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School officials cannot invoke a racial harassment policy to prohibit a high school student from wearing a T-shirt emblazoned with “redneck” jokes by comedian Jeff Foxworthy unless there is proof that the shirt caused disruptions, the 3rd U.S. Circuit Court of Appeals has ruled. In Sypniewski v. Warren Hills [N.J.] Regional Board of Education, the court stopped short of striking down the harassment policy, but found that school officials went too far when they banned speech or clothing that “creates ill will or hatred.” Third Circuit Judge Anthony J. Scirica found that the school district had valid reasons for creating the policy because there had been a series of racially divisive incidents sparked by white students who wore clothing with the Confederate flag. As a result, Scirica found that the policy might be perfectly constitutional if it were enforced to prohibit wearing the Confederate flag. “When there is a concrete basis — ordinarily established by a history of disruption and interference with the legitimate rights of other students — for concluding that certain expression presents a well-founded fear of disruption, a school should be free to address the issue by adopting a formal policy, so long as the policy narrowly targets the identified problems,” Scirica wrote. But Scirica found that the policy went too far when it banned not only “racially divisive” speech, but also speech that “creates ill will.” “When policies focus broadly on listeners’ reactions, without providing a basis for limiting application to disruptive expression, they are likely to cover a substantial amount of protected speech. Here, the inclusion of the phrase ‘creates ill will’ causes just such a problem,” Scirica wrote. Scirica found that Warren Hills, N.J., school officials “made a good faith effort to respond to a serious disciplinary problem without unduly restricting students’ expression.” Nevertheless, he said, “the application of the policy to the Foxworthy T-shirt appears to go too far. Defendants have not, on this record, established that the shirt might genuinely threaten disruption.” According to court papers, the Warren Hills racial harassment policy was enacted in response to a pattern of disturbing racial incidents. The first racial incident occurred in October 1999 at the high school when a white student dressed for Halloween “costume day” by wearing overall jeans and a straw hat and appearing in black face. He also wore a thick rope around his neck tied in a noose. The student was sent home and suspended. Also during that year, a high school student submitted a racial harassment complaint based on several students’ wearing shirts bearing the Confederate flag. School officials testified that some students had formed a “gang-like” group known as “the Hicks,” and observed “White Power Wednesdays” by wearing Confederate flag clothing. Thomas Sypniewski, the student who was suspended for wearing the Jeff Foxworthy T-shirt, admitted that he had also worn shirts displaying Confederate flags to school. In an October 2000 newspaper article about the Confederate flag at the high school, Sypniewski was pictured wearing a T-shirt displaying the text, “Not only am I perfect, I’m a Redneck too!” The word “redneck” was printed in such a way that a Confederate flag shows through the letters. But Sypniewski denied that he was a member of the Hicks. School officials said many students were deeply offended by the actions of the Hicks and their friends. At least one student reported he “felt like” responding violently. U.S. District Judge Mary Little Cooper of the District of New Jersey found that the racial tension had spilled over into the classroom, sometimes displacing class lessons with discussions about racial relations. Scirica agreed with that finding, saying “the record clearly supports the District Court’s finding that the Warren Hills public schools — particularly the high school — were afflicted with pervasive racial disturbances throughout the 2000-2001 school year.” Soon after the racial harassment policy was passed, Sypniewski was suspended for wearing a T-shirt that had 10 of Foxworthy’s “redneck” jokes on the front. The T-shirt said: “Top 10 reasons you might be a Redneck Sports Fan,” along with a numbered list including “You wear a baseball cap to bed,” “Your carpet used to be part of a football field,” and “Your mama is banned from the front row at wrestling matches.” Sypniewski was offered the option of turning the shirt inside out, but refused and was suspended. When he lost his administrative appeals, Sypniewski filed suit in U.S. district court claiming the policy violated his First Amendment rights. In defending the suspension, school officials said they were concerned about the word “redneck” on the shirt “because of the troubling history of racial tension at our school and the possibility that the term ‘redneck’ would incite some form of violence and at a minimum be offensive and harassing to our minority population.” But Scirica found that the evidence showed that the Foxworthy T-shirt “was worn several times without incident.” The only reason it was banned, he said, was that a security guard believed that the shirt might violate the dress code or the racial harassment policy. Lawyers for the school district argued that the shirt was offensive — and consequently potentially disruptive — because in the context of the racial troubles in the Warren Hills schools, the word “redneck” had come to connote racial intolerance. The word “redneck,” they said, was directly associated with the Hicks and with the ongoing racial harassment. Judge Cooper agreed, but the 3rd Circuit disagreed. “We see no basis for concluding that the Hicks were also known as ‘the Rednecks.’ Therefore, defendants have not established their ability to ban the shirt as a gang or quasi-gang symbol,” Scirica wrote. To ban speech by a student, Scirica said, school officials “must point to a particular and concrete basis for concluding that the association is strong enough to give rise to well-founded fear of genuine disruption in the form of substantially interfering with school operations or with the rights of others.” In other words, Scirica said, “it is not enough that speech is generally similar to speech involved in past incidents of disruption, it must be similar in the right way.”

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