The Volokh Conspiracy

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Free Speech

"Students Sue After Michigan School District Forces Them to Remove 'Let's Go Brandon' Sweatshirts"


The Foundation for Individual Rights and Expression reports on the lawsuit, in which FIRE's lawyers represent the student:

Today, two students represented by the Foundation for Individual Rights and Expression sued their Michigan school district for viewpoint discrimination after they were forbidden from wearing apparel critical of President Joe Biden.

"Criticism of the president is core political speech protected by the First Amendment," said FIRE attorney Conor Fitzpatrick. "Whether it's a Biden sticker, 'Let's Go Brandon' sweatshirt, or gay pride T-shirt, schools can't pick and choose which political beliefs students can express."

In Feb. 2022, two Tri County Middle School students wore sweatshirts to school with the phrase "Let's Go Brandon," a political slogan critical of President Biden with origins in a more profane chant. Even though the political slogan is widely used — multiple members of Congress used it during floor speeches — an assistant principal and a teacher ordered the boys to remove the sweatshirts. However, administrators allowed students to wear apparel with other political messages, including gay-pride-themed hoodies.

The incident is part of a pattern of political favoritism by the school district. When the school district relaxed the dress code for field day, a school administrator ordered a student to stop wearing a Trump flag as a cape, but permitted other students to wear gay pride flags in the same manner.

The school district is wrongly relying on a policy that prohibits "profane" clothing to censor this particular message, but FIRE's lawsuit argues that ordering the students to remove the "Let's Go Brandon" sweatshirts violates the First Amendment.

"The slogan exists as a way to express an anti-Biden message without using profanity," explained Fitzpatrick. "A public school district cannot censor speech just because it might cause someone to think about a swear word."

This is FIRE's first lawsuit on behalf of K-12 students. FIRE's lawsuit seeks a court order blocking the school district's viewpoint-discriminatory ban on "Let's Go Brandon" apparel and a provision of its dress code banning students from wearing clothing which "calls undue attention" to the student.

This case parallels the 1969 Supreme Court case of Tinker v. Des Moines, in which the Supreme Court affirmed public school students' First Amendment right to wear black armbands to school protesting the Vietnam War. The Court stressed that students disagreeing with each other is not only "an inevitable part of the process of attending school; it is also an important part of the educational process."

"These students should not only be allowed to express their political beliefs, but should be encouraged to do so," said FIRE attorney Harrison Rosenthal. "America's students must be free to exercise their constitutional rights, not just learn about them."

Note: I have consulted for FIRE on other matters, but I haven't been at all involved with this case.