461 F.3d 320 (2nd Cir. 2006), 05-0327, Guiles ex rel. Guiles v. Marineau

Docket Nº:05-0327-CV(L), 05-0517-CV(XAP).
Citation:461 F.3d 320
Party Name:Zachary GUILES, by his father and next friend, Timothy GUILES; and by his mother and next friend Cynthia Lucas, Plaintiff-Appellant-Cross-Appellee, v. Seth MARINEAU, Kathleen Morris-Kortz, Douglas Shoik and Rodney Graham, Defendants-Appellees-Cross-Appellants.
Case Date:August 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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461 F.3d 320 (2nd Cir. 2006)

Zachary GUILES, by his father and next friend, Timothy GUILES; and by his mother and next friend Cynthia Lucas, Plaintiff-Appellant-Cross-Appellee,


Seth MARINEAU, Kathleen Morris-Kortz, Douglas Shoik and Rodney Graham, Defendants-Appellees-Cross-Appellants.

Nos. 05-0327-CV(L), 05-0517-CV(XAP).

United States Court of Appeals, Second Circuit.

Aug. 30, 2006

Argued Oct. 28, 2005.

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Stephen L. Saltonstall, Barr, Sternberg, Moss, Lawrence, Silver & Saltonstall, P.C., Bennington, VT (David J. Williams, Sleigh & Williams, St. Johnsbury, VT, of counsel; ACLU Foundation of Vermont, Inc., cooperating attorney), for Plaintiff-Appellant-Cross-Appellee.

Anthony B. Lamb, Burlington, VT (Mary L. Desautels, Lamb & Desautels, Attorneys at Law, P.C., Burlington, VT, of counsel), for Defendants-Appellees-Cross-Appellants.

Before CARDAMONE, POOLER, and SOTOMAYOR, Circuit Judges.

CARDAMONE, Circuit Judge.

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. Plaintiff Zachary Guiles, a 13-year-old student at Williamstown Middle High School (WMHS, Williamstown High School, or school) in Williamstown, Vermont, claims his right under the First Amendment to wear a T-shirt depicting President George W. Bush in an uncharitable light has been violated. The T-shirt, through an amalgam of images and text, criticizes the President as a chicken-hawk president and accuses him of being a former alcohol and cocaine abuser. To make its point, the shirt displays images of drugs and alcohol.

Upon the complaint of another student and her mother, school officials made Guiles put duct tape over the alcohol- and drug-related pictures on the ground that those illustrations violate a school policy prohibiting any display of such images. Plaintiff, through his mother and father, brought the instant action to enjoin the school's application of the policy to his shirt, asserting that the policy violates his freedom to engage in political speech. After a three-day bench trial, the United States District Court for the District of Vermont (Sessions, C.J.) held the school's censorship a permissible abridgement of Guiles's First Amendment rights. From this holding the plaintiff appeals. The district court also ordered that the disciplinary action defendants took against plaintiff be expunged from his school record. From this holding defendants appeal. Guiles ex rel. Lucas v. Marineau, 349 F.Supp.2d 871 (D.Vt.2004). For the reasons set forth below, we affirm in part, vacate in part, and remand this case to the district court.

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A. The Parties

In May 2004 plaintiff Guiles was a seventh-grade student at Williamstown Middle High School. Defendant Seth Marineau was the student support specialist at the school during the 2003-2004 academic year. His job included enforcing dress code policy. Defendant Kathleen Morris-Kortz was the principal of the high school, and defendant Douglas Shoik was the superintendent of the Orange North Supervisory Union, which includes WMHS (collectively, defendants). In his action Guiles has sued the defendants in their official capacities.

B. The T-shirt

In March 2004 plaintiff began wearing the offending T-shirt to school. He had purchased it at an anti-war rally he attended. The front of the shirt, at the top, has large print that reads "George W. Bush," below it is the text, "Chicken-Hawk-In-Chief." Directly below these words is a large picture of the President's face, wearing a helmet, superimposed on the body of a chicken. Surrounding the President are images of oil rigs and dollar symbols. To one side of the President, three lines of cocaine and a razor blade appear. In the "chicken wing" of the President nearest the cocaine, there is a straw. In the other "wing" the President is holding a martini glass with an olive in it. Directly below all these depictions is printed, "1st Chicken Hawk Wing," and below that is text reading "World Domination Tour."

The back of the T-shirt has similar pictures and language, including the lines of cocaine and the martini glass. The representations on the back of the shirt are surrounded by smaller print accusing the President of being a "Crook," "Cocaine Addict," "AWOL, Draft Dodger," and "Lying Drunk Driver." The sleeves of the shirt each depict a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a bottle and three lines of cocaine with a razor. Without question Guiles's T-shirt uses harsh rhetoric and imagery to express disagreement with the President's policies and to impugn his character.

C. School Action Relating to the T-shirt

Guiles wore the T-shirt on average once a week for two months. Although the shirt evoked discussion from students, it did not cause any disruptions or fights inside or outside the school. But, the T-shirt raised the ire of one fellow student whose politics evidently were opposed to Guiles's. This student complained to teachers who told her that the shirt was political speech and therefore protected.

On May 12, 2004 Guiles was to go on a school field trip. He wore the T-shirt that day. A parent who was to chaperone the trip--indeed the parent of the student who had previously complained to teachers regarding the shirt--noticed the shirt and voiced her objection to defendant Marineau.

Marineau, after consulting with Shoik, determined that the T-shirt, specifically the images of drugs and alcohol, violated the following provision of the WMHS dress code:

Any aspect of a person's appearance, which constitutes a real hazard to the health and safety of self and others or is otherwise distracting, is unacceptable as an expression of personal taste. Example [Clothing displaying alcohol, drugs, violence, obscenity, and racism is outside our responsibility and integrity guideline as a school community and is prohibited].

WMHS Student/Parent Handbook 2003-2004 at 13 (brackets in original).

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Marineau gave Guiles three choices: (1) turn the shirt inside-out; (2) tape over the images of the drugs and alcohol and the word "cocaine"; or (3) change shirts. Marineau was unsure whether the word cocaine violated the policy. He did not, however, relay this doubt to the student, leaving the student to think that it too must be taped over. Guiles's father came in to speak with Marineau, who reiterated that the shirt contravened dress code policy. Guiles and his father then went to speak with Shoik who reaffirmed what Marineau had said. Guiles returned home with his father for the remainder of that day.

On May 13, 2004 plaintiff returned to school wearing the T-shirt. Marineau again instructed him to tape over the offending images with duct tape, turn the shirt inside out, or change shirts. Guiles declined, and Marineau filled out a discipline referral form and sent plaintiff home. The discipline referral form remains in Guiles's record. On May 14, 2004 Guiles again wore the T-shirt to school, this time, however, with the images of drugs and alcohol and the word "cocaine" covered with duct tape. On the duct tape plaintiff had scrawled the word "Censored."


Plaintiff then brought suit in federal district court seeking to enjoin defendants from enforcing the dress code policy with regard to his T-shirt, and the district court conducted a three-day bench trial. Defendants submitted the deposition testimony of Carol L. Rose, the prevention and safety coordinator for the Safe and Healthy School Team at the Vermont Department of Education. Rose opined that the Williamstown High School's policy of prohibiting all images of drugs and alcohol (even such images used on anti-drug T-shirts and posters) was appropriate because it furthers the school's environmental approach--which calls for limiting student exposure to all such images. However, when asked whether "clothing that depicts anti-alcohol, drug or cigarette messages is just as harmful to students as clothing that advertises it," she responded that she did not know.

Plaintiff submitted a letter of the Vermont Department of Education stating that it did not take a position with respect to the merits of the case and that "[t]estimony provided by deposition of Carol Rose ... was not intended to draw any conclusions with respect to the outcome of the case or any substantive legal issue therein [and] [t]o the extent it did, it did not reflect an official position" of the Department. Guiles also presented the testimony of Charles Phillips, a former principal of a neighboring school. Phillips testified that at his school the approach was to ban images that advocated drug and alcohol use. He also testified that he was unaware of any evidence that anti-drug and anti-alcohol messages encouraged students to use such substances. Because Guiles's T-shirt conveyed an anti-drug message, he would not have censored it at his school.

Finding the images plainly offensive or inappropriate under Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the district court held the school's censorship of the images was proper and declined to issue an injunction. The trial court also held the school violated Guiles's free speech rights by censoring the word cocaine, and therefore it ordered the discipline referral form expunged from Guiles's academic record. Guiles and defendants both appeal.


Standard of Review

Normally we review the district court's findings of fact for clear error and

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its conclusions of law de novo. See Fed.R.Civ.P. 52(a); Ramos v. Town of Vernon, 353 F.3d 171, 174 (2d Cir.2003). But because this appeal concerns allegations of abridgement of free speech rights, we do not defer to the district court's findings of fact. Instead, in First Amendment cases we make an independent and...

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