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, ET AL.,

Respondents.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

________________

BRIEF OF NATIONAL COALITION AGAINST

CENSORSHIP AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

________________

Matthew Kudzin

Counsel of Record

Samuel Crimmins

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

mkudzin@cov.com

i

TABLE OF CONTENTS

Page

Table of Authorities.....................................................ii

Interest of the Amicus Curiae ..................................... 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 4

I.

The First Amendment Protects the Rights of

Public School Students, Subject Only to

Narrow Exceptions. .......................................... 4

II.

The Sixth Circuit’s Deferential Standard

Gives School Administrators Nearly

Unfettered Discretion to Restrict Political

Speech. .............................................................. 8

III.

School Administrators Are Misapplying This

Court’s Precedents to Restrict Student

Speech on Controversial Subjects. ................. 12

Conclusion ................................................................. 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

B.A.P. v. Overton Cnty. Bd. of Educ.,

600 F. Supp. 3d 839 (M.D. Tenn. 2022) ........... 14

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) ........... 2, 3, 6, 7, 9, 11, 13, 14

Boroff v. Van Wert City Bd. of Educ.,

220 F.3d 465 (6th Cir. 2000) ................. 10, 11, 12

Carey v. Brown,

447 U.S. 455 (1980) ............................................. 2

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ......................................... 7, 8

Keyishian v. Bd. of Regents,

385 U.S. 589, 603 (1967) ................................. 3, 5

Mahanoy Area Sch. Dist. v. B. L.,

594 U.S. 180 (2021) ......................................... 3, 5

Meyer v. Nebraska,

262 U.S. 390 (1923) ............................................. 4

Morse v. Frederick,

551 U.S. 393 (2007) ................................. 7, 12, 13

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ........................................... 11

iii

NAACP v. Button,

371 U.S. 415 (1963) ........................................... 18

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

393 U.S. 503 (1969) ......................... 5, 7, 8, 13, 14

Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200 (2015) .................... 8

Other Authorities

Band of Brothers, Currahee (HBO, aired

Sep. 9, 2001) ...................................................... 10

Band of Brothers, Sobel Inspecting Easy

Company (YouTube, July 8, 2009), ................. 10

Mahmoud Bennett, Florida’s New License

Plate Features Gadsden Flag, ‘Sends a

Clear Message’, Straight Arrow News

(Aug. 10, 2022) .................................................. 16

Jackie Calmes, Top 10 Reasons Not to Vote

For Donald Trump, L.A. Times (Oct. 20,

2024) .................................................................. 12

Carisa Cegavske, Roseburg High School’s

Rejection of ‘Virginity Rocks’ T-Shirt

Becomes Social Media Phenomenon, The

News-Review (Apr. 13, 2018), ......................... 14

Vivian Chow, Chip Yost, & Rachel Menitoff,

Temecula School Board Approves

Controversial Flag Policy, KTLA (Sep.

13, 2023) ............................................................ 15

iv

Gadsen Flag, Encyclopedia Brittanica .................. 16

Briana Koeneman, Hillary Clinton Allies

Polled Voters About Obama's Cocaine

Use in 2008, Scripps News (Oct. 17,

2016) .................................................................. 12

Natasha Korecki, No Malarkey? Biden’s

Old-School Slogan Gets Mocked and

Praised in Iowa, Politico (Dec. 2, 2019)............ 10

Jerry Lambe, Two Oklahoma Boys Removed

From Elementary School Classrooms

Over ‘Black Lives Matter’ Shirts Banned

‘When the George Floyd Case Blew Up’,

Law & Crime (May 10, 2021) ........................... 17

Malarkey, Cambridge Dictionary .......................... 10

Harrison McCarty, Southern California

School District Bans Pride and Other

Flag Displays; Opponents Allege AntiLGBTQ+ Intent, Georgetown Univ.: The

Free Speech Project (Nov. 15, 2023) ................. 15

NCAC Criticizes Pennsylvania School for

Stifling Student's Political Speech by

Prohibiting “Let’s Go Brandon” T-Shirt,

NCAC (Mar. 16, 2022) ...................................... 13

New London, Minnesota, Student Forbidden

from Wearing “Let’s Go Brandon” TShirt, NCAC (Apr. 21, 2023)............................. 13

v

Barack Obama, Dreams from My Father: A

Story of Race and Inheritance (2004) ............... 12

Carrie Robison & Aaron Terr, Colorado

Public School to Allow Student to

Display Gadsden Flag Patch-As Long as

Nobody Complains, FIRE (Sep. 1, 2023) .... 15, 16

Pierce Sharpe, San Diego High School

Reverses Humiliating Free Speech

Decision to Suspend Student Over ProICE Poster, N.Y. Post (Apr. 6, 2026) .......... 16, 17

Zachary B. Wolf, People Are Calling Trump

A Fascist. What Does That Mean?, CNN

(Oct. 24, 2024) ................................................... 12

1

INTEREST OF THE AMICUS CURIAE1

The National Coalition Against Censorship

(“NCAC”) is an alliance of more than sixty national

non-profit literary, artistic, religious, educational,

professional, labor, and civil liberties groups. Founded

in 1974, NCAC’s purpose is to promote freedom of

thought, inquiry, and expression and to oppose all

forms of censorship. NCAC engages in direct advocacy

and education to support free expression rights of

students, authors, readers, publishers, booksellers,

teachers, librarians, artists, and others.

NCAC is committed to supporting the First

Amendment rights of students. Through its Student

Advocates for Speech Leadership Program, NCAC

trains and connects a nationwide network of student

leaders to address free speech and censorship issues

in their communities and their schools. NCAC also

organizes the Right to Read Network, a national

grassroots network of local community organizers who

advocate in front of school boards and local public

library boards to fight book bans, expand access to

information, and raise awareness about the harms of

censorship.

Through its advocacy efforts, NCAC has observed

the continuing and widespread censorship of student

speech, due in part to misapprehension or

misapplication of the Supreme Court’s precedents

and, in particular, due to an unduly broad reading of

1 No party or party’s counsel authored or financially supported

the authoring of any part of this brief. Counsel of record for all

parties received timely notice of NCAC’s intent to file this brief.

2

Bethel School District No. 403 v. Fraser, 478 U.S. 675

(1986). Given the importance of political speech in

public schools to the inculcation of democratic values,

the teaching of political pluralism and dissent, and

the cultivation of active participants in our public

discourse, any exception to the First Amendment’s

protection of student speech should be narrowly

construed. NCAC has an interest in a clear

articulation of the robust political speech rights of

public school students.

SUMMARY OF THE ARGUMENT

“Let’s Go Brandon” is a political slogan that, as

the Sixth Circuit acknowledges, has been “firmly

established in the national lexicon.” App. 5a. The

phrase is commonly used to express disapproval of

President Biden’s administration and his policies.

App. 4a. It has also become a symbol of perceived

media bias and a belief that some news outlets were

downplaying, or refusing to report on, the deep

dissatisfaction with President Biden. Id. It is a

comment on significant public issues of national

importance and therefore “rest[s] on the highest rung

of the hierarchy of First Amendment values.” Carey v.

Brown, 447 U.S. 455, 467 (1980).

“Let’s Go Brandon” is neither vulgar nor profane.

It has been used in floor speeches in both the Senate

and the House of Representatives. It is regularly used

in public broadcasts, both on television and radio.

During the 2024 presidential campaign, President

Biden attempted to coopt the phrase, converting it

into a “Dark Brandon” meme. App. 4a.

3

The decision of the court of appeals

misapprehends the critical role that public education

plays in American self-governance. “America’s public

schools are the nurseries of democracy.” Mahanoy

Area Sch. Dist. v. B. L., 594 U.S. 180, 190 (2021). The

role of education is not merely to transmit sanctioned

and sanitized information; it is to help young citizens

to develop the skills and habits of mind necessary to

participate in a democratic society. Students must

learn to participate in “that robust exchange of ideas

which discovers truth out of a multitude of tongues,

rather than through any kind of authoritative

selection.” Keyishian v. Bd. of Regents, 385 U.S. 589,

603 (1967). That lesson cannot be learned from a book

or a lecture. It must be modeled throughout the day,

by encouraging students to express, consider, and

debate controversial ideas—not just in the classroom,

but in the cafeteria, the playground, and the hallway.

According to the court of appeals, schools have

broad discretion to regulate euphemisms on the

grounds they “convey[] an obscene or vulgar message

even when the words used are not themselves obscene

or vulgar.” App. 14a. Students cannot be faulted for

using euphemistic language, especially in the context

of political speech. As part of a civic education, we

expect students to learn the “appropriate form of civil

discourse and political expression.” Bethel Sch. Dist.

No. 403 v. Fraser, 478 U.S. 675, 683 (1986). In a

political climate in which politicians regularly resort

to vulgar attacks and commentators use profanity as

part of routine political debate, euphemism serves an

important function. It can transform that which might

be profane into something appropriate for a broader

audience. Using euphemistic language gives students

4

the tools to engage in political speech without causing

disruption or using profanity. In many cases, there

would be no way for students to engage with that

political dialogue without the use of euphemism. Far

from being disciplined, D.A. and X.A. should be lauded

for finding a peaceful, non-disruptive way to engage

in the political process and express their opinions,

without resorting to vulgarity.

The court of appeals would “leave it to the school

to decide what is vulgar or profane so long as the

decision is not unreasonable.” App. 14a–15a. Under

this highly deferential standard, the subjective

opinion of a school administrator is dispositive, “even

when there are other plausible interpretations of the

same speech.” App. 15a. Not only is this decision

contrary to this Court’s precedents, it gives school

administrators nearly unfettered discretion to limit

debate on controversial subjects and to prohibit

speech with which the administrators disagree. The

decision below not only undermines core First

Amendment protections, it also diminishes the vital

role public education plays in fostering open inquiry

and robust debate.

ARGUMENT

I.

The First Amendment Protects the Rights of

Students,

Subject

Only

to

Narrow

Exceptions.

Over one hundred years ago, in Meyer v.

Nebraska, this Court recognized that public school

students are protected by the Constitution’s

guarantee of “certain fundamental rights which must

be respected.” 262 U.S. 390, 401 (1923). That basic

5

principle has been reiterated time and again so that,

by 1969, “[i]t [could] hardly be argued that either

students or teachers shed their constitutional rights

to freedom of speech or expression at the schoolhouse

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

393 U.S. 503, 506 (1969).

Tinker establishes the baseline standard. A

student may “express his opinions, even on

controversial subjects like the conflict in Vietnam, if

he does so without materially and substantially

interfering with the requirements of appropriate

discipline in the operation of the school and without

colliding with the rights of others.” Tinker, 393 U.S. at

513 (cleaned up). This readily applicable standard

strikes the appropriate balance, protecting students’

rights to engage in political speech while recognizing

the practical need to maintain order and discipline in

schools.

Tinker is a “demanding standard.” Mahanoy, 594

U.S. at 193. Student speech that “neither interrupt[s]

school activities nor s[eeks] to intrude in the school

affairs or the lives of others” must be permitted.

Tinker, 393 U.S. at 514. The freedom of speech—

especially student speech—is more than a personal

right; it is a public good “of transcendent value” to all

of society. Keyishian, 385 U.S. at 603. As such, this

Court has been careful to permit limitations on

student speech only when, and to the extent,

necessary. “Precision of regulation must be the

touchstone in an area so closely touching our most

precious freedoms.” Id. at 603 (cleaned up).

6

The Court’s post-Tinker cases are largely based on

Tinker’s disruption-focused logic, even if the mode of

analysis differs. In Bethel Sch. Dist. No. 403 v. Fraser,

the Court held that a school could discipline a student

who had given a speech featuring “an elaborate,

graphic, and explicit sexual metaphor.” 478 U.S. 675,

678 (1986). The Court emphasized the extreme nature

of the student’s conduct, focusing on the impact that

the speech had on other students and on the school as

a whole. Not only was the speech “plainly offensive,”

but “[b]y glorifying male sexuality,” “the speech was

acutely insulting to teenage girl students” in the

audience, casting them as objects acted upon in its

extended sexual metaphor. Id. at 683. As Justice

Brennan explained, the decision did not “limit what

students should hear, read, or learn about.” Id. at 689

(Brennan, J., concurring). Rather, “the Court’s

holding concerns only the authority that school

officials have to restrict a high school student’s use of

disruptive language in a speech given to a high school

assembly.” Id.

Unlike the black armbands symbolizing a staunch

opposition to the Vietnam War, one of the premier

political issues of the time, the student in Fraser

engaged in profane speech at a school assembly.

Fraser, 478 U.S. at 677. The Court emphasized this

distinction, noting that “[u]nlike the sanctions

imposed on the students wearing armbands in Tinker,

the penalties imposed in this case were unrelated to

any political viewpoint.” Id. at 685. Read properly,

Fraser did nothing to contravene Tinker’s standard in

the context of students expressing their beliefs on

issues of national importance.

7

The Court has emphasized the narrowness of

Fraser’s holding. In Morse v. Frederick, the Court

rejected the school’s argument that Fraser authorized

schools to ban speech merely because it was

“offensive.” 551 U.S. 393, 409 (2007). “After all, much

political and religious speech might be perceived as

offensive to some.” Id. The Court also rejected the

argument that Fraser “permits public school officials

to censor any student speech that interferes with a

school’s ‘educational mission.’” Id. at 423 (Alito, J.

concurring). Schools are free to define their

“educational mission” however they want. Id. But to

adopt a subjective standard and defer to the school’s

judgment “would give public school authorities a

license to suppress speech on political and social

issues based on disagreement with the viewpoint

expressed.” Id.

In Morse, the Court held that schools could

proscribe speech promoting illegal drug use. 551 U.S.

at 403. But the decision was not based on deference to

the school’s editorial preferences or policies. Rather,

the Court found that such speech could be regulated

because it was a threat to student safety, finding that

the dangers of drug use are both “serious and

palpable.” Id. at 408. Thus, “deterring drug use by

schoolchildren is an important—indeed, perhaps

compelling interest.” Id. at 407 (cleaned up). The

decision in Morse did not alter the standard in Tinker

as to political speech, but determined that a school

could prevent the “severe and permanent damage”

caused by drug abuse.” Id.

Finally, in Hazelwood Sch. Dist. v. Kuhlmeier, the

Court held that a school could regulate the content of

8

school-sponsored publications that members of the

public “might reasonably perceive to bear the

imprimatur of the school.” 484 U.S. 260, 271 (1988).

That decision flows from the basic and wellestablished principle that “when government speaks,

it is not barred by the Free Speech Clause from

determining the content of what it says.” Walker v.

Texas Div., Sons of Confederate Veterans, Inc., 576

U.S. 200, 207 (2015). Thus, educators can ensure that

“the views of the individual speaker are not

erroneously attributed to the school.” Kuhlmeier, 484

U.S. at 271.

The Court has thus departed from Tinker only

with respect to certain limited and defined areas of

student speech, where the propensity of the speech in

question to cause disruption or manifest harm was

apparent or all but inevitable, or where a reasonable

person might think the school had adopted the

student’s views. Tinker remains the standard for

whether a school can mute a student’s political

speech: it can do so only when the speech materially

interferes with the functioning of the school.

II. The Sixth Circuit’s Deferential Standard

Gives

School

Administrators

Nearly

Unfettered Discretion to Restrict Political

Speech.

The Tinker Court cautioned that “free speech is

not a right that is given only to be so circumscribed

that it exists in principle but not in fact.” 393 U.S. at

513. The Court’s prescient warning accurately

describes the decision of the court of appeals. The

Sixth Circuit would “leave it to the school to decide

9

what is vulgar or profane so long as the decision is not

unreasonable.” App. 14a–15a. Such a deferential

standard would make a fundamental constitutional

guarantee contingent on the subjective judgment of

every administrator and would only protect speech

that provokes no disagreement.

It is undisputed that “Let’s Go Brandon” is core

political speech. The court of appeals acknowledged

that it is “a shibboleth to express antipathy toward the

then-President and his policies.” App. 4a. The slogan

therefore expresses a political opinion on serious

issues of national importance. As such, a school

cannot prevent a student from silently expressing

their political views unless the school can meet

Tinker’s “demanding standard” by showing that the

tee shirt materially and substantially interfered with

school discipline.

The decision below is also in tension with Fraser.

The Fraser Court did not defer to a school’s

determination that the speech was vulgar. App 14a.

To the contrary, the Court applied an objective

standard, evaluating the contents of the speech de

novo and concluding that it was “plainly offensive to

both teachers and students—indeed to any mature

person.” Fraser, 478 U.S. at 683. While Fraser noted

that the school has a role in determining “what

manner of speech in the classroom or in school

assembly is inappropriate,” id., public schools are still

arms of the state, and their decisions are limited by

the First Amendment.

Allowing school administrators to impose their

own subjective opinions as to what is “vulgar” would

10

enable schools to restrict large swaths of political

speech. During the 2020 presidential campaign, for

example, Joe Biden adopted the phrase “No

Malarkey” as a campaign phrase and emblazoned it

on the side of his campaign bus.2 While the Cambridge

Dictionary defines “malarky” as “silly behaviour or

nonsense,”3 many people, including some of President

Biden’s own supporters, believe that the word means

“bullshit.”4 The popular media has promoted this idea,

with the “Band of Brothers” television miniseries

claiming that “Malarkey’s slang for bullshit.”5 The

actual origins and etymology of “malarkey” are

unknown. But under the Sixth Circuit’s standard, the

word’s actual meaning is irrelevant. A school

administrator could ban “No Malarkey” tee shirts

based on his own personal opinion as to what the word

“conveys.”

The Sixth Circuit’s own precedents, including

those cited in the opinion below, illustrate just how

slippery a slope the court has headed down. In Boroff

v. Van Wert City Board of Education, the principal of

Van Wert High School prohibited students from

Natasha Korecki, No Malarkey? Biden’s Old-School Slogan

Gets Mocked and Praised in Iowa, Politico (Dec. 2, 2019),

https://perma.cc/HSY7-G8SS.

2

3 Malarkey, Cambridge Dictionary, https://perma.cc/9AL2-D4B8.

4 Korecki, supra note 2.

5 Band of Brothers, Currahee, at 9:52–56 (HBO, aired Sep. 9,

2001) (“Malarkey, Malarkey’s slang for bullshit isn’t it?” “Yes

sir.”); see also Band of Brothers, Sobel Inspecting Easy Company,

at 1:07–17 (YouTube, July 8, 2009), https://youtu.be/

kGFkENuVki8?t=67.

11

wearing Marilyn Manson tee shirts. 220 F.3d 465 (6th

Cir. 2000). Marilyn Manson is a “‘goth’ rock

performer” who wears “black clothes, heavy silver

jewelry, black eye make-up and lipstick, and often

pale face make-up.” Id. at 466. The principal

instituted the ban because he did not like the artist or

his music. Id. at 469–70. (“I find some of the Marilyn

Manson lyrics and some of the views associated with

Marilyn Manson as reported in articles in the news

and entertainment press offensive to our basic

educational mission.”).

The Sixth Circuit affirmed the principal’s decision

because it was not “manifestly unreasonable.” Id. at

470. In the court’s view, once the principal concluded

that “this particular rock group promotes disruptive

and demoralizing values,” id. at 471, the school could

ban all clothing associated with Marilyn Manson,

regardless of its content. Even a shirt that “simply

displayed illustrations of Marilyn Manson largely

unadorned by text” could be banned. Id.

Boroff is untethered from Fraser’s narrow holding.

The Sixth Circuit has stretched the concept of

vulgarity to include the name or the likeness of

anyone who does not live up to the principal’s moral

standards. By that standard, school administrators

would have almost unfettered discretion to restrict

any speech with which they disagree, including

political speech. Political debate often involves

“vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials.”

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Using the last election cycle as an example, President

Trump was routinely called a “fascist” and compared

12

to Adolph Hitler.6 He was likewise called “unfit to be

president,” a “threat to national security” and “a

pathological liar.”7 By the Sixth Circuit’s reasoning, if

the principal believes such claims, it would not be

“manifestly unreasonable” to conclude that President

Trump “promotes disruptive and demoralizing

values.” Boroff, 220 F.3d at 470, 471.

The Sixth Circuit also suggested that Marilyn

Manson tee shirts were unacceptable because “he is

also widely regarded as a user of illegal drugs, which

he has not denied.” Boroff, 220 F.3d at 466. But by

that standard, the school could also ban tee shirts of

President Obama who, in his memoir, “admitted to

experimenting with cocaine and marijuana when he

was young.”8

III. School Administrators Are Misapplying This

Court’s Precedents to Restrict Student

Political Speech.

In his Morse concurrence, Justice Alito warned of

the dangers of adopting subjective standards for

student speech. Morse, 551 U.S. at 423 (Alito, J.,

concurring). Permitting schools to ban speech

6 See Zachary B. Wolf, People Are Calling Trump A Fascist. What

Does That Mean?, CNN (Oct. 24, 2024), https://perma.cc/8TRU7DHQ.

7 Jackie Calmes, Top 10 Reasons Not to Vote For Donald Trump,

L.A. Times (Oct. 20, 2024), https://perma.cc/3GQU-L9HH.

8 Briana Koeneman, Hillary Clinton Allies Polled Voters About

Obama's Cocaine Use in 2008, Scripps News (Oct. 17, 2016),

https://perma.cc/7S8H-P8QK; see also Barack Obama, Dreams

from My Father: A Story of Race and Inheritance (2004).

13

contrary to the school’s subjectively-defined

“educational mission,” for example, would give school

officials “a license to suppress speech on political and

social issues based on disagreement with the

viewpoint expressed.” Id. A school could, for example,

“define[] its educational mission to include solidarity

with our soldiers and their families” and, on that

basis, prohibit Tinker’s armband. Id.

Based on its work with student groups, NCAC can

attest that Justice Alito’s concerns are justified. This

Court has been clear that student speech cannot be

restricted out of “a mere desire to avoid the discomfort

and unpleasantness that always accompany an

unpopular viewpoint.” Tinker, 393 U.S at 509. But far

too many schools have latched on to the narrow

exceptions identified in cases like Fraser and Morse to

do exactly that. Schools across the country have

adopted policies that severely limit student speech on

political and social issues. Respondents are not the

only ones that have prohibited students from wearing

“Let’s Go Brandon” apparel. The Port Allegany School

District in Pennsylvania9 and the New London-Spicer

School District in Minnesota10 have adopted similar

policies. But the problem is not limited to this one

political slogan.

9 See NCAC Criticizes Pennsylvania School for Stifling Student’s

Political Speech by Prohibiting “Let’s Go Brandon” T-Shirt,

NCAC (Mar. 16, 2022), https://perma.cc/W2Z8-648L.

10 See New London, Minnesota, Student Forbidden from Wearing

“Let’s Go Brandon” T-Shirt,

https://perma.cc/N9VX-LRKP.

NCAC

(Apr.

21,

2023),

14

Many schools have adopted policies that prohibit

students from engaging in speech related to human

sexuality, even when the speech is not in any way

vulgar or obscene. A student at Roseburg High School

in Oregon was prohibited from wearing a “Virginity

Rocks” tee shirt.11 Although there was no evidence

that the shirt would “materially and substantially

interfere with the requirements of appropriate

discipline in the operation of the school,” Tinker, 393

U.S. at 509, the School District Superintendent

justified the ban on the grounds that “the only

appropriate place on campus for conversations about

reproduction is in health class.”12

A student at Livingston Academy in Tennessee

was taken out of class because she wore a shirt stating

that “homosexuality is a sin - 1 Corinthians 6:9-10.”

B.A.P. v. Overton Cnty. Bd. of Educ., 600 F. Supp. 3d

839, 843 (M.D. Tenn. 2022). According to the School

District’s dress code, “[c]lothing with offensive

messages, including . . . sexual connotations . . . is

unacceptable.” Id. at 844. Based on the principal’s

subjective interpretation of the dress code, the policy

was not limited to Fraser’s “elaborate, graphic, and

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

Any reference to sex, even in a Bible verse, is

prohibited.

In 2023, the Temecula Valley Unified School

District in southern California banned the display of

Carisa Cegavske, Roseburg High School’s Rejection of

‘Virginity Rocks’ T-Shirt Becomes Social Media Phenomenon,

The News-Review (Apr. 13, 2018), https://perma.cc/V3PN-ULU5.

11

12 Id.

15

any flag other than those of the United States of

America and the state of California.13 Although the

policy included exceptions for “country, state or

United States military flag[s] used solely for

educational purposes within the adopted curriculum,”

the policy prohibited displaying LGBTQ flags and

Pride flags.14 The same school district had previously

rejected a social studies textbook because it included

a section discussing gay rights activist Harvey Milk.15

According to a supporter of the flag ban, “we’re not

anti-LGBTQ, we’re not anti-anything, but a classroom

is not a place for your personal political beliefs.”16

Schools have also restricted explicitly political

speech. In 2023, a middle school student in Colorado

Springs, Colorado was pulled out of class when a

teacher noticed a Gadsden Flag patch on his

backpack.17 The bright yellow flag, featuring a coiled

rattlesnake and the motto “Don’t Tread on Me,” dates

back to the American Revolution, when it was used by

13 Vivian Chow, Chip Yost, & Rachel Menitoff, Temecula School

Board Approves Controversial Flag Policy, KTLA (Sep. 13, 2023),

https://perma.cc/SV4M-B6TM.

14 Id.

15 Id.

16 Harrison McCarty, Southern California School District Bans

Pride and Other Flag Displays; Opponents Allege Anti-LGBTQ+

Intent, Georgetown Univ.: The Free Speech Project (Nov. 15,

2023), https://perma.cc/43V4-TXE2.

17 Carrie Robison & Aaron Terr, Colorado Public School to Allow

Student to Display Gadsden Flag Patch–As Long as Nobody

Complains, FIRE (Sep. 1, 2023), https://perma.cc/RFV5-XKHN.

16

the United States’ first naval commander in chief.18

More recently, the flag has been used as a symbol by

Nike and a Major League Soccer team.19 Twelve states

currently offer specialty license plates featuring the

flag. But under the Sixth Circuit’s deferential

standard, the historical meaning of the flag would be

trumped by the school’s view that the flag had also

been associated with “hate groups.”20 Although the

school ultimately relented, the student could wear the

patch only if no other student complained, allowing a

heckler’s veto to silence the student’s free

expression.21

Moreover, granting such unfettered discretion to

school administrators inevitably leads to viewpoint

discrimination. Earlier this year, hundreds of

students at San Dieguito High School in San Diego,

California staged an anti-ICE walk out. The student

protestors carried signs exclaiming “If You’re an

I.C.E. Agent Ya Mom’s a Hoe!!” and “ICE is KKK

spelled differently.”22 The school allowed the protest

and none of the students were disciplined. But a few

weeks later, a student posted flyers around the school

18 Gadsen Flag, Encyclopedia Brittanica, https://perma.cc/7YPT-

EL46.

Mahmoud Bennett, Florida’s New License Plate Features

Gadsden Flag, ‘Sends a Clear Message’, Straight Arrow News

(Aug. 10, 2022), https://perma.cc/8Z3C-X82U.

19

20 Robison & Terr, supra note 17.

21 Id.

22 Pierce Sharpe, San Diego High School Reverses Humiliating

Free Speech Decision to Suspend Student Over Pro-ICE Poster,

N.Y. Post (Apr. 6, 2026), https://perma.cc/K429-NTA8.

17

with the opposite message: “We ♥ I.C.E. – Real

Americans.”23 The student was suspended for his

allegedly “demonizing and hateful” speech.24

Some administrators have gone so far as to

exercise their “discretion” to ban all political speech.

In 2021, school officials in Ardmore, Oklahoma,

removed two black elementary school students—ages

8 and 5—from their classrooms for wearing “Black

Lives Matter” T-shirts.25 The students were not

permitted to return to class unless they turned their

shirts inside out or changed their clothes. According

to the principal, after George Floyd’s death, “politics

will not be allowed at school.”26 The school

superintendent justified the dress code as a neutral

restriction because it applied to all political apparel,

saying “I don't want my kids wearing MAGA hats or

Trump shirts to school either because it just creates,

in this emotionally charged environment, anxiety and

issues that I don’t want our kids to deal with.”27

Teen sexuality, gay rights, ICE, the death of

George Floyd, and MAGA are—without question—

controversial subjects. But the Vietnam War was

equally controversial in the 1960s when this Court

23 Id.

24 Id.

25 Jerry Lambe, Two Oklahoma Boys Removed From Elementary

School Classrooms Over ‘Black Lives Matter’ Shirts Banned

‘When the George Floyd Case Blew Up’, Law & Crime (May 10,

2021), https://perma.cc/W2JQ-YTX3.

26 Id.

27 Id.

18

upheld the rights of students to engage in peaceful,

non-disruptive protest. The Court recognized then,

and should reaffirm now, that controversial ideas are

not a threat to education; they are its substance. The

First Amendment exists precisely to protect discourse

that challenges prevailing norms. If students may

only engage with ideas deemed safe or orthodox, they

are denied the opportunity to test arguments,

confront disagreement, and refine their own beliefs.

To deny students the freedom to express, discuss, and

debate controversial ideas is to substitute civic

education with indoctrination.

CONCLUSION

Student speech is indispensable to the functioning

of a democratic society because it cultivates the values

of open inquiry, dissent, and civic participation

necessary for self-government. Students should be

encouraged to express themselves in peaceful, nondisruptive ways, as D.A. and X.A. have done. As this

Court has recognized, “First Amendment freedoms

need breathing space to survive.” NAACP v. Button,

371 U.S. 415, 433 (1963). Any restrictions on student

speech should therefore be based on clear, bright-line

standards, not an administrator’s subjective opinion

as to what the student’s speech might—or might not—

convey. Providing students the “breathing space” to

engage with American political discourse should be a

feature, not a bug, of public education.

19

Respectfully submitted,

Matthew Kudzin

Counsel of Record

Samuel Crimmins

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

mkudzin@cov.com

May 1, 2026

Counsel for Amicus Curiae