Newsom v. Albemarle County School Board

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALAN NEWSOM, a minor by and 

through FRED NEWSOM, his Parent

and Next Friend,

Plaintiff-Appellant,

v.

ALBEMARLE COUNTY SCHOOL BOARD,

by and through its School Board

Members in their Official Capacity;

CHARLES M. WARD, Albemarle

School Board Member, in his

Official Capacity; PAM MOYNIHAN,

Albemarle School Board Member,

in her Official Capacity; GORDON

WALKER, Albemarle County School

Board Member, in his Official  No. 03-1125

Capacity; KEN C. BOYD, Albemarle

School Board Member, in his

Official Capacity; STEPHEN H.

KOLESZAR, Albemarle School Board

Member, in his Official Capacity;

DIANTHA H. MCKEEL, Albemarle

School Board Member, in her

Official Capacity; GARY GRANT,

Albemarle School Board Member,

in his Official Capacity; BETTY PITT,

both in her Individual Capacity and

in her Official Capacity as Vice

Principal of Jack Jouett Middle

School; RUSSELL L. JARRETT, in his

Official Capacity as Principal of



2 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

Jack Jouett Middle School; KEVIN 

CASTNER, in his Official Capacity as

Division Superintendent of the

Albemarle County Public School

System,

Defendants-Appellees.

SOUTHERN LEGAL RESOURCE CENTER,

INCORPORATED; INDEPENDENCE

INSTITUTE; FIRST AMENDMENT

LAWYERS ASSOCIATION; INDIVIDUAL

RIGHTS FOUNDATION; RICHMOND

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA; COMMONWEALTH OF 

VIRGINIA,

Amici Supporting Appellant.

NATIONAL SCHOOL BOARDS

ASSOCIATION; VIRGINIA SCHOOL

BOARDS ASSOCIATION; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION; MARYLAND SCHOOL

BOARDS ASSOCIATION; SOUTH

CAROLINA SCHOOL BOARDS

ASSOCIATION,

Amici Supporting Appellees.



Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, District Judge.

(CA-02-101-3)

Argued: September 25, 2003

Decided: December 1, 2003

Before WILLIAMS and SHEDD, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 3

Vacated and remanded with instructions by published opinion. Senior

Judge Hamilton wrote the opinion, in which Judge Williams and

Judge Shedd joined.

COUNSEL

ARGUED: Daniel Mark Zavadil, NATIONAL RIFLE ASSOCIA-

TION OF AMERICA, Fairfax, Virginia, for Appellant. Mary Ellen

McGowan, SICILIANO, ELLIS, DYER & BOCCAROSSE, Fairfax,

Virginia, for Appellees. ON BRIEF: Kirk D. Lyons, SOUTHERN

LEGAL RESOURCE CENTER, INC., Black Mountain, North Caro-

lina, for Amicus Curiae Center. David B. Kopel, INDEPENDENCE

INSTITUTE, Golden, Colorado, for Amicus Curiae Institute. Bradley

J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan, for

Amicus Curiae Lawyers Association. James H. Warner, INDIVID-

UAL RIGHTS FOUNDATION, Rohrersville, Maryland; Manuel S.

Klausner, INDIVIDUAL RIGHTS FOUNDATION, Los Angeles,

California, for Amicus Curiae Foundation. Rebecca K. Glenberg,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDA-

TION, INC., Richmond, Virginia, for Amicus Curiae ACLU. Jerry

W. Kilgore, Attorney General, William H. Hurd, Solicitor, Maureen

R. Matsen, Deputy State Solicitor, William E. Thro, Deputy State

Solicitor, OFFICE OF THE ATTORNEY GENERAL, Richmond,

Virginia, for Amicus Curiae Commonwealth. D. Patrick Lacy, Jr.,

Kelly C. Horan, REED SMITH, L.L.P., Richmond, Virginia; Julie K.

Underwood, NATIONAL SCHOOL BOARDS ASSOCIATION,

Alexandria, Virginia, for Amici Curiae School Boards Associations.

OPINION

HAMILTON, Senior Circuit Judge:

In this First Amendment case, Alan Newsom (Newsom), a student

at Jack Jouett Middle School (Jouett) in Albemarle County, Virginia,

by and through his parent and next friend, Fred Newsom, appeals

from a district court order denying his motion for a preliminary

injunction seeking to enjoin the enforcement of the portion of Jouett’s

4 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

2002-2003 dress code which prohibits "messages on clothing, jew-

elry, and personal belongings that relate to . . . weapons." According

to Newsom, the district court should have entered a preliminary

injunction because he satisfied the test governing preliminary injunc-

tions with regard to his claims that the challenged portion of Jouett’s

2002-2003 dress code is both unconstitutionally overbroad and vague.

Because we agree that Newsom satisfied this test at the preliminary

injunction stage of the proceedings, we vacate the district court’s

order denying Newsom’s motion for a preliminary injunction and

remand with instructions to enter a preliminary injunction.

I

A

Students at Jouett and their parents are provided each year with a

student/parent handbook that is updated every summer. During the

2001-2002 school year, the student/parent handbook prohibited stu-

dents from wearing, inter alia, "messages on clothing, jewelry, and

personal belongings that relate to drugs, alcohol, tobacco, sex, vulgar-

ity, or that reflect adversely upon persons because of their race or eth-

nic group."

On April 29, 2002, during the student lunch period at Jouett, Eliza-

beth Pitt (Pitt), an assistant principal at Jouett, observed Newsom,

who at the time was a twelve-year-old student in the sixth grade at

Jouett, sitting at a table on the opposite side of the cafeteria with his

back towards her.1 Pitt’s attention was drawn to Newsom by his pur-

ple t-shirt, which depicted three black silhouettes of men holding fire-

arms superimposed on the letters "NRA" positioned above the phrase

"SHOOTING SPORTS CAMP." Although the men appear to be aim-

ing their firearms, the t-shirt did not indicate what or whom their tar-

gets may be. The front of the t-shirt bore a smaller but identical

version of the men superimposed on the initials "NRA," but no other

writing or symbols.

1

During the times relevant to this litigation, over 500 students were

enrolled in the sixth, seventh, and eighth grades at Jouett.

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 5

According to Pitt, she had the immediate impression that the fig-

ures were "sharpshooters" which reminded her of the shootings at

Columbine High School in Colorado and other incidents of school-

related violence. As a consequence of her impression, Pitt was imme-

diately concerned over the appropriateness of Newsom’s t-shirt in a

middle school environment. Pitt believed that the t-shirt had the

potential to disrupt the instructional process since the graphics on the

shirt were so large and bold as to be distracting and she feared that

Newsom’s fellow middle school students would also associate the

images with the events at Columbine High School and other incidents

of school-related violence. It was Pitt’s judgment that the images on

Newsom’s t-shirt could also reasonably be interpreted by other mid-

dle school students to promote the use of guns. Pitt felt that the imag-

ery on the t-shirt was at odds with her obligation as a school

administrator to discourage and prevent gun-related violence since the

images on Newsom’s t-shirt conflicted with the message that "Guns

and Schools Don’t Mix" and had the potential to create confusion

among middle school students over the appropriate boundaries

between firearms and schools. Pitt was also aware of at least one prior

incident at Jouett when a middle school student brought a firearm to

a school function.

After observing the images on the t-shirt, Pitt approached Newsom

and whispered in his ear that he needed to do something about the t-

shirt because it was not appropriate school attire. When Pitt suggested

that Newsom either change the t-shirt or turn it inside out, Newsom

told her that he had obtained the t-shirt at a camp and asked what was

wrong with it. Pitt advised Newsom that his shirt was inappropriate

for school because the shirt depicted "pictures of men shooting guns."

According to Pitt, she further explained the inappropriateness of

the t-shirt to Newsom in terms she felt he would understand, that the

school did not allow alcohol or drugs in the school and did not permit

clothing with references to alcohol or drugs. Similarly, the school did

not allow weapons in school nor images of such weapons on student

clothing.

After Newsom asked Pitt if she was going to suspend him, Pitt

advised Newsom, whom she had always found to be an obedient and

cooperative student, that suspension was not going to happen in this

6 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

situation because he simply needed to change his t-shirt. When New-

som then asked, "What if I refuse?," Pitt told him that if he refused

to comply with her request it would raise an entirely different issue,

i.e., defiance, in which case an in-school suspension could be a possi-

bility. Pitt cautioned Newsom, however, that there was no need to

take the matter that far since his behavior had never been a problem

before and all he had to do was either turn the t-shirt inside out or

change it. Newsom appeared to agree with Pitt and left the cafeteria

to go to the boys’ bathroom to turn his t-shirt inside out.

During the summer of 2002, the student/parent handbook was

revised to prohibit students from wearing, inter alia, "messages on

clothing, jewelry, and personal belongings that relate to drugs, alco-

hol, tobacco, weapons, violence, sex, vulgarity, or that reflect

adversely upon persons because of their race or ethnic group."2

For the 2002-2003 school year, Newsom was in the seventh grade

at Jouett. Between the beginning of the school year and October 2,

2002 (when the district court heard oral argument on Newsom’s

motion for a preliminary injunction), Pitt observed Newsom on at

least three occasions wearing a t-shirt in school that bore the initials

"NRA", an NRA logo, or other written messages referencing the

NRA. According to Pitt, none of those t-shirts contained the objec-

tionable images of gunmen that were on the t-shirt Newsom wore to

school on April 29, 2002. School authorities did not speak to Newsom

nor take any measures to prohibit him from wearing the other NRA

t-shirts and he continued to do so through the date of the hearing on

the preliminary injunction.

B

On September 17, 2002, Newsom filed suit against the Albemarle

County School Board and a host of other school officials (including

Pitt) in the United States District Court for the Western District of

Virginia, alleging that his First Amendment rights to freedom of

speech and association had been infringed.3 In his complaint, New-

2

For ease of reference, we will refer to this provision as the 2002-2003

Jouett Dress Code.

3

For ease of reference, we will refer to the defendants as Jouett.

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 7

som alleged, inter alia, that: (1) his First Amendment rights were vio-

lated when he was instructed to change his t-shirt or turn it inside out

in April 2002; (2) his due process rights were violated because the

2001-2002 dress code did not give him notice that wearing his t-shirt

would subject him to disciplinary action; and (3) the 2002-2003 Jouett

Dress Code both was unconstitutionally overbroad and vague. Along

with his complaint, Newsom filed a motion for a preliminary injunc-

tion seeking to enjoin the enforcement of the 2002-2003 Jouett Dress

Code to the extent that it prohibited "the wearing of clothing or jew-

elry that depicts images of or messages containing weapons or fire-

arms images that are being used and/or contained in a lawful, non-

violent, non-threatening display of speech, expression, or associa-

tion." According to Newsom, such an injunction would not only allow

him to wear the t-shirt he was banned from wearing, but also allow

him to wear other t-shirts containing messages related to the lawful

possession of firearms.

The district court held a hearing on the motion for preliminary

injunction on October 2, 2002. On December 20, 2002, the district

court filed a memorandum opinion in which it concluded that New-

som was not entitled to a preliminary injunction, principally because

Newsom did not demonstrate that he had a likelihood of success on

the merits of any of his claims. With regard to the censorship of New-

som’s t-shirt in April 2002, the district court assumed, without decid-

ing, that the t-shirt constituted symbolic speech. The district court

went on to opine that the censorship of Newsom’s t-shirt was permis-

sible because Jouett only sought to suppress the form of the message

(graphic description of gunmen) and not the message itself. With

regard to Newsom’s due process, vagueness, and overbreadth claims,

the district court ostensibly found that Newsom would not likely suc-

ceed on the merits of these claims because a school dress code need

not be as detailed as a criminal code and, in view of this relaxed stan-

dard, the 2002-2003 Jouett Dress Code was not constitutionally infirm

because of due process, vagueness, or overbreadth concerns. An order

denying Newsom’s motion for a preliminary injunction was entered

by the district court and Newsom noted a timely appeal.

II

On appeal, Newsom contends that the district court erred when it

denied his motion for a preliminary injunction. More specifically, he

8 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

contends that he satisfied the test governing preliminary injunctions

with regard to his claims that the 2002-2003 Jouett Dress Code is both

unconstitutionally overbroad and vague.

A

We review a district court’s grant or denial of a preliminary injunc-

tion for abuse of discretion. Doran v. Salem Inn, Inc., 422 U.S. 922,

932 (1975). We accept the district court’s findings of fact absent clear

error, but review its legal conclusions de novo. North Carolina v. City

of Virginia Beach, 951 F.2d 596, 601 (4th Cir. 1992).

In deciding whether to issue a preliminary injunction, a court must

consider "(1) the likelihood of irreparable harm to the plaintiff if the

preliminary injunction is denied, (2) the likelihood of harm to the

defendant if the requested relief is granted, (3) the likelihood that the

plaintiff will succeed on the merits, and (4) the public interest." Direx

Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.

1992). In this case, the irreparable harm that Newsom has alleged is

inseparably linked to his claim of a violation of his First Amendment

rights. Determination of irreparable harm thus requires analysis of

Newsom’s likelihood of success on the merits, and we turn to this

question first.

B

With regard to Newsom’s likelihood of success on the merits on

his overbreadth claim, the principal question here is whether, after

examining the record as it has developed through the preliminary

injunction stage of the case, the 2002-2003 Jouett Dress Code, which

prohibits, inter alia, "messages on clothing, jewelry, and personal

belongings that relate to . . . weapons," is unconstitutionally over-

broad on its face because it reaches too much expression that is pro-

tected by the First Amendment.

The First Amendment bars the government from "abridging the

freedom of speech"—that is, generally, "from dictating what we see

or read or speak or hear." U.S. CONST. amend. I; Ashcroft v. Free

Speech Coalition, 535 U.S. 234, 244 (2002). Notwithstanding this

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 9

edict, courts have long recognized that a public school student’s First

Amendment rights are not coextensive to those held by others in other

contexts. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682

(1986). 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 constitu-

tional safeguards, to prescribe and control conduct in the schools."

Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 507 (1969).

Consequently, while a public school student does not "shed [his] con-

stitutional 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.

In Tinker, school officials prevented a group of students from

wearing black armbands to express their opposition to our country’s

participation in the Vietnam War. Id. at 504. The Court upheld the

students’ right to do so because there was "no evidence whatever of

petitioners’ interference, actual or nascent, with the schools’ work or

of collision with the rights of other students to be secure and to be left

alone." Id. at 508. Responding to the school authorities’ attempt to

justify their actions by reason of a concern about the possibility of the

armbands’ creating a disturbance in school, the Court held that, "in

our system, undifferentiated fear or apprehension of disturbance is not

enough to overcome the right to freedom of expression." Id. By con-

trast, "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 inva-

sion of the rights of others is, of course, not immunized by the consti-

tutional guarantee of freedom of speech." Id. at 513. 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.

In two subsequent cases, the Supreme Court further defined the

parameters of the freedom of expression in public schools. In Fraser,

10 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

a school disciplined a student for a student government nominating

speech filled with sexual metaphor viewed by the school and the

Court as lewd. 478 U.S. at 678. The Court upheld the school’s author-

ity to do so because of "society’s . . . interest in teaching students the

boundaries of socially appropriate behavior." Id. at 681. Schools are

not prevented by the First Amendment from encouraging the "funda-

mental values of ‘habits and manners of civility,’" id., by "insisting

that certain modes of expression are inappropriate and subject to sanc-

tions." Id. at 683. And "[t]he determination of what manner of speech

. . . is inappropriate properly rests with the school board." Id. Accord-

ingly, Fraser establishes an exception to Tinker’s disruption require-

ment. Under Fraser, the banned school speech need not meet Tinker’s

disruption requirement; rather, speech in school can be banned if it is

lewd, vulgar, indecent, or plainly offensive. Id. at 685; see also Saxe,

240 F.3d at 213 (holding that, under Fraser, there is no First Amend-

ment protection for lewd, vulgar, indecent, and plainly offensive

speech in school); Boroff v. Van Wert City Bd. of Ed., 220 F.3d 465,

467-71 (6th Cir. 2000) (applying Fraser to vulgar t-shirt of a three-

headed Jesus accompanied by the words "See No Truth. Hear No

Truth. Speak No Truth"), cert. denied, 532 U.S. 920 (2001). When

speech in school falls within the lewd, vulgar, and plainly offensive

rubric, it can be said that Fraser limits the form and manner of

speech, but does not address the content of the message. Fraser, 478

U.S. at 685 (distinguishing Tinker on the basis that the lewd, vulgar,

and plainly offensive speech was "unrelated to any political view-

point"); see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,

286 n.2 (1988) (Brennan, J., dissenting) (Fraser limited "to the appro-

priateness of the manner in which the message is conveyed, not of the

message’s content."); East High Gay/Straight Alliance v. Bd. of Educ.

of Salt Lake City Sch. Dist., 81 F. Supp.2d 1166, 1193 (D. Utah 1999)

("Fraser speaks to the form and manner of student speech, not its sub-

stance. It addresses the mode of expression, not its content or view-

point.").

In Hazelwood, the Court addressed a public school’s decision to

censor two articles slated for publication in the school newspaper: one

concerned pregnant students at the school, the other discussed the

impact of divorce on students. 484 U.S. at 263. The pregnancy story

was rejected because the principal feared that, in spite of the pseud-

onyms used in the article, the subjects might still be identified by the

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 11

school community. Id. The divorce story was rejected because it con-

tained negative information about school parents and there was insuf-

ficient time to permit them to respond to the facts set out in the

article. Id. The Supreme Court rejected the newspaper staff members’

suit on a number of bases: the school paper was not a public forum,

publishing the paper was a school-sponsored activity that was part of

an advanced journalism class, and readers would perceive articles

appearing in the school paper as being school-approved publications.

Id. at 268-73. In addition, the Court recognized the competing privacy

interests of the pregnant students and the families going through a

divorce. Id. The Court described when a school has greater authority

to regulate student speech in this way:

[T]he standard articulated in Tinker for determining when a

school may punish student expression need not also be the

standard for determining when a school may refuse to lend

its name and resources to the dissemination of student

expression. Instead, we hold that educators do not offend the

First Amendment by exercising editorial control over the

style and content of student speech in school-sponsored

expressive activities so long as their actions are reasonably

related to legitimate pedagogical concerns.

Id. at 272-73 (footnotes omitted).

Newsom does not contend that all clothing containing messages

related to weapons worn in public schools is protected by the First

Amendment. Rather, he acknowledges that Jouett could, even in the

absence of a school policy, prohibit the display of violent, threaten-

ing, lewd, vulgar, indecent, or plainly offensive images and messages

related to weapons under Tinker and Fraser. Newsom also correctly

points out that nonviolent and nonthreatening images/messages

related to weapons would fall squarely under Tinker’s disruption stan-

dard. Cf. Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1248-

50 (11th Cir.) (upholding ban on display of the Confederate flag

under Tinker where there was history of racial problems involving the

Confederate flag), cert. denied, No. 02-1838, 2003 WL 21456684

(October 6, 2003); West v. Derby Unified Sch. Dist., 206 F.3d 1358,

1366-67 (10th Cir. 2000) (same); Phillips v. Anderson County Sch.

Dist. 5, 987 F. Supp. 488, 493 (D.S.C. 1997) (same). Moreover, New-

12 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

som correctly posits that Jouett’s actions cannot be judged using the

more lenient Hazelwood standard because the special circumstances

present in Hazelwood are so clearly absent in this case. Clothing worn

by Newsom and perhaps by other students that contain messages

related to weapons are not school-sponsored, nor does Jouett supply

any of the resources involved in the clothing worn by students. More

importantly, no reasonable observer could conclude that Jouett some-

how endorsed the t-shirt worn by Newsom, or any other student’s

clothing that contained a message related to weapons. As a result,

Tinker is the most relevant of the three Supreme Court cases concern-

ing school speech and sets forth the legal framework that we will use

in our overbreadth analysis.

The overbreadth doctrine constitutes "a departure from traditional

rules of standing." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

Pursuant to it, an individual may "challenge a statute on its face

because it also threatens others not before the court—those who

desire to engage in legally protected expression but who may refrain

from doing so rather than risk prosecution or undertake to have the

law declared partially invalid." Bd. of Airport Comm’rs v. Jews for

Jesus, Inc., 482 U.S. 569, 574 (1987) (citation and internal quotation

marks omitted).

In most cases, courts will not assess the constitutionality of a provi-

sion apart from its particular application.4 But cases involving the

freedom of speech are frequently excepted from this general rule. Los

Angeles Police Dept. v. United Reporting Publ’g Corp., 528 U.S. 32,

38 (1999). The exception, however, is a narrow one:

Even though the challenge be based on the First Amend-

ment, the overbreadth doctrine is not casually employed.

Because of the wide-reaching effects of striking down a stat-

ute on its face at the request of one whose own conduct may

be punished despite the First Amendment, we have recog-

4

An "as-applied" challenge consists of a challenge to a regulation’s

application only to the party before the court. City of Lakewood v. Plain

Dealer Publ’g Co., 486 U.S. 750, 758-59 (1988). If an as-applied chal-

lenge is successful, the statute may not be applied to the challenger, but

is otherwise enforceable. Id.

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 13

nized that the overbreadth doctrine is strong medicine and

have employed it with hesitation, and then only as a last

resort.

Id. at 39 (citation and internal quotation marks omitted). Accordingly,

"a law should not be invalidated for overbreadth unless it reaches a

substantial number of impermissible applications." New York v. Fer-

ber, 458 U.S. 747, 771 (1982).5 To prevail, an overbreadth plaintiff,

like Newsom, must demonstrate that a regulation’s overbreadth is

"not only . . . real, but substantial as well, judged in relation to the

[challenged regulation’s] plainly legitimate sweep," and also that no

"limiting construction" or "partial invalidation" could "remove the

seeming threat or deterrence to constitutionally protected expression."

Broadrick, 413 U.S. at 613, 615. A court, however, "will not rewrite

a . . . law to conform it to constitutional requirements." Virginia v.

Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988).

Because this case involves speech at public schools, several addi-

tional considerations are worth noting.6 First, "[b]ecause of the duties

and responsibilities of the public elementary and secondary schools,

the overbreadth doctrine warrants a more hesitant application in [the

public school] setting than in other contexts." Sypniewski v. Warren

Hills Reg’l Bd. of Educ., 307 F.3d 243, 259 (3d Cir. 2002), cert.

denied, 123 S. Ct. 2077 (2003). As the court in Sypniewski noted,

Tinker acknowledges what common sense tells us: a much

broader "plainly legitimate" area of speech can be regulated

at school than outside school. Speech that disrupts educa-

tion, causes disorder, or inappropriately interferes with other

5

If an overbreadth challenge succeeds, "any enforcement" of the regu-

lation at issue is "totally forbidden." Broadrick, 413 U.S. at 613.

6

Jouett maintains that the 2002-2003 Jouett Dress Code does not regu-

late speech, but rather conduct, e.g., "the wearing of apparel which bears

‘messages that relate to . . . weapons.’" This argument must be rejected

for the simple reason that the 2002-2003 Jouett Dress Code does more

than just regulate conduct. The code at issue regulates speech insofar as

it prohibits certain expression, e.g., messages related to weapons, and

leaves other types of expression, e.g., messages expressing support for

the school, untouched.

14 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

students’ rights may be proscribed or regulated. . . . Every-

day school discipline does not depend on the necessity of a

speech code. In the public school setting, the First Amend-

ment protects the nondisruptive expression of ideas. It does

not erect a shield that handicaps the proper functioning of

the public schools.

Id.

Second, courts have recognized that, even though speech codes in

general are looked at with disfavor under the First Amendment

because of their tendency to silence or interfere with protected

speech, a public school’s speech/disciplinary policy need not be as

detailed as a criminal code. Id. at 260 (noting that, even though

speech codes are disfavored under the First Amendment, "the

demands of public secondary and elementary school discipline are

such that it is inappropriate to expect the same level of precision in

drafting school disciplinary policies as is expected of legislative

bodies crafting criminal restrictions"); see also Fraser, 478 U.S. at

686 ("Given the school’s need to be able to impose disciplinary sanc-

tions for a wide range of unanticipated conduct disruptive of the edu-

cational process, the school disciplinary rules need not be as detailed

as a criminal code which imposes criminal sanctions.").

While the 2002-2003 Jouett Dress Code prohibits students from

wearing, inter alia, "messages on clothing, jewelry, and personal

belongings that relate to drugs, alcohol, tobacco, weapons, violence,

sex, vulgarity, or that reflect adversely upon persons because of their

race or ethnic group," Newsom’s overbreadth challenge to the 2002-

2003 Jouett Dress Code is only aimed at a portion of the code. He

maintains that the code’s ban on "messages . . . that relate to . . .

weapons" is overbroad in that it reaches too much expression that is

protected by the First Amendment. More specifically, Newsom posits

that the 2002-2003 Jouett Dress Code is overbroad because (1) it

applies to nonviolent and nonthreatening images/messages related to

weapons and (2) there is a dearth of evidence demonstrating that the

display of images/messages related to weapons, nonviolent, nonthrea-

tening, or otherwise, would substantially disrupt school operations or

interfere with the rights of others.

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 15

We begin our overbreadth analysis by noting that there simply is

no evidence in the record (as the record has developed through the

preliminary injunction stage of the case) demonstrating that clothing

worn by students at Jouett containing messages related to weapons,

nonviolent, nonthreatening, or otherwise, ever substantially disrupted

school operations or interfered with the rights of others. Indeed, there

is no evidence that Newsom’s t-shirt, let alone any other article of

clothing worn by a student that contained a message relating to weap-

ons, ever caused a commotion or was going to cause one at Jouett.

This lack of evidence strongly suggests that the ban on messages

related to weapons was not necessary to maintain order and discipline

at Jouett.7

Turning to the language of the 2002-2003 Jouett Dress Code, when

we examine the code in view of the fact that there was no evidence

presented at the preliminary injunction stage of the case demonstrat-

ing that clothing worn by students at Jouett containing messages

related to weapons, nonviolent, nonthreatening, or otherwise, ever

7

Of course, a public school has the power to act to prevent problems

before they occur, and the school is not limited to prohibiting and pun-

ishing conduct only after it has caused a disturbance. See, e.g., West, 206

F.3d at 1366-67. Indeed, courts have found that Tinker’s standard has

been met when there have been past disruptive incidents arising out of

speech. See, e.g., Scott, 324 F.3d at 1248-50 (upholding ban on display

of the Confederate flag under Tinker where there was history of racial

problems involving the Confederate flag); West, 206 F.3d at 1366-67

(same); Phillips, 987 F. Supp. at 493 (same). In the absence of past inci-

dents, courts have concluded that school authorities have failed to estab-

lish a sufficient likelihood of disruption to support the ban on speech.

See, e.g., Sypniewski, 307 F.3d at 254-58 (reversing district court’s

refusal to grant preliminary injunction enjoining school from enforcing

its racial harassment policy to Jeff Foxworthy "redneck" t-shirt because

there was no evidence in the record suggesting that the t-shirt caused or

would likely cause disruption of school operations); Castorina ex rel.

Rewt v. Madison County Sch. Bd., 246 F.3d 536, 542-44 (6th Cir. 2001)

(vacating summary judgment for school officials where there was no

showing of disruption caused by display of Confederate flag). In this

case, there simply is no evidence suggesting that clothing containing

messages related to weapons worn by students at Jouett ever substan-

tially disrupted school operations or interfered with the rights of others.

16 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

substantially disrupted school operations or interfered with the rights

of others, the 2002-2003 Jouett Dress Code can be understood as

reaching lawful, nonviolent, and nonthreatening symbols of not only

popular, but important organizations and ideals. For example, the

State Seal of the Commonwealth of Virginia depicts a woman stand-

ing with one foot on the chest of a vanquished tyrant, holding a spear.

The symbol obviously depicts a woman holding a weapon. Thus,

under the 2002-2003 Jouett Dress Code, a student may not wear or

carry any items bearing the State Seal of the Commonwealth of Vir-

ginia. Likewise, the symbol of the University of Virginia’s athletic

mascot—the Cavalier—is two crossed sabers. This symbol also

relates to weapons. According to the Virginia Attorney General, the

symbol is used throughout Charlottesville to direct visitors to the uni-

versity’s football stadium and other facilities and simply to promote

the university’s athletics. Ironically, Albemarle County High School,

which is located across the street from Jack Jouett Middle School,

uses the image of a patriot armed with a musket as its own mascot.

Various clothing depicting support for the University of Virginia and

Albemarle County High School by way of the schools’ mascots

would be banned under the 2002-2003 Jouett Dress Code.

Aside from these non-controversial symbols, the 2002-2003 Jouett

Dress Code would apparently distinguish between a t-shirt bearing a

peace sign and the message "No War" and one with a picture of an

army tank in desert camouflage that urges support for our troops.

Similarly, it would prevent a student from wearing a t-shirt bearing

the insignia of many of the fighting units engaged in overseas opera-

tions in which parents or siblings may serve. Banning support for or

affiliation with the myriad of organizations and institutions that

include weapons (displayed in a nonviolent and nonthreatening man-

ner) in their insignia can hardly be deemed reasonably related to the

maintenance of a safe or distraction-free school. Finally, the quintes-

sential political message the school here is trying to promote—"Guns

and School Don’t Mix"—would, under a reasonable interpretation, be

prohibited on clothing under the 2002-2003 Jouett Dress Code.

Because there was no evidence presented at the preliminary injunc-

tion stage of the case demonstrating that clothing worn by students at

Jouett containing messages related to weapons, nonviolent, nonthrea-

tening, or otherwise, ever substantially disrupted school operations or

NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 17

interfered with the rights of others, the number of examples of the

unnecessarily broad nature of the 2002-2003 Jouett Dress Code is

practically limitless. After examining the record as it has developed

through the preliminary injunction stage of the case, it is evident that

the 2002-2003 Jouett Dress Code disfavors weapons, displayed in any

manner and in any context, and potentially any messages about weap-

ons. It excludes a broad range and scope of symbols, images, and

political messages that are entirely legitimate and even laudatory.

Under these circumstances, and in the absence of any cogent limiting

construction of the 2002-2003 Jouett Dress Code, we are constrained

to conclude that Newsom has demonstrated a strong likelihood of suc-

cess on the merits on his overbreadth claim.8

C

The remaining factors to be considered in awarding a preliminary

injunction—the alleged irreparable injury to the plaintiff without an

injunction, the potential harm to the defendant from the injunction,

and the public interest—all weigh in favor of Newsom. As to New-

som’s irreparable injury, the Supreme Court has explained that "loss

8

Jouett seems to suggest that the 2002-2003 Jouett Dress Code is capa-

ble of a reasonable limiting construction because two additional require-

ments can be read into the code: (1) a requirement that banned clothing

be disruptive; and (2) a requirement that school administrators make rea-

sonable disruption assessments. We decline to accept Jouett’s invitation

to read a disruption requirement into the code at issue. The text of the

2002-2003 Jouett Dress Code provides no support for such a reading

insofar as the code does not state that the message related to weapons

must be disruptive before it can be banned. Nor is there language in the

2002-2003 Jouett Dress Code bestowing upon school administrators the

specific duty to make a disruption assessment before a message related

to weapons is banned. In the absence of such additional language in the

2002-2003 Jouett Dress Code, we decline to consider whether the inclu-

sion of such language would alter the outcome. Jouett also suggests that

we can discern a reasonable limiting construction of the code because it

only has been applied to "images of gunmen aiming high-powered fire-

arms." Again, because the language of the 2002-2003 Jouett Dress Code

does not even remotely suggest that it is limited to "images of gunmen

aiming high-powered firearms," we reject this construction of the code

as well.

18 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.

of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury." Elrod v. Burns, 427

U.S. 347, 373 (1976). With respect to the harm that would befall if

an injunction were put in place, Jouett is in no way harmed by issu-

ance of a preliminary injunction which prevents it from enforcing a

regulation, which, on this record, is likely to be found unconstitu-

tional. The final prerequisite to the grant of a preliminary injunction

is that it serve the public interest. Surely, upholding constitutional

rights serves the public interest. Cf. Homans v. Albuquerque, 264 F.3d

1240, 1244 (10th Cir. 2001) ("[W]e believe that the public interest is

better served by following binding Supreme Court precedent and pro-

tecting the core First Amendment right of political expression.").9

III

In summary, we hold that the district court abused its discretion

when it concluded that Newsom had not satisfied the test governing

preliminary injunctions with regard to his claim that the challenged

portion of the 2002-2003 Jouett Dress Code is unconstitutionally

overbroad. Of course, our holding, like any ruling on a preliminary

injunction, does not preclude a different resolution of Newsom’s

claims on a more fully developed record.10

VACATED AND REMANDED WITH INSTRUCTIONS

9

Because we agree with Newsom that he satisfied the test governing

preliminary injunctions with regard to his claim that the challenged por-

tion of the 2002-2003 Jouett Dress Code is unconstitutionally overbroad,

we need not address Newsom’s vagueness argument.

10

For the benefit of the district court on remand, we point out that the

district court should apply Tinker to resolve Newsom’s claim that his

First Amendment rights were violated when he was instructed to change

his t-shirt or turn it inside out in April 2002.