Ed Law Briefly: Gang T-Shirt or Tribute to a Murdered Friend?

RCEd Commentary

Background:  The Millard Public School District in Nebraska is a system with a history of violence and gang activity since the 1990s. When high school student Dan Kuhr’s friend was murdered by an alleged member of the Omaha Mafia Bloods gang,  the senior wore a R-I-P (Rest in Peace) T-shirt to school. He claimed it was a tribute to his deceased pal. Dan Kuhr’s brother, Nick, and sister, Cassie began to do likewise. Each one was disciplined by the Millard South High School administration when they refused to cover up or remove the items. Officials cited a policy that forbids gang-related attire.

Events started in motion when a teacher — who had been trained in recognizing gang identifiers — sent a note to the assistant principal expressing concern. Police explained that gang members often wear T-shirts to honor comrades who are “killed in the line of duty” and that the Kuhr’s dead friend had gang ties.

The Kuhr family sued the school district, claiming their First Amendment free speech rights under the United States Constitution had been violated. The district responded that it acted properly, particularly in light of past incidents — which made caution a prudent course. Millard, located in a suburban area in southwest Omaha and the third largest school system in the state, sought to have the case dismissed at an early stage.

But the court let the case continue, explaining that, “[a] reasonable jury could find that [MPSD] failed to demonstrate that school officials had anything more than an undifferentiated and remote apprehension of a disturbance” when they disciplined the students. Furthermore, the court pointed to the fact that Cassie Kuhr wore the shirt for several days in a row, and no disruption occurred.

That set up a clash between the free speech rights of the students versus the school administration’s obligation to enforce policy in a way that safeguards the health and safety of all students in the building.

Issue:  Under what circumstances can an educator preemptively deny student speech — in this case a T-shirt with two pictures and the letters R-I-P — by citing the potential to disrupt campus or create a dangerous situation?

Legal Principles: The Tinker v. Des Moines Independent Community School District case is controlling in circumstances of this type. Recall that Tinker is the case involving a public school student’s black armband protest of the Vietnam War. The U.S. Supreme Court, in deciding the 1969 case, declared that students do not relinquish their constitutional rights at the schoolhouse gate. But, in a gift that has been a powerful tool for schools, the High Court said educators could curb speech that causes a material and substantial disruption or has the potential to do so. It is that last part many overlook, and it is that aspect that makes the actions of Nebraska school officials controversial.  

Outcome: The Millard Public School District prevailed and case was dismissed by the federal court. A jury decided that school officials did not violate the Constitution’s free speech  rights when they disciplined two of the Kuhr family students for wearing the RIP clothing.  They could not decide on a verdict regarding the third. 

Lessons for Principals and Teachers:

•  The case highlights a common scenario when a student arrives with a risqué, offensive, or otherwise inappropriate article of clothing and administrators must decide on the spot whether to let it go or challenge the student.  

•  Notice that school officials were acting pursuant to official district policy. Are you well versed with your local policy?  When action required, how do make sure you are complying with the U.S. Supreme Court’s Tinker case?

• Context matters. The fact that the Millard school district had a history of gang activity and violence actually strengthened the hand of school officials to make judgments proactively to prevent incidents.

• The Tinker standard is meant to balance the rights of students and the rights of schools. It does not allow for unbridled censorship speech (T-shirts, hair, and art for example) that school officials find to be simply distasteful.  

U.S. District Court for the District of Nebraska:
Kuhr. v. Millard Public School District, Case Not.. 8:09CV363 (April 23, 2012).

_{Note: This information is not intended as legal advice. Federal and other court decisions can differ depending on what region of the country you live in. State laws also weigh in on certain issues. All cases are for educational purposes only, and meant to demonstrate how courts or administrative agencies have acted in specific instances as well as to provide information that can bolster the overall legal literacy of teachers and administrators. Local school attorneys can provide more detail about local law.}