A full federal appeals court has declined to overturn a panel ruling that upheld school administrators who required a Michigan 3rd grader to remove a hat picturing an AR-15 style rifle with the phrase, “Come and take it.”
The Aug. 12 order in C.S. v. McCrumb by the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, was accompanied by a sharp exchange between two judges.
One judge suggested the student’s hat at school was likely protected by the First Amendment.
“I find it difficult to accept the notion that displaying an image of a gun on one’s clothing at school, without more, would disrupt the school day in substantial ways,” Judge Chad A. Readler wrote, adding that the student’s First Amendment free speech claim raised “a serious charge of viewpoint discrimination.”
Judge Eric L. Clay, who had written the May 2 decision for a unanimous three-judge panel upholding the school administrators, issued a fresh opinion this week concurring in the decision against a full rehearing and directly challenging Readler’s position.
The school administrators’ actions were based on a “well-founded fear of disruption in the school environment,” he said, and Readler “unduly minimizes the effect of the students’ young ages and the hat’s provocative message.”
That was especially true, Clay said, with respect to the unusual fact that the elementary school in question was just about 40 miles from the site of the 2021 shooting at Oxford High School, in which a 15-year-old student opened fire with a 9 mm semiautomatic handgun, killing four students and wounding seven others, including a teacher.
Student’s lawsuit cites landmark Tinker decision
The student, identified in court papers as C.S., wore the “Come and take it” hat to Robert Kerr Elementary School in Durand, Mich., in February 2022 on “Wear a Hat Day,” which was part of the school’s “Great Kindness Challenge.”
The Oxford shooting had occurred just three months earlier, and some families had transferred from the Oxford district to schools in Durand amid concerns about Oxford administrators’ actions before the shooting.
When the school principal learned about C.S.’s hat, she had concerns that its message and image of an assault weapon might cause a disturbance, especially among the former Oxford district students, some of whom were receiving counseling and social work support to deal with their trauma.
Administrators asked the student’s father, Adam Stroub, to bring a different hat to school, but he refused. C.S. agreed to remove her hat and place it in her locker.
The family sued under the First Amendment, arguing that the hat was not offensive and “only portrays support for the right to keep and bear arms in a non-violent, non-threatening manner.” They argued that C.S. had a right to wear the hat based on the U.S. Supreme Court’s 1969 landmark student speech decision in Tinker v. Des Moines Independent Community School District.
Both a federal district court and the 6th Circuit panel ruled for the school administrators, with the panel ruling in May that several factors supported the decision, including the elementary school setting, the hat’s provocative message, the proximity to the Oxford shooting, and the presence of former Oxford students.
The panel said those factors supported the exception in Tinker for student speech that would substantially disrupt the school environment.
Judges trade written jabs
Readler, an appointee of President Donald Trump, called his opinion this week a statement rather than a dissent from the denial of rehearing because he said he agreed the case did not merit a fresh look by the full 6th Circuit. The three-judge panel had ruled on narrow, fact-specific grounds, he said.
Still, he laid out his views that C.S.’s hat was likely protected speech. He suggested that the school administrators’ rationales were developed after the fact rather than at the time they asked C.S. to remove her hat.
“A reasonable juror could conclude that the school’s later-stated reasons were pretextual and that officials made C.S. remove her hat simply because they disagreed or were uncomfortable with the viewpoint displayed there,” Readler said.
He also was “less convinced” than the panel that the presence of students who had transferred from the Oxford schools could justify the administrators’ actions.
“As a factual matter, because the Oxford shooting occurred in a high school, the directly impacted students were unlikely to be elementary school age,” Readler said.
Clay, a President Bill Clinton appointee, responded to those points in his opinion.
While Readler expected school administrators to “tie all of their reasons neatly together on Hat Day” for responding to C.S.’s hat, “Tinker does not require a school’s reasoning to be laboriously or meticulously detailed in order for its officials to act,” Clay said.
As for Readler’s observation that any former Oxford students at Kerr Elementary would not have witnessed the Oxford High School shooting, Clay said, “young children and their families still suffer legitimate trauma when their siblings, friends, neighbors, teachers, or other acquaintances from within the same school system are involved in a deadly school shooting.”
