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

Ask Donna

What actually matters in this document.

Text

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.