Students have First Amendment rights. Firearms Policy Coalition announced that lawyers representing a student with chilled pro Second Amendment speech requested an en banc review by the Sixth Circuit Court.
The case, C.S. v. McCrumb, involves a student who was banned from wearing a hat by her school that had the words “Come and Take It” on it. It’s said that the hat also bore the image of an AR-15. The student was attempting to wear the hat to her school’s “hat day.” A three-judge panel from the Sixth Circuit Court of Appeals sided with the school earlier this month, and C.S.’s attorneys are now seeking review from the full court.
The 2022 case was filed through the student’s father and “alleges that officials with Durand (Michigan) Area Schools violated the student’s constitutionally protected rights when school officials prevented her from wearing a pro-Second Amendment hat.”
“On the summary judgment record construed in a light most favorable to [the student], as it must be,” the filing states. Further, “school officials based their decision only on their own subjective dislike of guns and on vague speculation about scuffling schoolkids—plainly insufficient to meet their heavy burden under Tinker to show specific and justifiable fear of specific disruption.”
The Tinker v. Des Moines Independent Community School District U.S. Supreme Court decision notes that:
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
Tinker further observes that:
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.
FPC says that C.S. “seeks a legal declaration that wearing the hat in question is constitutionally protected speech and a permanent injunction prohibiting the school officials from restricting her speech so she can wear her pro-Second Amendment hat and peacefully express her views in a manner consistent with the Supreme Court’s decisions on student speech rights.”
“The 3-judge panel clearly failed to follow the Supreme Court’s binding precedents and refused to uphold this student’s constitutionally protected rights because they disliked the content and viewpoint of her speech,” said FPC President Brandon Combs. “We are pressing this case forward to fix the panel’s grievous error and restore the First Amendment right to peacefully support Second Amendment rights in the Sixth Circuit. Students cannot be forced to abandon their First Amendment right to peacefully speak in favor of other enumerated rights, including the right to keep and bear arms.”
C.S. is being represented by Eugene Volokh, Michael F. Smith of the Smith Appellate Law Firm, and John R. Monroe of John Monroe Law, P.C. Volokh is the originator of “The Volokh Conspiracy,” a publication about constitutional law hosted by “Reason Magazine.”
The outcome of the C.S. en banc request is going to be interesting. In light of the Supreme Court’s recent denial of L.M. v. Middleborough, Massachusetts, et.al.–a case involving a Mass. student prohibited from wearing a shirt that said “There are only two genders”–the question needs to be asked: will the full panel review the case and view C.S. through the appropriate lens of Tinker? Or, will the Sixth Circuit allow the three-judge panel’s decision to stand? Regardless of the outcome, it’s probable C.S. will be Supreme Court bound.
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