Amicus Curiae Brief — D. A., a Minor, By and Through his Mother, B. A., et al., Petitioners v. Tri County Area Schools, et al.

No. 25-1143

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

___________________________________

BRIEF OF FIRST AMENDMENT SCHOLARS

AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

___________________________________

Michael J. Grygiel

Counsel of Record

Daniela del Rosario Wertheimer

CORNELL LAW SCHOOL

FIRST AMENDMENT CLINIC

Myron Taylor Hall

Ithaca, New York 14853

607-255-8518

mgrygiel@foleyhoag.com

Counsel Pro Bono Publico for Amici Curiae

First Amendment Scholars

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................5

I.

Tinker’s “Material Disruption” Standard

Governs Public-School Student Political

Expression Within The “Schoolhouse

Gate” ....................................................................5

II.

Fraser Is Limited to Sexualized or Profane

Speech That Risks Being Associated With

The School ...........................................................6

A. Fraser’s Rationale Applies Only in a Narrow

Context ..............................................................6

B. By Reviving Boroff, Tri County Departed

from This Court’s Public-School Student

Speech Doctrine ..............................................10

C. D.A.’s and X.A.’s “Let’s Go Brandon”

Sweatshirts Were Neither Sexually Explicit

Nor Profane ....................................................12

D. D.A. and X.A. Engaged in Individual, Not

School-Associated, Expression .......................15

ii

III. The Sixth Circuit’s Misapplication of Fraser

Creates Two Circuit Splits ...............................17

A. No Other Circuit Grants Deference to

School Administrators to Punish NonDisruptive Political Speech ............................17

B. Other Circuits Apply Tinker to Students’

Facially Non-Profane Political Speech ..........20

IV. A First Amendment Rule Protecting Students’

Nondisruptive Political Speech Will Prevent

Broad School Censorship ..................................22

A. Ambiguously Sexual Student Speech Offering

Commentary on Political and Social Issues

Cannot Be Punished in the Absence of a

Tinker Disruption ...........................................22

B. D.A.’s and X.A.’s Nondisruptive Political

Message Is Protected Under Tinker ..............26

CONCLUSION ..........................................................27

Appendix A ................................................................1a

iii

TABLE OF AUTHORITIES

Cases

B.A. v. Tri County Area Schools,

156 F.4th 782 (6th Cir. 2025) ...........2-4, 7, 10, 12, 14,

17, 20, 25, 26

Barr v. Lafon,

538 F.3d 554 (6th Cir. 2008) .....................................23

Bethel School District No. 403 v. Fraser,

478 U.S. 675 (1986) ............................................... 3-24

B.H. ex rel. Hawk v. Easton Area School District,

725 F.3d 293 (3d Cir. 2013) ... 8, 12, 14-15, 18, 20, 22-24

Boroff v. Van Wert City Board of Education,

220 F.3d 465 (6th Cir. 2000) ............................... 10-12

Castorina, ex rel. Rewt v. Madison County

School Board,

246 F.3d 536 (6th Cir. 2001) .....................................25

Chandler v. McMinnville School District,

978 F.2d 524 (9th Cir. 1992) .....................................14

Chiles v. Salazar,

146 S. Ct. 1010 (2026) .........................................13, 25

D.A. ex rel. B.A. v. Tri County Area Schools,

746 F.Supp.3d 447 (W.D. Mich. 2024) ............ 3, 26, 27

DePinto v. Bayonne Board of Education,

514 F.Supp.2d 633 (D.N.J. 2007)..............................11

iv

FCC v. Pacifica Foundation,

438 U.S. 726 (1978) ...............................................8, 14

Guiles v. Marineau,

461 F.3d 320 (2d Cir. 2006) ...........6, 12, 14, 18-20, 23

Hazelwood v. Kuhlmeier,

484 U.S. 260 (1988) .............................................16, 25

L.M. v. Town of Middleborough,

103 F.4th 854 (1st Cir. 2024) ....................................12

L.M. v. Town of Middleborough,

145 S. Ct. 1489 (2025) .................................................6

Mahanoy Area School District v. B.L. ex rel.

Levy,

594 U.S. 180 (2021) ...........................................2, 9, 23

Morse v. Frederick,

551 U.S. 393 (2007) ............................... 5, 8-12, 22, 23

Newsom ex rel. Newsom v. Albemarle County

School Board,

354 F.3d 249 (4th Cir. 2003) .....................................21

Nuxoll ex rel. Nuxoll v. Indian Prairie School

District # 204

523 F.3d 668 (7th Cir. 2008) .....................................21

Saxe v. State College Area School District,

240 F.3d 200 (3d Cir. 2001) ..................................6, 17

Thomas v. Collins,

323 U.S. 516 (1945) ...................................................25

v

Tinker v. Des Moines Independent Community

School District,

393 U.S. 503 (1969) ............................ 2, 4-6, 16, 19-27

Young v. Giles County Board of Education,

181 F.Supp.3d 4591 (M.D. Tenn. 2015)....................15

Constitutional and Statutory Provisions

U.S. Constitution, Art. III.........................................24

U.S. Constitution, First Amendment ..... 1, 5-8, 10-14,

16-18, 22-26

Other Authorities

Annie Linskey, How ‘Let’s Go Brandon’ Became

an Unofficial GOP Slogan, WASH. POST

(Nov. 15, 2021) ............................................................3

Blake Hounshell & Leah Askarinam, ‘Let’s Go,

Brandon’ Zooms From Vulgar Meme to Campaign

Ad, N.Y. TIMES (Jan. 12, 2022) ...................................3

Clay Calvert, Mixed Messages, Muddled

Meanings, Drunk Dicks, and Boobies Bracelets:

Sexually Suggestive Student Speech and the

Need to Overrule or Radically Refashion Fraser,

90 DENV. U. L. REV. 131 (2012) ........................... 22-23

Colleen Long, How ‘Let’s Go Brandon’ Became

Code for Insulting Joe Biden, ASSOCIATED PRESS

(Oct. 30, 2021) .............................................................3

vi

David L. Hudson, Jr. & John E. Ferguson, Jr.,

The Court’s Inconsistent Treatment of Bethel v.

Fraser and the Curtailment of Student Rights,

36 J. MARSHALL L. REV. 181 (2002) ..........................19

Emily Gold Waldman, No Jokes About Dope:

Morse v. Frederick’s Educational Rationale, 81

UMKC L. REV. 685 (2013) ...................................... 8-9

Joseph A. Tomain, Cyberspace Is Outside the

Schoolhouse Gate: Offensive, Online Student

Speech Receives First Amendment Protection,

59 DRAKE L. REV. 97 (2010) ..................................9, 16

Lindsay Lowe, ‘Let’s Go Brandon’ Explained,

TODAY (Feb. 10, 2022) .................................................3

Mary-Rose Papandrea, Student Speech Rights

In the Digital Age, 60 FLA. L. REV. 1027 (2008) .......11

Robert C. Post, Between Governance and

Management: The History and Theory of the

Public Forum, 34 UCLA L. REV. 1713 (1987) ..........24

Scott A. Moss, The Overhyped Path from Tinker to

Morse: How the Student Speech Cases Show the

Limits of Supreme Court Decisions – For the Law

and for the Litigants, 63 FLA. L. REV. 1407 (2011) .......5

1

INTEREST OF AMICI CURIAE

Amici are legal scholars who have a strong

interest in promoting a sound interpretation of the

First Amendment consistent with the constitutional

values served by protecting free expression —

including safeguarding the political speech rights of

public-school students. Amici are concerned that the

decision below impermissibly extends the authority of

public-school officials to penalize students for

expressing political viewpoints in the school

environment that are neither sexually explicit or

profane, nor disruptive to the learning process. This

unwarranted government overreach constraining

student speech violates the First Amendment. Amici

are listed in the Appendix. 1

1 Pursuant to Rule 37.2, the parties were notified of this

brief’s filing at least 10 days prior to its due date, and have

consented to its filing. Pursuant to Rule 37.6, counsel for Amici

affirm that no counsel for either party in this case authored this

brief in whole or in part, and no person other than Amici’s

counsel made a monetary contribution intended to fund the

preparation or submission of this brief.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

For more than a half-century, public-school

students in the United States have been entitled to

express their political views inside the “schoolhouse

gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503, 506 (1969). Indeed, this Court lauds

public schools as “nurseries of democracy” that train

young citizens who need broad exposure to diverse

viewpoints. Mahanoy Area Sch. Dist. v. B.L. ex rel.

Levy, 594 U.S. 180, 190 (2021); Tinker, 393 U.S. at

512. Yet, by affirming the District Court’s decision to

defer to a school’s interpretation of a popular phrase

mischaracterized as “profane,” the Sixth Circuit

authorized broad censorship of nondisruptive student

political speech in school based merely on the

sensibilities of two school officials. As Judge Bush

underscored in dissent, the majority’s approach

unnecessarily created circuit splits and deepened

confusion regarding the scope of public-school

students’ free speech rights. B.A. v. Tri Cnty. Area

Schs., 156 F.4th 782, 799, 813 (6th Cir. 2025) (Bush,

J., dissenting). The ruling below erodes the core

constitutional protection for public-school student

speech established in Tinker.

The Sixth Circuit erroneously upheld the Tri

County Area Schools’ ban on sweatshirts worn by two

middle-school students, D.A. and X.A. (“Petitioners”),

which featured the political slogan “Let’s Go

Brandon.” The District Court’s decision turned on

whether the display of the “Let’s Go Brandon” phrase

was “closely akin to ‘pure speech,’” like the political

expression protected in Tinker, or whether it

3

constituted profane speech, proscribable under Bethel

School District No. 403 v. Fraser, 478 U.S. 675 (1986).

D.A. ex rel. B.A. v. Tri Cnty. Area Schs., 746 F.Supp.3d

447, 458 (W.D. Mich. 2024). Relying on Fraser, the

District Court deferred to school administrators’

interpretation of the slogan by prohibiting Petitioners

from wearing the sweatshirts without need of

“showing interference or disruption at the school.” Id.

at 461.

In reviewing the District Court’s grant of

summary judgment to the school district, the Sixth

Circuit focused on “whether a phrase that lacks

explicitly profane words might still have a vulgar

meaning” and “whether a school administrator may

prohibit student political speech that has a vulgar

message.” Tri Cnty., 156 F.4th at 789. The slogan at

issue — which contains no profanity — originated in

the public domain on October 2, 2021, after driver

Brandon Brown won a NASCAR race. 2 During a post-

2 See Annie Linskey, How ‘Let’s Go Brandon’ Became an

Unofficial GOP Slogan, WASH. POST (Nov. 15, 2021),

https://www.washingtonpost.com/politics/lets-go-brandonrepublicans/2021/11/14/52131dda-4312-11ec-9ea73eb2406a2e24_story.html; Colleen Long, How ‘Let’s Go Brandon’

Became Code for Insulting Joe Biden, ASSOCIATED PRESS (Oct.

30, 2021), https://apnews.com/article/lets-go-brandon-whatdoes-it-mean-republicans-joe-bidenab13db212067928455a3dba07756a160; Lindsay Lowe, ‘Let’s Go

(Feb.

10,

2022),

Brandon’

Explained,

TODAY

https://www.today.com/news/what-does-let-s-go-brandon-meant237389; Blake Hounshell & Leah Askarinam, ‘Let’s Go,

Brandon’ Zooms From Vulgar Meme to Campaign Ad, N.Y.

(Jan.

12,

2022),

TIMES

4

race television interview with the winner, spectators

audibly chanted “Fuck Joe Biden.” 3 The reporter told

viewers that the crowd was chanting “Let’s Go

Brandon.” 4 Post-report, the phrase took on a life of its

own, becoming entrenched in national political

discourse. 5 For over four years, “Let’s Go Brandon”

served as a rallying cry, expressing anti-Biden

sentiment for some and distrust of liberal media for

others. 6

In evaluating Tri County Area Schools’

decision to ban Petitioners’ “Let’s Go Brandon”

sweatshirts, the Sixth Circuit repeated the District

Court’s constitutional error by failing to apply

Tinker’s “substantial disruption” test. As other

circuits have recognized, schools must satisfy this

evidentiary standard when seeking to prohibit

student expression that communicates a political

message. Tinker, 393 U.S. at 508–09. The Sixth

Circuit, however, bypassed this test, relying instead

on an unduly expansive reading of Fraser that

effectively allows public schools to suppress any

disapproved viewpoint so long as they claim it could

be “reasonably interpreted” as vulgar or profane. Tri

Cnty., 156 F.4th at 791–92. By deferentially accepting

school officials’ interpretation that Petitioners’ “Let’s

https://www.nytimes.com/2022/01/12/us/politics/lets-gobrandon-meme-gop.html.

3 See id.

4 See id.

5 See id.

6 See id.

5

Go Brandon” sweatshirts conveyed an impermissibly

profane message, the panel created multiple circuit

splits, departed from established public-school

student free speech principles, and upheld the

censorship of Petitioners’ political message. The First

Amendment prohibits this outcome.

The Sixth Circuit’s decision compounds the

confusion in student speech doctrine. This Court

should grant certiorari to clarify that Fraser does not

confer broad authority on public school districts to

censor nondisruptive political speech that is not

facially vulgar or profane; such speech is regulable

only upon a showing of “material disruption” that

satisfies Tinker. 7

ARGUMENT

I.

Tinker’s “Material Disruption” Standard

Governs Public-School Student Political

Expression Within The “Schoolhouse

Gate”

In the landmark Tinker case, students wore

black armbands to school to oppose America’s

involvement in the Vietnam War. 393 U.S. at 504.

Aware in advance of this protest, school

administrators prohibited students from wearing an

7 Fraser’s rationale has been criticized for lacking clarity.

Scott A. Moss, The Overhyped Path from Tinker to Morse: How

the Student Speech Cases Show the Limits of Supreme Court

Decisions – For the Law and for the Litigants, 63 FLA. L. REV.

1407, 1425 (2011) (describing Fraser as a “Rorschach

precedent.”).

6

armband to school. Id. The peaceful protestors were

suspended under this regulation. Id. Invalidating

their suspensions, the Tinker Court held that wearing

the armbands involved “direct, primary First

Amendment rights akin to ‘pure speech.’” Id. at 508.

Absent evidence that the armbands had “materially

and substantially interfere[d]” with school discipline

or infringed on other students’ rights, Tinker

determined their display was protected by the First

Amendment. Id. at 509, 514.

Tinker’s standard governs students’ political

speech, barring its censorship “unless it would

materially and substantially disrupt classwork and

discipline in the school.” Guiles v. Marineau, 461 F.3d

320, 325 (2d Cir. 2006). Importantly, “the mere desire

to avoid ‘discomfort’ or ‘unpleasantness’ is not enough

to justify restricting student speech under Tinker.”

Saxe v. State College Area Sch. Dist., 240 F.3d 200,

212 (3d Cir. 2001) (Alito, J.). Because Tinker abides

no carveout for “controversial, offensive, or disfavored

views[,]” the decision below should be reversed. L.M.

v. Town of Middleborough, 145 S. Ct. 1489, 1493

(2025) (Alito, J., dissenting from denial of certiorari).

II.

Fraser Is Limited to Sexualized or Profane

Speech That Risks Being Associated With

The School

A. Fraser’s Rationale Applies Only in a

Narrow Context.

The Sixth Circuit’s opinion hinges on a

decontextualized interpretation of Fraser. According

to the Sixth Circuit, Fraser “leave[s] it to the school”

7

to “regulate speech that conveys an obscene or vulgar

message even when the words used are not

themselves obscene or vulgar,” provided that the

school’s interpretation of the speech “is not

unreasonable.” Tri Cnty., 156 F.4th at 791–92. That

is not what Fraser holds.

In Fraser, a student delivered a speech at a

mandatory high school assembly nominating a fellow

student for elective office. 478 U.S. at 677. His oratory

employed an “elaborate, graphic, and explicit sexual

metaphor.” Id. at 677–78. The assembly was “part of

a school-sponsored educational program in selfgovernment,” and “[a]pproximately 600 high school

students” were compelled to attend. Id. at 677.

Addressing Fraser’s expressive rights, this

Court considered a narrow question: “whether the

First Amendment prevents a school district from

disciplining a high school student for giving a lewd

speech at a school assembly.” Id. Against this

backdrop, Fraser held that the school district

permissibly imposed a three-day suspension in

response to the “offensively lewd and indecent

speech.” Id. at 685. Emphasizing schools’ role in

inculcating civic values necessary to democratic

society, the Court reasoned that “[t]he First

Amendment does not prevent the school officials from

determining that to permit a vulgar and lewd speech

such as respondent’s would undermine the school’s

basic educational mission.” Id. at 685.

Fraser’s holding is cabined by contextdependent factors. First, the student’s speech,

8

saturated with sexual innuendos, was plainly lewd.

B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d

293, 305 (3d Cir. 2013) (en banc) (“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.”). Fraser

therefore emphasized that it is “highly appropriate”

for public schools to prohibit sexualized language in

school settings. 478 U.S. at 683. The Court described

the speech as “seriously damaging” to younger

students “on the threshold of awareness of human

sexuality.” Id. Acknowledging a previously recognized

“interest in protecting minors from exposure to vulgar

and offensive spoken language,” the Court held that

the First Amendment did not prevent public schools

from restricting a “sexually explicit monologue” to an

impressionable audience compelled to listen. 8 Id. at

684–85.

Second, Fraser’s speech was delivered at a

school-controlled event. Without penalizing Fraser’s

speech, the district may have appeared to condone its

language. 9 Thus, schools may “disassociate”

Fraser cited FCC v. Pacifica Foundation, which

authorized the FCC to regulate an afternoon radio broadcast of

George Carlin’s “Filthy Words” monologue that, while explicit,

fell short of being obscene. 438 U.S. 726, 729 (1978). There, this

Court highlighted how radio broadcasts were “uniquely

accessible to children” and “prior warnings” could not

“completely protect the listener or viewer from unexpected

program content” since listeners could tune in at any moment.

Id. at 748–49. Pacifica’s reasoning informed Fraser’s holding.

8

9 Thus, Matthew Fraser’s punishment also served to

instruct fellow students about appropriate boundaries for civil

discourse. Emily Gold Waldman, No Jokes About Dope: Morse v.

9

themselves from speech reasonably perceived as

school-sponsored, particularly “to make the point to

the pupils that vulgar speech and lewd conduct is

wholly inconsistent with the ‘fundamental values’ of

public school education.” Fraser, 478 U.S. at 685–86;

see also Mahanoy, 594 U.S. at 182 (noting that Fraser

applies to regulate ‘“indecent,’ ‘lewd,’ or ‘vulgar’

speech uttered during a school assembly on school

grounds,” an arguably more context-restrictive

reading).

Accordingly, Fraser holds that schools may ban

plainly sexualized or profane speech in schoolsponsored settings. 10 It does not authorize schools to

ban facially non-vulgar speech, as the Sixth Circuit

erroneously held here.

Frederick’s Educational Rationale, 81 UMKC L. REV. 685, 690

(2013) (“[T]he punishment would serve as a lesson to this

student-speaker — and other student-listeners — about ‘the

habits and manners of civility as values in themselves.’”)

(citation omitted) (emphasis supplied)).

Legal scholars have emphasized the narrowness of

Fraser’s holding. See Joseph A. Tomain, Cyberspace Is Outside

the Schoolhouse Gate: Offensive, Online Student Speech Receives

First Amendment Protection, 59 DRAKE L. REV. 97, 104 (2010)

(“Fraser holds that three factors are important for schools to

assert jurisdiction over student speech: (1) there must be a

captive audience; (2) the speech must involve lewd or indecent

sexual content; and (3) the school must have a need to

disassociate itself from the speech.”).

10

10

B. By Reviving Boroff, Tri County

Departed from This Court’s PublicSchool Student Speech Doctrine.

The Sixth Circuit majority relied on Boroff v.

Van Wert City Board of Education, 220 F.3d 465 (6th

Cir. 2000), a widely criticized decision, to support its

overbroad reading of Fraser and deference to school

authorities. Tri Cnty., 156 F.4th at 791–92. In Boroff,

a public high school barred a student from wearing

Marilyn Manson t-shirts. 220 F.3d at 470. The

principal objected to the t-shirts’ promotion of

“destructive conduct and demoralizing values that

[were] contrary to the educational mission of the

school.” Id. at 469. Although the speech was neither

lewd nor profane, the majority upheld the ban,

reasoning that the school’s prohibition of the apparel

as “offensive” was reasonable in light of the school’s

“educational mission” “to be respectful of others and

others’ beliefs.” Id. at 469–70.

The Tri County majority accepted Boroff in

concluding that “schools have significant latitude to

find that speech” may be proscribed to further their

educational mission when it is reasonably understood

as vulgar. 156 F.4th at 792. This misplaced reliance

on Boroff ignores this Court’s decision in Morse v.

Frederick, 551 U.S. 393 (2007). Morse clarified that

“plainly offensive” as used in Fraser “should not be

read to encompass any speech that could fit under

some definition of ‘offensive’” because this would

violate the First Amendment. 551 U.S. at 409. If

Fraser permitted such broad regulation, Morse

recognized that “much political and religious speech

11

might be perceived as offensive” and prohibited by

school authorities. Id.

Morse leaves no constitutional room to apply

Fraser in a way that grants school officials broad

discretion to regulate student speech deemed

offensive because of its perceived incompatibility with

the school’s educational mission. Indeed, Justice Alito

repudiated this approach as “strik[ing] at the very

heart of the First Amendment.” Morse, 551 U.S. at

423 (Alito, J., concurring). Because the “educational

mission” of public schools “can easily be manipulated

in dangerous ways” to suppress student speech

deemed offensive or unacceptable by school

authorities, it amounts to a license for censorship

irreconcilable with the First Amendment. 11 Id. If

Fraser allowed regulation whenever officials deemed

speech profane or offensive, a wide swath of

expression — including political and social speech

unassociated with the school — could be restricted.

The risk to expressive liberty posed by such an

approach counsels against this reading of Fraser.

The tension between Boroff and this Court’s

ruling in Morse was recognized well before Tri

County. See, e.g., DePinto v. Bayonne Bd. of Educ., 514

F.Supp.2d 633, 644 (D.N.J. 2007) (“Boroff stands

11 Mary-Rose Papandrea, Student Speech Rights in the

Digital Age, 60 FLA. L. REV. 1027, 1089 (2008) (“As Justice Alito

recognized in his Morse concurrence, however, giving schools

broad authority to suppress speech in the name of promoting

their educational mission is dangerous. Given that public

students already face compulsory attendance laws, the risk of

improper governmental indoctrination is high.” (citation

omitted)).

12

alone” in adopting a broad reading of Fraser and

“must now be called into question” after Morse). Other

circuits have likewise rejected Boroff’s approach.

Guiles, 461 F.3d at 329 (declining to adopt Boroff’s

broad reading of Fraser); see also Hawk, 725 F.3d at

316; L.M. v. Town of Middleborough, 103 F.4th 854,

878 (1st Cir. 2024), cert. denied, 145 S. Ct. 1489

(2025). The Sixth Circuit’s rule — permitting schools

to prohibit political speech adjudged inconsistent with

their educational mission so long as the decision is

“not unreasonable” — stands alone and in violation of

the First Amendment.

By ignoring Morse and following Boroff, Tri

County departs from core public-school student

speech principles. Boroff enables school districts

beholden to majoritarian constituencies to define

their educational mission by reference to prevailing

political and social views. See Morse, 551 U.S. at 423

(Alito, J., concurring). If such norms set the baseline

for what is “inappropriate for the school

environment,” substantial student expression will be

chilled. Tri Cnty., 156 F.4th at 786. This Court should

repudiate Boroff’s rationale as impermissible under

the First Amendment.

C. D.A.’s and X.A.’s “Let’s Go Brandon”

Sweatshirts Were Neither Sexually

Explicit Nor Profane.

The Sixth Circuit agreed with the District

Court’s reasoning that if “schools can prohibit

students from wearing apparel that contains

profanity, schools can also prohibit students from

13

wearing apparel that can reasonably be interpreted

as profane.” Id. at 788. This analysis cannot be

reconciled with Fraser, which limits protection of inschool student speech only when it describes sexual

acts or is profane. Noting that “many people

understand that slogan to mean ‘Fuck Joe Biden,’” the

Sixth Circuit impermissibly deferred to school

officials’ subjective interpretation of the implicit

message

Petitioners’

sweatshirts

purportedly

conveyed. Id. at 791, 794. In effect, the school district

was allowed to punish Petitioners not for the

language they actually used, but for the language

they chose not to use. 12

To justify its interpretation, the Sixth Circuit

misread Fraser in another fundamental way. It

asserted that Fraser was “not just concerned with

regulation of vulgar words but the regulation of

vulgar speech” because Fraser’s speech, while

“obviously vulgar,” “didn’t use any explicitly vulgar

words.” Id. at 792. Thus, the majority found that

Fraser supports school regulation of “speech that

conveys an obscene or vulgar message even when the

words used are not themselves obscene or vulgar.” Id.

at 791. But “[t]he First Amendment is no word

game[,]” and the Sixth Circuit’s extrapolation from

Fraser goes too far. Chiles v. Salazar, 146 S. Ct. 1010,

1023 (2026). Chief Justice Burger highlighted that

12 Treating a euphemistic political slogan as identical to

the uncensored expletive it alludes to collapses a linguistic

distinction. Speakers use euphemisms to avoid direct profanity.

Disregarding that distinction lets schools punish students not

for the words they used, but for harsher language officials

attribute to them.

14

Fraser’s speech was an “elaborate, graphic, and

explicit sexual metaphor.” Fraser, 478 U.S. at 678.

Indeed, the only way the oration in Fraser could be

understood was as referencing sexual conduct. See

Hawk, 725 F.3d at 304; Chandler v. McMinnville Sch.

Dist., 978 F.2d 524, 529 (9th Cir. 1992); Guiles, 461

F.3d at 328.

Not so here. As Judge Bush recognized in

dissent, “Let’s Go Brandon” contains none of George

Carlin’s “Filthy Words” or other profanity. See

Pacifica, 438 U.S. at 729. Indeed, “Let’s Go Brandon”

“can be said without any vulgar or offensive

undertones, so it cannot possibly meet the standard of

being per se vulgar.” Tri Cnty., 156 F.4th at 813

(Bush, J., dissenting).

Testimony in the record from Defendants,

which the Sixth Circuit omitted, exposes the danger

of deferring to school administrators’ “reasonable”

interpretations of speech rather than relying on

Fraser’s “per se” standard. School district officials

testified that the sweatshirts were “vulgar, profane,

and pornographic.” Appellants’ Br. at 13, Tri Cnty.,

156 F.4th 782 (No. 24-1769). But nothing about the

“Let’s Go Brandon” slogan is remotely sexual, let

alone pornographic, so it cannot be considered

“plainly lewd” as required under Fraser. See Guiles,

461 F.3d at 328.

Consider also the range of controversial

student speech about sexuality and gender identity,

which exemplifies the First Amendment danger of

deferring

to

administrators’

“reasonable”

15

interpretations of speech as profane or offensive. One

school district may assert that promoting LGBTQ

themes is offensive for religious reasons and ban

students from wearing clothing with pride flags. See,

e.g., Young v. Giles Cnty. Bd. of Educ., 181 F.Supp.3d

459, 461 (M.D. Tenn. 2015) (considering a school’s ban

on a t-shirt stating “Some People Are Gay, Get Over

It”). A school the next town over may assert that a

student’s traditional perspective about sexuality and

gender identity constitutes harassment. See, e.g.,

L.M., 103 F.4th at 861 (examining a school’s

prohibition of a t-shirt featuring the phrase “There

Are Only Two Genders”). If the Sixth Circuit is correct

that public schools may ban anything school officials

deem plainly offensive, each of these bans would be

permissible.

D. D.A. and X.A. Engaged in Individual,

Not School-Associated, Expression.

Unlike in Fraser, the school had no need here

to disassociate itself from the expression on

Petitioners’ sweatshirts for the simple reason that “no

one could reasonably believe that the [school] was

somehow involved in the morning fashion decisions of

a few students.” Hawk, 725 F.3d at 321. The message

here was personal to the speakers, conveyed on a

private article of clothing, and not reasonably

understood as associated with or endorsed by the

school. This is perhaps the most overlooked factor

required under Fraser, absent which there is no

reason for “trusting school administrators’ selfserving observations.” L.M., 145 S. Ct. at 1496 (Alito,

J., dissenting). Just as a school need not disassociate

16

itself from student speech unconnected to a schoolcontrolled event, there is no need for a school to

disassociate itself from clothing a student chooses to

wear — especially when it communicates political

speech and was received as a holiday gift from

parents. 13

Indeed, like the armbands in Tinker,

Petitioners’ message was “displayed in a manner

commonly used to convey . . . political opinion.”

Chandler, 978 F.2d at 530. There was little risk it

would be perceived as school-endorsed, and any

interest in regulating the expression was attenuated

far beyond Fraser’s mandatory assembly context. The

Sixth Circuit ignored the critical First Amendment

distinction between a student’s expressive activities

reasonably perceived as school-sponsored and “a

student’s personal expression that happens to occur

on the school premises” such as Petitioners’

sweatshirts, which falls outside Fraser’s scope.

Hazelwood v. Kuhlmeier, 484 U.S. 260, 271 (1988).

This, too, was constitutional error.

13 Tomain, supra note 10, at 118 (“A school has no need

to disassociate itself from off-campus student speech that is not

part of a school-sponsored event because no one could reasonably

associate a school with such speech.”).

17

III.

The Sixth Circuit’s Misapplication

Fraser Creates Two Circuit Splits

of

A. No Other Circuit Grants Deference to

School Administrators to Punish

Nondisruptive Political Speech.

By erroneously reading Fraser, the Sixth

Circuit stands alone in insisting that the punishment

of students’ nondisruptive political speech that is not

graphically sexual nor profane is permissible under

the First Amendment. As Judge Bush highlighted,

the Sixth Circuit’s interpretation of Fraser creates

“splits with the Third and Ninth Circuits.” Tri Cnty.,

156 F.4th at 813 (Bush, J., dissenting).

The Third Circuit has consistently emphasized

that Fraser applies only to sexualized or profane

speech. In Saxe v. State College Area School District,

plaintiffs challenged the constitutionality of a public

school’s anti-harassment policy, which would have

restricted Christian students from speaking about

and distributing literature on their religious beliefs

regarding homosexuality. 240 F.3d at 203. The

majority noted that Fraser permitted restrictions only

on “‘lewd,’ ‘vulgar,’ ‘indecent,’ and ‘plainly offensive’

speech in school,” emphasizing that Fraser only

prohibits “offensive” language that conveys an

obscene meaning. Id. at 213. The Third Circuit

dismissed Fraser’s applicability because the school’s

anti-harassment policy did not “confine itself merely

to vulgar or lewd speech.” Id. at 216. Saxe therefore

rejected a broad reading of Fraser that would allow

18

schools to prohibit speech because they view the

speech as offensive for reasons unrelated to obscenity.

More recently, in B.H. ex rel. Hawk v. Easton

School District, the Third Circuit addressed en banc

the “novel question” of what speech a public school

could restrict under Fraser. Hawk, 725 F.3d at 298

(“The scope of a school’s authority to restrict lewd,

vulgar, profane, or plainly offensive speech under

Fraser is a novel question left open by the Supreme

Court, and one which we must now resolve.”). There,

the court found that a school’s prohibition of “I ♥

boobies! (KEEP A BREAST)” bracelets by invoking

Fraser violated the First Amendment. Id. at 320. The

Third Circuit again emphasized the narrow scope of

Fraser, explaining that because “Fraser’s speech met

the obscenity-to-minors standard, the Court

necessarily implied that his speech could not be

interpreted as having ‘serious’ political value.” Id. at

306 (citation omitted).

The Ninth Circuit has similarly rejected a

broad reading of Fraser, applying it to permit

restrictions only on plainly sexual or profane speech.

Chandler, 978 F.2d at 530 (limiting Fraser’s scope to

restricting only “per se vulgar, lewd, obscene, or

plainly offensive” speech (emphasis supplied)).

In addition to the splits Judge Bush identified,

the decision below creates a sharp split with the

Second Circuit’s decision in Guiles. There, plaintiff

sought an injunction prohibiting his middle school

from enforcing a dress code that required him to cover

up parts of a t-shirt that, “through an amalgam of

19

images and text,” criticized then-President George W.

Bush “as a chicken-hawk” and “accuse[d] him of being

a former alcohol and cocaine abuser.” 461 F.3d at 321.

Like the Third Circuit, the Second Circuit noted that

“Fraser permits schools to censor student speech that

is ‘lewd,’ ‘vulgar,’ ‘indecent,’ or ‘plainly offensive.’” Id.

at 327. The court then reviewed each category of

speech listed in Fraser, concluding that Fraser’s

reference to “plainly offensive” speech must be

“synonymous[] with and as part and parcel of speech

that is lewd, vulgar, and indecent — meaning speech

that is something less than obscene but related to that

concept, that is to say, speech containing sexual

innuendo and profanity.” Id. at 328. If Fraser’s

reference to “plainly offensive” speech could sweep

more broadly, Guiles reasoned that “the rule of Tinker

would have no real effect.” Id.

In contrast to the Sixth Circuit, the Second,

Third, and Ninth Circuits narrowly confine Fraser’s

application to sexualized or profane speech. The

inconsistent application of Fraser by the circuit courts

underscores the urgency of this Court’s review to

clarify its scope. 14

14 David L. Hudson, Jr. & John E. Ferguson, Jr., The

Court’s Inconsistent Treatment of Bethel v. Fraser and the

Curtailment of Student Rights, 36 J. MARSHALL L. REV. 181, 183

(2002) (“The lower courts have applied [Fraser] in different ways

to reach different outcomes. [Most] courts have cited Fraser in

such a way as to give public school officials free reign to censor

vulgar, lewd, or plainly offensive student speech. Some courts

have gone a step further and prohibited student speech that

contains offensive ideas.”).

20

B. Other Circuits Apply Tinker to

Students’

Facially

Non-Profane

Political Speech.

The Sixth Circuit applied Fraser to nonprofane political apparel. This creates splits with at

least five other circuits, which apply Tinker when

schools seek to prohibit wearable ideological symbols

and slogans. The panel majority ignored the obvious:

“political speech expressed through facially nonobscene apparel looks much closer to the armbands in

Tinker than it does to the sexually explicit speech in

Fraser.” Tri Cnty., 156 F.4th at 812–13 (Bush, J.,

dissenting).

The

First

Circuit

recently

analyzed

suppression of potentially offensive political speech

under Tinker. L.M., 103 F.4th 878–79. Although the

panel affirmed the school’s prohibition of a t-shirt

stating “There Are Only Two Genders,” it held that

Tinker governed its analysis. Id.

In the Second Circuit, school administrators

tried to prohibit a student’s anti-Bush t-shirt. Guiles,

461 F.3d at 329. The court recognized that applying

Fraser to potentially offensive political speech

eviscerated Tinker. Id.

In the Third Circuit, school administrators

prohibited a breast cancer awareness campaign’s

bracelets bearing “I ♥ boobies! (KEEP A BREAST).”

Hawk, 725 F.3d at 297–98. Fraser did not permit the

prohibition of ambiguously lewd speech that could

“plausibly be interpreted as commenting on a social

21

or political issue.” Id. at 319–20. Instead, Tinker

supplied the correct test. Id. at 321.

The Fourth Circuit struck down a school dress

code that prohibited images of guns. Newsom ex rel.

Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249,

253 (4th Cir. 2003). Refusing to apply Fraser to

analyze a student’s National Rifle Association t-shirt

depicting firearms, the court analyzed the restriction

under Tinker. Id. at 259.

In the Seventh Circuit, Judge Posner analyzed

a school’s ban of a t-shirt featuring “Be Happy, Not

Gay” under Tinker. Nuxoll ex rel. Nuxoll v. Indian

Prairie Sch. Dist. # 204, 523 F.3d 668, 675 (7th Cir.

2008). He acknowledged the “play on words” but

found that the school needed to show material

disruption. Id. at 675–76.

The Sixth Circuit’s application of Fraser to

facially non-profane student political expression

conflicts with the above decisions and undercuts

Tinker. This Court should clarify that the standard

for evaluating non-profane political expression in a

public school is Tinker, not Fraser.

22

IV.

A First Amendment Rule Protecting

Students’

Non-Disruptive

Political

Speech Will Prevent Broad School

Censorship

A. Ambiguously Sexual Student Speech

Offering Commentary on Political and

Social Issues Cannot Be Punished in

the Absence of a Tinker Disruption.

This Court should clarify that public-school

student expression employing non-explicit language 15

to comment on a political or social issue is protected

under the First Amendment unless it would cause a

material disruption under Tinker. 16 See Hawk, 725

F.3d at 315. Under Tinker and Justice Alito’s directive

in Morse, the First Amendment protects

nondisruptive student speech on political and social

This rule does not extend to speech whose profane

meaning is functionally direct, even if conveyed through

masking or character substitution. Expressions such as “Fu¢k

Trump” or “Biden is a cvck,” like the speech in Fraser, remain

outside this rule and subject to proscription without need of

satisfying Tinker’s disruption requirement.

15

16 To address ambiguous student speech that bears both

potentially vulgar and political meanings, Calvert proposes

narrowing Fraser in light of the principle emphasized by Justice

Alito’s concurrence in Morse. Clay Calvert, Mixed Messages,

Muddled Meanings, Drunk Dicks, and Boobies Bracelets:

Sexually Suggestive Student Speech and the Need to Overrule or

Radically Refashion Fraser, 90 DENV. U. L. REV. 131, 167–68

(2012). Under this approach, facially non-profane expression

commenting on politically and socially relevant matters receives

First Amendment protection unless it causes disruption under

Tinker’s test. Id.

23

issues when it is not overtly sexual or profane. See

Morse, 551 U.S. at 422–23 (Alito, J., concurring). By

adopting this rule, the Court will ensure that

polysemic student speech with a plausible political

meaning “is protected under the First Amendment

and may only be regulated if a school meets the

Tinker standard.” See Barr v. Lafon, 538 F.3d 554,

569 n.7 (6th Cir. 2008) (noting that Tinker’s

“substantial disruption” standard, not Fraser’s

“vulgar” or “plainly offensive” standard, governed

regulation of Confederate flag t-shirts). This rule

harmonizes Tinker, Fraser, and Morse by ensuring

that schools can continue to protect their functionsensitive educational interests without suppressing

nondisruptive political speech that contributes to

students’ participation in our democracy. 17 It thereby

promotes student engagement with controversial

political and social ideas, speech which “lies at the

heart of the First Amendment’s protection[.]”

Mahanoy, 594 U.S. at 205 (Alito, J., concurring).

Other circuits endorse this approach when

evaluating students’ crass political expression. Hawk,

725 F.3d at 315; Guiles, 461 F.3d at 330. When the

speech consists of a student’s own expression that

merely “happens to occur on school grounds,” Tinker

governs. Guiles, 461 F.3d at 325, 327. Accordingly, the

Constitution does not entrust school administrators

with the final authority to determine which

17 See Calvert, supra note 16, at 168–70 (illustrating how

this rule would protect student apparel with politically or

socially relevant messages while allowing schools to ban

distasteful apparel worn purely for humor or shock value).

24

viewpoints may be expressed. 18 That constitutional

judgment belongs to Article III courts applying

Tinker, which requires proof of “material and

substantial” disruption. Id. at 330–31. Applied to a

student’s own expression, Fraser-style deference

would

supplant

Tinker’s

material-disruption

requirement with administrative discretion.

In Hawk, the Third Circuit recognized that this

rule protects speech at “the heart of the First

Amendment[]” — nondisruptive political speech —

while allowing schools to prevent “the evil to be

restricted” in the form of plainly lewd, vulgar, or

profane speech. 725 F.3d at 314, 316. But the court

emphasized that this determination is not left to

bureaucrats: “It remains the job of judges . . . to

determine whether a reasonable observer could

interpret student speech as lewd, profane, vulgar, or

offensive.” Id. at 308. This Court can likewise protect

students from school officials who, under community

pressure, suppress controversial viewpoints.

Schools are not empowered to act as ideological

gatekeepers or to exercise an “Orwellian

‘guardianship of the public mind’” by suppressing

Exercising non-deferential judicial review, Tinker

placed the burden on school officials to satisfy its “substantial

disruption” test. Robert C. Post, Between Governance and

Management: The History and Theory of the Public Forum, 34

UCLA L. REV. 1713, 1773, 1778 (1987) (“In effect . . . the Court

in Tinker held that the constitutionality of the school’s

regulation would be determined by independent judicial review

of whether the regulation was necessary for the attainment of

the school’s educational objectives.” (emphasis supplied)).

18

25

expression that challenges political orthodoxy.

Hazelwood, 484 U.S. at 280, 286 (Brennan, J.,

dissenting). The First Amendment forecloses publicschool officials from assuming such a role because the

Framers understood that “every person must be his

own watchman for truth,” and no government can be

trusted with the ultimate decision-making authority

“to separate the true from the false for us.” Thomas v.

Collins, 323 U.S. 516, 545–46 (1945) (Jackson, J.,

concurring). That constitutional imperative requires

independent judicial review of school censorship.

Granting broad deference to school officials clashes

with the First Amendment because it invites

viewpoint discrimination by administrators who may

punish unorthodox speech under the guise of

enforcing a school’s “educational mission.” Tri Cnty.,

156 F.4th at 809–10 (Bush, J., dissenting); Castorina,

ex rel. Rewt v. Madison Cnty. Sch. Bd., 246 F.3d 536,

540 (6th Cir. 2001); Chiles, 146 S. Ct. at 1024

(“viewpoint restrictions . . . represent ‘an egregious

form of content discrimination’ where First

Amendment concerns are at their most ‘blatant.’”).

Under this proposed rule, schools retain the

ability to protect legitimate pedagogical interests that

justify in-school restrictions on student speech. If a

student’s political message is substantially

disruptive, schools would be justified in prohibiting it

under Tinker. They cannot, however, merely

hypothesize about what language seems too offensive

for a student to wear on a sweatshirt and have that

judgment rubber-stamped by a reviewing court. The

Sixth Circuit’s approach not only defies Tinker but

“demands that a federal court abdicate its

26

responsibility

to

safeguard

students’

First

Amendment rights and instead defer to school

officials’ assessment of the meaning and effect of

speech.” L.M., 145 S. Ct. at 1496 (Alito, J., dissenting).

B. D.A.’s

and

X.A.’s

Nondisruptive

Political Message Is Protected Under

Tinker.

This case is controlled by Tinker, which

requires Tri County Middle School officials to justify

their banishment of the “Let’s Go Brandon”

sweatshirts on the grounds that they created or

reasonably might have created a “substantial

disruption of or material interference with school

activities.” Tinker, 393 U.S. at 514. In Tinker, the

Court emphasized that there was “no indication that

the work of the schools or any class was disrupted.”

Id. at 508. Despite students directing hostile remarks

to the armband-bearing protestors, “there were no

threats or acts of violence on school premises.” Id.

The district agrees there is no evidence the

“Let’s Go Brandon” sweatshirts disrupted the

educational environment during or after the four

months Petitioners wore them to school. See Tri Cnty.,

156 F.4th at 800 (Bush, J., dissenting). There was no

showing that teachers altered lessons due to the

sweatshirts, the slogan did not cause altercations

among students, and the school never received

complaints about the apparel. See Pls.’ Mot. Summ. J.

Br. at 12, Tri Cnty.,746 F.Supp.3d 447 (No. 23-cv423). Thus, like the protestors in Tinker, D.A.’s and

X.A.’s message neither “intrude[d] upon the work of

27

the school[] [n]or the rights of other students.” Tinker,

393 U.S. at 508. When Petitioners wore their

sweatshirts, they expressed a political opinion

without disrupting the school environment.

Communication of their message is therefore squarely

protected by Tinker.

The only reason proffered by the school district

for demanding removal of the sweatshirts was that

two school officials considered “Let’s Go Brandon”

vulgar and profane. Tri Cnty., 746 F. Supp. 3d at 453.

While this may indicate the administrators’ personal

feelings of “discomfort and unpleasantness” provoked

by speech they found objectionable, the school made

no showing that the sweatshirts caused any in-school

disruption, much less a “substantial” or “material”

one. Tinker, 393 U.S. at 509. Thus, the school failed

to demonstrate a constitutionally valid reason for

prohibiting Petitioners’ political speech. Id. at 511.

CONCLUSION

For the reasons stated herein, Amici

respectfully urge this Court to grant Petitioners’

petition for a writ of certiorari.

28

Respectfully submitted,

Michael J. Grygiel

Counsel of Record

Daniela del Rosario Wertheimer

CORNELL LAW SCHOOL

FIRST AMENDMENT CLINIC

Myron Taylor Hall

Ithaca, New York 14853

607-255-8518

mgrygiel@foleyhoag.com

Attorneys Pro Bono Publico for Amici

Curiae First Amendment Scholars

April 30, 2026

APPENDIX TABLE OF CONTENTS

Appendix A: List of Amici Curiae .........................1a

1a

APPENDIX A

SIGNATORIES TO BRIEF OF AMICI CURIAE

FIRST AMENDMENT SCHOLARS 1

Clay Calvert, J.D., Ph.D.

Nonresident Senior Fellow, American Enterprise

Institute

Brechner Eminent Scholar Emeritus

Former Director of the Marion B. Brechner First

Amendment Project

University of Florida Levin College of Law

Erwin Chemerinsky, J.D.

Dean & Jesse H. Choper Distinguished Professor of

Law

University of California, Berkeley School of Law

Roy Gutterman, J.D.

Director, Tully Center for Free Speech

Professor, Newhouse School at Syracuse University

Professor of Law, Syracuse University College of Law

Heather E. Murray, J.D.

Associate Director, First Amendment Clinic

Cornell University Law School

Daniel Novack, J.D.

Vice President, Associate General Counsel Penguin

Random House

Former Chair, New York State Bar Association

Committee on Media Law

Amici’s institutional affiliations are listed for

identification purposes only and do not represent endorsements

of the brief by the respective institutions.

1

2a

Joseph A. Tomain, J.D.

Senior Lecturer

Director, Maurer Cybersecurity and Information

Privacy Law Program

Senior Fellow, Center for Applied Cybersecurity

Research

Indiana University Maurer School of Law

Eugene Volokh, J.D.

Thomas M. Siebel Senior Fellow

Hoover Institution at Stanford University

Gary T. Schwartz Distinguished Professor of Law

Emeritus

UCLA School of Law

Sonja R. West, J.D.

Brumby Distinguished Professor in First Amendment

Law

The University of Georgia School of Law