42 USC § 1983 action alleging violation of a student’s First Amendment rights; Prohibiting plaintiff from wearing a hat with image of an AR-15-style rifle to school; Tinker v Des Moines Indep Cmty Sch Dist; Reasonableness of defendant-school principal’s actions; Schoenecker v Koopman (ED-WI); Qualified immunity; Consideration of an untimely summary judgment motion

[This appeal was from the ED-MI.] The court held that defendants-school officials did not violate plaintiff-elementary student’s First Amendment rights by requiring her to remove a hat that featured an image of an AR-15 style rifle and the phrase, “COME AND TAKE IT.” Plaintiff attended an elementary school located less than an hour from Oxford High School. About three months after the school shootings in Oxford, she went to her elementary school on “Wear a Hat Day,” wearing her father’s cap which “displayed a white star, a white image of an AR-15-style rifle, and the capitalized phrase, ‘COME AND TAKE IT.’” The school principal, defendant-Leffel, and the other defendants believed that the hat “could cause a disruption amongst students who had recently transferred to” the school from the Oxford School District due to the shootings. Leffel and one of the other defendants called plaintiff’s parents asking that a substitute hat be brought but her father declined. He filed this action under § 1983 on plaintiff’s behalf for declaratory and injunctive relief under the First and Fourteenth Amendments. The district court granted defendants summary judgment. Plaintiff argued that the hat was “political speech” supporting the Second Amendment, relying on Tinker. “Tinker, which protects the First Amendment rights of teachers and students in public school as long as their speech does not threaten to substantially disrupt or interfere with school activities[,]” was central to the case. The court found two characteristics of the school that defendants considered in asking plaintiff to remove the hat were key: “the presence of transfer students who relocated from the Oxford School District after the Oxford Shooting, and second, the young age and emotional immaturity of elementary students in general.” It held that “it was reasonable for Leffel to perceive a risk that Plaintiff’s Hat, sporting an image of an AR-15-style weapon, could cause traumatized children to become increasingly fearful about school shootings in a way that might cause a ‘substantial disruption of or material interference with school activities.’” It rejected plaintiff’s reliance on Schoenecker, finding “a distinction between the generalized fear of school shootings in Schoenecker versus the potential for very particularized fears in” this case. Also, it found that the language on the shirt in Schoenecker was less “provocative” than the language on the hat. The court also concluded that even “assuming, for argument’s sake, that a constitutional violation occurred,” defendants were entitled to qualified immunity. And it held that the district court did not abuse its discretion in denying plaintiff’s motion to strike defendants’ untimely summary judgment motion and in considering the motion, finding that defendants’ two-weekend day delay in filing the motion did not prejudice plaintiff. Affirmed.