Newsom v. Albemarle Cnty

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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  No. 03-1125
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

2 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
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.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CA-02-101-3)
Argued: September 25, 2003
Decided: December 1, 2003
Before WILLIAMS and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 3
Vacated and remanded with instructions by published opinion. Senior
Judge Hamilton wrote the opinion, in which Judge Williams and
Judge Shedd joined.
COUNSEL
ARGUED: Daniel Mark Zavadil, NATIONAL RIFLE ASSOCIA-
TION 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 Caro-
lina, 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, INDIVID-
UAL 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 FOUNDA-
TION, 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.
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
from a district court order denying his motion for a preliminary
injunction seeking to enjoin the enforcement of the portion of Jouett’s
4 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
2002-2003 dress code which prohibits "messages on clothing, jew-
elry, 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 injunc-
tions 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 stu-
dents from wearing, inter alia, "messages on clothing, jewelry, and
personal belongings that relate to drugs, alcohol, tobacco, sex, vulgar-
ity, or that reflect adversely upon persons because of their race or eth-
nic group."
On April 29, 2002, during the student lunch period at Jouett, Eliza-
beth 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 pur-
ple t-shirt, which depicted three black silhouettes of men holding fire-
arms superimposed on the letters "NRA" positioned above the phrase
"SHOOTING SPORTS CAMP." Although the men appear to be aim-
ing their firearms, the t-shirt did not indicate what or whom their tar-
gets 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.
1
During the times relevant to this litigation, over 500 students were
enrolled in the sixth, seventh, and eighth grades at Jouett.
NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 5
According to Pitt, she had the immediate impression that the fig-
ures 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 imme-
diately 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 mid-
dle school students to promote the use of guns. Pitt felt that the imag-
ery 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 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
6 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
situation because he simply needed to change his t-shirt. When New-
som 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 possi-
bility. 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, alco-
hol, 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 objec-
tionable 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 Amendment rights to freedom of
speech and association had been infringed.3 In his complaint, New-
2
For ease of reference, we will refer to this provision as the 2002-2003
Jouett Dress Code.
3
For ease of reference, we will refer to the defendants as Jouett.
NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 7
som alleged, inter alia, that: (1) his First Amendment rights were vio-
lated when he was instructed to change his t-shirt or turn it inside out
in April 2002; (2) his due process rights were violated because the
2001-2002 dress code did not give him notice that wearing his t-shirt
would subject him to disciplinary action; and (3) the 2002-2003 Jouett
Dress Code both was unconstitutionally overbroad and vague. Along
with his complaint, Newsom filed a motion for a preliminary injunc-
tion seeking to enjoin the enforcement of the 2002-2003 Jouett Dress
Code to the extent that it prohibited "the wearing of clothing or jew-
elry that depicts images of or messages containing weapons or fire-
arms images that are being used and/or contained in a lawful, non-
violent, non-threatening display of speech, expression, or associa-
tion." According to Newsom, such an injunction would not only allow
him to wear the t-shirt he was banned from wearing, but also allow
him to wear other t-shirts containing messages related to the lawful
possession of firearms.
The district court held a hearing on the motion for preliminary
injunction on October 2, 2002. On December 20, 2002, the district
court filed a memorandum opinion in which it concluded that New-
som was not entitled to a preliminary injunction, principally because
Newsom did not demonstrate that he had a likelihood of success on
the merits of any of his claims. With regard to the censorship of New-
som’s t-shirt in April 2002, the district court assumed, without decid-
ing, that the t-shirt constituted symbolic speech. The district court
went on to opine that the censorship of Newsom’s t-shirt was permis-
sible because Jouett only sought to suppress the form of the message
(graphic description of gunmen) and not the message itself. With
regard to Newsom’s due process, vagueness, and overbreadth claims,
the district court ostensibly found that Newsom would not likely suc-
ceed on the merits of these claims because a school dress code need
not be as detailed as a criminal code and, in view of this relaxed stan-
dard, the 2002-2003 Jouett Dress Code was not constitutionally infirm
because of due process, vagueness, or overbreadth concerns. An order
denying Newsom’s motion for a preliminary injunction was entered
by the district court and Newsom noted a timely appeal.
II
On appeal, Newsom contends that the district court erred when it
denied his motion for a preliminary injunction. More specifically, he
8 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
contends that he satisfied the test governing preliminary injunctions
with regard to his claims that the 2002-2003 Jouett Dress Code is both
unconstitutionally overbroad and vague.
A
We review a district court’s grant or denial of a preliminary injunc-
tion for abuse of discretion. Doran v. Salem Inn, Inc., 422 U.S. 922,
932 (1975). We accept the district court’s findings of fact absent clear
error, but review its legal conclusions de novo. North Carolina v. City
of Virginia Beach, 951 F.2d 596, 601 (4th Cir. 1992).
In deciding whether to issue a preliminary injunction, a court must
consider "(1) the likelihood of irreparable harm to the plaintiff if the
preliminary injunction is denied, (2) the likelihood of harm to the
defendant if the requested relief is granted, (3) the likelihood that the
plaintiff will succeed on the merits, and (4) the public interest." Direx
Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.
1992). In this case, the irreparable harm that Newsom has alleged is
inseparably linked to his claim of a violation of his First Amendment
rights. Determination of irreparable harm thus requires analysis of
Newsom’s likelihood of success on the merits, and we turn to this
question first.
B
With regard to Newsom’s likelihood of success on the merits on
his overbreadth claim, the principal question here is whether, after
examining the record as it has developed through the preliminary
injunction stage of the case, the 2002-2003 Jouett Dress Code, which
prohibits, inter alia, "messages on clothing, jewelry, and personal
belongings that relate to . . . weapons," is unconstitutionally over-
broad on its face because it reaches too much expression that is pro-
tected by the First Amendment.
The First Amendment bars the government from "abridging the
freedom of speech"—that is, generally, "from dictating what we see
or read or speak or hear." U.S. CONST. amend. I; Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 244 (2002). Notwithstanding this
NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 9
edict, courts have long recognized that a public school student’s First
Amendment rights are not coextensive to those held by others in other
contexts. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682
(1986). Because most public school students are minors and school
administrators have the duty to provide and facilitate education and
to maintain order and discipline, the Supreme Court "has repeatedly
emphasized the need for affirming the comprehensive authority of the
States and of school officials, consistent with fundamental constitu-
tional safeguards, to prescribe and control conduct in the schools."
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 507 (1969).
Consequently, while a public school student does not "shed [his] con-
stitutional rights to freedom of speech or expression at the school-
house gate," id. at 506, those rights may be limited as long as the
limitation is consistent with constitutional safeguards.
In Tinker, school officials prevented a group of students from
wearing black armbands to express their opposition to our country’s
participation in the Vietnam War. Id. at 504. The Court upheld the
students’ right to do so because there was "no evidence whatever of
petitioners’ interference, actual or nascent, with the schools’ work or
of collision with the rights of other students to be secure and to be left
alone." Id. at 508. Responding to the school authorities’ attempt to
justify their actions by reason of a concern about the possibility of the
armbands’ creating a disturbance in school, the Court held that, "in
our system, undifferentiated fear or apprehension of disturbance is not
enough to overcome the right to freedom of expression." Id. By con-
trast, "conduct by the student, in class or out of it, which for any
reason—whether it stems from time, place, or type of behavior—
materially disrupts class work or involves substantial disorder or inva-
sion of the rights of others is, of course, not immunized by the consti-
tutional guarantee of freedom of speech." Id. at 513. Accordingly,
Tinker "requires a specific and significant fear of disruption, not just
some remote apprehension of disturbance." Saxe v. State Coll. Area
Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001). In sum, "if a school can
point to a well-founded expectation of disruption—especially one
based on past incidents arising out of similar speech—the restriction
may pass constitutional muster." Id. at 212.
In two subsequent cases, the Supreme Court further defined the
parameters of the freedom of expression in public schools. In Fraser,
10 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
a school disciplined a student for a student government nominating
speech filled with sexual metaphor viewed by the school and the
Court as lewd. 478 U.S. at 678. The Court upheld the school’s author-
ity to do so because of "society’s . . . interest in teaching students the
boundaries of socially appropriate behavior." Id. at 681. Schools are
not prevented by the First Amendment from encouraging the "funda-
mental values of ‘habits and manners of civility,’" id., by "insisting
that certain modes of expression are inappropriate and subject to sanc-
tions." Id. at 683. And "[t]he determination of what manner of speech
. . . is inappropriate properly rests with the school board." Id. Accord-
ingly, Fraser establishes an exception to Tinker’s disruption require-
ment. Under Fraser, the banned school speech need not meet Tinker’s
disruption requirement; rather, speech in school can be banned if it is
lewd, vulgar, indecent, or plainly offensive. Id. at 685; see also Saxe,
240 F.3d at 213 (holding that, under Fraser, there is no First Amend-
ment protection for lewd, vulgar, indecent, and plainly offensive
speech in school); Boroff v. Van Wert City Bd. of Ed., 220 F.3d 465,
467-71 (6th Cir. 2000) (applying Fraser to vulgar t-shirt of a three-
headed Jesus accompanied by the words "See No Truth. Hear No
Truth. Speak No Truth"), cert. denied, 532 U.S. 920 (2001). When
speech in school falls within the lewd, vulgar, and plainly offensive
rubric, it can be said that Fraser limits the form and manner of
speech, but does not address the content of the message. Fraser, 478
U.S. at 685 (distinguishing Tinker on the basis that the lewd, vulgar,
and plainly offensive speech was "unrelated to any political view-
point"); see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
286 n.2 (1988) (Brennan, J., dissenting) (Fraser limited "to the appro-
priateness of the manner in which the message is conveyed, not of the
message’s content."); East High Gay/Straight Alliance v. Bd. of Educ.
of Salt Lake City Sch. Dist., 81 F. Supp.2d 1166, 1193 (D. Utah 1999)
("Fraser speaks to the form and manner of student speech, not its sub-
stance. It addresses the mode of expression, not its content or view-
point.").
In Hazelwood, the Court addressed a public school’s decision to
censor two articles slated for publication in the school newspaper: one
concerned pregnant students at the school, the other discussed the
impact of divorce on students. 484 U.S. at 263. The pregnancy story
was rejected because the principal feared that, in spite of the pseud-
onyms used in the article, the subjects might still be identified by the
NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 11
school community. Id. The divorce story was rejected because it con-
tained negative information about school parents and there was insuf-
ficient time to permit them to respond to the facts set out in the
article. Id. The Supreme Court rejected the newspaper staff members’
suit on a number of bases: the school paper was not a public forum,
publishing the paper was a school-sponsored activity that was part of
an advanced journalism class, and readers would perceive articles
appearing in the school paper as being school-approved publications.
Id. at 268-73. In addition, the Court recognized the competing privacy
interests of the pregnant students and the families going through a
divorce. Id. The Court described when a school has greater authority
to regulate student speech in this way:
[T]he standard articulated in Tinker for determining when a
school may punish student expression need not also be the
standard for determining when a school may refuse to lend
its name and resources to the dissemination of student
expression. Instead, we hold that educators do not offend the
First Amendment by exercising editorial control over the
style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns.
Id. at 272-73 (footnotes omitted).
Newsom does not contend that all clothing containing messages
related to weapons worn in public schools is protected by the First
Amendment. Rather, he acknowledges that Jouett could, even in the
absence of a school policy, prohibit the display of violent, threaten-
ing, lewd, vulgar, indecent, or plainly offensive images and messages
related to weapons under Tinker and Fraser. Newsom also correctly
points out that nonviolent and nonthreatening images/messages
related to weapons would fall squarely under Tinker’s disruption stan-
dard. Cf. Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1248-
50 (11th Cir.) (upholding ban on display of the Confederate flag
under Tinker where there was history of racial problems involving the
Confederate flag), cert. denied, No. 02-1838, 2003 WL 21456684(October 6, 2003); West v. Derby Unified Sch. Dist., 206 F.3d 1358,
1366-67 (10th Cir. 2000) (same); Phillips v. Anderson County Sch.
Dist. 5, 987 F. Supp. 488, 493 (D.S.C. 1997) (same). Moreover, New-
12 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
som correctly posits that Jouett’s actions cannot be judged using the
more lenient Hazelwood standard because the special circumstances
present in Hazelwood are so clearly absent in this case. Clothing worn
by Newsom and perhaps by other students that contain messages
related to weapons are not school-sponsored, nor does Jouett supply
any of the resources involved in the clothing worn by students. More
importantly, no reasonable observer could conclude that Jouett some-
how endorsed the t-shirt worn by Newsom, or any other student’s
clothing that contained a message related to weapons. As a result,
Tinker is the most relevant of the three Supreme Court cases concern-
ing school speech and sets forth the legal framework that we will use
in our overbreadth analysis.
The overbreadth doctrine constitutes "a departure from traditional
rules of standing." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
Pursuant to it, an individual may "challenge a statute on its face
because it also threatens others not before the court—those who
desire to engage in legally protected expression but who may refrain
from doing so rather than risk prosecution or undertake to have the
law declared partially invalid." Bd. of Airport Comm’rs v. Jews for
Jesus, Inc., 482 U.S. 569, 574 (1987) (citation and internal quotation
marks omitted).
In most cases, courts will not assess the constitutionality of a provi-
sion apart from its particular application.4 But cases involving the
freedom of speech are frequently excepted from this general rule. Los
Angeles Police Dept. v. United Reporting Publ’g Corp., 528 U.S. 32,
38 (1999). The exception, however, is a narrow one:
Even though the challenge be based on the First Amend-
ment, the overbreadth doctrine is not casually employed.
Because of the wide-reaching effects of striking down a stat-
ute on its face at the request of one whose own conduct may
be punished despite the First Amendment, we have recog-
4
An "as-applied" challenge consists of a challenge to a regulation’s
application only to the party before the court. City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 758-59 (1988). If an as-applied chal-
lenge is successful, the statute may not be applied to the challenger, but
is otherwise enforceable. Id.NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 13
nized that the overbreadth doctrine is strong medicine and
have employed it with hesitation, and then only as a last
resort.
Id. at 39 (citation and internal quotation marks omitted). Accordingly,
"a law should not be invalidated for overbreadth unless it reaches a
substantial number of impermissible applications." New York v. Fer-
ber, 458 U.S. 747, 771 (1982).5 To prevail, an overbreadth plaintiff,
like Newsom, must demonstrate that a regulation’s overbreadth is
"not only . . . real, but substantial as well, judged in relation to the
[challenged regulation’s] plainly legitimate sweep," and also that no
"limiting construction" or "partial invalidation" could "remove the
seeming threat or deterrence to constitutionally protected expression."
Broadrick, 413 U.S. at 613, 615. A court, however, "will not rewrite
a . . . law to conform it to constitutional requirements." Virginia v.
Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988).
Because this case involves speech at public schools, several addi-
tional considerations are worth noting.6 First, "[b]ecause of the duties
and responsibilities of the public elementary and secondary schools,
the overbreadth doctrine warrants a more hesitant application in [the
public school] setting than in other contexts." Sypniewski v. Warren
Hills Reg’l Bd. of Educ., 307 F.3d 243, 259 (3d Cir. 2002), cert.
denied, 123 S. Ct. 2077 (2003). As the court in Sypniewski noted,
Tinker acknowledges what common sense tells us: a much
broader "plainly legitimate" area of speech can be regulated
at school than outside school. Speech that disrupts educa-
tion, causes disorder, or inappropriately interferes with other
5
If an overbreadth challenge succeeds, "any enforcement" of the regu-
lation at issue is "totally forbidden." Broadrick, 413 U.S. at 613.
6
Jouett maintains that the 2002-2003 Jouett Dress Code does not regu-
late speech, but rather conduct, e.g., "the wearing of apparel which bears
‘messages that relate to . . . weapons.’" This argument must be rejected
for the simple reason that the 2002-2003 Jouett Dress Code does more
than just regulate conduct. The code at issue regulates speech insofar as
it prohibits certain expression, e.g., messages related to weapons, and
leaves other types of expression, e.g., messages expressing support for
the school, untouched.
14 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
students’ rights may be proscribed or regulated. . . . Every-
day school discipline does not depend on the necessity of a
speech code. In the public school setting, the First Amend-
ment protects the nondisruptive expression of ideas. It does
not erect a shield that handicaps the proper functioning of
the public schools.
Id.Second, courts have recognized that, even though speech codes in
general are looked at with disfavor under the First Amendment
because of their tendency to silence or interfere with protected
speech, a public school’s speech/disciplinary policy need not be as
detailed as a criminal code. Id. at 260 (noting that, even though
speech codes are disfavored under the First Amendment, "the
demands of public secondary and elementary school discipline are
such that it is inappropriate to expect the same level of precision in
drafting school disciplinary policies as is expected of legislative
bodies crafting criminal restrictions"); see also Fraser, 478 U.S. at
686 ("Given the school’s need to be able to impose disciplinary sanc-
tions for a wide range of unanticipated conduct disruptive of the edu-
cational process, the school disciplinary rules need not be as detailed
as a criminal code which imposes criminal sanctions.").
While the 2002-2003 Jouett Dress Code prohibits 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," Newsom’s overbreadth challenge to the 2002-
2003 Jouett Dress Code is only aimed at a portion of the code. He
maintains that the code’s ban on "messages . . . that relate to . . .
weapons" is overbroad in that it reaches too much expression that is
protected by the First Amendment. More specifically, Newsom posits
that the 2002-2003 Jouett Dress Code is overbroad because (1) it
applies to nonviolent and nonthreatening images/messages related to
weapons and (2) there is a dearth of evidence demonstrating that the
display of images/messages related to weapons, nonviolent, nonthrea-
tening, or otherwise, would substantially disrupt school operations or
interfere with the rights of others.
NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 15
We begin our overbreadth analysis by noting that there simply is
no evidence in the record (as the record has developed through the
preliminary injunction stage of the case) demonstrating that clothing
worn by students at Jouett containing messages related to weapons,
nonviolent, nonthreatening, or otherwise, ever substantially disrupted
school operations or interfered with the rights of others. Indeed, there
is no evidence that Newsom’s t-shirt, let alone any other article of
clothing worn by a student that contained a message relating to weap-
ons, ever caused a commotion or was going to cause one at Jouett.
This lack of evidence strongly suggests that the ban on messages
related to weapons was not necessary to maintain order and discipline
at Jouett.7
Turning to the language of the 2002-2003 Jouett Dress Code, when
we examine the code in view of the fact that there was no evidence
presented at the preliminary injunction stage of the case demonstrat-
ing that clothing worn by students at Jouett containing messages
related to weapons, nonviolent, nonthreatening, or otherwise, ever
7
Of course, a public school has the power to act to prevent problems
before they occur, and the school is not limited to prohibiting and pun-
ishing conduct only after it has caused a disturbance. See, e.g., West, 206
F.3d at 1366-67. Indeed, courts have found that Tinker’s standard has
been met when there have been past disruptive incidents arising out of
speech. See, e.g., Scott, 324 F.3d at 1248-50 (upholding ban on display
of the Confederate flag under Tinker where there was history of racial
problems involving the Confederate flag); West, 206 F.3d at 1366-67(same); Phillips, 987 F. Supp. at 493 (same). In the absence of past inci-
dents, courts have concluded that school authorities have failed to estab-
lish a sufficient likelihood of disruption to support the ban on speech.
See, e.g., Sypniewski, 307 F.3d at 254-58 (reversing district court’s
refusal to grant preliminary injunction enjoining school from enforcing
its racial harassment policy to Jeff Foxworthy "redneck" t-shirt because
there was no evidence in the record suggesting that the t-shirt caused or
would likely cause disruption of school operations); Castorina ex rel.
Rewt v. Madison County Sch. Bd., 246 F.3d 536, 542-44 (6th Cir. 2001)
(vacating summary judgment for school officials where there was no
showing of disruption caused by display of Confederate flag). In this
case, there simply is no evidence suggesting that clothing containing
messages related to weapons worn by students at Jouett ever substan-
tially disrupted school operations or interfered with the rights of others.
16 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
substantially disrupted school operations or interfered with the rights
of others, the 2002-2003 Jouett Dress Code can be understood as
reaching lawful, nonviolent, and nonthreatening symbols of not only
popular, but important organizations and ideals. For example, the
State Seal of the Commonwealth of Virginia depicts a woman stand-
ing with one foot on the chest of a vanquished tyrant, holding a spear.
The symbol obviously depicts a woman holding a weapon. Thus,
under the 2002-2003 Jouett Dress Code, a student may not wear or
carry any items bearing the State Seal of the Commonwealth of Vir-
ginia. Likewise, the symbol of the University of Virginia’s athletic
mascot—the Cavalier—is two crossed sabers. This symbol also
relates to weapons. According to the Virginia Attorney General, the
symbol is used throughout Charlottesville to direct visitors to the uni-
versity’s football stadium and other facilities and simply to promote
the university’s athletics. Ironically, Albemarle County High School,
which is located across the street from Jack Jouett Middle School,
uses the image of a patriot armed with a musket as its own mascot.
Various clothing depicting support for the University of Virginia and
Albemarle County High School by way of the schools’ mascots
would be banned under the 2002-2003 Jouett Dress Code.
Aside from these non-controversial symbols, the 2002-2003 Jouett
Dress Code would apparently distinguish between a t-shirt bearing a
peace sign and the message "No War" and one with a picture of an
army tank in desert camouflage that urges support for our troops.
Similarly, it would prevent a student from wearing a t-shirt bearing
the insignia of many of the fighting units engaged in overseas opera-
tions in which parents or siblings may serve. Banning support for or
affiliation with the myriad of organizations and institutions that
include weapons (displayed in a nonviolent and nonthreatening man-
ner) in their insignia can hardly be deemed reasonably related to the
maintenance of a safe or distraction-free school. Finally, the quintes-
sential political message the school here is trying to promote—"Guns
and School Don’t Mix"—would, under a reasonable interpretation, be
prohibited on clothing under the 2002-2003 Jouett Dress Code.
Because there was no evidence presented at the preliminary injunc-
tion stage of the case demonstrating that clothing worn by students at
Jouett containing messages related to weapons, nonviolent, nonthrea-
tening, or otherwise, ever substantially disrupted school operations or
NEWSOM v. ALBEMARLE COUNTY SCHOOL BD. 17
interfered with the rights of others, the number of examples of the
unnecessarily broad nature of the 2002-2003 Jouett Dress Code is
practically limitless. After examining the record as it has developed
through the preliminary injunction stage of the case, it is evident that
the 2002-2003 Jouett Dress Code disfavors weapons, displayed in any
manner and in any context, and potentially any messages about weap-
ons. It excludes a broad range and scope of symbols, images, and
political messages that are entirely legitimate and even laudatory.
Under these circumstances, and in the absence of any cogent limiting
construction of the 2002-2003 Jouett Dress Code, we are constrained
to conclude that Newsom has demonstrated a strong likelihood of suc-
cess on the merits on his overbreadth claim.8
C
The remaining factors to be considered in awarding a preliminary
injunction—the alleged irreparable injury to the plaintiff without an
injunction, the potential harm to the defendant from the injunction,
and the public interest—all weigh in favor of Newsom. As to New-
som’s irreparable injury, the Supreme Court has explained that "loss
8
Jouett seems to suggest that the 2002-2003 Jouett Dress Code is capa-
ble of a reasonable limiting construction because two additional require-
ments can be read into the code: (1) a requirement that banned clothing
be disruptive; and (2) a requirement that school administrators make rea-
sonable disruption assessments. We decline to accept Jouett’s invitation
to read a disruption requirement into the code at issue. The text of the
2002-2003 Jouett Dress Code provides no support for such a reading
insofar as the code does not state that the message related to weapons
must be disruptive before it can be banned. Nor is there language in the
2002-2003 Jouett Dress Code bestowing upon school administrators the
specific duty to make a disruption assessment before a message related
to weapons is banned. In the absence of such additional language in the
2002-2003 Jouett Dress Code, we decline to consider whether the inclu-
sion of such language would alter the outcome. Jouett also suggests that
we can discern a reasonable limiting construction of the code because it
only has been applied to "images of gunmen aiming high-powered fire-
arms." Again, because the language of the 2002-2003 Jouett Dress Code
does not even remotely suggest that it is limited to "images of gunmen
aiming high-powered firearms," we reject this construction of the code
as well.
18 NEWSOM v. ALBEMARLE COUNTY SCHOOL BD.
of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod v. Burns, 427
U.S. 347, 373 (1976). With respect to the harm that would befall if
an injunction were put in place, Jouett is in no way harmed by issu-
ance of a preliminary injunction which prevents it from enforcing a
regulation, which, on this record, is likely to be found unconstitu-
tional. The final prerequisite to the grant of a preliminary injunction
is that it serve the public interest. Surely, upholding constitutional
rights serves the public interest. Cf. Homans v. Albuquerque, 264 F.3d
1240, 1244 (10th Cir. 2001) ("[W]e believe that the public interest is
better served by following binding Supreme Court precedent and pro-
tecting the core First Amendment right of political expression.").9
III
In summary, we hold that the district court abused its discretion
when it concluded that Newsom had not satisfied the test governing
preliminary injunctions with regard to his claim that the challenged
portion of the 2002-2003 Jouett Dress Code is unconstitutionally
overbroad. Of course, our holding, like any ruling on a preliminary
injunction, does not preclude a different resolution of Newsom’s
claims on a more fully developed record.10
VACATED AND REMANDED WITH INSTRUCTIONS
9
Because we agree with Newsom that he satisfied the test governing
preliminary injunctions with regard to his claim that the challenged por-
tion of the 2002-2003 Jouett Dress Code is unconstitutionally overbroad,
we need not address Newsom’s vagueness argument.
10
For the benefit of the district court on remand, we point out that the
district court should apply Tinker to resolve Newsom’s claim that his
First Amendment rights were violated when he was instructed to change
his t-shirt or turn it inside out in April 2002.