N.J. v. David Sonnabend

In the

United States Court of Appeals

for the Seventh Circuit

____________________

No. 21-1959

N.J., by his next friend KELLY JACOB, and

A.L., by his next friend TARA LLOYD,

Plaintiffs-Appellants,

v.

DAVID SONNABEND, in his official capacity

as associate principal of Shattuck Middle School,

and JUSTIN BESTOR, in his official capacity as

principal of Kettle Moraine High School, *

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

Nos. 20-C-227 & 20-C-276 — William C. Griesbach, Judge.

____________________

ARGUED NOVEMBER 12, 2021 — DECIDED JUNE 15, 2022

____________________

* Beth Kaminski was the principal of Kettle Moraine High School during

the events at issue in this case and was the original defendant in plaintiff

A.L.’s lawsuit. Counsel advised us after oral argument that she no longer

holds that office and that Justin Bestor, the associate principal, succeeded

her. We substitute Bestor for Kaminski. See FED. R. APP. P. 43(c)(2).

2 No. 21-1959

Before SYKES, Chief Judge, and RIPPLE and ST. EVE, Circuit

Judges.

SYKES, Chief Judge. This case raises a constitutional chal-

lenge to restrictions on student speech. The plaintiffs are two

teenagers who attend Wisconsin public schools. Both are

gun enthusiasts and supporters of the Second Amendment.

To express that support, they own and wear T-shirts that

communicate their favorable opinion of the right to bear

arms. When they wore those shirts to school, however, they

got into trouble with school officials.

In February 2020 when plaintiff N.J. was in seventh

grade at Shattuck Middle School in Neenah, he went to

school wearing a T-shirt displaying a Smith & Wesson logo.

The logo included an image of a revolver. Around the same

time, A.L., a student at Kettle Moraine High School in Wales,

went to school wearing a T-shirt bearing the logo of Wiscon-

sin Carry, Inc., a gun-rights group. This logo too incorpo-

rated an image of a handgun.

Administrators at both schools barred the boys from

wearing the shirts, explaining that any clothing depicting

firearms is forbidden. Neither school’s dress code expressly

bans clothing with images of firearms. Rather, the dress

codes prohibit “inappropriate” attire, which the administra-

tors interpreted to bar any clothing with an image of a

firearm regardless of whether it conveys support for or

opposition to gun rights.

N.J. and A.L. sued the administrators in separate law-

suits alleging violations of their free-speech rights under the

First Amendment. They sought declaratory and injunctive

No. 21-1959 3

relief under 42 U.S.C. § 1983. The district court consolidated

the cases.

Ruling on cross-motions for summary judgment, the

judge found for the school administrators. He declined to

apply Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969), which established the legal

standard for student-speech cases. Instead, he looked to First

Amendment forum doctrine. Applying the standard for

speech restrictions in a nonpublic forum—the most lenient

test—he upheld the administrators’ actions as viewpoint

neutral and reasonable.

The judge’s decision rests on a doctrinal error. This is not

a speech-forum case. Tinker provides the legal standard:

restrictions on student speech are constitutionally permissi-

ble if school officials reasonably forecast that the speech

“would materially and substantially disrupt the work and

discipline of the school” or invade the rights of others. Id. at

513. Although this test is deferential to school officials and is

“applied in light of the special characteristics of the school

environment,” id. at 506, it is stricter than the test for speech

restrictions in a nonpublic forum. So the case must be re-

manded for application of Tinker. But only on A.L.’s claim.

N.J.’s case is moot. He now attends Neenah High School and

is no longer subject to the middle school’s dress code.

I. Background

In February 2020 N.J. was in seventh grade at Shattuck

Middle School, which serves seventh- and eighth-grade

students in the Neenah Joint School District in east central

Wisconsin. N.J. is a supporter of the Second Amendment

and enjoys hunting and target shooting. He owns several

4 No. 21-1959

T-shirts that express his support for the right to bear arms.

On February 12 he went to school wearing a T-shirt embla-

zoned with an image of a revolver and the inscription

“SMITH & WESSON FIREARMS—MADE IN THE USA SINCE 1852.”

Here is a photograph of the shirt:

One of N.J.’s teachers noticed his T-shirt and referred him

to David Sonnabend, Shattuck’s associate principal.

Sonnabend told N.J. that the T-shirt violated the school’s

dress code. N.J. had been warned several times earlier in the

school year that he could not wear clothing depicting fire-

arms. Sonnabend asked him if he had anything he could put

on to cover up the shirt. N.J. pulled a sweatshirt from his

backpack, put it on over the shirt, and returned to class. He

was not disciplined.

The Shattuck Middle School dress code for the 2019–2020

school year is found in the school’s parent handbook; the

relevant portions are in the record. Nothing in the policy

specifically prohibits students from wearing clothing depict-

ing firearms. Instead, the dress code is stated in very general

No. 21-1959 5

terms: student attire must be “appropriate for a professional

atmosphere and not disruptive to the learning environ-

ment.” The policy explains that “students and families” are

expected to “use their best judgment and common sense”

when choosing attire. As a “reminder” to parents and stu-

dents, the policy provides a nonexhaustive list of clothing

that is not permitted: “[r]evealing, see-through, low-cut[,] or

otherwise inappropriate tops”; “[s]hort-shorts or skirts”;

“[s]agging” pants; attire with “slogans promoting tobacco,

alcohol, drug use, or containing suggestive, sexual, or offen-

sive references”; and “[h]ats, hoods, sunglasses, or any other

head covering” that impedes recognition.

Shattuck administrators determined that any clothing

depicting firearms is inappropriate in a learning environ-

ment and therefore violates the dress code. Faculty, students,

and parents were advised of this unwritten rule, which

applies regardless of whether the clothing expresses a

message of support for or opposition to the right to bear

arms.

Plaintiff A.L. is a student at Kettle Moraine High School,

which serves students in grades 9 through 12 in the Kettle

Moraine School District, a large suburban district about

30 miles west of Milwaukee. On February 19, 2020, when he

was a sophomore, A.L. went to school wearing a T-shirt

displaying the logo of Wisconsin Carry, Inc., a gun-rights

organization. The logo features an image of a handgun. The

back of the shirt displays the text of the state constitution’s

guarantee of the right to bear arms, but it wasn’t visible

because A.L. wore a jacket. Here is a photograph of the front

of the shirt:

6 No. 21-1959

Justin Bestor, then the associate principal at Kettle

Moraine High, notified school principal Beth Kaminski that

A.L. was wearing a shirt displaying the image of a firearm.

Kaminski called A.L. to her office, where she and Bestor told

him that his shirt violated the school’s dress code. A.L.

zipped up his jacket to cover the shirt and returned to class.

He was not disciplined.

Like Shattuck Middle School, Kettle Moraine High’s

dress code doesn’t explicitly prohibit students from wearing

clothing that depicts firearms. Rather, the dress code in-

structs students to “wear[] attire that supports actively

engaging in the lessons and project based learning in the

classroom” and “maintain[s] a positive atmosphere condu-

cive to education.” The policy provides an illustrative list of

clothing that “do[es] not fit that description,” including

clothing with “exposed midlines or exposed bust lines”;

“revealing undergarments”; “low cut and low riding pants”;

and clothing with “inappropriate messages,” e.g., clothing

that “depict[s] or portray[s] conduct or messages [that] may

be illegal or offensive.” Kaminski and Bestor determined

that any clothing depicting firearms is “inappropriate” and

thus prohibited. This interpretation applies regardless of

No. 21-1959 7

whether the message on the clothing suggests support for or

opposition to the right to bear arms.

N.J. and A.L., through their parents as next friends, sued

Sonnabend and Kaminski in the Eastern District of

Wisconsin seeking declaratory and injunctive relief enjoining

the enforcement of the policies barring clothing that depicts

firearms. 1 The suits are separate, but the students are repre-

sented by the same attorney. The complaints, which allege

First Amendment violations and are nearly identical, were

filed on February 13 and 20, respectively—which is to say,

within 24 hours of each of the events we’ve just described.

Although the captions state that Sonnabend and Kaminski

are sued in their official and individual capacities, the com-

plaints expressly state—in the first paragraphs—that the

plaintiffs are “not seeking monetary damages.” The suits are

therefore limited to official-capacity claims for prospective

relief.

Based on the close timing and the striking similarity of

the complaints, Sonnabend and Kaminski—who, like the

students, are represented by the same lawyer—moved to

consolidate the cases. The district court granted the motion.

In the meantime, the COVID-19 pandemic arrived, and the

schools shifted to remote learning.

Following discovery, the combined case was submitted to

the court on cross-motions for summary judgment. Briefing

was completed in February 2021. By then N.J. was in eighth

grade and A.L. was a junior, the COVID-19 pandemic was

1 Two other students at Kettle Moraine High School were named as

additional plaintiffs in A.L.’s lawsuit, but they withdrew from the case

soon after it was filed.

8 No. 21-1959

almost a year old, and the schools had reopened for in-

person learning. But A.L. continued to take classes from

home because he objected to the school district’s mask

requirement.

In support of their motion, Sonnabend and Kaminski at-

tested that the alarming increase in school shootings in

recent years had amplified school-security concerns among

faculty, parents, and students. Their declarations are highly

generalized on this point, but both administrators specifical-

ly mentioned an incident at Waukesha South High School in

December 2019 in which a school resource officer shot and

wounded a student who brought a handgun to school.

Waukesha South is about 10 miles from Kettle Moraine

High. Sonnabend also cited an incident at Oshkosh West

High School in December 2019 in which a school resource

officer shot and wounded a student who stabbed him during

an altercation. Oshkosh West is about 10 miles from Shattuck

Middle School.

Sonnabend also explained that N.J. was placed in a spe-

cial program for “at risk” students based on his history of

behavior problems; for support he submitted N.J.’s discipli-

nary record. Sonnabend stated very generally that students

were “uncomfortable, felt anxious, and did not feel safe

when N.J. wore shirts with images of guns in their presence

in class.” Nothing in the record suggests that A.L. had

similar disciplinary issues, although Kaminski mentioned in

her declaration that A.L. “wore a confederate flag hat to

school on previous occasions.” She added that the high

school “has also experienced racial tension over the 2019–

2020 school year.”

No. 21-1959 9

Finally, the administrators submitted a report from a

proposed expert witness: Brad J. Bushman, a professor of

communication at The Ohio State University. Professor

Bushman holds a Ph.D. in social and personality psychology

and studies human aggression and violence. In his report,

the substantive portion of which is quite brief, he describes

something called the “weapons effect”—a theory that view-

ing an image of a gun can have the effect of “priming or

activating aggressive thoughts in memory” and that

“[p]eople who are thinking aggressive thoughts are more

likely to behave aggressively.” The plaintiffs challenged the

admissibility of Professor Bushman’s report under Rule 702

of the Federal Rules of Evidence and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). They did not dis-

pute his professional qualifications; they challenged the

reliability of his methodology, asserting that the “weapons

effect” theory has been the subject of scholarly criticism.

The judge ruled in favor of Sonnabend and Kaminski. He

first addressed whether A.L.’s status as an at-home learner

mooted his claim. The judge concluded that it did not.

Although A.L. was not at that time attending school in

person, he could return to in-person learning whenever he

wished. Next, the judge turned to the threshold question

whether wearing a T-shirt with an image of a firearm and

words conveying support for the right to bear arms is a form

of expression protected by the First Amendment. Sonnabend

and Kaminski argued that it was not, but the judge disa-

greed. The T-shirts, he explained, expressed a “positive

attitude toward firearms and the right to possess them.”

Moving on, the judge declined to apply the standard ar-

ticulated in Tinker for evaluating restrictions on student

10 No. 21-1959

speech. Instead, he looked to Muller ex rel. Muller v. Jefferson

Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), and Hazelwood

School District v. Kuhlmeier, 484 U.S. 260 (1988), two speech-

forum cases arising in the school setting. Applying the legal

standard for evaluating speech restrictions in a nonpublic

forum, the judge upheld the administrators’ actions as both

viewpoint neutral and reasonably related to the legitimate

pedagogical concerns of reducing student anxiety and

preventing the aggression that results from seeing an image

of a firearm. On the latter point, and over the plaintiffs’

objection, the judge admitted the proffered expert report

from Professor Bushman describing the “weapons effect.” 2

II. Discussion

We review the district court’s summary-judgment order

de novo. James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020).

Where, as here, the case comes to us from a decision on

cross-motions for summary judgment, we review the evi-

dence and draw all reasonable inferences “in favor of the

party against whom the motion under consideration [was]

made.” Dunnet Bay Constr. Co. v. Borggren, 799 F.3d 676, 688

(7th Cir. 2015).

A. Jurisdictional and Procedural Issues

We begin with some jurisdictional and procedural issues,

the resolution of which will narrow this dispute. As we’ve

noted, the plaintiffs raise only official-capacity claims

against the school administrators. The suits seek prospective

relief blocking the enforcement of the school policies barring

2 The plaintiffs do not challenge this ruling.

No. 21-1959 11

clothing that depicts firearms; both complaints expressly

disclaim any request for damages.

This limited request for relief affects Kaminski’s status as

a defendant and N.J.’s status as a plaintiff. Shortly after we

heard oral argument, Kaminski’s attorney notified us that

she is no longer the principal of Kettle Moraine High School

and that Bestor succeeded her in that office. Because A.L.’s

suit raises only an official-capacity claim for prospective

relief, Kaminski drops out of the case and Bestor is substitut-

ed as the defendant pursuant to Rule 43(c)(2) of the Federal

Rules of Appellate Procedure.

Additionally, we noted at oral argument that N.J.’s

eighth-grade year ended soon after the district court entered

judgment and he (presumably) had since moved on to high

school. If he is now in high school, as we assumed, then he is

no longer subject to the middle school’s dress code or

Sonnabend’s enforcement of it. So we questioned the attor-

neys about mootness. Our inquiry seemed to come as a

surprise to counsel for both sides, so we ordered supple-

mental briefs on the subject. Those briefs confirm that N.J.

completed eighth grade and no longer attends Shattuck

Middle School. Indeed, he has been a student at Neenah

High School for the entire pendency of this appeal. That

development clearly moots his case.

Article III of the Constitution limits the jurisdiction of the

federal courts to “Cases” and “Controversies,” U.S. CONST.

art. III, § 2, a limitation that “subsists through all stages of

federal judicial proceedings, trial and appellate,” Chafin v.

Chafin, 568 U.S. 165, 172 (2013) (quotation marks omitted).

“[A]n actual controversy must exist not only at the time the

complaint is filed, but through all stages of the litigation.”

12 No. 21-1959

Speech First, Inc. v. Killeen, 968 F.3d 628, 645 (7th Cir. 2020)

(quoting Ozinga v. Price, 855 F.3d 730, 734 (7th Cir. 2017)). A

federal court has no authority to give advisory opinions or

decide questions that cannot affect the rights of the parties.

Chafin, 568 U.S. at 172. “There is thus no case or controversy,

and a suit becomes moot, when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in

the outcome.” Id. (quotation marks omitted). If the court’s

decision “can no longer affect the rights of litigants in the

case before it,” then the case is moot. St. John’s United Church

of Christ v. City of Chicago, 502 F.3d 616, 626 (7th Cir. 2007).

Because N.J. now attends Neenah High School and is no

longer subject to Sonnabend’s enforcement of the middle

school’s dress code, a decision in his favor can bring no

effectual relief. His case is moot.

The parties resist this conclusion in their supplemental

briefs. N.J.’s attorney maintains that the suit is functionally

against the Neenah School District, which (he says) is broad-

ly responsible for the middle school’s dress code and its

enforcement. Because Neenah High School is in the Neenah

School District, he argues that N.J.’s suit remains live. Curi-

ously, Sonnabend’s attorney agrees. He asserts without

evidence that the high school has the same dress code as the

middle school.

But N.J. did not sue the Neenah School District or any

official with responsibility for enforcing the high school’s

policies. Nor is there any evidence in the record about the

content of the high school’s dress code or how school offi-

cials interpret and apply it. Because N.J. no longer has a

stake in the interpretation and enforcement of the middle

No. 21-1959 13

school’s dress code, his case is moot and must be dismissed

for lack of jurisdiction.

A.L.’s claim, however, is not moot. Although he was tak-

ing classes remotely while his case was in the district court,

the judge correctly concluded that he continued to have a

legally cognizable interest in the outcome of the litigation

because he could return to in-person classes at any time.

Moreover, the parties have given us updated information

about A.L.’s current attendance status. Masks are now

optional at Kettle Moraine High. The school board lifted the

mask mandate soon after the judge entered summary judg-

ment. 3 Since then, A.L. has been attending classes in person,

as the parties confirmed in their supplemental briefs. The

dispute about his Wisconsin Carry T-shirt remains live.

B. A.L.’s First Amendment Claim

We proceed, then, to the merits of A.L.’s First Amend-

ment claim. As an initial matter, Bestor—now substituted as

the defendant—insists that A.L.’s case does not implicate

constitutionally protected speech at all. The judge was right

to reject this contention, which mistakenly treats A.L.’s claim

as if it rested on conduct rather than expression. It’s true that

certain forms of expressive conduct are entitled to constitu-

tional protection only if the conduct is “‘inherently expres-

sive’” and “comprehensively communicate[s] its own

message without additional speech.” Tagami v. City of

3 See Stephen Plum, Updated Letter: Board Votes to Make Masks Recommend-

ed Starting May 24, KETTLE MORAINE SCH. DIST. (May 19, 2021),

https://www.kmsd.edu/site/default.aspx?PageType=3&DomainID=15&M

oduleInstanceID=21&ViewID=6446EE88-D30C-497E-9316-3F8874B3E108

&RenderLoc=0&FlexDataID=8276&PageID=23.

14 No. 21-1959

Chicago, 875 F.3d 375, 378 (7th Cir. 2017) (quoting Rumsfeld v.

F. for Acad. & Inst’al Rts., Inc., 547 U.S. 47, 66 (2006)). But that

standard doesn’t apply here. This case isn’t about expressive

conduct; it’s about speech.

Although “clothing as such” is not normally classified as

constitutionally protected expression, “there can be speech

printed on clothing … that convey[s] a political or other

message.” Brandt v. Bd. of Educ., 480 F.3d 460, 465 (7th Cir.

2007). A.L.’s T-shirt fits the bill. The front of the shirt is

imprinted with the logo of Wisconsin Carry, Inc., a gun-

rights group. As the organization’s name and the logo’s

image of a handgun imply, Wisconsin Carry endorses and

advocates for the right to bear firearms. 4 Reinforcing this

message, the back of the T-shirt contains the text of the

provision in the Wisconsin Constitution securing the right to

keep and bear arms in state law. See WIS. CONST. art. I, § 25.

A.L.’s T-shirt, through its text and the image of a handgun,

conveys a political message—a positive opinion of firearms

and support for the right to bear them. The shirt qualifies as

a form of protected expression.

One final threshold matter warrants clarification before

we reach the substance of A.L.’s claim. As we’ve explained,

the dress code at Kettle Moraine High does not, on its face,

prohibit clothing depicting firearms. When we asked at oral

argument whether A.L. was raising a facial or an as-applied

constitutional challenge, his counsel equivocated; he seemed

to want to keep all theories on the table. Yet we see no

factual or legal basis for a facial challenge in the briefing on

4 See WIS. CARRY, INC., http://www.wisconsincarry.org/ (last visited

June 15, 2022).

No. 21-1959 15

appeal. The plaintiffs did raise an overbreadth argument in

the district court, but the judge rejected it and the argument

is not mentioned on appeal. What’s left is a challenge to

Kaminski’s interpretation and application of Kettle Moraine

High’s dress code on these particular facts—more precisely,

a challenge to her determination that all clothing depicting

firearms is “inappropriate” and thus prohibited under the

code. Bestor endorsed Kaminski’s interpretation and was

directly involved in enforcing it, so his substitution as the

defendant does not leave an evidentiary gap about how he

interprets and enforces the dress code.

With that point clarified, we come at last to the substance

of A.L.’s claim. The Supreme Court’s foundational student-

speech decision is Tinker, the seminal 1969 case involving

several high-school and junior-high students who were

suspended for wearing black armbands to school to express

their opposition to the Vietnam War. 393 U.S. at 504. They

sued school officials for violating their First Amendment

rights. The Court agreed that their armband protest was

protected speech and announced a legal standard for evalu-

ating restrictions on the constitutional right of public-school

students to express their opinions.

The Court began by confirming the basic principle that

students do not “shed their constitutional rights to freedom

of speech or expression at the schoolhouse gate.” Id. at 506.

Absent a “specific showing of constitutionally valid reasons

to regulate their speech, students are entitled to freedom of

expression of their views.” Id. at 511. But the speech rights of

students do not mirror those of adults. The Court explained

that student-speech claims must be evaluated “in light of the

special characteristics of the school environment.” Id. at 506.

16 No. 21-1959

Those special characteristics include “the comprehensive

authority of the States and of school officials, consistent with

fundamental constitutional safeguards, to prescribe and

control conduct in the schools.” Id. at 507. Balancing the

speech rights of students with the need for school officials to

set standards for student conduct, the Court held that re-

strictions on student speech are constitutionally justified if

school authorities reasonably forecast that the speech in

question “would materially and substantially disrupt the

work and discipline of the school” or invade the rights of

others. Id. at 513.

The “substantial disruption” standard announced in

Tinker requires “more than a mere desire to avoid the dis-

comfort and unpleasantness that always accompany an

unpopular viewpoint.” Id. at 509. An “undifferentiated fear

or apprehension of disturbance is not enough to overcome

the right to freedom of expression.” Id. at 508. The armband-

wearing students had been punished for “a silent, passive

expression of opinion, unaccompanied by any disorder or

disturbance,” or any “interference, actual or nascent,” with

the school’s work or “the rights of other students.” Id. The

record contained no facts that “might reasonably have led

school authorities to forecast substantial disruption of or

material interference with school activities, and no disturb-

ances or disorders on the school premises in fact occurred.”

Id. at 514. Under these circumstances, the Court held that

suppressing the students’ speech violated their rights under

the First Amendment. Id.

Since Tinker the Court has identified “three specific cate-

gories of student speech that schools may regulate” regard-

less of whether the circumstances satisfy Tinker’s “substantial

No. 21-1959 17

disruption” standard. Mahanoy Area Sch. Dist. v. B.L. ex rel.

Levy, 141 S. Ct. 2038, 2045 (2021). The first and perhaps most

obvious category is “indecent[,] … vulgar[,] and lewd

speech.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685

(1986). Fraser concerned a high-school student who was

suspended for delivering a “sexually explicit monologue” to

an “unsuspecting audience of teenage students” at a school

assembly. Id. The Court held that school officials acted well

within their broad authority, recognized in Tinker, to disci-

pline the student for his lewd speech because it was “wholly

inconsistent with the fundamental values of public school

education.” Id. at 685–86 (quotation marks omitted). The

Court did not apply Tinker’s “substantial disruption” stand-

ard to this category of student speech. It was enough that

allowing the student’s sexually explicit speech to go unpun-

ished “would undermine the school’s basic educational

mission.” Id. at 685.

Second, the Court has held that school officials may regu-

late student speech “that can reasonably be regarded as

encouraging illegal drug use.” Morse v. Frederick, 551 U.S.

393, 397 (2007). Morse involved a high-school student who

was suspended for unfurling a large banner bearing the

phrase “BONG HiTS 4 JESUS” at a school-sponsored event

in front of the school. Id. The banner’s meaning was “cryp-

tic,” id. at 401, but school officials reasonably concluded that

it promoted illegal drug use, id. at 410. The Court held that

“[t]he First Amendment does not require schools to tolerate

at school events student expression that contributes to [the]

dangers” of illegal drug use. Id. Again, the Court did not

apply the test announced in Tinker. The upshot is that school

officials may regulate this category of student speech with-

out regard to Tinker’s substantial-disruption standard.

18 No. 21-1959

The third category is student expression that others

“might reasonably perceive to bear the imprimatur of the

school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271

(1988). Kuhlmeier concerned the authority of school officials

to maintain editorial control over the content of a high-

school student newspaper. The newspaper was sponsored,

supported, and supervised by the school, and a faculty

member directed and reviewed the work of the student

journalists. Under these circumstances, the editorial content

of the newspaper—although student written—carried the

imprimatur of the school. The issue, then, was not the same

as in Tinker: the question was not whether the school must

tolerate particular student speech but whether it must affirma-

tively promote particular student speech. Id. at 270–71. In

other words, the Court had to decide “when a school may

refuse to lend its name and resources to the dissemination of

student expression.” Id. at 272–73. The Tinker standard was a

poor fit.

The Court instead applied its First Amendment forum

doctrine, concluding that the school-sponsored newspaper

was a nonpublic forum. Id. at 267–70. As such, school offi-

cials were entitled to regulate its contents “in any reasonable

manner.” Id. at 270. Adapting this standard to the public-

education setting, the Court held that school officials may

“exercis[e] 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 273.

Tracing these key student-speech precedents brings into

sharper focus the core doctrinal question in this case: Does

A.L.’s claim fall within any of the three categories of cases

No. 21-1959 19

that may be resolved without regard to Tinker’s substantial-

disruption standard? The answer is “no.” A.L.’s Wisconsin

Carry T-shirt isn’t like the lewd sexual speech at issue in

Fraser. Nor is it analogous to the student’s banner in

Frederick, which was reasonably understood to promote

illegal drug use, or the school-sponsored student newspaper

in Kuhlmeier. The default rule is the one announced in Tinker.

The judge expressly declined to apply Tinker, opting in-

stead to analyze this case under our decision in Muller. That

was a mistake, but perhaps an understandable one. Muller

involved a fourth-grade student who was denied permission

from the school principal to disseminate fliers at school

inviting classmates to attend a Bible study at his church.

98 F.3d at 1532–33. The case produced a fractured decision.

Judge Manion, writing for himself, traced the evolution of

the Supreme Court’s student-speech cases—from Tinker to

Kuhlmeier—and suggested that the speech rights of elemen-

tary-school students might not enjoy much protection at all.

Id. at 1535–39 (opinion of Manion, J.). No other judge on the

panel joined this part of his opinion. He ultimately settled on

Kuhlmeier as supplying the proper framework for decision.

Id. at 1537, 1539. After concluding that the elementary school

was a nonpublic forum, he asked only whether the re-

striction on the student’s distribution of literature was

reasonable. Id. at 1541 (“In a nonpublic forum, only unrea-

sonable restrictions are forbidden.”).

Judge Eschbach agreed with the application of the

Kuhlmeier standard and joined this part of Judge Manion’s

opinion. Id. at 1545 (Eschbach, J., concurring). He also joined

Judge Manion’s treatment of an argument about content and

viewpoint discrimination. After acknowledging the general

20 No. 21-1959

rule that government officials may not restrict speech based

on its content or viewpoint, the majority explained its view

that the neutrality rule was incompatible with the basic role

of public education. Id. at 1542. Summing up, the majority

held that although a school “may not act unreasonably, [it]

need not tolerate student expression of viewpoints [that] are

fundamentally ‘inconsistent with its basic educational

mission.’” Id. (quoting Kuhlmeier, 484 U.S. at 266). Under the

lenient “reasonableness” standard, the majority upheld the

school’s speech restriction. Id. at 1543.

Judge Rovner concurred. Id. at 1545–47 (Rovner, J., con-

curring in part and concurring in the judgment). In her view

“a more searching review, akin to that applied in Tinker,”

was required. Id. at 1546. But she concluded that the princi-

pal’s action survived review even under that “more strin-

gent review,” so she joined the majority in upholding the

restriction. Id. at 1547.

We take no position on the outcome in Muller, but we

think it’s clear under recent Supreme Court caselaw that

Judge Rovner was right and the majority’s decision to apply

Kuhlmeier was in error. As explained, the Court has recog-

nized three categories of student speech that may be regulat-

ed without regard to the Tinker standard. The Kuhlmeier

category is plainly limited to “speech that others may rea-

sonably perceive as ‘bear[ing] the imprimatur of the school,’

such as that appearing in a school-sponsored newspaper.”

Mahanoy, 141 S. Ct. at 2045 (alteration in original) (quoting

Kuhlmeier, 484 U.S. at 271). The Muller majority did not

apprehend this limitation; the church fliers at issue there

could not reasonably be perceived as bearing the imprimatur

of the school.

No. 21-1959 21

We add, however, that we do not understand the list of

three Tinker-exempt categories—most recently synthesized

in Mahanoy—to be exclusive; other categories might emerge

on new facts. It’s enough for present purposes to say that

nothing in Muller justified an expansion of the list. Muller, in

turn, led to the judge’s doctrinal misstep in this case, so

clarification is warranted. Because Muller mistakenly applied

Kuhlmeier and speech-forum analysis, it is overruled. 5

It follows that it was error for the judge here to apply

Muller and Kuhlmeier. Unlike the high-school student news-

paper in Kuhlmeier, nothing about A.L.’s T-shirt bears the

imprimatur of his school. No observer would construe the

message on his T-shirt as school-sponsored or school-

endorsed speech. Rather, A.L.’s Wisconsin Carry T-shirt is

materially indistinguishable from the black armbands in

Tinker. It’s an expression of his political opinion, just like the

armbands expressed the students’ opposition to the Vietnam

War. Tinker is the controlling authority.

We reached the same conclusion on similar facts in

Nuxoll ex rel. Nuxoll v. Indian Prairie School District No. 204,

523 F.3d 668 (7th Cir. 2008), another student T-shirt case.

There we considered whether a high school could prohibit a

student from wearing a T-shirt with the slogan “Be Happy,

Not Gay” in response to the school’s “Day of Silence”

celebration, which promoted tolerance of homosexuality. Id.

at 670. The school’s dress code—like Kettle Moraine High’s—

used broad language prohibiting all “derogatory com-

5 Because this opinion overrules circuit precedent, we circulated it to the

active members of the court under Circuit Rule 40(e). No judge requested

to hear this case en banc.

22 No. 21-1959

ments,” including those that refer to sexual orientation. Id.

We reversed the district court’s denial of a preliminary

injunction, holding that barring the student from wearing

the shirt likely violated the Tinker standard. Id. at 675–76.

When the case returned after final judgment under the name

Zamecnik v. Indian Prairie School District No. 204, we upheld a

permanent injunction against the school and affirmed an

award of nominal damages. 636 F.3d 874, 879–81 (7th Cir.

2011).

Nuxoll applied the Tinker standard to factual circum-

stances materially identical to this case. But the judge de-

clined to follow it, finding the case distinguishable because

the school’s action in banning the student’s “Be Happy, Not

Gay” T-shirt was not viewpoint neutral. That’s true, see

Nuxoll, 523 F.3d at 670, but it’s not a reason to cast aside

Tinker in favor of Kuhlmeier. To repeat: Kuhlmeier’s regulation-

permissive test applies when the speech in question might

reasonably be perceived “as bear[ing] the imprimatur of the

school.” Mahanoy, 141 S. Ct. at 2045 (alteration in original)

(quotation marks omitted). A.L.’s T-shirt doesn’t qualify.

We return, then, to the Tinker standard: restrictions on

student speech are constitutionally justified if school officials

can show that the speech in question “would materially and

substantially disrupt the work and discipline of the school”

or invade the rights of others. 393 U.S. at 513. It’s not neces-

sary to prove “that unless the speech at issue is forbidden[,]

serious consequences will in fact ensue.” Nuxoll, 523 F.3d at

673. But mere speculation won’t do, id. at 676, and there’s no

“generalized ‘hurt feelings’ defense to a high school’s viola-

tion of the First Amendment rights of its students,”

Zamecnik, 636 F.3d at 877. Rather, school officials must

No. 21-1959 23

present “facts [that] might reasonably have led school au-

thorities to forecast substantial disruption of or material

interference with school activities” or the invasion of the

rights of others. Tinker, 393 U.S. at 514; see also Nuxoll,

523 F.3d at 673. It’s an objective inquiry, and Tinker places the

burden of justifying student-speech restrictions squarely on

school officials. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist.,

969 F.3d 12, 25 (1st Cir. 2020) (collecting cases).

At the same time, the Tinker standard acknowledges the

broad authority of school officials to maintain order and

discipline and establish conditions in the school environ-

ment that are conducive to learning. “[W]e must not ignore

the Supreme Court’s admonition that ‘a school need not

tolerate student speech that is inconsistent with its basic

educational mission.’” Brandt, 480 F.3d at 467 (quoting

Kuhlmeier, 484 U.S. at 266). The application of Tinker must

account for such factors as the age and grade level of the

students to whom the speech is directed and any factors

particular to the educational environment or history of the

school or student body in question. Temporal factors and

recent events might be relevant. And the inquiry accounts

for the professional knowledge and experience of school

administrators in setting and enforcing disciplinary stand-

ards. Tinker, 393 U.S. at 507 (“[T]he Court has repeatedly

emphasized the need for affirming the comprehensive

authority … of school officials, consistent with fundamental

constitutional safeguards, to prescribe and control conduct

in the schools.”).

Because the judge did not apply Tinker, the prudent

course is to remand to allow him to do so in the first in-

stance. The parties’ arguments on appeal mostly concerned

24 No. 21-1959

the choice of legal standard rather than its application; the

briefing contains only limited analysis of A.L.’s case under

the substantial-disruption standard. With the legal frame-

work clarified, the judge may want to invite new submis-

sions from the parties.

Accordingly, we vacate the judgment and remand for fur-

ther proceedings in A.L.’s case. On remand N.J.’s case must

be dismissed for lack of jurisdiction.

VACATED AND REMANDED WITH INSTRUCTIONS