Petition for Writ of Certiorari — D. A., a Minor, By and Through his Mother, B. A., et al., Petitioners v. Tri County Area Schools, et al.
Supreme Court briefMar 26, 2026
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No. _______
In The
Supreme Court of the United States
D.A., A MINOR, BY AND THROUGH HIS MOTHER, B.A.;
X.A., A MINOR, BY AND THROUGH HIS MOTHER, B.A.;
B.A., MOTHER OF MINORS D.A. AND X.A.,
Petitioners,
v.
TRI COUNTY AREA SCHOOLS;
ANDREW BUIKEMA, IN HIS INDIVIDUAL CAPACITY;
WENDY BRADFORD, IN HER INDIVIDUAL CAPACITY,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Sara E. Berinhout
FOUNDATION FOR
INDIVIDUAL RIGHTS
AND EXPRESSION
510 Walnut St.
Suite 900
Philadelphia, PA 19106
Conor T. Fitzpatrick
Counsel of Record
Robert Corn-Revere
Daniel A. Zahn
FOUNDATION FOR
INDIVIDUAL RIGHTS
AND EXPRESSION
700 Pennsylvania Ave. SE
Suite 340
Washington, DC 20003
215-717-3473
conor.fitzpatrick@fire.org
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
i
QUESTION PRESENTED
Students have a First Amendment right to wear
political apparel to school unless it causes substantial
disruption. Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503 (1969). The Court later recognized
a narrow exception by allowing schools to prohibit
profane and sexually lewd speech. Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675 (1986).
This case concerns “Let’s Go Brandon,” a popular
political slogan for expressing disdain for President
Joe Biden. Members of Congress have used it during
floor speeches, and it airs uncensored on broadcast TV
and radio. But a divided Sixth Circuit panel applied
Fraser to hold a Michigan school district can ban high
school students from silently wearing apparel with
the slogan because of its origin in a profane chant.
To reach its published holding, the majority split
with the Third and Ninth Circuits, which confine the
Fraser exception to “plainly” profane and lewd speech.
The majority instead held Fraser permits censoring
nondisruptive political speech that any single teacher
or administrator “reasonably understands” as vulgar.
Judge Bush dissented that the test grants schools
“unrestrained authority to suppress speech based on
subjective interpretations” and, given nationwide
confusion over its scope, “the Supreme Court … must
ultimately clarify, and ideally limit, Fraser’s reach.”
The question presented is whether Fraser permits
schools to censor nondisruptive political speech that
is not plainly profane or lewd.
ii
PARTIES TO THE PROCEEDING
Petitioners were the plaintiffs-appellants in the
court of appeals. They are high school students D.A.
and X.A., proceeding through their mother, B.A., and
B.A., as mother of minors D.A. and X.A.
Respondents were the defendants-appellees in the
court of appeals. Respondents are the Tri County
Area Schools school district, school administrator
Andrew Buikema, and teacher Wendy Bradford.
iii
RELATED PROCEEDINGS
This case arises from these proceedings:
•
B.A. v. Tri County Area Schools, No. 24-1769, 6th
Cir. (October 14, 2025) (affirming dismissal); and
•
D.A. ex rel. B.A. v. Tri County Area Schools,
No. 1:23-cv-423, W.D. Mich. (August 23, 2024)
(granting defendants’ motion for summary
judgment).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES ..................................... vi
PETITION FOR WRIT OF CERTIORARI .................1
OPINIONS BELOW ....................................................4
JURISDICTION ..........................................................4
CONSTITUTIONAL PROVISION INVOLVED ........5
STATEMENT OF THE CASE ....................................5
REASONS FOR GRANTING THE PETITION .........7
I.
There Is a Recognized Split over Whether
Fraser
Permits
Schools
to
Censor
Nondisruptive Political Speech That Is Not
Plainly Profane or Lewd.......................................8
A. Fraser’s lack of guidance leaves the lower
courts guessing.............................................10
B. The Third and Ninth Circuits apply
Fraser only to plainly profane or lewd
speech. ..........................................................13
C. The Sixth Circuit applies Fraser broadly
to any speech a single administrator or
teacher subjectively deems “vulgar.” ..........15
II. The Sixth Circuit’s Approach Contradicts
Tinker, Misapplies Fraser, and Flouts First
Amendment Principles. ......................................16
v
A. The decision below relies on a 19thcentury view of student rights that
Tinker plainly ended in public schools. .......16
B. The First Amendment and Tinker are
designed to protect political speech like
the “Let’s Go Brandon” slogan. ...................19
C. The Sixth Circuit’s interpretation of
Fraser as licensing unbounded subjective
enforcement is anathema to the First
Amendment. .................................................24
III. The Question Presented Is Exceptionally
Important, and This Case Is an Ideal Vehicle
to Address It. ......................................................27
CONCLUSION ..........................................................28
APPENDICES
Appendix A: United States Court of Appeals for
the Sixth Circuit, Opinion, October 14, 2025...........1a
Appendix B: United States District Court,
Western District of Michigan, Amended Opinion
and Order Granting Defendants’ Motion for
Summary Judgment and Denying Plaintiffs’
Motion for Summary Judgment .............................64a
Appendix C: United States Court of Appeals for
the Sixth Circuit, Denial of En Banc Rehearing,
December 26, 2025 ..................................................96a
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott v. Pastides,
900 F.3d 160 (4th Cir. 2018) ................................ 25
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) .............................................. 25
B.H. ex rel. Hawk v. Easton Area Sch. Dist.,
725 F.3d 293 (3d Cir. 2013) ........................ 9, 13–16
Bd. of Airport Comm’rs v. Jews for Jesus, Inc.,
482 U.S. 569 (1987) .............................................. 25
Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675 (1986) ......................3–4, 7–16, 20–22,
24, 26–27
Boroff v. Van Wert City Bd. of Educ.,
220 F.3d 465 (6th Cir. 2000) ...................... 8, 15–16
Bridges v. California,
314 U.S. 252 (1941) .............................................. 19
Brown v. Bd. of Educ.,
347 U.S. 483 (1954) .............................................. 17
Brown v. Ent. Merchs. Ass’n,
564 U.S. 786 (2011) .............................................. 23
Chandler v. McMinnville Sch. Dist.,
978 F.2d 524 (9th Cir. 1992) ................................ 14
Cohen v. California,
403 U.S. 15 (1971) ................................................ 22
Denno v. Sch. Bd. of Volusia Cnty.,
218 F.3d 1267 (11th Cir. 2000) ............................ 13
vii
Doninger ex rel. Doninger v. Niehoff,
527 F.3d 41 (2d Cir. 2008) .................................... 14
Doninger v. Niehoff,
642 F.3d 334 (2d Cir. 2011) .................................. 12
Graham v. Florida,
560 U.S. 48 (2010) ................................................ 25
Grayned v. City of Rockford,
408 U.S. 104 (1972) ........................................ 24, 26
Guiles ex rel. Guiles v. Marineau,
461 F.3d 320 (2d Cir. 2006) .................................. 12
Harper ex rel. Harper v. Poway Unified Sch. Dist.,
445 F.3d 1166 (9th Cir. 2006) .............................. 12
Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260 (1988) .................................. 11–13, 22
J.A. v. Fort Wayne Cmty. Schs.,
No. 1:12–cv–155, 2013 WL 4479229 (N.D. Ind.
Aug. 20, 2013) ......................................................... 9
Jacobellis v. Ohio,
378 U.S. 184 (1964) ................................................ 1
K.J. ex rel. Braun v. Sauk Prairie Sch. Dist.,
No. 11-cv-622, 2012 WL 13055058 (W.D. Wisc.
Feb. 6, 2012) ........................................................... 9
Katz v. United States,
389 U.S. 347 (1967) .............................................. 28
Keyishian v. Bd. of Regents,
385 U.S. 589 (1967) .............................................. 10
Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,
594 U.S. 180 (2021) .........................1, 17–18, 20, 27
viii
Mahmoud v. Taylor,
606 U.S. 522 (2025) .............................................. 17
McIntire v. Bethel Sch., Indep. Sch. Dist. No. 3,
804 F. Supp. 1415 (W.D. Okla. 1992) .................. 13
Mills v. Alabama,
384 U.S. 214 (1966) .............................................. 19
Morgan v. Swanson,
755 F.3d 757 (5th Cir. 2014) ................................ 25
Morse v. Frederick,
551 U.S. 393 (2007) .................................... 8, 11, 14
Olmstead v. United States,
277 U.S. 438 (1928) .............................................. 28
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
258 F. Supp. 971 (S.D. Iowa 1966)....................... 18
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969) ..................2–3, 7, 9–12, 14–16,
18–20, 22–23, 25–27
United States v. Ray,
803 F.3d 244 (6th Cir. 2015) ................................ 25
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) .............................................. 28
Statutes
28 U.S.C. § 1254(1)..................................................... 4
28 U.S.C. § 1331 ......................................................... 6
28 U.S.C. § 1343 ......................................................... 7
Constitutional Provisions
U.S. Const. amend. I .................................................. 5
ix
Congressional Records
167 Cong. Rec. H5776 (daily ed. Oct. 21, 2021) ........ 6
167 Cong. Rec. H5880 (daily ed. Oct. 26, 2021) ........ 5
168 Cong. Rec. H5240 (daily ed. June 7, 2022) ......... 5
Other Authorities
Carrie A. Beyer, Fighting for Control: Movie
Studios and the Battle over Third-Party
Revisions, 2004 U. Ill. L. Rev. 967 ....................... 21
Cindy Lavorato & John Saunders, Public High
School Students, T–Shirts and Free Speech:
Untangling the Knots, 209 West’s Educ. L. Rep.
1 (2006) ................................................................. 12
Frederick Schauer, Abandoning the Guidance
Function: Morse v Frederick, 2007 Sup. Ct.
Rev. 205 .................................................................. 9
John Steinbeck, East of Eden (Penguin Books
1992) (1952) .......................................................... 23
Martha McCarthy, Student Expression Rights: Is
A New Standard on the Horizon?, 216 West’s
Educ. L. Rep. 15 (2007) ........................................ 12
Melissa Mohr, Holy Sh*t: A Brief History of
Swearing (2013) .................................................... 21
Recent Case, B.H. ex rel. Hawk v. Easton Area
School District, 725 F.3d 293 (3d Cir. 2013) (en
banc), 127 Harv. L. Rev. 1049 (2014) ................ 4, 9
Vikram David Amar, Morse, School Speech, and
Originalism, 42 U.C. Davis L. Rev. 637 (2009) ... 18
1
PETITION FOR WRIT OF CERTIORARI
The decision below poses a stark threat to the First
Amendment rights of millions of public school
students. It licenses individual teachers and
administrators to banish nondisruptive political
speech containing sanitized expressions if it clashes
with their personal notion of “vulgarity.”
Judge Bush sounded the alarm in dissent that the
decision sharply splits from other circuits and
“essentially gives school administrators boundless
discretion” to censor political speech, “akin to ‘I know
it when I see it.’” App. 32a (quoting Jacobellis v. Ohio,
378 U.S. 184, 197 (1964) (Stewart, J., concurring)).
Worse yet—and as the respondent school district
concedes—the majority’s approach “will produce
disparate outcomes across different schools” for
identical nondisruptive political speech. Resp. to Pet.
for Reh’g and Reh’g En Banc 16, B.A. v. Tri Cnty. Area
Schs., No. 24-1769, 2025 WL 3969583 (6th Cir. Dec.
26, 2025), Dkt. No. 94.
This Court has never approved, in any context, a
subjective standard for restricting speech. America’s
public schools, our “nurseries of democracy,” should
not be the first. Mahanoy Area Sch. Dist. v. B.L. ex rel.
Levy, 594 U.S. 180, 190 (2021).
Since October 2021, “Let’s Go Brandon” has been
a popular conservative political slogan expressing
disdain for President Joe Biden. Though it began as a
misheard “F*** Joe Biden” chant at a NASCAR race,
it quickly became part of the American cultural and
political lexicon as a sanitized way to express
2
displeasure with the Biden administration. Multiple
members of Congress have used the slogan during
floor speeches opposing President Biden’s legislative
initiatives, and the phrase has never been censored
on broadcast television or radio. Given the slogan’s
cleaned-up status, Petitioners D.A. and X.A. received
“Let’s Go Brandon” sweatshirts from their mother as
Christmas presents.
Yet when Petitioners wore the sweatshirts to
school, an assistant principal and a teacher
(Respondents Andrew Buikema and Wendy Bradford,
respectively) deemed them in violation of the school’s
prohibition on “profanity” and forced them to remove
the apparel, even though it caused no disruption. In
Respondents’ view, a sanitized expression “means” its
profane corollary and is thus equally forbidden, even
in nondisruptive political expression. App. 5a.
Respondents’ view, affirmed by a Sixth Circuit
panel in a 2-1 decision, is incompatible with decades
of First Amendment doctrine. In 1969, during the
height of protests over the Vietnam War, this Court
upheld students’ right to wear highly controversial
black armbands expressing opposition to the war.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 512 (1969). It explained that America’s public
schools must prepare the next generation for the
“hazardous freedom” of living in a country where their
neighbors and leaders may not think, talk, or pray the
same way they do. Id. at 508. Under Tinker, the First
Amendment protects students’ freedom of speech,
unless their school demonstrates actual or reasonably
forecasted substantial disruption. Id. at 509.
3
This case results from widespread confusion and
disagreement in the lower courts over the scope of this
Court’s decision in Bethel School District No. 403 v.
Fraser, 478 U.S. 675 (1986), which established a
narrow exception to Tinker’s substantial disruption
test, authorizing schools to prohibit profane and
sexually lewd speech. Attempting to apply Fraser,
lower courts have reached diametrically opposed
results even when addressing identical nondisruptive
student speech. While the Third and Ninth Circuits
interpret Fraser to cover “plainly” profane and sexual
speech, the Sixth Circuit majority below embraced a
far more expansive reading, allowing censorship of
nondisruptive political speech that any single teacher
or administrator “reasonably understands” as vulgar.
As Judge Bush’s dissent explains, the majority
decision “creates at least two circuit splits” and makes
every school (and classroom) a kingdom unto itself.
App. 32a. A political shirt could have First
Amendment protection in second-period algebra but
not third-period biology. The dissent warns this
approach “open[s] the door for viewpoint
discrimination,”
because
it
“grants
schools
unrestrained authority to suppress speech based on
subjective interpretations.” App. 53a–54a.
The First Amendment is intended to shield
Americans from inconsistent enforcement based on
government officials’ whims and political leanings.
But “[i]f we allow schools the power to censor political
speech by recharacterizing it as vulgarity, we risk
turning disagreement with political speech into
justification for its censorship—something the First
Amendment flatly forbids.” App. 32a (Bush, J.,
4
dissenting). The Constitution must provide the same
protection for students’ nondisruptive political
apparel in Michigan as it does in Montana, no matter
the idiosyncrasies of school staff.
Judge Bush stressed that given the confusion
among the circuit courts over Fraser’s meaning, “the
Supreme Court itself must ultimately clarify, and
ideally limit, Fraser’s reach.” App. 62a (quoting
Recent Case, B.H. ex rel. Hawk v. Easton Area School
District, 725 F.3d 293 (3d Cir. 2013) (en banc), 127
Harv. L. Rev. 1049, 1050 (2014)). This Court should
grant certiorari to clarify Fraser.
OPINIONS BELOW
The district court’s decision granting Respondents’
motion for summary judgment is reported at 746 F.
Supp. 3d 447 and reprinted at App. 64a–95a. The
Sixth Circuit’s decision affirming summary judgment
is reported at 156 F.4th 782 and reprinted at App. 1a–
63a. The Sixth Circuit’s order denying rehearing is
unreported but available at 2025 WL 3969583 and
reprinted at App. 96a–97a.
JURISDICTION
The Sixth Circuit entered judgment on October 14,
2025. App. 1a. On December 26, 2025, the Sixth
Circuit denied rehearing. App. 96a. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
5
CONSTITUTIONAL PROVISION INVOLVED
The First Amendment to the United States
Constitution provides in part: “Congress shall make
no law … abridging the freedom of speech.”
STATEMENT OF THE CASE
At the heart of this case is the “Let’s Go Brandon”
political slogan. In 2021, after Brandon Brown won a
NASCAR race, members of the crowd began chanting
“F*** Joe Biden” during Brown’s post-race interview.
App. 3a–4a. A TV commentator remarked they were
shouting “Let’s Go Brandon!” and a political slogan
was born. App. 4a. It transformed overnight into a
popular, cleaned-up slogan for expressing displeasure
with President Biden’s administration. App. 4a.
“Let’s Go Brandon … permeated American society
… appearing prominently on politically themed
merchandise—including T-shirts, hats, flags, and
bumper stickers—as well as at campaign rallies,
political protests, and even on billboards across the
country.” App. 33a (Bush, J, dissenting). The slogan
was omnipresent on broadcast television, radio, and
the news. App. 4a; App. 33a (Bush, J., dissenting).
President Biden even repurposed the slogan for his
own campaign, sharing “Dark Brandon” memes.
App. 4a. In Congress, to convey strong disapproval of
President Biden’s administration and initiatives,
elected officials embraced “Let’s Go Brandon” in floor
speeches without violating legislative decorum rules.
See 168 Cong. Rec. H5240 (daily ed. June 7, 2022)
(statement of Rep. Douglas L. LaMalfa); 167 Cong.
Rec. H5880 (daily ed. Oct. 26, 2021) (statement of
6
Rep. Mary E. Miller); 167 Cong. Rec. H5776 (daily ed.
Oct. 21, 2021) (statement of Rep. William J. Posey).
During the 2021–2022 school year when the
relevant events occurred, Petitioners and brothers
D.A. and X.A. were in sixth and eighth grade
respectively in Respondent Tri County Area Schools
(the “School District”). App. 5a. After receiving “Let’s
Go Brandon” sweatshirts at Christmas from their
mother, they wore them to school to silently express
disapproval of President Biden. App. 5a–6a.
Respondent Andrew Buikema, the assistant
principal, and Respondent Wendy Bradford, a
teacher, instructed Petitioners to remove their
sweatshirts or face discipline. App. 5a–6a. Buikema
ordered removal of the apparel because he said the
phrase “means the F-word” and has a “profane double
meaning.” App. 5a–6a.
The School District concedes it never experienced
disruption due to students using or wearing apparel
with the “Let’s Go Brandon” slogan. App. 7a. The
School District also never alleged that Petitioners
were breaking any rule apart from the dress code’s
prohibition on “profanity” or that the expression
invaded the rights of others. See App. 6a–7a.
After the School District refused to lift the
prohibition, 1 Petitioners filed this lawsuit. App. 7a.
The district court had federal question jurisdiction
under 28 U.S.C. § 1331 and civil rights jurisdiction
1. The School District’s prohibition of “Let’s Go Brandon”
apparel extends to Tri County High School, which the brothers
now attend.
7
under 28 U.S.C. § 1343. The district court held “Let’s
Go Brandon” constitutes “profanity” sanctionable by
public schools and granted summary judgment for the
School District and its employees. App. 83a–87a. A
divided Sixth Circuit panel affirmed because “the
school reasonably understood the slogan ‘Let’s Go
Brandon’ to be vulgar.” App. 3a. Petitioners sought
rehearing en banc, urging the full Sixth Circuit to
instead align itself with the Third and Ninth Circuits’
approach. But the Sixth Circuit denied rehearing en
banc on December 26, 2025. App. 96a.
REASONS FOR GRANTING THE PETITION
The Sixth Circuit’s decision deepens confusion and
disagreement in the lower courts on an issue affecting
tens of millions of public school students: What
political apparel does the First Amendment protect at
school? Tinker’s baseline test is clear: Schools may not
censor political speech absent actual or reasonably
forecasted substantial disruption or an invasion of the
rights of others.
But the contours of Fraser, an exception to Tinker,
are anything but. And after 40 years of percolation in
the lower courts, the exception now threatens to
swallow the rule, with even nondisruptive, fully
sanitized political speech facing censorship. Because
disruptive speech is already regulable under Tinker,
the Third and Ninth Circuits sensibly interpret
Fraser narrowly, bypassing Tinker’s substantial
disruption test only for “plainly” profane or sexual
expression. The Sixth Circuit reads it far more
broadly, interpreting Fraser as permitting censorship
of a wide range of materials, from T-shirts for the
8
band Marilyn Manson, Boroff v. Van Wert City Bd. of
Educ., 220 F.3d 465, 471 (6th Cir. 2000) (reasoning
the school appropriately found the shirt “contrary to
[its] educational mission” because the “rock group
promotes disruptive and demoralizing values” ), to the
“Let’s Go Brandon” political slogan here, App. 10a–
14a (holding an administrator could “reasonably
understand” the sanitized slogan as “vulgar” because
of its genesis in a profane chant).
This divergence in authority makes public school
students’ First Amendment right to nondisruptive
political speech inconsistent across the circuits. And
in the Sixth Circuit, it makes the right inconsistent
not only between schools but also between classes,
with individual teachers authorized to enforce their
own subjective notion of “vulgarity.”
Students’ First Amendment rights do not and
must not depend on the sensitivities of individual
teachers. As Judge Bush explained in dissent,
subjective standards are a petri dish for viewpoint
discrimination and thus anathema to the First
Amendment. App. 53a–54a. This Court should grant
certiorari, clarify Fraser, and provide predictability
for the nation’s teachers, parents, and students.
I. There Is a Recognized Split over Whether
Fraser
Permits
Schools
to
Censor
Nondisruptive Political Speech That Is Not
Plainly Profane or Lewd.
This Court said it best: “The mode of analysis
employed in Fraser is not entirely clear.” Morse v.
Frederick, 551 U.S. 393, 404 (2007). The lower courts
9
agree, with nationwide lamentations that Fraser’s
analysis, deciding factors, and ultimate holding are
ambiguous and thus difficult to apply with
consistency. Those differences have resulted in
multiple federal courts reaching opposing views on
whether, for example, Fraser permits a school to
prohibit the same bracelet. Compare B.H. ex rel. Hawk
v. Easton Area Sch. Dist., 725 F.3d 293, 297–98 (3d
Cir. 2013) (en banc) (holding Fraser did not authorize
middle school to prohibit “I ♥ boobies!” breast cancer
awareness
bracelets
if
students
remain
nondisruptive), with J.A. v. Fort Wayne Cmty. Schs.,
No. 1:12–cv–155, 2013 WL 4479229, at *8 (N.D. Ind.
Aug. 20, 2013) (holding Fraser authorized prohibiting
the bracelets in a high school), and K.J. ex rel. Braun
v. Sauk Prairie Sch. Dist., No. 11-cv-622, 2012 WL
13055058, at *1 (W.D. Wisc. Feb. 6, 2012) (holding
Fraser authorized prohibiting the bracelets in a
middle school).
After 40 years of good faith disagreement and
inconsistent application in the lower courts and
America’s schools, it is time, as Judge Bush urged in
dissent, for “the Supreme Court itself” to “ultimately
clarify, and ideally limit, Fraser’s reach.” App. 62a
(quoting Recent Case, supra); see also Frederick
Schauer, Abandoning the Guidance Function: Morse
v Frederick, 2007 Sup. Ct. Rev. 205, 219, 227 (arguing
“Fraser muddied the [Tinker] waters considerably”
and urging the Court to provide additional clarity to
students and teachers on in-school First Amendment
rights).
10
A. Fraser’s lack of guidance leaves the lower
courts guessing.
“The vigilant protection of constitutional freedoms
is nowhere more vital than in the community of
American schools.” Tinker, 393 U.S. at 512 (quoting
Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).
That is because “[t]he classroom is peculiarly the
‘marketplace of ideas.’ The Nation’s future depends
upon leaders trained through wide exposure to that
robust exchange of ideas which discovers truth ‘out of
a multitude of tongues, (rather) than through any
kind of authoritative selection.’” Id. (quoting
Keyishian, 385 U.S. at 603). Students therefore do not
“shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate.” Id. at 506.
Instead, Tinker requires that if a school wishes to
censor nondisruptive student expression, it bears the
burden of demonstrating actual or reasonably
forecasted substantial disruption or an invasion of the
rights of others. Id. at 509.
In 1986, Fraser carved out a narrow exception to
Tinker’s test. Fraser involved a student delivering a
speech laden from beginning to end with sexual
innuendo at a school assembly. 478 U.S. at 677–78.
The student used “an elaborate, graphic, and explicit
sexual metaphor” to endorse a student council
candidate, id. at 678, proclaiming him “a man who is
firm—he’s firm in his pants,” and promising he would
“take[] his point and pound[] it in” and “go to the very
end—even the climax, for each and every one of you,”
id. at 687 (Brennan, J., concurring in the judgment).
During the speech, “[s]ome students hooted and
yelled,” while others “by gestures graphically
11
simulated the sexual activities pointedly alluded to in
[the student’s] speech.” Id. at 678 (majority opinion).
The Court held the First Amendment did not shield
the student from punishment and distinguished his
remarks from Tinker in four key respects.
First, this Court emphasized the “marked
distinction” between the raucous, nonpolitical student
council assembly speech in Fraser and the silent
political message of the anti-war armbands in Tinker.
Id. at 680. Second, the Court noted that unlike Mary
Beth and John Tinker, who passively wore
controversial anti-war armbands during the school
day, Matthew Fraser directed his expression at a
captive student audience during a school assembly.
Id. at 677. Contrasting Tinker with Fraser, this Court
in Hazelwood School District v. Kuhlmeier
distinguished between suppression of “a student’s
personal expression that happens to occur on the
school premises” and “educators’ authority over
school-sponsored … activities that students, parents,
and members of the public might reasonably perceive
to bear the imprimatur of the school.” 484 U.S. 260,
271 (1988). Third, Fraser’s assembly speech, unlike
the Tinkers’ armbands, used “graphic” and “explicit”
sexual language. Fraser, 478 U.S. at 678. Fourth and
finally, Fraser noted the student’s assembly speech
would have violated the decorum rules of the U.S.
Senate and House of Representatives. Id. at 681–82.
But unlike Tinker, which provided the workable
and objective substantial disruption test, the “mode of
analysis employed in Fraser is not entirely clear.”
Morse, 551 U.S. at 404. Likewise for Fraser’s scope.
Though the lower courts agree Fraser is an exception
12
to Tinker, i.e., an allowance for schools to regulate
certain speech absent substantial disruption, they
have sharply diverged over the content necessary to
trigger it.
There is broad agreement among lower courts,
however, that Fraser is difficult to interpret and
apply. The Second Circuit lamented that “[t]he law
governing restrictions on student speech can be
difficult and confusing, even for lawyers, law
professors, and judges.” Doninger v. Niehoff, 642 F.3d
334, 353 (2d Cir. 2011); see also Guiles ex rel. Guiles
v. Marineau, 461 F.3d 320, 326 (2d Cir. 2006) (citing
Fraser in “acknowledg[ing] some lack of clarity in the
Supreme Court’s student-speech cases”).
So as “a result of the numerous applications of
Fraser, the extent of students’ free speech in public
schools is more than a bit tangled.” Cindy Lavorato &
John Saunders, Public High School Students, T–
Shirts and Free Speech: Untangling the Knots, 209
West’s Educ. L. Rep. 1, 1 (2006); see also Martha
McCarthy, Student Expression Rights: Is A New
Standard on the Horizon?, 216 West’s Educ. L. Rep.
15, 19 (2007) (“The Fraser decision has generated a
greater range of interpretations than has the
Hazelwood ruling.”).
In short: “Reconciling Tinker and Fraser is no easy
task.” Harper ex rel. Harper v. Poway Unified Sch.
Dist., 445 F.3d 1166, 1193 n.1 (9th Cir. 2006)
(Kozinski, J., dissenting), vacated as moot, 549 U.S.
1262 (2007).
13
Relying on this Court’s discussion of Fraser in
Hazelwood, the Eleventh Circuit and some district
courts have reasoned that a logical reading of
Hazelwood limits Fraser’s reach “to situations in
which the speech involved is likely to be perceived as
bearing the imprimatur of the school.” Denno v. Sch.
Bd. of Volusia Cnty., 218 F.3d 1267, 1274 n.5 (11th
Cir. 2000) (citing Hazelwood, 484 U.S. at 270–73); see
also McIntire v. Bethel Sch., Indep. Sch. Dist. No. 3,
804 F. Supp. 1415, 1426 (W.D. Okla. 1992) (observing
that, while “the Supreme Court’s opinion in Fraser is
oblique at best and certainly less than clear,” it is
inapplicable if the speech does not “bear[] the
imprimatur of the school”).
Most courts, however, interpret Fraser as applying
to all on-campus student speech. But they sharply
split over what constitutes sufficiently “offensive,”
“profane,” “vulgar,” or “lewd” speech to trigger the
exception, particularly with respect to political
speech.
B. The Third and Ninth Circuits apply
Fraser only to plainly profane or lewd
speech.
The Third and Ninth Circuits read Fraser
narrowly, providing the strongest protection to
nondisruptive political speech. In the en banc Third
Circuit’s view, “Fraser addressed only a school’s
power over speech that was plainly lewd—not speech
that a reasonable observer could interpret as either
lewd or non-lewd.” Hawk, 725 F.3d at 306.
14
Likewise, the Ninth Circuit interprets Fraser as
permitting restriction of only “per se vulgar, lewd,
obscene, or plainly offensive” speech. Chandler v.
McMinnville Sch. Dist., 978 F.2d 524, 530 (9th Cir.
1992) (rejecting school’s position that pro-union “scab”
buttons could be regulated under Fraser, explaining,
“these buttons cannot be considered per se vulgar,
lewd, obscene, or plainly offensive within the meaning
of Fraser”). And though the Second Circuit has not
explicitly cabined Fraser to “plainly” and “per se”
profane and sexual expression, it has limited Fraser’s
holding to the type of “vulgar, lewd, and sexually
explicit language that was at issue in that case.”
Doninger ex rel. Doninger v. Niehoff, 527 F.3d 41, 49
(2d Cir. 2008) (upholding punishment of high schooler
for calling school administrators “douchebags”).
Of note, the Third Circuit uniquely interprets
Fraser and Morse to treat “ambiguously” profane and
lewd speech differently depending on whether it is
political—placing political speech in a preferred
position to nonpolitical speech of the same variety.
Hawk, 725 F.3d at 308–15. In support, the court
pointed to Fraser’s commentary on the “marked
distinction” between the political anti-war armbands
in Tinker and the sexually lewd student council
speech of Matthew Fraser, reasoning that “the Fraser
exception does not permit” schools to restrict
“ambiguously lewd, vulgar, or profane” student
speech if it is “plausibly interpreted as political or
social commentary.” Id. at 307, 309–10, 315.
These largely similar frameworks on one side of
the circuit split present a commonsense, workable
approach: Students retain their First Amendment
15
right to nondisruptive political speech unless they
express themselves in plainly sexual or profane
terms. In short, kids can’t use swearwords or be lewd
at school. For close calls on the margins, Tinker
stands ready as a circuit breaker, immediately
available to teachers and administrators if expression
causes, or is reasonably forecasted to cause,
disruption, or invades the rights of others.
C. The Sixth Circuit applies Fraser broadly
to any speech a single administrator or
teacher subjectively deems “vulgar.”
The Sixth Circuit expressly rejects the Third and
Ninth Circuit’s approach and instead interprets
Fraser to justify sweeping censorship far beyond
swearing and sexual speech. It took its first step
towards that split in Boroff, 220 F.3d 465. There, the
Sixth Circuit relied on Fraser to uphold a school’s
decision to ban T-shirts for the band Marilyn Manson
not because the shirts used profanity or sexual
language or imagery, but because the artist’s lyrics—
none of which were on the shirt—were “contrary to
the school’s educational mission.” Id. at 470; see also
id. at 471 (“Rather, the record demonstrates that the
School prohibited Boroff’s Marilyn Manson T-shirts
generally because this particular rock group promotes
disruptive and demoralizing values which are
inconsistent with and counter-productive to
education.”).
The Sixth Circuit supercharged that expansive
view of Fraser in this case. It explicitly rejected the
Third Circuit’s speech-protective approach in Hawk,
which called Boroff’s “sweeping and total deference to
16
school officials … incompatible with the Supreme
Court’s teachings.” Hawk, 725 F.3d at 316. Instead,
the Sixth Circuit reaffirmed its Boroff approach,
allowing individual school administrators and
teachers to subjectively decide what speech is
inappropriate for school. App. 25a–29a; see also App.
15a (explaining “although we are mindful of what the
en banc Third Circuit said, to our knowledge, no panel
of the Sixth Circuit has recognized Boroff’s
abrogation”).
Under the Sixth Circuit’s approach, so long as the
administrator or teacher’s determination that speech
is “vulgar” is “reasonable,” they not only avoid
monetary liability, but they also dictate whether the
student’s political expression is constitutionally
protected. As Judge Bush warned in dissent, no other
circuit follows this path. See App. 46a (“The majority’s
reading of Fraser conflicts with what that case said,
and ignores how this court and our sister circuits have
interpreted Fraser.”).
II. The Sixth Circuit’s Approach Contradicts
Tinker, Misapplies Fraser, and Flouts First
Amendment Principles.
A. The decision below relies on a 19thcentury view of student rights that Tinker
plainly ended in public schools.
The Sixth Circuit justifies its break from its sister
circuits by insisting its “deferential approach” of
allowing individual teachers and administrators to
decide what speech students may utter is “consistent
with the history of how free speech rights were
17
understood at the time of the Fourteenth
Amendment’s ratification.” App. 17a. But this Court
has already rejected such a “historical” approach to
constitutional rights in public schools—because
public schools as we know them today did not exist at
the framing. Brown v. Bd. of Educ., 347 U.S. 483, 490
(1954). As the Court explained, “Education of white
children was largely in the hands of private groups,”
and for black children “was almost non-existent.” Id.
Therefore, there is “little in the history of the
Fourteenth Amendment relating to its intended effect
on public education.” Id.
Until the late 19th century, schools exercised total
control over students because parents willingly (and
contractually) delegated their parental authority to
another, usually a private school or tutor. See
Mahanoy, 594 U.S. at 198–200 (Alito, J., concurring)
(discussing the evolution of school authority over
students from the Blackstone era to the present).
“Today, of course, the educational picture is quite
different” because school attendance is mandatory
and “parents and public schools do not enter into a
contractual relationship.” Id. at 199–200. Critically,
“when a public school regulates student speech,” it
does so as an “arm of the State.” Id. at 196. As this
Court recently explained, “the government’s
operation of the public schools … implicates direct,
coercive interactions between the State and its young
residents.” Mahmoud v. Taylor, 606 U.S. 522, 557
(2025).
Importing the in loco parentis principles from
19th-century private schools would permit “even
blatant viewpoint discrimination in schools,” where
18
“[s]tudents could be disciplined for taking any even
quiet position that diverges from the political
orthodoxy of school officials.” Vikram David Amar,
Morse, School Speech, and Originalism, 42 U.C.
Davis L. Rev. 637, 649 (2009). That is precisely the
approach Tinker rejected. Id.
In Tinker, the Des Moines school district insisted
wearing anti-war armbands was inappropriate for a
school setting. See Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 258 F. Supp. 971, 972 (S.D. Iowa 1966).
Under a historical approach, that determination
would have been final. But this Court in Tinker held
otherwise. “In our system, students … may not be
confined to the expression of those sentiments that
are officially approved. In the absence of a specific
showing of constitutionally valid reasons to regulate
their speech, students are entitled to freedom of
expression of their views.” Tinker, 393 U.S. at 511.
America regards its public schools as “nurseries of
democracy” where the “marketplace of ideas” is free
to flourish unless expression substantially disrupts
the school day. Mahanoy, 594 U.S. at 190. The
decision below attempts to resuscitate the ironfisted
authority over student speech that private school
headmasters enjoyed in the 19th century. That era is
over. Tinker governs and protects Petitioners’
freedom to engage in nondisruptive political speech.
19
B. The First Amendment and Tinker are
designed to protect political speech like
the “Let’s Go Brandon” slogan.
The Sixth Circuit majority rightly acknowledged
that “Let’s Go Brandon” is “firmly established in the
national lexicon” as an anti-Biden political slogan.
App. 5a. That is unsurprising. “It is a prized American
privilege to speak one’s mind” about our national
leaders. Bridges v. California, 314 U.S. 252, 270
(1941). And “[w]hatever differences may exist about
interpretations of the First Amendment, there is
practically universal agreement that a major purpose
of that Amendment was to protect the free discussion
of governmental affairs.” Mills v. Alabama, 384 U.S.
214, 218 (1966).
Political slogans about our leaders have a rich
history in America’s robust political discourse. The
Whig Party’s 1840 slogan “Tippecanoe and Tyler Too”
highlighted William Henry Harrison’s heroism in the
Battle of Tippecanoe. Slogans can sting, too. In 1884,
Republicans used “Ma. Ma. Where’s My Pa?” to
remind voters that Democrat Grover Cleveland
fathered a child out of wedlock. Democrats countered
with “Blaine, Blaine, James G. Blaine, the
Continental Liar from the State of Maine!” trying to
tie Republican candidate James Blaine to a
corruption scandal. Barack Obama’s “Yes We Can”
and Donald Trump’s “Make America Great Again”
leave little doubt that the rhetorical power of pithy
slogans remains strong in American discourse.
The sanitized “Let’s Go Brandon” political
slogan—used everywhere from campaign rallies to
20
the floor of Congress to convey disapproval of
President Biden and his administration—fits
squarely within our nation’s deeply rooted tradition of
peaceful dissent under the First Amendment.
The First Amendment protects public school
students’ right to participate in that American
tradition if they remain nondisruptive. Tinker
stressed that students experiencing and interacting
with different viewpoints “is not only an inevitable
part of the process of attending school; it is also an
important part of the educational process.” 393 U.S.
at 512. And this Court recently explained that
“schools have a strong interest in ensuring that future
generations understand the workings in practice of
the well-known aphorism, ‘I disapprove of what you
say, but I will defend to the death your right to say
it.’” Mahanoy, 594 U.S. at 190.
Yet the Sixth Circuit majority, relying on Fraser,
blessed Respondents’ censorship of “Let’s Go
Brandon” apparel. Though it acknowledged
Petitioners are “correct on the fact that a euphemism”
like “Let’s Go Brandon” is “not the same as the
explicitly vulgar or profane word it replaces,” it held
administrators could “reasonably … determine that
the euphemism still conveyed the vulgar message” of
the uncensored “F*** Joe Biden” chant. App. 13a
(cleaned up).
The Sixth Circuit’s approach defies common sense.
English speakers throughout history have turned to
sanitized expressions to avoid the social taboo of
profanity. Sanitizing socially taboo words and
expressions for general audiences is why radio edits
21
of songs and Kidz Bop exist. And it is how PG-13- and
R-rated movies air on broadcast television. See
generally Carrie A. Beyer, Fighting for Control: Movie
Studios and the Battle over Third-Party Revisions,
2004 U. Ill. L. Rev. 967, 985–86.
Sanitized expressions enable the speaker to
convey a sense of urgency, indicate outrage, or
otherwise discuss sensitive topics while staying inside
cultural norms for polite conversation. Two hundred
years ago, Victorians referred to trousers as
“unmentionables” because “their shape revealed a
man’s legs, and a man’s having legs implied that he
very likely had other body parts up there.” Melissa
Mohr, Holy Sh*t: A Brief History of Swearing 191
(2013). In modern times, we use (or try to use)
sanitized words and phrases like “fudge,” “gosh darn,”
and “Let’s Go Brandon” to express ourselves without
using profanities.
Allowing schools to equate sanitized euphemisms
with their uncensored corollaries leads to absurd
results. Words like “shoot” and “frick” would be
sanctionable in America’s high schools because they
“mean” something else. The Sixth Circuit majority
acknowledges this result, reasoning, “‘Heck’ is not
literally the same word as ‘Hell.’ But the word’s
communicative content is the same even if the
speaker takes some steps to obscure the offensive
word.” App. 13a. Yet the majority points to nothing—
no cases, scholars, agency opinions, nor anything else
categorizing intentionally sanitized speech as
profanity—to support this result. As Judge Bush
correctly put it, “Nothing in Fraser or any subsequent
Supreme Court decision suggests that this exception
22
should be extended to encompass political or
euphemistic expression that is not overtly profane.”
App. 58a.
This Court explained that “the First Amendment
gives a high school student the classroom right to
wear Tinker’s armband, but not Cohen’s [‘F*** the
Draft’] jacket.” Fraser, 478 U.S. at 682 (quotation
marks omitted) (discussing Cohen v. California, 403
U.S. 15 (1971)). This makes good sense. Kids can’t say
“f***” at school. But under the Sixth Circuit’s holding,
a school administrator could even prohibit a student
from wearing an anti-draft jacket emblazoned with
the words “Cohen’s Jacket” on the asserted ground
that it “means” “F*** the Draft.” That is simply not
how profanity—or language—works. And nothing in
Tinker or Fraser gives school officials such broad
censorial powers over nondisruptive political speech.
Notably, “Let’s Go Brandon” meets all four
benchmarks this Court used in Fraser to differentiate
Matthew Fraser’s lewd assembly speech from the
anti-war armbands in Tinker. First, “Let’s Go
Brandon” is core political expression, a “marked
distinction” from Fraser’s expression. Fraser, 478
U.S. at 680. Second, like the Tinkers, Petitioners
passively wore their apparel, making it expression
that “happen[ed] to occur on the school premises”
rather than speech at a “school-sponsored” activity
that “members of the public might reasonably
perceive to bear the imprimatur of the school.”
Hazelwood, 484 U.S. at 271. Third, “Let’s Go
Brandon” lacks the “graphic” and “explicit” sexual
language of Fraser’s speech. Fraser, 478 U.S. at 678.
And fourth, unlike Fraser’s address, id. at 681–82,
23
“Let’s Go Brandon” does not violate congressional
decorum rules and members of Congress have
repeatedly used the popular slogan in policy speeches.
See supra pp. 5–6.
American teenagers can handle sanitized
expression at school. Writing for the Court in Brown
v. Entertainment Merchants Ass’n, Justice Scalia
noted that “high-school reading lists are full” of
intense imagery. 564 U.S. 786, 796 (2011). “Homer’s
Odysseus blinds Polyphemus the Cyclops by grinding
out his eye with a heated stake,” and “[i]n the Inferno,
Dante and Virgil watch corrupt politicians struggle to
stay submerged beneath a lake of boiling pitch.” Id.
(citing Homer’s Odyssey and then Dante’s Inferno).
And in John Steinbeck’s magnum opus East of Eden,
Cathy Trask shoots her husband Adam and flees her
children to become the madam of a brothel catering to
sexual sadism. John Steinbeck, East of Eden 202,
314–22 (Penguin Books 1992) (1952). It defies belief
that teenagers could navigate Dante’s Inferno and
Cathy Trask’s brothel in the classroom but have their
education disturbed by seeing a “Let’s Go Brandon”
hoodie in the hallway.
Judge Bush put it best: “‘Let’s Go Brandon!’—
regardless its origin—has evolved into a widely
recognized political slogan used to express opposition
to a now-former president. It is not vulgar on its face,
nor so socially deviant that it must be sanitized from
student expression. It has become a political hallmark
entitled to the First Amendment protection described
in Tinker.” App. 46a. Yet the majority below insisted
that no matter how careful students are to express
their political views in a school-appropriate, sanitized
24
way, schools may censor their expression if it might
cause a classmate to think about the uncensored
original. America’s students are not so fragile, and the
First Amendment is not so brittle.
C. The Sixth Circuit’s interpretation of
Fraser as licensing unbounded subjective
enforcement is anathema to the First
Amendment.
The Sixth Circuit’s approach deputizes teachers
and administrators with censorship authority to
enforce each of their subjective notions of what
constitutes “vulgarity.” This is untenable for the
nearly five million K-12 public school students in the
circuit.
Here’s how it will unfold in practice: Two Michigan
public high school students in the same district arrive
at different schools quietly wearing a T-shirt with
Governor Gretchen Whitmer’s “Fix the Damn Roads”
slogan. One school is untroubled by the apparel. The
other finds the slogan “vulgar” and orders the student
to remove the shirt or face suspension. In the Sixth
Circuit’s view, the First Amendment protects the
shirt in one school, but the same shirt is unprotected
in the other, based purely on the sensitivity of
administrators.
The First Amendment rejects speech restrictions
turning on “ad hoc and subjective” determinations by
government officials, because of the acute “dangers of
arbitrary and discriminatory application.” Grayned v.
City of Rockford, 408 U.S. 104, 108–09 (1972). The
“opportunity for abuse” of a prohibition with “open-
25
ended interpretation[] is self-evident.” Bd. of Airport
Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 576
(1987) (quotation marks omitted). This basic principle
of objectivity—that the Constitution protects the
same nondisruptive political speech in East High
School as in West High School—is irreconcilable with
the Sixth Circuit’s deputization of individual
administrators to determine what speech is
sanctionable. 2 Students’ First Amendment rights do
not and must not depend on their school district’s
zoning map.
Teachers and administrators are already wellshielded from financial liability for gray-area
judgment calls because “educators are rarely denied
immunity from liability arising out of FirstAmendment disputes.” Morgan v. Swanson, 755 F.3d
757, 760 (5th Cir. 2014); see also Abbott v. Pastides,
900 F.3d 160, 174 (4th Cir. 2018) (citing Morgan and
noting same). But there is no legal basis, and no
workable reality, under which the First Amendment’s
protection for nondisruptive political speech changes
from school to school. As Judge Bush put it, “What’s
left of Tinker’s First Amendment protections in
schools when we now must defer to school
administrators in these decisions without any
2. Constitutional objectivity is not confined to the First
Amendment. See, e.g., United States v. Ray, 803 F.3d 244, 266
n.12 (6th Cir. 2015) (“Whether a suspect is ‘in custody,’” such
that Fifth Amendment rights attach, “is an objective
determination.”); Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011)
(holding likewise for the Fourth Amendment); Graham v.
Florida, 560 U.S. 48, 61–62 (2010) (holding likewise for
analyzing violations of the Eighth Amendment’s prohibition on
“cruel and unusual punishment”).
26
showing of disruption of school operations? The
answer: less than what the Constitution requires.”
App. 52a.
What is more, “uncertain meanings inevitably
lead citizens to steer far wider of the unlawful zone
than if the boundaries of the forbidden areas were
clearly marked.” Grayned, 408 U.S. at 109 (cleaned
up). “Better safe than sorry” self-censorship of
political speech is the wrong lesson to teach the next
generation of Americans.
So, if Fraser’s reach remains muddled and the
Sixth Circuit’s decision is left undisturbed, civic
participation will suffer. If teenagers must now fear
suspension (or, even worse, their parents arriving at
school with a change of clothes) for wearing apparel
with a political message any teacher or administrator
deems “vulgar,” few will risk exercising the right to
nondisruptive expression that Tinker guarantees.
Justice Brennan stressed in his Fraser
concurrence that “school officials do not have limitless
discretion to apply their own notions of indecency.
Courts have a First Amendment responsibility to
ensure that robust rhetoric is not suppressed by
prudish failures to distinguish the vigorous from the
vulgar.” 478 U.S. at 689–90 (Brennan J., concurring)
(cleaned up). But the Sixth Circuit abandons its
responsibility to stand guard over the next
generation’s First Amendment rights, delegating it to
the government officials who Justice Brennan warned
need supervision. Government officials must not get
to decide when they have violated the First
Amendment.
27
III. The Question Presented Is Exceptionally
Important, and This Case Is an Ideal Vehicle
to Address It.
This case provides the perfect opportunity to
clarify Fraser because it is uncontested that
Petitioners’ speech was political and did not disrupt
the school day. As Judge Bush explained, “The school
district has never argued that the sweatshirts led to
a material disruption or that the clothing interfered
in any fashion with the operation of the school.” App.
32a. There is likewise agreement between the
majority and dissent that “Let’s Go Brandon”
constitutes political speech. App. 21a (noting “this
slogan’s political valence”); App. 31a (Bush, J.,
dissenting) (noting “the phrase is purely political
speech”). The Court should take this opportunity,
with the benefit of a clean record and an undisputed
invocation of Fraser to censor nondisruptive political
speech, to clarify its reach for the nation’s 50 million
K-12 public school students.
For these students, school is their “community.”
Mahanoy, 594 U.S. at 190. It is where they spend
most of their time, meet their friends, and prepare for
adulthood. Communication between students about
life inside and outside the schoolhouse gate is “not
only an inevitable part of the process of attending
school; it is also an important part of the educational
process.” Tinker, 393 U.S. at 512.
Censoring sanitized political expression leaves
students unprepared for life as an American adult,
where every belief, no matter how sacred, will be fair
game for disagreement and even ridicule (often with
28
real swearwords). And it teaches the next generation
that the way to fight disagreeable speech is by
silencing the speaker. “Our government is the potent,
the omnipresent teacher. For good or for ill, it teaches
the whole people by its example.” Olmstead v. United
States, 277 U.S. 438, 485 (1928) (Brandeis, J.,
dissenting), overruled by Katz v. United States, 389
U.S. 347 (1967). This is particularly true of our public
schools. “That [schools] are educating the young for
citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are
not to strangle the free mind at its source and teach
youth to discount important principles of our
government as mere platitudes.” W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 637 (1943).
Public schools “have, of course, important,
delicate, and highly discretionary functions, but none
that they may not perform within the limits of the Bill
of Rights.” Id. If a student’s political expression is not
disruptive, the government must meet a high bar to
justify censorship. America’s commitment to freedom
of speech demands no less.
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for certiorari.
29
Respectfully submitted,
Sara E. Berinhout
FOUNDATION FOR
INDIVIDUAL RIGHTS
AND EXPRESSION
510 Walnut St.
Suite 900
Philadelphia, PA 19106
Conor T. Fitzpatrick
Counsel of Record
Robert Corn-Revere
Daniel A. Zahn
FOUNDATION FOR
INDIVIDUAL RIGHTS
AND EXPRESSION
700 Pennsylvania Ave. SE
Suite 340
Washington, DC 20003
215-717-3473
conor.fitzpatrick@fire.org
Counsel for Petitioners
March 26, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.