Recently, the 6th Circuit affirmed a Michigan district court’s decision to restrict an elementary student from wearing a hat in school on “wear a hat day” when the hat was a picture of an AR-15 style rifle with the message “Come and Take It.” The court relied on the “likely to cause substantial disruption” test outlined in Tinker.
In upholding the district court’s ruling, the court of appeals performed a detailed analysis of the constitutional issues surrounding student speech. The court discussed the significant factor of age and maturity of the students, who were around 8 years old, agreeing with the trial courts order that elementary “are less mature and capable of [reining] in emotional outbursts than junior high or high schoolers” and “can be very impetuous and could perceive [the phrase]as a dare to try to take the hat off.”
A second part of the analysis was the tone of the message on the hat. Here, the court differentiated the plaintiff’s case from Schoenecker v Koopman, where a Wisconsin District Court held high school students could wear shirts that displayed the phrases “Love” and “Celebrate Diversity” spelled out using firearms. Among other things, the court acknowledged that the arguably tongue-in-cheek message behind the t-shirts was much different than the provocative tone of the “Come and Take it” hat.
Finally, and perhaps most importantly, the court recognized that outside circumstances can weigh in on a school’s decision that something is likely to cause a substantial disruption, recognizing that the hat could cause a disruption amongst students who had transferred to the district from the Oxford school district which suffered a school shooting less than ninety days before.
The court specifically pointed out that a generalized potential for students' discomfort, offense or other psychological distress, without more, is not enough to ban speech on topics such as the Second Amendment. The facts behind a decision to restrict student speech matter.
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