Under any standard of judicial review, the First Amendment rights of a student who posed for a yearbook photo in chain mail with an imitation medieval sword should outweigh the “zero tolerance” weapons policy of a Rhode Island high school.

The principal of Portsmouth Public High rejected the inclusion of the photo of Patrick Agin in the 2006-07 yearbook, saying it violated the weapons policy. Agin, a senior, belongs to the Society for Creative Anachronism, which researches and recreates medieval history.

“Principal [Robert] Littlefield stated that it was his responsibility to make certain the yearbook presented an appropriate image of the School,” Agin alleges in a civil rights complaint originally filed in Rhode Island Superior Court.

According to Littlefield, he told Agin's mother that she could pay to put the photo in the book's advertising section. "This is an official school annual publication, and as such, the right of individual expression is limited," he said.

Federal courts have not stated definitively what kind of forum a high school yearbook is. ACLU attorneys representing Agin argue it is a “public forum” to which the highest level of judicial review -– strict scrutiny –- applies.

“The yearbook is not part of a curriculum or in-class project,” they say in a motion for a temporary restraining order filed after the case was transferred to federal court. “It is essentially a bulletin board posted by the School for the purpose of allowing seniors to express themselves.”

A free speech claim involving a nonpublic forum such as a supervised classroom project would be subject only to rational basis review.

In two cases cited by Agin, federal appeals courts have found yearbooks to be public fora. But Kincaid v. Gibson, 236 F.3d 342 (2001), involved a college yearbook over which “a student editor or editors” had “editorial control,” while Yeo v. Town of Lexington, 39 F.3d 1167 (1994), applied only to the advertising section of a high school yearbook.

A New Hampshire judge, meanwhile, refused last year to compel a school board to publish a yearbook photo of a student holding a shotgun. The board's policy of banning all props from yearbook photos was constitutional, the judge said in Douglass v. Londonderry School Board, 372 F.Supp.2d 203.

But the ban on Agin's photo does not appear to even be "rationally related to a legitimate governmental objective." As his lawyers say,

To stretch the ambit of [the school's weapons] policy to photographic depictions of weapons in School publications would produce absurd results. Emmanuel Leutz's famous painting of George Washington, sword at his hip, crossing the Delaware River on Christmas Eve, would be rendered verboten.

By Matthew Heller
12/31/06