm bands with no words.
The school district alleged that the NRA shooting-sports camp T-shirt was disruptive, although there was no evidence to support the claim. Apparently the only person at the school who felt disturbed by seeing the T-shirt in April 2002 was the prejudiced assistant principal.
The American Civil Liberties Union of Virginia Foundation filed an amicus brief on behalf of Newsom, as did the Individual Rights Foundation. So did Virginia Attorney General Jerry Kilgore, whose brief, ably written by staff attorney William Hurd, pointed out that the school's policy would outlaw the symbols of many Virginia institutions. The Virginia state seal, and the state flag, depict a woman with a spear standing on the chest of a dead tyrant. The University of Virginia Cavaliers sports teams use the symbol of two crossed sabers. (The Cavaliers were the group which supported the monarchy during the English Civil War.) And right across the street from Jack Jouett Middle School is Albermarle County High School — whose symbol is a Patriot with a musket.
I wrote an amicus brief for the Independence Institute, arguing that the school's policy was irrational, because shooting sports promote good character. The school's policy would punish students for wearing clothing supporting the Olympic or Paralympic shooting teams, or for wearing patches earned from the President's Council on Physical Fitness, or from other wholesome, character-building organizations.
The school's response to the absurdly excessive breadth of its speech ban was to assert that the dress code had a limited construction: It only applied to clothing that was disruptive. The Fourth Circuit rejected this assertion, since it was plainly inconsistent with what the dress code actually said. Likewise rejected was the school's claim that it applied the dress code in a commonsensical way, since the only enforcement of the "weapons" provision had been against Newsom's T-shirt, which "depicted images of gunmen aiming high-powered firearms."
Actually, at the district-court level, the school's attorney had told the court that the only problem with the T-shirt was the picture, not the words. The NRA immediately offered to settle the case, if the school would certify that students could wear words-only NRA clothing that did not depict gun use. The school district refused. Clearly the school's aim was to prevent a student from even wearing a lapel pin with the words "National Rifle Association."
The Fourth Circuit ordered the district court to grant Newsom a preliminary injunction. As a result, the school is completely forbidden from enforcing the "weapons" part of its speech/dress code. The district court was ordered to apply the Tinker standard when a full trial takes place on the merits.
In the meantime, the school district has announced that it will petition for an en banc rehearing before all 14 judges of the Fourth Circuit. The Fourth Circuit rejected the school board's motion to suspend the appellate panel's order, while the full circuit considers whether to grant a rehearing.
According to the Jack Jouett Middle School website:
During the night of June 3-4, 1781, Captain Jack Jouett rode from Cuckoo Tavern in Louisa County to Charlottesville in time to warn Thomas Jefferson, Patrick Henry, and other members of the Virginia General Assembly that British soldiers, under the command of Colonel Tarleton, were on their way to capture them. Captain Jouett became known as the "Paul Revere of the South"' because his ride was one of the most significant factors of the war; however, little is known of Jack Jouett outside Virginia.
The website does not note the fact that the grateful Virginia legislature awarded Jouett a sword and a matched pair of pistols.
The obstinate and unconstitutional conduct of the school administration and the school board in the Newsom case revealed contempt for the First and Second Amendments. The adults' behavior was a disgrace to the memory of Jack Jouett. Young Alan Newsom, however, acted in the spirit of Jack Jouett and other great Virginians: He went to NRA camp to learn the responsible exercise of Second Amendment rights, and then he went to federal court to vindicate the First Amendment.
Alan Newsom might be unpopular with some school bureaucrats right now, but they should reread the last sentence of the Jack Jouett school's mission statement:
Our ultimate charge is to deepen our students' academic, social, and civic understanding and skills so that they can be successful in high school and as independent, responsible, and contributing members of society.Alan Newsom's deep civic understanding has already made him a responsible and contributing member of society, winning a major case which will help protect the rights of students for many generations to come.
David Kopel is the research director at the Independence Institute.