Can a Student Be Asked to Remove Clothing Based on Its Message?

Part 4 of the series Judicial Round Up – Corralling Cases That Affect Schools

Our theme this year for our AASB Commentaries is “Judicial Round Up.” We are highlighting significant court actions that may impact school districts. This month we will examine student dress codes and the First Amendment.  In B.A. v. Tri County Area Schools, a federal court confirmed that a middle school could reasonably prohibit students wearing sweatshirts emblazed with the phrase “Lets Go Brandon.” The Sixth Circuit Court of Appeals recently ruled that ordering students to take off those sweatshirts did not violate their First Amendment rights.

The Basic Facts

For Christmas, a mother in Michigan gave her sons sweatshirts with the slogan “Lets Go Brandon.” When the boys wore the sweatshirts to middle school, school administrators ordered them to take the sweatshirts off because they believed the message on the shirts was vulgar. The students complied, but did still want to wear shirts with that message to school. In fact, one boy was wearing under the sweatshirt a T shirt with the same slogan. Their mother brought suit against the school district and administrators alleging that the school violated her children’s First Amendment Rights.

The Context

The court’s decision on appeal included discussion of the origin of the phrase Let’s Go Brandon. In October 2021, a professional racecar driver named Brandon Brown won a NASCAR race. After that win, Brown did a post-race interview that was televised live by NBC.  While sports reporter Kelli Stavast was interviewing Brown, the crowd began to chant “F*** Joe Biden.” As the chant got louder, Stavast interjected: “You can hear the chants from the crowd, ‘Let’s go Brandon!’”

The court recognized it was unclear whether Ms. Stavast had misheard the crowd or was simply trying to “put a fig leaf” over the vulgarity. Either way, the clear disconnect between what the crowd was chanting and what Ms. Stavast said contributed to the proliferation of a clip of the interview and its audio. The phrase “Let’s Go Brandon!” became a meme and took on a wide range of meanings, with some people using the phrase as a euphemism for what the crowd had actually been chanting during the interview.

The Legal Decision

The appellate court described a well-established body of student First Amendment case law spanning back to the United States Supreme Court’s decisions in Tinker in the 1960s.  The court summarized the state of federal law regarding regulation of student speech on school grounds as being that generally a school must show that it reasonably believes its regulation of student speech will prevent disruption and/or substantial and material interference and/or disruption with school functions, with three exceptions. A school can prohibit (1) indecent, lewd, and vulgar speech; (2) speech that promotes illegal drug use; and (3) speech that others may reasonably perceives bears the imprimatur of the school without making a showing of interference or disruption.

On appeal, much of the court’s decision was devoted to the question of how to examine the determination by school administrators that “Let’s Go Brandon” was not appropriate in a middle school setting because it “means the F word.” The court recognized that a euphemism is not exactly the same as the explicitly vulgar or profane word that it replaces. “Heck” is not the same word as “Hell.” But the court also recognized that a euphemism’s communicative content can be the same as that of the offensive word it obscures and that schools can regulate speech that conveys an obscene or vulgar message even if the words used are not themselves obscene and vulgar.

The court emphasized that the question of who decides what is profane should be answered in a manner consistent with education being primarily the responsibility of parents, teachers, and school districts, not federal judges. School administrators have responsibility for determining what is impermissibly vulgar, lewd, indecent or plainly offensive. In First Amendment litigation, the courts provide a back stop by examining the reasonableness of those determinations with some appropriate deference to good-faith determinations by school officials.

Practice Pointers

Each month we provide “Practice Pointers” or practical suggestions to consider. Here are some practice points regarding the regulation of student attire at school:

1. Policy is the foundation. At the policy level, a school board can adopt a dress code that forbids students from wearing attire with profanity or messages that are lewd or profane or that advertise products or services not permitted by law to minors. Has your district adopted a dress code? If so, when did the school board last review it?
2. Facts matter. To defend decisions regarding student attire, a school administrator needs to have an accurate understanding of the facts and be able to clearly explain the basis for their decision. Each situation is unique and a one-size-fits-all approach is never recommended in this area of the law.
3. Like Tinker, the litigation about the Let’s Go Brandon sweatshirts was a federal First Amendment case. In addition to claims under the US Constitution, Alaska students asserting claims of infringement of their speech right could be expected to also include claims under our State Constitution. The Alaska Supreme Court has said on multiple occasions that it is “not bound by decisions of the United States Supreme Court on similar federal provisions but may determine that Alaska provides greater protection for individual rights” including free speech.