PENNSYLVANIA — A U.S. District Court judge partially sided onSept. 30 in favor of a student’s First Amendment lawsuit against hisschool district for wearing a T-shirt with an image of a gun and a ”terrorist hunting permit.”
Judge James K. Gardner ruled in favor of Donald Miller’s claimagainst the Penn Manor School District in Lancaster, Pa. that parts of thedistrict’s policies regarding student dress and expression were”unconstitutionally overbroad and vague.” But Gardner decidedagainst Miller’s key argument that banned him from wearing the T-shirt,which Miller’s attorneys, described as a show of support for U.S. troopscurrently in Iraq.
The T-shirt became controversial when Miller, who at the time was afreshman at Penn Manor High School, came to school three separate times with theshirt on. The front pocket of the T-shirt had an image of a handgun with thewords ”Volunteer” above the image and ”HomelandSecurity” below the image. The back of the shirt read ”SpecialIssue-Resident-Lifetime License, United States Terrorist Hunting Permit, PermitNo. 91101, Gun Owner-No Bag Limit” in block letters with another image ofa larger handgun.
According to the court’s opinion, Miller was first reprimanded by theschool after his math teacher brought Miller into the hallway to explain to himthat his shirt ”promoted the hunting and killing of human beings and mightnot be appropriate for school.” The math teacher was made aware of theT-shirt by a female student who indicated to her in a note that she was”uncomfortable with the T-shirt’s content,” according to courtrecords. The teacher then confirmed with a school principal that the shirt wasinappropriate and not to be worn in school.
Despite this, Miller wore the shirt two more times until he was givendetention after Assistant Principal Christopher Moritzen told him he would haveto go to a restroom and turn the T-shirt inside out. When Miller walked away, heuttered the words, ”this is bullshit.” Miller was given a two-hourdetention for the ”use of foul language and failure to followdirection.”
To establish the school district’s ban on the shirt, Gardner appliedMorse v. Frederick, which ruled that school officials could censor astudent’s speech that was ”reasonably viewed as promoting illegaldrug use.”
”Based upon Morse, speech that promotes illegal behavior mayalso be restricted,” the judge said.
The judge declined to apply the U.S. Supreme Court precedent of Tinkerv. Des Moines Independent Community School District, ruling that
Tinker applied only to protect political speech, while the school’sreaction to the shirt was based on its advocacy of violence, not a politicalmessage. Tinker established First Amendment rights for free expression ofstudents.
”Tinker was not the final discussion by the Supreme Court offree speech in the school setting,” Garner wrote in his opinion.
The judge did rule that a district policy in the school’s handbookasserting that students should not wear clothes that are ”a distraction tothe educational environment” was unconstitutionally vague andover-broad.
The judge also found that a policy prohibiting speech that seeks to”establish the supremacy of a particular religious denomination, sect orpoint of view” was unconstitutionally over-broad, because it”attempted to restrict what effectively amounts to all religiousspeech.” The religious speech policy was removed from the districthandbook before the court’s ruling, but the ruling makes clear that thepolicy cannot be reinstated.
A message left for Miller’s attorney Leonard G. Brown III inquiringwhether an appeal would be filed was not immediately returned.