A school district鈥檚 prohibition on shirts and hoodies with the phrase 鈥淟et鈥檚 Go Brandon!鈥濃�攁 well-understood message in opposition to President Joe Biden鈥攊s the latest in a long line of legal battles over student apparel. But it is one that may provide schools with some guidance in an increasingly partisan age.
To the 1,700-student Tri County Area school district in central Michigan, and its lawyers, the coded meaning of 鈥淟et鈥檚 Go Brandon鈥� is the very problem with the clothing worn by a handful of students. The slogan originated at a 2021 NASCAR race in Talladega, Ala., when the crowd chanted 鈥淔--- Joe Biden鈥� as the race鈥檚 winner, Brandon Brown, was being interviewed on TV, and a host remarked on what she thought was being chanted: 鈥淟et鈥檚 go, Brandon!鈥�
The slogan went viral on social media and has been embraced by many conservative critics of the Democratic president.
鈥淭he district prohibits clothing or styles of expression that are vulgar or profane,鈥� the district鈥檚 lawyers said in a letter to a group representing students who were told they could not wear apparel with the slogan. 鈥淭he commonly known meaning of the slogan 鈥楲et鈥檚 Go Brandon鈥� is intended to ridicule the president with profanity.鈥�
The Foundation for Individual Rights in Education, the Philadelphia-based organization known for its work on free speech issues on college campuses, represents two students in the lawsuit who were told to remove their 鈥淟et鈥檚 Go Brandon!鈥� apparel, which FIRE describes as an 鈥渋ntentionally innocuous criticism鈥� of the president.
鈥淥ur schools train the next generation to live in a country where their neighbors and coworkers might not think, pray, or vote the same way they do,鈥� FIRE says in its lawsuit on behalf of the students, siblings identified in court papers as D.A. and X.A. and their mother.
鈥淭hat pluralistic democracy is made possible by the First Amendment, which protects our right to speak our minds without government punishment鈥� and bars 鈥渧iewpoint discrimination against public school students,鈥� says the suit, , filed in federal district court in Grand Rapids, Mich.
20 years ago, student T-shirts criticized President George W. Bush
The appearance of anti-Biden apparel in public schools is one apparent outgrowth of a nation that is deeply divided politically. But it is hardly new for the nation鈥檚 schools to be drawn into national political questions.
The U.S. Supreme Court鈥檚 landmark 1969 decision in , which upheld students鈥� right to free speech as long as school was not substantially disrupted, was based on black armbands that students wore in opposition to the Vietnam War. That in effect was a protest against the policies of then-President Lyndon B. Johnson, a Democrat.
Two decades ago, as the United States was gearing up for the war in Iraq, a Michigan high school student wore a T-shirt to school depicting an image of Republican President George W. Bush with the message, 鈥淚nternational terrorist.鈥� School officials told the student to turn the shirt inside out and warned him of potential discipline if he continued to wear it to school.
The student sued, and a federal district judge ruled that under Tinker, the district likely could not show that the shirt had caused a substantial disruption.
鈥淭he courts have never declared that the school yard is an inappropriate place for political debate,鈥� the judge wrote in 2003 in . 鈥淚n fact, as the Tinker court and other courts have emphasized, students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.鈥�
A year later, a Vermont 7th grader took aim at Bush with a more provocative shirt, one labeling the president the 鈥淐hicken Hawk-in-Chief鈥� with images of cocaine and a martini glass. School officials asked him to change shirts or at least tape over the drug and alcohol images.
When the Vermont student sued, he lost in federal district court, which held that the shirt fell under the Supreme Court鈥檚 1986 decision in , which upheld the discipline of a student who had delivered a sexual innuendo-filled speech before an assembly. The high court ruling gave schools greater leeway to regulate vulgar, lewd, indecent, or 鈥減lainly offensive鈥� student speech.
But the Vermont 7th grader who wore the anti-Bush shirt won in the U.S. Court of Appeals for the 2nd Circuit, in New York City. A panel of that court that included then-Circuit Judge Sonia Sotomayor ruled in in 2006 that Fraser did not govern the case because the cocaine and martini images were not vulgar or plainly offensive.
鈥淭he pictures are an important part of the political message [the student] wished to convey, accentuating the anti-drug (and anti-Bush) message,鈥� the appeals court said.鈥傗�淏y covering them defendants diluted [the student鈥檚] message, blunting its force and impact.鈥�
No political speech allowed, one administrator allegedly told student
In the current Michigan case, the lawsuit says that in February 2022, D.A. wore his 鈥淟et鈥檚 Go Brandon!鈥� hoodie to Tri County Middle School, where the assistant principal ordered him to remove it because the slogan was the equivalent of 鈥渢he F-word.鈥�
Around the same time, student X.A., who was in middle school but is a high school freshman this school year, was pulled from class and sent to the office for wearing his 鈥淏randon鈥� shirt, with the same administrator allegedly telling him that the school does not allow students to wear clothing with political speech.
The FIRE lawsuit alleges that the school鈥檚 actions are part of a pattern in which Tri County schools allowed students to wear other political messages, including pro-LGBTQ apparel, but not anti-Biden or pro-Trump messages. The assistant principal ordered a student wearing a re-elect Trump flag as a cape at the middle school鈥檚 鈥渇ield day鈥� to remove it, the suit says.
The school鈥檚 dress code is excessively broad in violation of the First Amendment, the suit alleges. Under the code, students may not 鈥渃all undue attention鈥� to themselves.
鈥淧laintiffs and other students are at constant risk of discipline for wearing attire expressing a political or social message which 鈥榗alls undue attention鈥� to themselves, creating a substantial danger of chilling their core protected speech,鈥� the suit says.
First Amendment scholars who have focused on student rights believe the plaintiffs have a strong case.
鈥淭here is only one case that could plausibly govern this case, and that is Tinker,鈥� said Catherine J. Ross, a law professor at George Washington University and the author of about students鈥� First Amendment rights. 鈥淥ne of the most striking things here is that the school did not claim that there was any risk of disruption, material or otherwise. They don鈥檛 appear to have done that even after the fact.鈥�
The 鈥淟et鈥檚 Go Brandon!鈥� slogan is not by itself vulgar, she argued.
鈥淚t鈥檚 a carefully selected phrase, to be civil,鈥� Ross said. 鈥淚t鈥檚 not using the F-word itself. The F-word is totally in the eye of the beholder.鈥�
David L. Hudson Jr., an assistant law professor at Belmont University in Nashville who has also written a , said, 鈥淚 think it鈥檚 a strong case for the students.鈥�
鈥淚 do think it is protected political speech, and it falls within the ambit of Tinker,鈥� he said. 鈥淚t sounds like administrators just disliked the speech.鈥�
Hudson said two lines of cases came to his mind that might bolster the school district鈥檚 argument that the 鈥淟et鈥檚 Go Brandon!鈥� phrase represented an inappropriate vulgar message.
One was by the U.S. Court of Appeals for the 8th Circuit, in St. Louis, upholding school administrators for disciplining a student who distributed condoms as part of his campaign for student office. School officials did not violate the student鈥檚 First Amendment rights, the court held.
The other was a series of cases a few years ago involving students who wore 鈥淚 鉂わ笌 boobies!鈥� bracelets distributed by a women鈥檚 breast cancer foundation. One federal appellate court, the U.S. Court for the 3rd Circuit, in Philadelphia, , but a ruled against the students.
Michigan district鈥檚 lawyers cite cases about vulgarity in schools.
Lawyers for the Tri County school district, in their June 2022 response to FIRE鈥檚 request that the district allows the 鈥淟et鈥檚 Go Brandon!鈥� apparel, rely heavily on Fraser and a few lower court cases that they contend back up the district鈥檚 position.
They cited language from then-Chief Justice Warren E. Burger鈥檚 majority opinion in Fraser that 鈥渋t is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.鈥�
The lawyers cited several lower federal court rulings that upheld school administrators who restricted student shirts on the basis of vulgarity. a shirt depicting the musical artist Marilyn Manson (based on what school administrators said was the band鈥檚 鈥渄estructive values and demoralizing values.鈥� involved a shirt with an anti-drug message that included the phrase 鈥淒rugs suck,鈥� with 鈥渟uck鈥� viewed as having too much of a sexual connotation for middle school. A an anti-drinking and driving shirt with the phrase, 鈥淪ee Dick Drink. See Dick Drive. See Dick Die. Don鈥檛 Be a Dick!鈥�
These lower court cases 鈥渉ave further solidified the right of a public school to prohibit vulgar, profane or offensive speech or styles of expression, even absent a showing of substantial disruption under Tinker,鈥� says the letter from the Clark Hill law firm in Grand Rapids.
The district鈥檚 lawyers say that 鈥淟et鈥檚 Go Brandon鈥� is 鈥渁 transparent code for using profanity against the president. The district would similarly prohibit other clothing that has the intent to use profane language against another individual as this would be contrary to the district鈥檚 educational mission.鈥�
