354 F.3d 249 (4th Cir. 2003), 03-1125, Newsom ex rel. Newsom v. Albemarle County School Bd.

Docket Nº:03-1125
Citation:354 F.3d 249
Party Name:Newsom ex rel. Newsom v. Albemarle County School Bd.
Case Date:December 01, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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354 F.3d 249 (4th Cir. 2003)

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 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 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.

No. 03-1125.

United States Court of Appeals, Fourth Circuit

December 1, 2003

Argued: Sept. 25, 2003.

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[Copyrighted Material Omitted]

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ARGUED:

Daniel Mark Zavadil, National Rifle Association 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 Carolina, 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, Individual 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 Foundation, 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.

Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge WILLIAMS and Judge SHEDD joined.

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

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from a district court order denying his motion for a preliminary injunction seeking to enjoin the enforcement of the portion of Jouett's 2002-2003 dress code which prohibits "messages on clothing, jewelry, 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 injunctions 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 students from wearing, inter alia, "messages on clothing, jewelry, and personal belongings that relate to drugs, alcohol, tobacco, sex, vulgarity, or that reflect adversely upon persons because of their race or ethnic group."

On April 29, 2002, during the student lunch period at Jouett, Elizabeth 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 purple t-shirt, which depicted three black silhouettes of men holding firearms superimposed on the letters "NRA" positioned above the phrase "SHOOTING SPORTS CAMP." Although the men appear to be aiming their firearms, the t-shirt did not indicate what or whom their targets 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.

According to Pitt, she had the immediate impression that the figures 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 immediately 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 middle school students to promote the use of guns. Pitt felt that the imagery 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

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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 situation because he simply needed to change his t-shirt. When Newsom 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 possibility. 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, alcohol, 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 objectionable 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...

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