Shane Kinney’s NRA Shirt and Your Rights

A public school cannot stop a kid from wearing this

The Bill of Rights in our Constitution – it’s easy to cherry-pick the parts of it you want to defend. It’s also easy to see who cherry-picks what. 

Western New Yorkers have tested the First Amendment on two occasions in the past few weeks. I highlighted one of them already – the efforts of a handful of people in the Clarence community to censor books, censor parts of the curriculum, and demagogue the disease prevention unit of the sex education curriculum. The other is Shane Kinney’s NRA t-shirt on Grand Island. 

Kinney was asked to remove a “Protected by Smith & Wesson” sweatshirt, and then to turn a pro-NRA t-shirt inside-out. The school apparently gave Kinney a suspension when he refused to do so. 

I don’t like the gun lobby, and I don’t like guns. I detest the gun culture in all of its incarnations. I don’t like Freudian allusions whereby one extols the virtue of self-protection with killing machines and their long, cold, hard shafts. As point of fact, I hate guns. 

That doesn’t mean Shane Kinney’s rights to free speech should be infringed. 

Eugene Volokh explains that at least one federal circuit has declared school prohibitions on shirts that display guns. The issue is a tricky one for schools. A school is a government entity, but it deals almost exclusively with minors. A school is well within its rights, for instance, to censor a child’s clothing if it, for instance, glorifies or promotes violence, drugs, alcohol, or some other inappropriate or harmful behavior. When it comes to guns, the Constitution is invoked, and it’s a matter of degrees. 

An NRA t-shirt that quotes an excerpt from the 2nd Amendment is completely acceptable in all aspects. There is nothing objectively controversial about it, regardless of whether or not you like guns. The issue in cases such as Kinney’s revolves around the depiction of actual firearms. Here, you run into an analysis that requires you to parse the definitions of terms like “disruption” and “violence”.  A picture of two crossed rifles is not a big deal. On the other hand, a t-shirt depicting, say, a trenchcoated figure using an assault rifle to shoot a schoolkid in the head would be patently objectionable. 

But if you look at the Grand Island school district’s own dress code, it doesn’t really say much about guns. It prohibits “vulgar” or “obscene” t-shirts, and clothing cannot “promote and/or endorse the use of alcohol, tobacco or illegal drugs and/or encourage other illegal or violent activities”.  Courts use a case from the mid-60s to handle these sorts of issues. From the case Volokh cites,

Because most public school students are minors and school administrators have the duty to provide and facilitate education and to maintain order and discipline, the Supreme Court “has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Consequently, while a public school student does not “shed [his] constitutional rights to freedom of speech or expression at the school-house gate,” id. at 506, those rights may be limited as long as the limitation is consistent with constitutional safeguards…

…”conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”Id. at 513, 89 S.Ct. 733. Accordingly, Tinker “requires a specific and significant fear of disruption, not just some remote apprehension of disturbance.” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir.2001). In sum, “if a school can point to a well-founded expectation of disruption — especially one based on past incidents arising out of similar speech — the restriction may pass constitutional muster.” Id. at 212.

Courts have upheld, for instance, students’ rights to wear black armbands to protest war, and also upheld a school’s ability to restrict or punish lewd and inappropriate language.

Arguably anything involving firearms is by definition “violent”, but in Kinney’s case, the firearms were merely depicted – in the image, they were not being fired at anyone or anything. The “protected by Smith & Wesson” sweatshirt was likely closer to the line, as it specifically invoked a threat of deadly force in response to a provocation. Even deadly force in self-defense is, by definition, violent, and under the “substantial disruption” standard in the Tinker case, that invocation of violence might be legally restricted, depending on whether the school could establish that the restriction was based on ” something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” and instead on whether the shirt would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

I remember I was once handling a criminal matter in Massachusetts and a man with an Irish surname was being arraigned on an assault & battery charge. He had been arrested while wearing a Notre Dame jacket, which depicts an angry leprechaun with his fists up, waiting for a fight, and I thought to myself that it was an especially funny thing to be wearing under those circumstances. Does that belligerent Irish stereotype violate high school dress codes because it glorifies violence? I doubt any principal would punish a kid for that. 

But while local right-wing media have been milking this NRA shirt thing for a week now, even causing it to go national, they’ve been completely silent (as far as I can tell) as far as efforts to violate the 1st Amendment when it comes to banning award-winning literature in Clarence schools. They’ve not said anything about protecting the sex education unit recommending that kids who have sex use condoms to prevent unwanted pregnancy and sexually transmitted disease. (Abstinence is part of the curriculum, incidentally, but not the entire curriculum because that would be insane). 

So, Shane Kinney should be free to wear his NRA t-shirt and probably even his Smith & Wesson t-shirt.  It’s not my favorite thing in the world, nor something I would send my kid to school in, but my sensibilities and opinions can’t be the arbiter of what is and is not appropriate or legal. The school district likely owes Kinney an apology.