In Tinker v. Des Moines, the Supreme Court famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That may be true but apparently they can shed their sweatshirts in Michigan. In a newly filed complaint, two middle school students are suing Tri County Area Schools after they were ordered to remove their sweatshirts featuring the anti-Biden slogan “Let’s Go, Brandon.” The lawsuit filed by the Foundation for Individual Rights and Expression (FIRE) makes a compelling case that the schools acted in an unconstitutional fashion in censoring the political message.
“Let’s Go Brandon!” has become a similarly unintended political battle cry not just against Biden but also against the bias of the media. It derives from an Oct. 2 interview with race-car driver Brandon Brown after he won his first NASCAR Xfinity Series race. During the interview, NBC reporter Kelli Stavast’s questions were drowned out by loud-and-clear chants of “F*** Joe Biden.” Stavast quickly and inexplicably declared, “You can hear the chants from the crowd, ‘Let’s go, Brandon!’”
“Let’s Go Brandon!” instantly became a type of “Yankee Doodling” of the political and media establishment.
In this case, an assistant principal (Andrew Buikema) and a teacher (Wendy Bradford) “ordered the boys to remove the sweatshirts” for allegedly breaking the school dress code. However, other students were allowed to don political apparel with other political causes including “gay-pride-themed hoodies.”
The district dress code states the following:
“Students and parents have the right to determine a student’s dress, except when the school administration determines a student’s dress is in conflict with state policy, is a danger to the students’ health and safety, is obscene, is disruptive to the teaching and/or learning environment by calling undue attention to oneself. The dress code may be enforced by any staff member.”
The district reserves the right to bar any clothing “with messages or illustrations that are lewd, indecent, vulgar, or profane, or that advertise any product or service not permitted by law to minors.”
The funny thing about this action is that the slogan is not profane. To the contrary, it substitutes non-profane words for profane words. Nevertheless, “D.A.” was stopped in the hall by Buikema and told that his “Let’s Go Brandon” sweatshirt was equivalent to “the f–word.”
That seems a strikingly biased and selective enforcement of the policy. Before students appear in “Let’s Go Buikema” sweatshirts, the school should reconsider its stance on free speech.
As the Supreme Court stated in Iancu v. Brunetti (2019), “viewpoint discrimination is an egregious form of content discrimination and is presumptively unconstitutional.”
In the appendix of the complaint, FIRE has included a letter from counsel for the district, Kara Rozin, who insists that the school may make such clearly selective judgments on censorship. I believe that she is dead wrong on the First Amendment in this case. Frankly, I am surprised that the school district has elected to litigate this matter rather than seek a settlement. While the district may find lower court judges who would support the district, it should lose this case as a denial of protected speech.
What is so troubling is the message being taught here by the district. It is one of arbitrary enforcement and speech intolerance. It is precisely why we are seeing a generation of speech phobic students entering higher education. They have been taught since elementary school that speech is harmful and they do not have to tolerate the opposing views of others. My guess is that it is the teachers, not the students, who are most offended by anti-Biden sentiments.
This is an important free speech case for that reason and FIRE is to be commended for taking up the cause for these middle school students. This was once the work of the ACLU, which has largely abandoned its signature commitment to free speech. FIRE is now filling that void and this is a great case to reinforce free speech rights in our schools.
The only clause of the policy that could remotely be interpreted as applicable is that the shirts are “disruptive”.
Except that the shirts don’t disrupt anything. They’re textiles. Pieces of cloth. People reacting to the shirts are the disruptors. So as always, the disruptors will be Democrats, not normal people.
The students should have refused to remove their clothing. Make the administrators risk assault charges by forcibly removing the clothing from their bodies. Or let the Gestapo haul them off to jail for wearing clothing Democrats don’t like.
Agreed. The students should have stuck to their guns, so to speak. 😋
I now regularly wear my FJB baseball hat.
The message the Dems/lefties find so intolerable must be front and center, shoved into all their faces.
Because we can.
But it is Okay for the authoritarians to wear a Che shirt, right?
“You’re probably right, Manuel. Excellent point.
“However, other students were allowed to don political apparel with other political causes including “gay-pride-themed hoodies.”
Gay-pride apparel is political? How? Turley seems to conflate gay-pride apparel as political when it’s not. Gay-pride apparel expresses a lifestyle, not a political party. It’s like saying any student wearing religious messaging on apparel are political since republicans are all about Jesus and judgment. We all know that’s not true. But Turley’s deliberate conflation that gay-pride messaging is political without any context whatsoever shows the level of disingenuousness that is often infused in his columns so his more gullible readers will get into the “age of rage” mood he likes to criticize.
Trans-pride, less the lions, lionesses, and unPlanned cubs playing in gay revelry. Stop socially distancing homosexuals from others in the spectrum. Also, lose the Rainbow, the albinophobic symbols and rhetoric are a progressive bigotry.
Left unexplained by Svelaz is the precise boundary between the political and the not political. Would a “Stonewall” T-shirt be political? Would an “I support life” t-shirt be political? What about “Free Speech” t-shirt.
You do bring up a good point with the “age of rage”–this is obviously a First Amendment problem–do students have the right to physically defend their First Amendment rights?
Gay-pride apparel expresses a lifestyle, A “life style”? I thought the were just like everybody else, but you tell me it is all about a “gay lifestyle.
Got it!
The Left, creators of the new Alphabet “Communities” of protected classes has ploiticized Everything!
The left and its creation of Alphabet “communities” has made EVERYTHING POLITICAL. dRESS CODES SHOULD BE uniform, if implemented. No political messaging at all or all is allowed.
The sci-fi TV show Battle Star Galactica used the work “frak,” to get around the censors.
Everyone knew what it meant but it was still okay.
Heck, I will use it time from time.
See what I did there?
The teachers at Tri County Area School could care less if their soviet style dress code enforcement violates anyone’s constitutional rights. They truly believe that they are ABOVE the constitution. Gay pride sweat shirts and LGBQ flags can be displayed proudly. Anything conservative is declared “hate speech” or “disruptive”. These pathetic condescending morons couldn’t defend this country if their lives depended on it. We should get them all one-way tickets to Bakhmut so they can join their soviet comrades. Thank you, Jonathan, for an excellent article.
How is “Let’s go Brandon” conservative? What exactly is conservative about it? Students can wear “WWJD” sweatshirts and armbands as much as they want, right? Isn’t that ‘conservative’ messaging? What about “Trump” t-shirts? Surely they are ‘conservative’ too, right? How about T-shirts or any other type of clothing with depictions of the confederate flag?
Sorry, but the school officials are correct regarding the meaning of “Let’s go, Brandon.”
At this point most people understand the meaning of “Let’s go, Brandon” is “F*** Joe Biden”. Word definitions and phrases are repurposed all of the time (idioms, figures of speech,, metaphors, similes, etc.) In fact, I don’t know what the linguists and people who study language have concluded, but I would be surprised if most verbal communication is literal. Few of us speak or communicate in the way a technical manual or academic study is written.
In this case, the literal interpretation of “Let’s go, Brandon” – a seemingly innocuous figure of speech – has been repurposed to mean, “F*** Joe, Biden.” Almost everybody is in on the joke.
It’s no different from people who run around using the nonsensical “N-word” construction when what they really mean is “ni***r”. Everybody gets it.
None of that means I favor the authority figures forcing the boys to remove their clothing. Though the last clause of the policy seems so broad it can be interpreted to apply to just about anything the authority figures don’t like.
They are correct. So what? Still a 1A violation.
It’s not a 1st amendment violation-in fact it honestly almost doesn’t matter what message is on the shirt. Our host mentions Tinker, which established that students have some free speech rights, but every subsequent decision (Bethel V Fraser, Hazelwood v Kulhmeir, Morse V Frederick) has weakened Tinker. To wit, Justice Thomas, in his concurrence in Morse V Fredrick, argues that the majority didn’t go far enough and that students in public schools do not have any right to free speech at all whatsoever. The law currently is understood to say students’ speech rights can be infringed upon if (I’m quoting John Roberts here) school officials reasonably conclude that said speech will “materially and substantially disrupt the work and discipline of the school.” Roberts adds in his opinion that the “substantial disruption” analysis prescribed by Tinker “is not absolute” (i.e., it is flexible/optional). That’s a long way of saying that basically any teacher or administrator can restrict student speech more or less however they like- by refusing to allow students to wear certain clothing, to carry messages and banners even to non-school events, to publish a school newspaper the school doesn’t agree with, etc as long as they claim (here’s Roberts again) “their actions are reasonably related to legitimate pedagogical concerns.” It’s a pretty low bar to clear. If you think that’s bunk and that students should have more first amendment rights, I’m right there with you, but the law isn’t, and is in fact moving in the opposite direction, as it has been for some time. I suspect in time we’ll eventually end up where Thomas thinks we should- that Tinker will be tossed out and with it any expectation of student free speech. Can’t have a 1st amendment violation if there are no 1st amendment rights to violate, after all.
You are correct that subsequent decsions have made clear that Tinker did not give students an absolute right to free speech.
Though Frankly – even Tinker is clear on that.
Regardless, Barring these sweatshirts violates Tinker and does not fall under any exception created by the other cases you cited.
Let’s Go Brandon is not lewd, or vulgar, it does not advocate illegal conduct and it is not publication that purports to reflect the views of the school rather than specific students.
The school could bar the cloths if they actually said “F$%K Joe Biden”, If they said “Kill Joe Biden” or if students tried to put a “lets Go Brandon” flag on the school flag pole or as a banner accroos the school entrance.
But there is absolutely nothing about this sweatshirt that meets the criteria of any of the cases you cite or distinguishes it from Tinker.
The schools action is unconstititional.
This is not a difficult case.
DM while you correctly state that Neither Tinker nor subsequent cases give students an absolute right of free speech.
There is very little to distingish this case from Tinker, and the other cases you cited do not come close to allowing the school district to censor these Sweat Shirts.
It is entirely possible that SCOTUS could reverse on Tinker – but to-date they have not. It is entirely possible that the court Could adopt Thomas’s position on Fredrick V Morse – but they did not and have not.
It is arguable that the remarks you cite by Roberts MIGHT if the SD is incredibly lucky result in a decision that says black armbands are OK but Lets go Brandon Sweat Shirts are not.
All of that as you say is possible. But NONE of it is the current state of the law, nor is any of it probable.
These Sweatshirts pose no clear disruption to the school, and they are political speech the most protected form of speech – even for kids.
The meaning is irrelevant. The caselaw is that for a school to supress students first amendment rights, The speach must either advocate for illegal conduct – Fredrick V. Morris – the “Bong hits 4 Jesus” case that SCOTUS got wrong.
Or substantially disrupt school activities and invade the rights of others.
Tinker v. Des Moines Independent Community School District
as a rule messages on clothing that do not advocate for illegal conduct are protected speech in schools.
I am old enough to remember when the ACLU was a real thing and not an arm of the Democrat party. One of the most sickening events to happen in our war on freedom of speech. The ACLU is just NPR without the mellifluous voices.
Wonder if the reaction would have been the same if the shirts had said “Let’s Go, Joe!”
I suspect not…
These grievous assaults on speech in schools are just another reason why parents have become “radicalized” and “terrorists” according to our esteemed US Attorney General and his “weaponized DOJ”. Kudos to FIRE for taking the cases and hope they continue to sue school boards and individuals on school boards and individual teachers. Time to make it personal for the other side. Don’t make the taxpayers pay but go after the individuals who are making these arbitrary decisions “in the field”.
“Don’t make the taxpayers pay but go after the individuals who are making these arbitrary decisions “in the field”.” Completely agree…and if any monetary award, including punitive dollars, is not paid out it should result in garnishment and/or forfeiture of their public-funded pensions to the plaintiff directly. Perhaps knowing heavy, personal, financial loss will ‘incentivize’ administrators against making unilateral anti-free speech decisions.
Harmful, hate speech, inciting…. All words that can’t be defined.
This is just another card in the leftists deck, of word play. If you own the language (bodily autonomy, pro choice) you win every debate.
Who is harmed? How? Ideas do not harm. If teachers believe the idea can hurt a Student, the teacher has failed because the failed to teach critical thinking.
Iowan2, “Who is harmed? How? Ideas do not harm.”
Really? So conservatives banning books about LGBTQ life and gay relationships are not harmful, riiiight? They are just ideas. As you say, “Ideas do not harm”. So why are Republicans banning books and curriculum mentioning gender identity, trans lifestyles? How about CRT? It’s just an idea, right? Somehow conservatives and republicans deem those ideas…harmful and they use that to justify banning them. If teachers or conservatives legislators believe an idea can harm students they failed to use critical thinking, right? This is YOUR logic, not mine.
Svelaz,You really need to get your facts straight or admit that you are trying to mislead people. Of course, you can debate and disagree on whether books containing explicit sexual material should be allowed in the library of an elementary school. However, books that are available in public libraries and bookstores all over a state are clearly not being banned.
DoubleDutch,
It is the leftist woke mandate to mislead people. To spread misinformation and disinformation where ever they can.
Thankfully, as you point out, we can see the truth and the facts for what they are.
DoubleDutch,
Fortunately for us, there are some in the gay community whom have not lost their marbles and are trying to keep children safe: https://tennesseestar.com/culture/gays-against-groomers-to-open-minnesota-chapter-to-fight-grave-abuse-being-done-to-children/admin/2023/04/26/
Upstate and Double Dutch, Svelaz is just lying again. It is not book banning to not allow oral sex primers in kindergarten libraries, and even that moron knows it. This is just another example of “hands up, don’t shoot” and “good people on both sides” lies.
Above Svelaz even tries to claim that a gay pride shirt isn’t political but I am sure he would not want to go to a bank where a teller is wearing a pro-life shirt. How about a All Lives Matter shirt? isn’t that analogous to gay pride?
Svelaz is a contrarian freak who has an odd need to be different from everyone else. Either that or his siblings went to law school and he now spends all his time trying to make arguments that sound as if they make sense. But they don’t. He isn’t as ugly as “Anonymous”, but he is surely as dumb.
HullBobby,
Well said.
Svelaz, You keep repeating the same lies. You’ve been corrected and shown the evidence.
You have devolved into white noise.
Svelaz, also, you never explained who and how this tee shirt harmed someone. That is the question. Focus on this singlular issue and explain the harm and who was harmed.
The obvious way to fight the fascism of the DEMOCRATS…is to cut off the money
-Tax all non-profits anyone gets $100k: colleges, hospitals, etc
-Ban fed aid/loans cities & college, make them fund themselves
Weingarten style “Educators” are so typical anymore….all brain dead…all Leftists….and all just so ignorant of reality, their role in life, and bereft of any moral values that adhere to actually educating those offered up to the system by parents who are equally blind to what an education should be. Any question why this Country is doomed unless there is a new national movement to restore traditional American Values and standards?
The Communist Movement in this Country has been very successful in taking over the Democrat Party and its useful idiots in the media and educational systems.
That seems a strikingly biased and selective enforcement of the policy.
It’s also a brain-dead enforcement. Back in the day some people trying to be polite used to say “oh sugar!” when something went wrong. “Sugar” was a clear substitute for sh-t, and everyone knew it, but it was not a swear word, just the opposite.
Every day that passes seems to reveal yet another public school district run by idiots or villains.
trying to be polite used to say “oh sugar!”
My wife got called out for this, 2 days ago. Its her go to curse word….except at home, where she swears like a sailor. Because she workes in an all female office, and there language is the worst. She would know, because she did books for an interstate trucking company, and delt with drivers everyday.
Back in the day (1972) my buddy got booted out of school for the day for exclaiming ‘eat my shorts’!. Because, being a teacher she was imbued with mind reading powers and knew what he wanted to say.. Then like now, its a great example of an adult making a stupid statement, and the administration doubling down on stupid…because…shutup..
I prefer using “shineola”. 😊 It’s fun to watch the dumb looks and wheels turn in those who don’t know the reference.
One important takeaway for me was that the attorney for the school advised that taking this kind of action is legally acceptable and implying that it is preferred. I wonder if the attorney is young and a product of our “new” way of “teaching” law to law school students.
since when hasn’t a lawyer wanted more business…win or lose?
The important takeaway is today’s educational system has TOO MUCH MONEY
In Europe you go to school for physic, math, english, German, government, etc…those are the classes you take. Not poetry when you study engineering, or art history when you are a engineer, etc.
CUT off the endless flow of wasted money to education
-Tax all non-profits anyone gets $100k: colleges, hospitals, etc
-Ban fed aid/loans cities & college, make them fund themselves
Clark Hill is not a good firm. She should be prosecuted under 18 USC 242–see libs, think twice before you want to prosecute John Eastman.
It’s been some time since I read Tinker, so I went and refreshed my memory a little. For the majority, the key appears to have been “officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school” From the facts as you presented them, my guess is that the district will ultimately lose. However, it’s pretty clear in the “Age of Rage” that wearing any clothing promoting a political/social viewpoint could “materially and substantially interfere” with school operations. Perhaps the Court can provide some better guidance this time
Surprised still by J. Black’s dissenting opinion in Tinker.
Let’s Go, Fox!
We are so sick of others telling us what is acceptable in society. This is complete harassment. The shirt had no profanity or offensive words. We cannot be lead by such weak people, that can’t handle differing opinions.
Seeing what is now happening with young adults, our society needs to focus on this exact issue. If students in college think words=violence, they learned it young.
J G Gordon (respectfully)
Reality is, even the smallest of Kids can be Brutal.
I know many many Great Grand Parents, Parents, Ex’s, Co-Workers, Strangers, Good People, that have had the Life completely knocked out of Them, with just a few chosen words, only to drift ‘after.w.o.r.d.s’ to whither and die.
They eat at you.
The saying goes:
” WORDS HIT HARDER THAN FISTS ”
Indeed they do.
Legally it may be a slam dunk for the students but as we know, the Left cares not a whit about law or tolerance. Whatever needs to be done to advance the agenda will be done.
And BTW, Professor, your proofreader is incompetent.