Guiles v. Marineau, No. 05-0327 (2d Cir. Aug. 30, 2006)

The U.S. Court of Appeals for the Second Circuit has ruled that a school district violated a student’s free speech rights when it disciplined him for wearing a T-shirt critical of President Bush that featured drug and alcohol related images and text. Zachary Guiles, a student at Williamstown Middle High School (WMHS), wore the T-shirt on several occasions over two months without provoking a response. However, when he attempted to wear it on a field trip, a parent-chaperone complained to a school official. The shirt referred to the president as "Chicken-Hawk-in-Chief" and included text and drawings alluding to his alleged past drug and alcohol abuse. After consulting with the superintendent, a school official decided that the drug and alcohol imagery violated the school's dress code. He gave Zachary three options: (1) turn the shirt inside out; (2) change shirts; or (3) cover the images of drugs and alcohol, including the word "cocaine." After speaking with his father, Zachary instead left school for the day. The next day he wore the shirt again. When he refused to choose one of the three options, he received a written disciplinary referral and was sent home. The following day he wore the shirt with the images of drugs and alcohol and the word "cocaine" covered with duct tape, on which "Censored" was scrawled. He then sued to block the district from enforcing its dress code.

A Vermont federal district court found the drug and alcohol images plainly offensive or inappropriate for purposes of Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), and therefore ruled that the censorship of the images was proper. The Fraser standard holds that school officials may prohibit speech, even if it is political, if the speech is lewd, offensive, or inappropriate in a school setting. But the trial court also held the school violated Zachary’s free speech rights by censoring the word "cocaine," and it ordered the disciplinary referral expunged from his academic record. Both sides appealed.

The Second Circuit affirmed in part, vacated in part, and remanded the case to the district court. The appeals court reviewed the U.S. Supreme Court’s decisions in Fraser and Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), as well as its ruling in Hazelwood School District v. Kuhlmeier, 484 U.S. 261 (1988), that school officials may regulate school-sponsored speech if they have a legitimate pedagogical reason for doing so. The court concluded that Zachary’s speech was governed by the principles enunciated in Tinker, rather those enunciated in Fraser or Hazelwood, because his speech was neither school-sponsored nor lewd, vulgar, indecent, or plainly offensive. What is "plainly offensive" for purposes of Fraser, the court determined, is somewhat narrower than the dictionary definition of "that which causes displeasure or resentment or is repugnant to accepted decency." Other courts that have addressed Fraser, the court found, appear to treat "plainly offensive" as synonymous with lewd, vulgar and indecent, i.e., speech just shy of obscene that has a sexually charged nature. In support of its conclusion that Fraser is not applicable to drug and alcohol imagery, the Second Circuit cited the Ninth Circuit’s recent opinion in Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006), in which that court invalidated a school’s disciplinary action against a student who displayed a banner captioned "Bong Hits 4 Jesus." The Ninth Circuit found that, "The phrase ‘Bong Hits 4 Jesus’ may be funny, stupid, or insulting, depending on one’s point of view, but it is not ‘plainly offensive’ in the way sexual innuendo is." Similarly, the Second Circuit found, the imagery on Zachary’s T-shirt might displease school administrators and could be construed as insulting or in poor taste, but it could not be characterized as plainly offensive when it lacked a sexually charged or profane nature.

The court rejected school officials’ argument that they could restrict the T-shirt’s imagery under Fraser as counter to the school’s anti-drug message and therefore "inconsistent with the district’s basic educational mission." If school officials were to have the authority to censor images based on their belief that the images are contrary to the school’s educational mission, Tinker and Hazelwood would in effect be swallowed by the rule in Fraser, the court reasoned. Here the court echoed the Ninth Circuit in Frederick rather than the Sixth Circuit, which found in Boroff v. Van Wert City Board of Education, 220 F.3d 14 465 (6th Cir. 2000), that schools have "wide-ranging discretion to determine the appropriateness or inappropriateness of certain messages at school" under Fraser. Having determined that the Tinker standard controls, the court applied Tinker’s disruption test to Zachary’s case. It concluded that the T-shirt caused no disruption and that there was no evidence such disruption might occur. As a result, the censorship was unwarranted. The court rejected school officials’ contention that covering the images resulted in no harm because Zachary’s political message remained intact. The images were a crucial part of the message, and covering them diluted that message. The court stressed that its holding was limited to the facts in this case and did not reach the issue of whether images of illegal drugs and alcohol on a T-shirt that promotes drug and alcohol use could be censored.

[Editor’s Note: The opening line of the court’s opinion is, "This case requires us to sail into the unsettled waters of free speech rights in public schools, waters rife with rocky shoals and uncertain currents." Nonetheless, the Ninth Circuit in Frederick found that the defendant principal could be personally liable because any reasonable principal should have known that her actions were unconstitutional. The Juneau school district in that case has asked the U.S. Supreme Court to review the decision. Former independent prosecutor Kenneth Starr is representing the district pro bono. NSBA joined an amicus brief by the Alaska Association School Boards when the case was before Ninth Circuit and will submit a brief to the Supreme Court in support of the school district. For a summary of the lower court’s opinion in Guiles and additional information on Frederick, see the links below.]