BUZZ
‘Schools can also prohibit students from wearing apparel that can reasonably be interpreted as profane’
The Sixth Circuit Court of Appeals ruled on Tuesday that schools can ban clothing emblazoned with the popular political slogan “Let’s Go Brandon.”
The phrase originated in 2021 from an NBC reporter interviewing NASCAR driver Brandon Brown after his first victory. The crowd was chanting “F*** Joe Biden,” but the reporter told Brown “You can hear the chants from the crowd, ‘Let’s go, Brandon!’”
The phrase has since become synonymous with “F*** Joe Biden.”
In the first few months of 2022, a pair of Michigan middle school siblings wore hoodies with “Let’s Go Brandon” on them. Assistant Principal Andrew Buikema and teacher Wendy Bradford both warned the pair to remove the hoodies as they violated the school dress code.
The code states school personnel can “determine [if] a student’s dress is in conflict with state policy, is a danger to the students’ health and safety, is obscene, [or] is disruptive to the teaching and/or learning environment by calling undue attention to oneself.”
Of note, however, Principal Joseph Williams had said “he was not aware that the school had experienced any disruption from students wearing ‘Let’s Go Brandon’ apparel.”
Nevetheless, a year ago Western District of Michigan Judge Paul Maloney sided with the school, saying “If schools can prohibit students from wearing apparel that contains profanity, schools can also prohibit students from wearing apparel that can reasonably be interpreted as profane.”
Maloney said school officials could ban apparel that reads “F#%* Joe Biden” or uses “homophones for profane words … [such as] ‘Somebody Went to HOOVER DAM And All I Got Was This DAM Shirt.’”
The Sixth Circuit has now agreed with Maloney in a 2-1 decision. The majority opinion, authored by Trump appointee John Nalbandian (with Clinton appointee Karen Moore concurring), said the case is indeed “about the vulgarity exception.”
“The Constitution doesn’t hamstring school administrators when they are trying to limit profanity and vulgarity in the classroom during school hours,” Nalbandian wrote. “Again, students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ [Tinker]. But neither are school administrators powerless to prevent student speech that the administrators reasonably understand to be profane or vulgar.”
In his dissent, John Bush, another Trump appointee, said Nalbandian and Moore misapplied the Fraser standard (where a student gave a sexually explicit non-political speech) instead of sticking with the more appropriate overtly political protest of Tinker.
“[T]he speech here — ‘Let’s Go Brandon!’ — is neither vulgar nor profane on its face,” Bush wrote. “To the contrary, the phrase is purely political speech. It criticizes a political official — the type of expression that sits ‘at the core of what the First Amendment is designed to protect.’”
Foundation for Individual Rights and Expression (FIRE) lead attorney Conor Fitzpatrick said in a statement “The majority held that no matter how careful teenagers are to express their political opinions in a non-profane, school-appropriate way, schools may censor them if their expression might cause someone to think about a swear word. America’s students are not so fragile, and the First Amendment is not so brittle.”
FIRE’s Alex Griswold told The Fix via email the plaintiffs are “considering their options.” The next (possible) appeal would be to the Sixth Circuit en banc or the U.S. Supreme Court.
MORE: Student banned from wearing ‘There are only two genders’ T-shirt sues school
