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 profane words for non-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.
