School dress codes usually get some people fired up. One might be amazed at just how controversial such dress codes actually are.
That’s especially true when they interfere with a student’s right to free speech.
Such a case is heading back to court in Wisconsin.
Should students at a Waukesha County high school be allowed to wear T-shirts with guns on them to class?
A federal appeals court has revived that question, months after a Wisconsin judge ruled school administrators could lawfully ban the garments.
Students at Kettle Moraine High School and a Neenah middle school each sued their respective principals in February 2020. They claimed rules against the shirts violated their First Amendment rights to express support for the Second Amendment.
Last year, U.S. District Judge William Griesbach sided with the principals, noting the dress codes at both schools, and the gun-themed ban specifically, were viewpoint-neutral. Shirts with images of guns are prohibited, no matter the context, the administrators say. Shirts that support the Second Amendment with words are allowed.
However, I think the judge decided wrongly here.
First, there’s no compelling interest in banning guns on shirts anyway. A picture of a firearm cannot hurt anyone, nor is it indicative of a willingness to hurt anyone.
As such, there’s absolutely no reason to restrict it.
However, beyond that, it actually does interfere with students’ First Amendment rights.
You see, gun rights groups and gun rights messaging predominantly uses the image of firearms to convey an effect; the whole “a picture is worth a thousand words” thing. So, banning the image of guns severely restricts the ability of students to express their support for the Second Amendment while wearing clothing.
Meanwhile, gun control messaging generally doesn’t.
So while the judge can make the claim that the rule is message-neutral, it’s really not.
Even if it were, it’s still restricting free speech. A rule that says the word “abortion” can’t be included on a t-shirt would be message neutral since both sides of the debate use it, but it would interfere with the students’ First Amendment rights to speak freely on the subject.
It doesn’t matter whether one or both sides are restricted from speaking freely on a subject, it’s still an infringement on free speech.
Then there’s the fact that there is likely some degree of selective enforcement of such rules. As we saw a few years ago during the student walkout, a number of teachers and administrators supported gun control, thus allowing and even assisting students in making a political statement.
Am I to believe that the picture of a gun inside a circle with a slash through it would be treated the exact same way under such rules?
After all, gun control has a long history of selective enforcement. Early gun control laws following the Civil War didn’t explicitly mention race, but white folks didn’t get arrested for carrying a gun.
By almost any metric, this shouldn’t be permitted and the judge was wrong in his ruling. Here’s hoping they get it right this time.