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Published in Print: October 16, 2002, as Law Update

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Court: Foxworthy Shirt Is First Amendment-Worthy

Who knew there were self-proclaimed rednecks in New Jersey?

A federal appeals court has ruled that the Warren Hills, N.J., school district cannot use its policy against racial harassment to bar students from wearing a T-shirt featuring the "redneck" humor of the comedian Jeff Foxworthy. At issue was a shirt featuring "reasons you might be a Redneck Sports Fan."

Among the suggestions from Mr. Foxworthy, who once had his own network television series, were: "There's a roll of duct tape in your golf bag," and "Your carpet used to be part of a football field."

Thomas Sypniewski, then a senior, wore the T-shirt to Warren Hills Regional High School last year and was suspended for three days. The suspension led to a lawsuit and a lengthy dissection by a three- judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

Central to the court's analysis was not simply the humor of Mr. Foxworthy, which it saw as relatively harmless, but the fact that Warren Hills High had experienced several racial incidents involving students wearing Confederate flag shirts and a student gang that referred to itself as "the Hicks" and held "white-power Wednesdays."

Mr. Sypniewski, who has since graduated from the school, denied being a member of the Hicks but acknowledged wearing clothing with a Confederate theme, including a T-shirt with the word "redneck" incorporating the Confederate battle flag.

In March 2001, the school board of the 2,100-student district adopted a policy against racial harassment that included a ban on Confederate symbols. Soon after the board's new policy went into effect, Mr. Sypniewski wore the Jeff Foxworthy shirt, which came from a local Wal-Mart. He was suspended after refusing school administrators' orders to turn it inside out.

A younger brother, Brian, wore an identical shirt to his middle school and was not disciplined.

After the school board upheld Thomas Sypniewski's suspension, the family sued the school district in federal district court in Trenton, N.J. They claimed the racial- harassment policy violated the First Amendment rights of free speech of all three of their sons, including Brian Sypniewski's twin brother, Matthew, who likewise owned a Foxworthy shirt. The district court refused to issue an injunction barring enforcement of the policy.

But in an Oct. 3 decision, the court of appeals panel voted 2-1 to reverse that ruling.

Although the high school had experienced racial incidents, and the word "redneck" had some association with the Hicks, the court held that the word could not be equated with racial harassment. The majority said that the Jeff Foxworthy shirt was "harmless on its face" and had caused no disruption when Thomas Sypniewski wore it to the high school.

"The wearing of the Foxworthy T-shirt ... might be seen as a veiled celebration of bigotry," the majority said. "But there is no evidence that 'redneck' had or has such a meaning in the Warren Hills schools."

The court also struck down a portion of the district's harassment policy barring the display of material that may create "ill will," saying such language was unconstitutionally overbroad.

Writing in dissent, U.S. Circuit Judge Max Rosenn said he would have allowed the district to prohibit "redneck" T-shirts.

"There is substantial evidence that . . . T-shirts, whether depicting the Confederate flag or 'redneck,' were symbols of racial intolerance and divisiveness to the students and faculty," he wrote.

Violent Letters

In another recent ruling on student expression, the U.S. Court of Appeals for the 8th Circuit, in St. Louis, upheld the expulsion of a student who wrote letters threatening violence against his ex-girlfriend, even though the boy never delivered them.

Students identified in court papers as J.M. and his girlfriend, K.G., were going steady during 7th grade at Northwood Junior High School in the 18,300-student Pulaski County, Ark., district. During the summer after that school year, K.G. broke off the relationship.

J.M. then wrote two obscenity-laced letters in which he discussed his wish to sodomize, rape, and kill K.G. One letter includes a warning that K.G. should not go to sleep because J.M. would be lying under her bed waiting to kill her with a knife, according to court papers.

The boy did not deliver the letters to his ex-girlfriend. Shortly before his 8th grade year began in fall 2000, one of his friends found one letter on top of J.M.'s dresser. J.M snatched it away, but then let his friend read it. J.M. also discussed the letter with his ex- girlfriend in a telephone conversation. His friend later took the letter without J.M.'s knowledge and gave it to K.G. She was upset, and when school officials learned about it, they expelled J.M. for the rest of the school year.

J.M.'s mother sued in federal district court, and a federal judge ruled in 2000 that the letter was not a true threat of violence because J.M. had prepared it at home and did not intend to deliver it. The court ordered J.M. reinstated with all rights and privileges.

But in a Sept. 25 opinion, the full 8th Circuit court ruled 6-4 in favor of the school district, which includes most of the suburbs of Little Rock, Ark. The majority concluded that J.M. had "intended to communicate the letter and is therefore accountable if a reasonable recipient would have viewed the letter as a threat."

The court noted J.M.'s testimony that he knew there was a good chance his friend would tell K.G. about the letter. Based on his willingness to let his friend read the letter and his own discussion of the letter with K.G., J.M. could hardly say he "intended to keep the letter, and the message it contained, within his own lockbox of personal privacy," the majority said.

The dissenters said that the letters apparently sat on J.M.'s dresser for weeks or months after he wrote them before his friend discovered one.

"It was a private response to his breakup," said the dissent by U.S. Circuit Judge Gerald W. Heaney. "J.M. never intended anyone to see his letter."

—Mark Walsh

Vol. 22, Issue 7, Page 10

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