N.J. v. Sonnabend

536 F.Supp.3d 392

N.J., BY his NEXT FRIEND, Kelly JACOB, Plaintiff,

v.David SONNABEND, individually and in his official capacity as Associate Principal of Shattuck Middle School, Defendant.

A.L., by his next friend, Tara Lloyd, Plaintiff,

v.Beth Kaminski, individually and in her official capacity as Principal of Kettle Moraine High School, Defendant.

Case No. 20-C-227

Case No. 20-C-276

United States District Court, E.D. Wisconsin.

Signed May 3, 2021

John R. Monroe, John Monroe Law PC, Dawsonville, GA, for Plaintiff.

Jonathan E. Sacks, Ronald S. Stadler, Jackson Lewis PC, Milwaukee, WI, for Defendant.

DECISION AND ORDER

William C. Griesbach, United States District Judge

These consolidated cases present the question of whether middle and high school administrators can constitutionally prohibit students from wearing shirts bearing images of guns while attending school. Plaintiffs are N.J., who at the time the case was filed was a seventh-grade student attending Shattuck Middle School in the Neenah School District, and A.L., who attended Kettle Moraine High School operated by the Kettle Moraine School District. N.J. and A.L., by their next friends, seek permanent injunctions enjoining the defendant school administrators from enforcing dress code prohibitions of clothing depicting firearms. The cases are before the Court on the parties’ cross-motions for summary judgment. For the reasons that follow, Defendants’ motion for summary judgment will be granted and Plaintiffs’ motion will be denied.

UNDISPUTED MATERIAL FACTS

A. N.J. and Shattuck Middle School

N.J. is a student at Shattuck Middle School, which is operated by the Neenah Joint School District and educates seventh- and eighth-grade students. David Sonnabend is the Associate Principal at Shattuck Middle School and has been for all times relevant to this case. N.J. was a seventh-grade student during the 2019–2020 school year and is currently in eighth grade. N.J. is a supporter of the Second Amendment and a gun enthusiast. He goes target shooting on a regular basis. He also hunts and has taken a hunter safety course. He believes that the personal possession of arms, as guaranteed by the Second Amendment, is of value to society. He owns a variety of shirts that express his beliefs.

Shattuck Middle School has a dress code. During the 2019–2020 school year, the dress code provided that "[c]lothing must also be appropriate for a professional atmosphere and not disruptive to the learning environment" and included a non-exhaustive list of what is not permitted. Defs.’ Proposed Findings of Fact (DPFOF) ¶ 12, Dkt. No. 36. The dress code was amended for the 2020–2021 school year and now provides:

The Neenah Joint School District prioritizes a safe learning environment. It is important that your student dress not compromise the safety of our learning environment for any of our students or staff. If a student's attire creates a learning environment that is deemed unsafe for students or staff, the student may be asked to change the clothing that is creating a disruption to the safe learning environment.

Id. ¶ 13. All teachers are made aware of the dress code at the start of each year, and all teachers were informed during their in-service prior to the start of the 2019–2020 school year that clothing with images of firearms was inappropriate and prohibited under the dress code. Students are made aware of the dress code during the registration process, and the dress code is addressed on the first day of school in each core class as part of a Positive Behavioral Interventions and Supports lesson. Students are told that they can express individuality without compromising safety through slogans promoting tobacco, alcohol, drug use, or containing suggestive, sexual, or offensive references. They are also advised of safety concerns related to clothing with weapons images or references creating fear and anxiety in students. The prohibition against displaying images of firearms applies equally to all images regardless of whether the message conveyed is in favor of or against firearms and laws controlling their sale and use.

On February 12, 2020, N.J. wore a shirt with the inscription "Smith & Wesson Firearms – Made in the USA Since 1852." In addition to the inscription, which is apparently the logo of the Smith & Wesson company, the shirt also had a depiction of a revolver. A photograph of the shirt is shown below:

Dkt. No. 15 at 3.

N.J. visited his English Language Arts teacher, Jennifer Peterson, before class. She saw the Smith & Wesson shirt and observed that it had an image of a handgun on it. Peterson referred N.J. to Sonnabend, as N.J. had been warned several times that school year about wearing clothing that depicted firearms. Sonnabend spoke to N.J. that day and asked if N.J. had any clothing with him that he could wear over the Smith & Wesson shirt. N.J. produced a sweatshirt from his backpack and used it to cover up the shirt and returned to class. Sonnabend again told N.J. that he could not wear clothing depicting firearms because it was disruptive.

Sonnabend called N.J.’s home, and N.J.’s mother's boyfriend, Jason Kraayvanger, answered the call. Sonnabend informed him that N.J. had worn the Smith & Wesson shirt to school and that he had asked N.J. to cover the shirt. Kraayvanger went to the school with another shirt. Kraayvanger did not bring a shirt for N.J. to change into but brought another example of what N.J. might wear. That sweatshirt had the words "I'm a patriot" and "Weapons are part of my religion." The sweatshirt, shown below, also included the text " " and " ", referring to the Second Amendment and the year 1776, and depicts a medieval helmet alongside two antique rifles.

Id. Sonnabend interpreted Kraayvanger's actions as showing the types of clothing that N.J. liked to wear and might wear in the future.

N.J. was never disciplined for wearing a shirt depicting a firearm, but he was directed to remove or cover the image each time he wore one. It was only the images of the firearms that violated the dress code. N.J. would not have been prohibited from wearing, for example, a shirt that only conveyed a message with words such as "Smith & Wesson," "1776," and "2A." DPFOF ¶ 33. Teachers and staff in N.J.’s academy have also previously asked N.J. to cover or change his shirt when he wore clothing depicting a firearm.

Students at Shattuck Middle School have reported to teachers and guidance counselors that clothing depicting firearms like those worn by N.J. made them feel uncomfortable and that they felt uncomfortable, anxious, and unsafe when N.J. wore shirts with images of guns in their presence in class. Id. ¶¶ 35–36. Sonnabend believed that N.J.’s repeated wearing of shirts depicting weapons caused a disruption to students in Shattuck's "At Risk Academy," where N.J. was enrolled, because the images of firearms made other students anxious and concerned and created an uncertainty for other students about whether guns would be brought to school. Id. ¶ 39. Students assigned to the At Risk Academy have been identified as at risk of not graduating from high school in accordance with the State of Wisconsin criteria. The At Risk Academy offers more individualized attention and utilizes a project-based learning method for students who may not have the same social and emotional skills as other students.

In February 2020, students seemed more sensitive about school violence as a result of two school shooting incidents that occurred at schools in nearby Oshkosh and Waukesha, and across the country in general. Id. ¶ 58. As a result of the school shootings, Shattuck Middle School tightened up its safety drills.

B. A.L. and Kettle Moraine High School

A.L. is a student at Kettle Moraine High School, a public school in the Kettle Moraine School District. Beth Kaminski is the Principal of Kettle Moraine High School. Like N.J., A.L. is also a gun enthusiast and supporter of the Second Amendment to the United States Constitution. On February 19, 2020, A.L. wore a shirt with an image of a gun to school. Kaminski had A.L. report to her office to have a conversation with him. The shirt contained the words "Wisconsin Carry, Inc." and the organization's logo, which is a handgun tucked behind the inscription, as if the gun were in a holster and the inscription were a belt. An image of the shirt is shown here:

Dkt. No. 15 at 4. Kaminski and Associate Principal Bestor spoke to A.L. about the shirt, told him it violated the school dress code, and directed him to zip up his hoodie jacket, which A.L. did. The same image is also on the back of the shirt, along with the text of the amendment to the Wisconsin Constitution recognizing the right of the people "to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose." Wis. Const. art. I, § 25. Kaminski never saw the back of the shirt, however, because A.L. was wearing a hoodie jacket at the time.

Kettle Moraine High School has a dress code. The dress code provides in relevant part that students at Kettle Moraine should always strive to be neat in appearance, clean, well-groomed, and wearing attire that supports actively engaging in the lessons and project-based learning in the classroom. The dress code also provides that clothing styles that do not fit that description include, but are not limited to, articles of clothing with "inappropriate messages – including cartoons, slogans, or advertisements which have more than one meaning, or those which depict or portray conduct or messages which may be illegal or offensive." DPFOF ¶ 74.

Kaminski interprets the dress code's prohibition on inappropriate messages to cover the image of a handgun. The prohibition against displaying images of firearms applies equally to all images regardless of whether they are pro-gun or anti-gun. On February 19, 2020, Kaminski and Bestor told A.L. he was not permitted to wear clothing that depicted firearms. Kaminski told A.L. that he had to cover up the...