A divided federal appeals court has sided with Michigan school administrators who barred students from wearing shirts with the phrase 鈥淟et鈥檚 Go Brandon!鈥�, which gained traction as a coded message of opposition to then-President Joe Biden.
The 2-1 decision this week by a panel of the U.S. Court of Appeals for the 6th Circuit provides some important guidance to 糖心动漫vlog on when they can prohibit speech promoting a 鈥渧ulgar message鈥� in schools, even if doesn鈥檛 contain actual expletives or is political in nature.
鈥淭he Constitution doesn鈥檛 hamstring school administrators when they are trying to limit profanity and vulgarity in the classroom during school hours,鈥� said the decision in .
A crowd chant that was misheard or 鈥榓 fig leaf鈥�
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 may have thought was being chanted: 鈥淟et鈥檚 go, Brandon!鈥�
As the 6th Circuit opinion puts it, it is unclear whether the TV host 鈥渉ad misheard the crowd or whether she was simply trying to put a fig leaf over the chant鈥檚 vulgarity.鈥�
The slogan went viral on social media and was embraced by many conservative critics of the Democratic president, leading to marketing of T-shirts and banners with the phrase.
In early 2022, two brothers wore their 鈥淟et鈥檚 Go Brandon!鈥� hoodies on different days to Tri County Middle School in Howard City, Mich.
An assistant principal ordered one of the brothers, an 8th grader identified as D.A., to remove it because the slogan was the equivalent of 鈥渢he F-word.鈥� The student complied, though he wore it again a few weeks later and again complied with a request to remove it. In May of that year, D.A.鈥檚 6th grade brother, identified as X.A., also wore a 鈥淟et鈥檚 Go Brandon!鈥� sweatshirt to school and was told to remove it.
School administrators referred to the student dress code, which prohibits any attire 鈥渨ith messages or illustrations that are lewd, indecent, vulgar, or profane, or that advertise any product or service not permitted by law to minors.鈥�
The boys鈥� mother sued the 1,700-student Tri County Area district north of Grand Rapids and two administrators under the First Amendment鈥檚 free speech clause. A federal district court granted summary judgment to the district, ruling that officials had reasonably interpreted 鈥淟et鈥檚 Go Brandon!鈥� to have a profane meaning and thus could be regulated.
The 6th Circuit panel, in its divided decision on Oct. 14, also ruled for the school district and administrators.
鈥淪chools are charged with teaching students the fundamental values necessary to the maintenance of a democratic political system,鈥� said Judge John B. Nalbandian, an appointee of President Donald Trump. 鈥淎nd avoiding vulgar and offensive terms in public discourse is one such value.鈥�
The majority held that even phrases lacking explicitly profane words may be interpreted as holding a vulgar meaning. And it held that even core political speech may be regulated in schools if it has a vulgar message.
On the first point, lawyers for the family argued that 鈥淟et鈥檚 Go Brandon!鈥� was a socially acceptable euphemism for the 鈥淔--- Joe Biden鈥� message, just as 鈥渉eck鈥� is an acceptable substitute for 鈥渉ell.鈥�
The 6th Circuit majority relied on the U.S. 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.
鈥�Fraser demonstrates that a school may regulate speech that conveys an obscene or vulgar message even when the words used are not themselves obscene or vulgar,鈥� Nalbandian wrote.
In most cases, 鈥渇ederal courts should view a school administrator鈥檚 reasonable and good-faith determinations of what is vulgar with some deference,鈥� the judge said. 鈥淒oing so ensures that unelected federal judges do not supplant democratically elected school boards as the arbiters of what is or is not appropriate for a student to say while at school.鈥�
Dissenting judge relies on landmark Tinker decision
The majority also rejected arguments that the political nature of the 鈥淟et鈥檚 Go Brandon!鈥� message provided greater First Amendment protection in a school than a non-political vulgarity.
The high court鈥檚 Fraser decision 鈥渁nswers this question by holding that vulgarity trumps the political aspect of speech at school,鈥� Nalbandian said.
Chief Justice Warren E. Burger鈥檚 majority opinion in Fraser concluded that children in public schools weren鈥檛 guaranteed the same right as adults a to use an 鈥渙ffensive form of expression鈥� when making a political point.
Nalbandian said, 鈥淚n the schoolhouse, vulgarity trumps politics. And the protection for political speech doesn鈥檛 give a student carte blanche to use vulgarity at school鈥攅ven when that vulgarity is cloaked in innuendo or euphemism.鈥�
Writing in a lengthy dissent, Judge John K. Bush said he believed the 鈥淟et鈥檚 Go Brandon!鈥� shirts passed muster in schools based on the Supreme Court鈥檚 landmark 1969 decision in , which upheld students鈥� right to free speech as long as school was not substantially disrupted.
Bush, also a Trump appointee, said the message was 鈥減urely political speech鈥� akin to the black armbands worn by the Des Moines students to protest the Vietnam War.
He said there was no doubt the shirts鈥� 鈥渆uphemistic meaning was offensive to some, particularly those who supported President Biden. But offensive political speech is allowed in school, so long as it does not cause disruption under Tinker.鈥�
Bush cited a long history of sharp language criticizing the nation鈥檚 presidents and said, 鈥淭he liberty to criticize the president is not a freedom that stops at the schoolhouse door.鈥�
鈥淭he school here punished these students for expressing a disfavored political viewpoint, not for expressing a vulgarity,鈥� he said. 鈥淲e cannot鈥攃onsistent with Tinker鈥攄elegate to school officials unfettered discretion to censor student speech, especially when that speech carries such clear political overtones.鈥�
The Foundation for Individual Rights and Expression, the free-speech legal and advocacy group that represents the family, said it was disappointed in the decision and would appeal it. It can seek review before the full 6th Circuit or by the Supreme Court.
