Brandt, Michael D. v. Kotis, Chris ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1999, 06-2573
MICHAEL D. BRANDT, on behalf of himself
and all others similarly situated,
Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 0904—Amy J. St. Eve, Judge.
____________
ARGUED JANUARY 4, 2007—DECIDED FEBRUARY 20, 2007
____________
Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. This class action suit was brought
on behalf of 24 eighth graders at a Chicago public
school called the Beaubien Elementary School. They
were disciplined for conducting a protest that they claim is
privileged by the free-speech clause of the First Amend-
ment, held applicable to state action by the Fourteenth
Amendment. The suit was dismissed on the defendants’
motion for summary judgment, so we state the facts as
favorably to the plaintiffs as the record permits.
2 Nos. 06-1999, 06-2573
Every year the eighth graders choose a class T-shirt.
Among the designs submitted for the 2003 contest was
plaintiff Michael Brandt’s; his mother is the plaintiffs’ lead
counsel. Brandt was in the school’s program for gifted
students. The program draws from all over Chicago. The
other students in the school, the ones who are not in the
gifted program, are local. There are some tensions be-
tween the “gifties,” as the students in the gifted program
call themselves, and the “tards,” a derogatory term (short
for “retards”) sometimes applied by gifties to the other
students. The gravity of those tensions is not revealed by
the record.
The gifties had agreed to vote en bloc for Brandt’s T-shirt
design, and when it lost they smelled a rat, and submitted
a protest to the principal. Some 30 designs in all had been
submitted. There were 27 gifties and 72 other students in
the eighth grade; and so if the 27 voted en bloc for one
design and the votes of the 72 other students were scat-
tered across the 29 other designs, the gifties’ design
would be almost certain to obtain a plurality of the votes.
Yet when the ballots were counted, the teacher in charge
of the contest announced that the vote was too close to
call. She ordered a revote limited to three of the designs,
one of them Brandt’s; and with only two competing
designs, the gifties’ bloc-voting scheme failed. The teach-
ers’ practice, it turned out, was to conduct a revote among
the top three contenders if the initial vote did not produce
a winner with a majority, not merely a plurality, of the
votes cast. The winning design unfortunately is not in the
record, but apparently it was inoffensive, with an animal
and a cap depicted on the front of the shirt and the names
of all the eighth graders listed on the back.
Nos. 06-1999, 06-2573 3
The gifties were indignant. When the teacher refused
to explain her runoff system or how the votes had been
counted and what the tally had been, Brandt added the
words “Gifties 2003” to the back of his T-shirt design; shirts
incorporating the design were produced; and the gifties
wore those shirts in school instead of the T-shirt that had
won the contest. (A photocopy of the shirt is appended to
this opinion.) They did this both to protest what they
considered a rigged election and because they thought
that Brandt’s design represented the gifties better than
the winning (and therefore the official) class T-shirt did.
In wearing the Brandt shirt, the gifties were acting in
defiance of the principal of the Beaubien school, who
having gotten wind of their plan had told them that
wearing the shirt would show disrespect for him and
create a risk to the good order of the school, presumably
because it might offend the students who had voted for
the winning T-shirt, although he did not make this point
explicitly. An assistant principal warned that if they
wore the shirt the gifties would be violating a provision
(since changed) of the Chicago Public Schools’ Uniform
Discipline Code that prohibited students from wearing
clothing with “inappropriate words or slogans,” and
would be punished.
Despite this warning, the gifties went ahead with their
plan. But, craftily, they first wore the forbidden shirt on
the day when city-wide tests were administered to public
school students. They figured the school would not take
disciplinary action against them on that day, lest that
lower the school’s average test scores (they are gifties,
after all). But on each of nine subsequent days, the
shirt was worn by at least one gifty, and each time all the
gifties were punished by being confined to their home-
4 Nos. 06-1999, 06-2573
room, as a result missing gym, science lab, computer lab,
and after-school activities. Eventually the school sum-
moned a “Crisis Intervention Team” from the Board of
Education, and it investigated and decided that the wear-
ing of the Brandt T-shirt by the gifties was not a
safety problem (that is, would not lead to violent alterca-
tions with the other eighth graders), so the gifties were
permitted to resume wearing the shirt.
The plaintiffs seek both equitable relief and damages.
Originally they sought an injunction against the “inappro-
priate words or slogans” rule and an order that the
school expunge any record of the disciplinary action taken
against the gifties. Not only were the gifties ultimately
permitted to wear the Brandt T-shirt, but the rule has been
changed; and so the plaintiffs have dropped their re-
quest for an injunction. In any event, they’re all now in
high school, having graduated from the eighth grade years
ago; their quest to enjoin the rule is therefore moot. Board
of School Commissioners v. Jacobs, 420 U.S. 128, 129 (1975)
(per curiam); DeFunis v. Odegaard, 416 U.S. 312, 318-19
(1974) (per curiam); Stotts v. Community Unit School District,
230 F.3d 989, 991 (7th Cir. 2000). They could not invoke the
exception, to the normal rule of mootness, for claims that
are “capable of repetition, yet evading review,” Roe v.
Wade, 410 U.S. 113, 124-25 (1973), because it requires that
the claim be repeatable by the same plaintiff. Weinstein
v. Bradford, 423 U.S. 147, 148-49 (1975) (per curiam); Murphy
v. Hunt, 455 U.S. 478, 482 (1982) (per curiam); Majors v.
Abell, 317 F.3d 719, 722-23 (7th Cir. 2003); Stotts v. Commu-
nity Unit School District, supra, 230 F.3d at 991; Donovan v.
Punxsutawney Area School Board, 336 F.3d 211, 216-18 (3d
Cir. 2003)—a condition rarely satisfied other than in
abortion and election cases, though it could be satisfied in
Nos. 06-1999, 06-2573 5
a school case, see Jones v. Illinois Dept. of Rehabilitation
Services, 689 F.2d 724, 727-28 (7th Cir. 1982), if for example
the suit was over something that had happened at the
end of one school year but could happen again at the
end of the next year and the plaintiff would still be in
school then. But the condition is impossible to satisfy in
this case, as none of the plaintiffs will ever again be gifties
or subject to the superseded clothing rule.
The school has retained no records of the discipline
meted out to the gifties over the T-shirt incident, which
would seem to moot the other equitable claim, the
claim that the record of their discipline be expunged. But
they are asking that the school authorities be forbidden to
tell anyone that the gifties were punished for wearing
the Brandt T-shirt. There is a touch or irony in the claim,
since by filing this suit the plaintiffs have spread far and
wide the information concerning their conduct and the
school’s response to it; the suit has attracted a fair amount
of publicity. See www.google.com/search?hl=en&q=
gifties+beaubien+brandt, visited Jan. 26, 2007. There is
further irony in requesting in a suit based on freedom of
speech an order curtailing the defendants’ freedom of
speech. Suppose the principal of Beaubien Elementary
School decided to write a memoir in which he planned
to discuss the T-shirt brouhaha—maybe it was the most
exciting episode in his career as a school administrator.
Should he be enjoined from doing that? He could be
enjoined, as it is a myth that all injunctions against free
speech are barred by the First Amendment as “prior
restraints,” see, e.g., Madsen v. Women’s Health Center, Inc.,
512 U.S. 753, 762-66 (1994); Snepp v. United States, 444 U.S.
507, 510 n. 3 (1980) (per curiam); Pittsburgh Press Co. v.
Pittsburgh Commission on Human Relations, 413 U.S. 376, 389-
6 Nos. 06-1999, 06-2573
90 (1973); Near v. Minnesota, 283 U.S. 697, 715-16 (1931);
United States v. Progressive, Inc., 467 F. Supp. 990 (W.D.
Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979), but
only if there was evidence that the defendants were
likely to conduct a vendetta against the gifties—were
trying to block their access to college or to good jobs by
spreading the word that they had been punished for
wearing an unofficial T-shirt. The plaintiffs do not claim
to have any evidence of so improbable a plot.
Sufficient unto the day is the evil thereof. Any defen-
dants who in a spirit of vengeance spread the word that
the gifties were disciplined will be vulnerable, at least
in principle, to a suit for defamation unless they make
clear that the discipline that they imposed had been
disapproved by the Board of Education’s Crisis Inter-
vention Team. Conceivably they would be vulnerable to
being sued for committing other torts as well, such as
depicting a person in a false light or interfering with his
actual or prospective contracts, for example with a pos-
sible employer. Of course no college or employer would
be likely to be much concerned with mild discipline meted
out to an eighth grader. An air of unreality clings to every
aspect of this litigation.
But we must trudge on, and consider the plaintiffs’
damages claim. Even multiplied by 24 (the number of
members of the plaintiff class), the damages sustained by
an eighth grader as a consequence of missing phys ed
and labs on nine days out of an entire school year are
minuscule to the point of nonexistent; and de minimis non
curat lex (the law doesn’t concern itself with trifles) is a
doctrine applicable to constitutional as to other cases.
Ingraham v. Wright, 430 U.S. 651, 674 (1977); United States v.
Broomfield, 417 F.3d 654, 656 (7th Cir. 2005); Hessel v.
Nos. 06-1999, 06-2573 7
O’Hearn, 977 F.2d 299, 303-04 (7th Cir. 1992); Linwood v.
Board of Education, 463 F.2d 763, 767-68 (7th Cir. 1972). It
is true that nominal damages can be awarded for a consti-
tutional violation, Carey v. Piphus, 435 U.S. 247, 266-67
(1978); Calhoun v. DeTella, 319 F.3d 936, 940-41 (7th Cir.
2003), as is sometimes true for other intentionally tortious
conduct as well. E.g., Ainsworth v. Century Supply Co.,
693 N.E.2d 510, 514 (Ill. App. 1998); Sanchez v. Clayton, 877
P.2d 567, 573 (N.M. 1994). But such an award presupposes
a violation of sufficient gravity to merit a judgment,
even if significant damages cannot be proved; and this is
not such a case. In any event there has been no constitu-
tional violation.
The plaintiffs do not argue that the Brandt T-shirt is itself
protected speech. They are right not to make such an
argument. Although freedom of speech and of the
press—the relevant terms in the First Amendment—are
often loosely paraphrased as “freedom of expression,” and
clothes are certainly a way in which people express them-
selves, clothing as such is not—not normally at any
rate—constitutionally protected expression. Tinker v. Des
Moines Independent Community School District, 393 U.S. 503,
507-08 (1969); Blau v. Fort Thomas Public School District,
401 F.3d 381, 389 (6th Cir. 2005) (12-year-old “Amanda
Blau’s desire to wear clothes she ‘feel[s] good in,’ as op-
posed to her desire to express ‘any particular message’ ”
held not to be protected speech). Self-expression is not to
be equated to the expression of ideas or opinions and
thus to participation in the intellectual marketplace. Nor
is the kind of “message” that clothing normally sends—
“I am rich,” “I am sexy,” “I have good taste,” and so
forth—intended to contribute to competition in that
marketplace.
8 Nos. 06-1999, 06-2573
Of course there can be speech printed on clothing,
political symbols such as a swastika or a campaign button
affixed to clothing, and masks and costumes that convey
a political or other message. See, e.g., Texas v. Johnson,
491 U.S. 397, 404 (1989), and cases cited there. Merely
wearing clothes inappropriate to a particular occasion
could be a political statement. For that matter, parading in
public wearing no clothing at all can, depending on the
circumstances, convey a political message. White Tail Park,
Inc. v. Stroube, 413 F.3d 451, 460-61 (4th Cir. 2005); United
States v. Various Articles of Merchandise, 230 F.3d 649, 658-
59 (3d Cir. 2000); Huffman v. United States, 470 F.2d 386,
399 (D.C. Cir. 1971). But the picture and the few
words imprinted on the Brandt T-shirt are no more ex-
pressive of an idea or opinion that the First Amendment
might be thought to protect than a young child’s talentless
infantile drawing which Brandt’s design successfully
mimics. Otherwise every T-shirt that was not all white
with no design or words, with not even the manu-
facturer’s logo or the owner’s name tag, would be pro-
tected by the First Amendment, and schools could not
impose dress codes or require uniforms without violat-
ing the free speech of the students, a proposition sen-
sibly rejected in the Blau case.
The plaintiffs argue, however, that when worn as part
of a protest against the election to choose the official
class shirt, the Brandt T-shirt became protected expres-
sion. That is not a ridiculous argument. If Irish people
were forbidden to wear green on St. Patrick’s Day, a
natural form of protest would be to wear green on that
day. Cf. Clark v. Community for Creative Non-Violence, 468
U.S. 288, 303-05 (1984). But the importance of context
cuts both ways. The protesters in this case are school-
Nos. 06-1999, 06-2573 9
children. They are privileged schoolchildren in a school
that contains a majority of nonprivileged children. They
insist that unless their T-shirt is adopted by the entire
eighth grade, they will as it were secede, and flaunt their
own T-shirt. They do not recognize the principal’s author-
ity or the legitimacy of the school’s procedures for deter-
mining the winner of contests.
We have our doubts whether the constitutional privilege
to engage in protest demonstrations in the name of free
speech extends to eighth graders. The plaintiffs’ lawyer
told us at argument that the clause extends at least as far
down the maturity ladder as a 10-year-old (a proposition
in profound tension with Muller by Muller v. Jefferson
Lighthouse School, 98 F.3d 1530, 1538-39 (7th Cir. 1996), and
Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728,
736-38 (7th Cir. 1994), and cases cited there), and that the
object of the protest is irrelevant. It could be, she acknowl-
edged, a protest against the brand of ketchup served in the
school cafeteria. She insists that the school’s authority
to prevent or punish such protests must be decided by
a jury asked to strike the balance between free speech
and school order. If she is right, then from now on public
school policies and practices will be determined in this
circuit by juries rather than by school authorities. Cf.
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
But we need not go so far as to deny that eighth graders
have any First Amendment rights, for it is plain that the
school did not violate the amendment by attempting,
albeit with distinctly limited success because of the deci-
sion of the Crisis Intervention Team, to exclude the Brandt
T-shirt from the school. We must be precise about the
right that the plaintiffs sought to vindicate by protesting. It
is the right to an explanation by the school for how the
10 Nos. 06-1999, 06-2573
election to pick an official eighth-grade T-shirt was con-
ducted. We do not think eighth graders have such a right.
For the school to hold an election for class T-shirt and
rig the results, as the plaintiffs suspect happened, is
probably not a recommended educational practice, but it
is not an infringement of any legal right.
In any event, it was not the protest as such that was
forbidden, but merely a particular means of protest. The
gifties were free to protest in more conventional, less
potentially disruptive, ways than by the wearing of the
Brandt T-shirt. City of Erie v. Pap’s A.M., 529 U.S. 277, 293
(2000) (plurality opinion); One World One Family Now v.
City & County of Honolulu, 76 F.3d 1009, 1014 (9th Cir.
1996). They did so—they petitioned the principal and
made a presentation to the Local School Council at the
principal’s urging and were not punished for doing so.
Their parents amplified the gifties’ voices of protest. With
many routes of communication open to the gifties, the
closing of the T-shirt route inflicted the most minimal of
possible injuries, if injury at all (as we doubt), to the
First Amendment.
Public schools have an interest of constitutional dignity
in being allowed to manage their affairs and shape their
destiny free of minute supervision by federal judges and
juries. Academic freedom, “a special concern of the First
Amendment.” Keyishian v. Board of Regents, 385 U.S. 589,
602 (1967), is not just the freedom of teachers, school
authorities, and to an extent students to express ideas and
opinions. “It includes the authority of the university to
manage an academic community and evaluate teaching
and scholarship free from interference by other units of
government, including the courts.” Hosty v. Carter, 412 F.3d
731, 736 (7th Cir. 2005) (en banc); see also Grutter v. Bol-
Nos. 06-1999, 06-2573 11
linger, 539 U.S. 306, 328-30 (2003); Regents of University of
Michigan v. Ewing, 474 U.S. 214, 225 (1985); Piarowski v.
Illinois Community College District 515, 759 F.2d 625, 629-30
(7th Cir. 1985). Most of the cases that honor that interest
involve colleges and universities, but their principle
applies with equal if not greater force to lower schools as
well, see, e.g., Chicago Board of Education v. Substance, Inc.,
354 F.3d 624, 630-31 (7th Cir. 2003), and implies that the
principals of those schools have discretion to regulate
students’ conduct in order to maintain an atmosphere
conducive to learning. E.g., Vernonia School District 47J v.
Acton, 515 U.S. 646, 655-56 (1995); Baxter by Baxter v. Vigo
County School Corp., supra, 26 F.3d at 737. Just weeks ago we
held that an elementary-school teacher has no “constitu-
tional right to introduce his own views on the subject but
must stick to the prescribed curriculum—not only the
prescribed subject matter, but also the prescribed perspec-
tive on that subject matter.” Mayer v. Monroe County
Community School Corp., No. 06-1993, 2007 WL 162833, at *1
(7th Cir. Jan. 24, 2007). So if, contrary to what we said
earlier, the Brandt T-shirt is “speech,” still we must not
ignore the Supreme Court’s admonition that “a school
need not tolerate student speech that is inconsistent with
its ‘basic educational mission.’ ” Hazelwood School District
v. Kuhlmeier, supra, 484 U.S. at 266.
Prohibiting children from wearing to school clothing that
contains “inappropriate” words or slogans places appro-
priately broad limits on the school authorities’ exercise of
discretion to maintain a proper atmosphere. Tighter limits,
expressed in precise rules, would prevent them from
responding to novel challenges well illustrated by the
present case. Whatever the Crisis Intervention Team may
have thought with the benefit of hindsight, the principal of
12 Nos. 06-1999, 06-2573
the Beaubien school had to decide before the T-shirt protest,
and therefore with less information than the Crisis Infor-
mation Team had, whether to permit the gifties to protest
the election results by flouting the official T-shirt. After
having reasonably decided not to permit such conduct,
he had to decide whether to allow the gifties to defy his
prohibition, and he again reasonably decided that the
imposition of mild discipline was necessary in order to
affirm his authority and maintain order.
He may, of course, have been wrong. But the existence
of discretion implies a license to make mistakes. An
exercise of official discretion is reversible by a court only
when the official can be said to have abused his discretion,
implying conduct not merely mistaken in retrospect but
unreasonable. E.g., Zhou v. Guardian Life Ins. Co., 295 F.3d
677, 679-80 (7th Cir. 2002); Morton v. Smith, 91 F.3d 867, 870
(7th Cir. 1996). The principal (himself an alumnus of
the eighth grade at Beaubien Elementary School) did not
abuse his discretion.
We do not accept all the arguments that the defendants
press on us. They say that the Brandt T-shirt had to be
banned because it ridicules students with disabilities—the
right hand of the cartoon figure is deformed. It is more
likely that Brandt simply can’t draw very well. Neverthe-
less the principal would have been justified in banning
the wearing of the shirt had he reasonably believed that
it would be offensive to disabled children. But that was
not his ground. The defendants also contend that there
was a danger that the non-gifted children would be
incensed by the gifties’ refusal to accept the result of the
election, and violence might result; there apparently had
been a shoving incident between a “gifty” and a “tard” a
week before the gifties started wearing the Brandt T-shirt.
Nos. 06-1999, 06-2573 13
But the evidence of tensions between the two groups of
student was not developed, and so cannot be a ground
for upholding the defendants’ actions.
There is, however, ground enough, as we have ex-
plained. The T-shirt is not protected speech, and we are
doubtful that it became so by being a vehicle for eighth
graders to protest the outcome of a T-shirt contest. If
protected at all, it was not immune from reasonable
regulation by the school authorities.
The plaintiffs argue finally that the district judge should
not have ordered them to pay the defendants’ costs. There
is no possible merit to the argument. They have made the
defendants jump through a number of costly hoops in
this protracted litigation and must bear the usual conse-
quences of failed litigation.
AFFIRMED.
14 Nos. 06-1999, 06-2573
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-20-07