A divided federal appeals court has sided with Michigan school administrators who barred students from wearing shirts with the phrase “Let’s Go Brandon!”, 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 educators on when they can prohibit speech promoting a “vulgar message” in schools, even if doesn’t contain actual expletives or is political in nature.
“The Constitution doesn’t hamstring school administrators when they are trying to limit profanity and vulgarity in the classroom during school hours,” said the decision in B.A. v. Tri County Area Schools.
A crowd chant that was misheard or ‘a fig leaf’
The slogan originated at a 2021 NASCAR race in Talladega, Ala., when the crowd chanted “F--- Joe Biden” as the race’s winner, Brandon Brown, was being interviewed on TV, and a host remarked on what she may have thought was being chanted: “Let’s go, Brandon!”
As the 6th Circuit opinion puts it, it is unclear whether the TV host “had misheard the crowd or whether she was simply trying to put a fig leaf over the chant’s vulgarity.”
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 “Let’s Go Brandon!” 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 “the F-word.” 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.’s 6th grade brother, identified as X.A., also wore a “Let’s Go Brandon!” sweatshirt to school and was told to remove it.
School administrators referred to the student dress code, which prohibits any attire “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 boys’ mother sued the 1,700-student Tri County Area district north of Grand Rapids and two administrators under the First Amendment’s free speech clause. A federal district court granted summary judgment to the district, ruling that officials had reasonably interpreted “Let’s Go Brandon!” 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.
“Schools are charged with teaching students the fundamental values necessary to the maintenance of a democratic political system,” said Judge John B. Nalbandian, an appointee of President Donald Trump. “And avoiding vulgar and offensive terms in public discourse is one such value.”
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 “Let’s Go Brandon!” was a socially acceptable euphemism for the “F--- Joe Biden” message, just as “heck” is an acceptable substitute for “hell.”
The 6th Circuit majority relied on the U.S. Supreme Court’s 1986 decision in Bethel School District v. Fraser, 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 “plainly offensive” student speech.
“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,” Nalbandian wrote.
In most cases, “federal courts should view a school administrator’s reasonable and good-faith determinations of what is vulgar with some deference,” the judge said. “Doing 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.”
Dissenting judge relies on landmark Tinker decision
The majority also rejected arguments that the political nature of the “Let’s Go Brandon!” message provided greater First Amendment protection in a school than a non-political vulgarity.
The high court’s Fraser decision “answers this question by holding that vulgarity trumps the political aspect of speech at school,” Nalbandian said.
Chief Justice Warren E. Burger’s majority opinion in Fraser concluded that children in public schools weren’t guaranteed the same right as adults a to use an “offensive form of expression” when making a political point.
Nalbandian said, “In the schoolhouse, vulgarity trumps politics. And the protection for political speech doesn’t give a student carte blanche to use vulgarity at school—even when that vulgarity is cloaked in innuendo or euphemism.”
Writing in a lengthy dissent, Judge John K. Bush said he believed the “Let’s Go Brandon!” shirts passed muster in schools based on the Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District, which upheld students’ right to free speech as long as school was not substantially disrupted.
Bush, also a Trump appointee, said the message was “purely political speech” akin to the black armbands worn by the Des Moines students to protest the Vietnam War.
He said there was no doubt the shirts’ “euphemistic 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.”
Bush cited a long history of sharp language criticizing the nation’s presidents and said, “The liberty to criticize the president is not a freedom that stops at the schoolhouse door.”
“The school here punished these students for expressing a disfavored political viewpoint, not for expressing a vulgarity,” he said. “We cannot—consistent with Tinker—delegate to school officials unfettered discretion to censor student speech, especially when that speech carries such clear political overtones.”
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.
