A school district’s prohibition on shirts and hoodies with the phrase “Let’s Go Brandon!”—a well-understood message in opposition to President Joe Biden—is the latest in a long line of legal battles over student apparel. But it is one that may provide schools with some guidance in an increasingly partisan age.
To the 1,700-student Tri County Area school district in central Michigan, and its lawyers, the coded meaning of “Let’s Go Brandon” is the very problem with the clothing worn by a handful of students. 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 thought was being chanted: “Let’s go, Brandon!”
The slogan went viral on social media and has been embraced by many conservative critics of the Democratic president.
“The district prohibits clothing or styles of expression that are vulgar or profane,” the district’s lawyers said in a letter to a group representing students who were told they could not wear apparel with the slogan. “The commonly known meaning of the slogan ‘Let’s Go Brandon’ is intended to ridicule the president with profanity.”
The Foundation for Individual Rights in Education, the Philadelphia-based organization known for its work on free speech issues on college campuses, represents two students in the lawsuit who were told to remove their “Let’s Go Brandon!” apparel, which FIRE describes as an “intentionally innocuous criticism” of the president.
“Our schools train the next generation to live in a country where their neighbors and coworkers might not think, pray, or vote the same way they do,” FIRE says in its lawsuit on behalf of the students, siblings identified in court papers as D.A. and X.A. and their mother.
“That pluralistic democracy is made possible by the First Amendment, which protects our right to speak our minds without government punishment” and bars “viewpoint discrimination against public school students,” says the suit, D.A. v. Tri County Area Schools, filed in federal district court in Grand Rapids, Mich.
20 years ago, student T-shirts criticized President George W. Bush
The appearance of anti-Biden apparel in public schools is one apparent outgrowth of a nation that is deeply divided politically. But it is hardly new for the nation’s schools to be drawn into national political questions.
The U.S. 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, was based on black armbands that students wore in opposition to the Vietnam War. That in effect was a protest against the policies of then-President Lyndon B. Johnson, a Democrat.
Two decades ago, as the United States was gearing up for the war in Iraq, a Michigan high school student wore a T-shirt to school depicting an image of Republican President George W. Bush with the message, “International terrorist.” School officials told the student to turn the shirt inside out and warned him of potential discipline if he continued to wear it to school.
The student sued, and a federal district judge ruled that under Tinker, the district likely could not show that the shirt had caused a substantial disruption.
“The courts have never declared that the school yard is an inappropriate place for political debate,” the judge wrote in 2003 in Barber v. Dearborn Public Schools. “In fact, as the Tinker court and other courts have emphasized, students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.”
A year later, a Vermont 7th grader took aim at Bush with a more provocative shirt, one labeling the president the “Chicken Hawk-in-Chief” with images of cocaine and a martini glass. School officials asked him to change shirts or at least tape over the drug and alcohol images.
When the Vermont student sued, he lost in federal district court, which held that the shirt fell under the 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.
But the Vermont 7th grader who wore the anti-Bush shirt won in the U.S. Court of Appeals for the 2nd Circuit, in New York City. A panel of that court that included then-Circuit Judge Sonia Sotomayor ruled in Guiles v. Marineau in 2006 that Fraser did not govern the case because the cocaine and martini images were not vulgar or plainly offensive.
“The pictures are an important part of the political message [the student] wished to convey, accentuating the anti-drug (and anti-Bush) message,” the appeals court said. “By covering them defendants diluted [the student’s] message, blunting its force and impact.”
No political speech allowed, one administrator allegedly told student
In the current Michigan case, the lawsuit says that in February 2022, D.A. wore his “Let’s Go Brandon!” hoodie to Tri County Middle School, where the assistant principal ordered him to remove it because the slogan was the equivalent of “the F-word.”
Around the same time, student X.A., who was in middle school but is a high school freshman this school year, was pulled from class and sent to the office for wearing his “Brandon” shirt, with the same administrator allegedly telling him that the school does not allow students to wear clothing with political speech.
The FIRE lawsuit alleges that the school’s actions are part of a pattern in which Tri County schools allowed students to wear other political messages, including pro-LGBTQ apparel, but not anti-Biden or pro-Trump messages. The assistant principal ordered a student wearing a re-elect Trump flag as a cape at the middle school’s “field day” to remove it, the suit says.
The school’s dress code is excessively broad in violation of the First Amendment, the suit alleges. Under the code, students may not “call undue attention” to themselves.
“Plaintiffs and other students are at constant risk of discipline for wearing attire expressing a political or social message which ‘calls undue attention’ to themselves, creating a substantial danger of chilling their core protected speech,” the suit says.
First Amendment scholars who have focused on student rights believe the plaintiffs have a strong case.
“There is only one case that could plausibly govern this case, and that is Tinker,” said Catherine J. Ross, a law professor at George Washington University and the author of a 2015 book about students’ First Amendment rights. “One of the most striking things here is that the school did not claim that there was any risk of disruption, material or otherwise. They don’t appear to have done that even after the fact.”
The “Let’s Go Brandon!” slogan is not by itself vulgar, she argued.
“It’s a carefully selected phrase, to be civil,” Ross said. “It’s not using the F-word itself. The F-word is totally in the eye of the beholder.”
David L. Hudson Jr., an assistant law professor at Belmont University in Nashville who has also written a book about student free speech rights, said, “I think it’s a strong case for the students.”
“I do think it is protected political speech, and it falls within the ambit of Tinker,” he said. “It sounds like administrators just disliked the speech.”
Hudson said two lines of cases came to his mind that might bolster the school district’s argument that the “Let’s Go Brandon!” phrase represented an inappropriate vulgar message.
One was a 1999 decision by the U.S. Court of Appeals for the 8th Circuit, in St. Louis, upholding school administrators for disciplining a student who distributed condoms as part of his campaign for student office. School officials did not violate the student’s First Amendment rights, the court held.
The other was a series of cases a few years ago involving students who wore “I ❤︎ boobies!” bracelets distributed by a women’s breast cancer foundation. One federal appellate court, the U.S. Court for the 3rd Circuit, in Philadelphia, ruled for the students, but a federal district court in Indiana ruled against the students.
Michigan district’s lawyers cite cases about vulgarity in schools.
Lawyers for the Tri County school district, in their June 2022 response to FIRE’s request that the district allows the “Let’s Go Brandon!” apparel, rely heavily on Fraser and a few lower court cases that they contend back up the district’s position.
They cited language from then-Chief Justice Warren E. Burger’s majority opinion in Fraser that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”
The lawyers cited several lower federal court rulings that upheld school administrators who restricted student shirts on the basis of vulgarity. One involved a shirt depicting the musical artist Marilyn Manson (based on what school administrators said was the band’s “destructive values and demoralizing values.” Another case involved a shirt with an anti-drug message that included the phrase “Drugs suck,” with “suck” viewed as having too much of a sexual connotation for middle school. A third involved an anti-drinking and driving shirt with the phrase, “See Dick Drink. See Dick Drive. See Dick Die. Don’t Be a Dick!”
These lower court cases “have further solidified the right of a public school to prohibit vulgar, profane or offensive speech or styles of expression, even absent a showing of substantial disruption under Tinker,” says the letter from the Clark Hill law firm in Grand Rapids.
The district’s lawyers say that “Let’s Go Brandon” is “a transparent code for using profanity against the president. The district would similarly prohibit other clothing that has the intent to use profane language against another individual as this would be contrary to the district’s educational mission.”
