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

Supreme Court briefMay 1, 2026

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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,

TRI COUNTY AREA SCHOOLS;

ANDREW BUIKEMA, IN HIS INDIVIDUAL CAPACITY;

WENDY BRADFORD, IN HER INDIVIDUAL CAPACITY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICUS CURIAE

DEFENDING EDUCATION

IN SUPPORT OF PETITIONERS

J. Michael Connolly

Counsel of Record

Paul R. Draper

Marie E. Sayer

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

mike@consovoymccarthy.com

May 1, 2026

Attorneys for Amicus Curiae

TABLE OF CONTENTS

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

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

Summary of Argument................................................1

Argument .....................................................................3

The school district has joined the growing

trend of schools using speech codes to

punish student speech on topics of public

concern. ...........................................................3

II. The Sixth Circuit grievously erred in

concluding that the school district didn’t

unconstitutionally suppress the students’

speech. .............................................................7

Conclusion .................................................................16

TABLE OF CITED AUTHORITIES

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ........................................... 3, 7

B.B. v. Capistrano Unified Sch. Dist.,

169 F.4th 953 (9th Cir. 2026) ............................... 5

B.H. ex rel. Hawk v. Easton Area Sch. Dist.,

725 F.3d 293 (3d Cir. 2013) .......................... 13, 14

Bethel School District No. 403 v. Fraser,

478 U.S. 675 (1986) ......................... 2, 8, 11, 12, 14

C.G. v. Oak Hills Loc. Sch. Dist.,

2023 WL 4763458 (S.D. Ohio Jul. 26) .................. 5

Flaherty v. Keystone Oaks Sch. Dist.,

247 F. Supp. 2d 698 (W.D. Pa. 2003) ................... 4

Guiles v. Marineau,

461 F.3d 320 (2d Cir. 2006) .................... 13, 14, 15

Hazelwood Sch. Dist. v. Kuhlmeier,

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

Iancu v. Brunetti,

588 U.S. 388 (2019) ............................................. 10

Janus v. AFSCME,

585 U.S. 878 (2018) ............................................... 3

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................................... 3

L.M. ex rel. Morrison v. Town of Middleborough,

145 S. Ct. 1489 (2025) ......................................... 13

L.M. v. Town of Middleborough,

103 F.4th 854 (1st Cir. 2024) ................................ 5

iii

Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,

594 U.S. 180 (2021) ................... 1, 2, 7, 8, 9, 10, 12

Morse v. Frederick,

551 U.S. 393 (2007) ........................... 3, 8, 9, 10, 12

PDE v. Linn Mar Cmty. Sch. Dist.,

83 F.4th 658 (8th Cir. 2023) ................................. 4

Saxe v. State Coll. Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) .................................. 4

Smith v. Mount Pleasant Pub. Schs.,

285 F. Supp. 2d 987 (E.D. Mich. 2003) ................ 4

Snyder v. Phelps,

562 U.S. 443 (2011) ............................................... 3

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

393 U.S. 503 (1969) ............................. 1, 2, 7, 8, 11

Westfield High School L.I.F.E. Club v. City of

Westfield,

249 F. Supp. 2d 98 (D. Mass. 2003)...................... 4

Zamecnik v. Indian Prairie Sch. Dist. No. 204,

636 F.3d 874 (7th Cir. 2011) ............................... 10

Other Authorities

Daley, High School Cheerleaders on Probation for

Holding MAGA Sign at Football Game, WCNC

(Sept. 16, 2019) ..................................................... 6

Griffin, Colorado Middle-Schooler Kicked Out of

Class for ‘Don’t Tread on Me’ Patch That Teacher

Claims Originated with Slavery, N.Y. Post (Aug.

30, 2023) ................................................................ 6

Gstalter, Principal Told Teen to Remove Trump

‘MAGA’ Apparel on School’s ‘America Pride Day,’

The Hill (Apr. 13, 2019) ........................................ 6

Joseph, California School Official Compared ‘Save

Girls Sports’ Shirt to Swastika, Rebuked Girls

Wearing It: Lawsuit, Fox News (Nov. 20, 2024) .. 5

Luca, Colusa Teacher Threatens to Kick Student Out

of Virtual Class Over ‘Trump 2020’ Flag, ABC10

(Sept. 23, 2020) ..................................................... 6

Passoth, Clark County School District Sued by ProLife Students Over Alleged First Amendment

Violations, Fox5 (Oct. 4, 2022) ............................. 6

Schow, First Grader Punished After Drawing ‘BLM’

With ‘Any Life’ Underneath, DailyWire (Mar. 21,

2024) ...................................................................... 5

Spotlight on Speech Codes 2021, Foundation for

Individual Rights in Education (FIRE) ................ 4

INTEREST OF AMICUS CURIAE *

Defending Education is a national, nonprofit,

grassroots association. Its members include many

parents with school-aged children. DE uses advocacy,

disclosure, and litigation to combat the increasing politicization and indoctrination of America’s youth.

This case directly implicates DE’s mission, and its

outcome will have real-world consequences for DE’s

members. Students have First Amendment rights,

and they do not “shed [them] at the schoolhouse gate.”

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 506 (1969). The Sixth Circuit’s legal errors affect

the free-speech rights of students and thus the children of DE’s members. If the Sixth Circuit’s decision

is upheld, then K-12 students throughout the Sixth

Circuit will be hindered in speaking on important political topics of our day. DE’s mission is to prevent

such outcomes.

SUMMARY OF ARGUMENT

Public schools in the United States are supposed

to be “the nurseries of democracy” and “protect the

‘marketplace of ideas.’” Mahanoy Area Sch. Dist. v.

B.L. ex rel. Levy, 594 U.S. 180, 190 (2021). And students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

* Per Rule 37.2, counsel of record for all parties received

timely notice of amicus curiae’s intent to file this brief. No counsel for a party authored this brief in whole or in part, and no

person other than amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

Tinker, 393 U.S. at 506. Public schools thus must “ensur[e] 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. That

sentiment is especially true for issues of public concern, like politics.

But it is not true in Tri County Area Schools.

There, the school district prohibited students from

wearing apparel with the political slogan “Let’s Go

Brandon,” even though such speech is political speech

that is normally at the very heart of the First Amendment. The district court and the Sixth Circuit upheld

the school district’s speech restriction not because the

phrase isn’t a political slogan, but because the

phrase’s origin is “associat[ed] with a vulgar expression.” App.20a, 93a.

The Sixth Circuit’s decision was wrong, and it created a circuit split. The court relied on this Court’s decision in Bethel School District No. 403 v. Fraser,

which allows schools to restrict plainly profane, vulgar, and lewd speech. 478 U.S. 675 (1986). But the

phrase “Let’s Go Brandon” is at worst a euphemism—

one that members of Congress have said during floor

speeches and broadcast television has aired without

censoring. See App.4a. The phrase is so ubiquitous

that the students’ mom bought them sweatshirts emblazoned with it for Christmas. App.5a. The students’

speech is core political speech that addresses a matter

of public concern—speech that a public school can

rarely, if ever, restrict. See, e.g., Mahanoy, 594 U.S. at

205 (Alito, J., concurring); Morse v. Frederick, 551

U.S. 393, 403 (2007). Treating this now-commonplace

phrase as vulgarity for the purposes of applying Fraser splits the Sixth Circuit from several others.

ARGUMENT

I. The school district has joined the growing

trend of schools using speech codes to punish student speech on topics of public concern.

The performance of political figures is a “sensitive

political topi[c]” that is “undoubtedly [a] matte[r] of

profound value and concern to the public.” Janus v.

AFSCME, 585 U.S. 878, 914 (2018) (cleaned up); accord, e.g., Snyder v. Phelps, 562 U.S. 443, 453 (2011)

(“Speech deals with matters of public concern when it

can ‘be fairly considered as relating to any matter of

political, social, or other concern to the community.’”).

The First Amendment gives both sides the freedom to

promote their beliefs in the marketplace of ideas,

without the government tipping the scales. “[L]earning how to tolerate speech … of all kinds is ‘part of

learning how to live in a pluralistic society,’ a trait of

character essential to ‘a tolerant citizenry.’” Kennedy

v. Bremerton Sch. Dist., 597 U.S. 507, 538 (2022). Indeed, “tolerance, not coercion, is our Nation’s answer.

The First Amendment envisions the United States as

a rich and complex place where all persons are free to

think and speak as they wish, not as the government

demands.” 303 Creative LLC v. Elenis, 600 U.S. 570,

603 (2023). This is especially true where, as here, the

“speech occupies the highest rung of the hierarchy of

First Amendment values and merits special protection.” Janus, 585 U.S. at 914 (cleaned up).

Yet there is a growing trend of schools adopting

speech codes prohibiting controversial speech. In general, speech codes prohibit expression that would be

constitutionally protected outside school, punishing

students for unpopular speech by labeling it “harassment,” “bullying,” “hate speech,” “incivility,” etc. See

Spotlight on Speech Codes 2021, Foundation for Individual Rights in Education (FIRE) at 10,

perma.cc/S22E-76Q3. These policies are facially unconstitutional—imposing overbroad and often viewpoint-based restrictions on speech. See, e.g., Saxe v.

State Coll. Area Sch. Dist., 240 F.3d 200, 215-16 (3d

Cir. 2001) (Alito, J.) (K-12 speech policy punishing

“harassment” was overbroad because it “prohibit[ed]

a substantial amount of non-vulgar, non-sponsored

student speech”).1 Such policies are often wielded

broadly against expressive speech that administrators don’t like.

1 See also, e.g., PDE v. Linn Mar Cmty. Sch. Dist., 83 F.4th

658, 668-69 (8th Cir. 2023) (K-12 policy prohibiting “intentional

and/or persistent refusal ... to respect a student’s gender identity” was unconstitutional); Flaherty v. Keystone Oaks Sch. Dist.,

247 F. Supp. 2d 698, 701-04 (W.D. Pa. 2003) (speech policy prohibiting “abusive,” “inappropriate,” and “offen[sive]” language

was overbroad); Smith v. Mount Pleasant Pub. Schs., 285 F.

Supp. 2d 987, 990, 995 (E.D. Mich. 2003) (speech policy prohibiting “verbal assault” was overbroad because it allowed “curtailment of speech that questions the wisdom or judgment of school

administrators and their policies, or challenges the viewpoints of

[other] students”); Westfield High School L.I.F.E. Club v. City of

Westfield, 249 F. Supp. 2d 98, 123-24 (D. Mass. 2003) (school policy allowing only “responsible” speech was likely unconstitutional).

Not only do schools chill speech when adopting

speech codes, but they have also used these speech

codes to censor speech on important issues of our day,

including politics. To give a few examples:

•

A student was punished for wearing a t-shirt

that said, “There Are Only Two Genders.” L.M.

v. Town of Middleborough, 103 F.4th 854 (1st

Cir. 2024), cert. denied, 145 S. Ct. 1489 (2025).

•

Two students were punished for wearing a shirt

that said, “Save Girls’ Sports” and “It’s Common Sense. XX ≠ XY.” Joseph, California

School Official Compared ‘Save Girls Sports’

Shirt to Swastika, Rebuked Girls Wearing It:

Lawsuit, Fox News (Nov. 20, 2024),

perma.cc/GR2H-YWBU; T.S. ex rel. Starling v.

Riverside Unified Sch. Dist., No. 5:24-cv-2480,

Doc.1 (C.D. Cal. Nov. 11, 2024).

•

A student was punished for promoting the view

“All Lives Matter.” See B.B. v. Capistrano Unified Sch. Dist., 169 F.4th 953 (9th Cir. 2026);

Schow, First Grader Punished After Drawing

‘BLM’ With ‘Any Life’ Underneath, DailyWire

(Mar. 21, 2024), perma.cc/MV9F-LJKK.

•

A student was prohibited from wearing a

sweatshirt that contained a picture of an AR-15

firearm with the word “Essential” written underneath, which expressed his view on the Second Amendment. See C.G. v. Oak Hills Loc.

Sch. Dist., 2023 WL 4763458 (S.D. Ohio Jul. 26)

(no First Amendment violation).

•

A student was reprimanded for having a “Don’t

Tread on Me” patch on his backpack. See Griffin, Colorado Middle-Schooler Kicked Out of

Class for ‘Don’t Tread on Me’ Patch That

Teacher Claims Originated with Slavery, N.Y.

Post (Aug. 30, 2023), perma.cc/Y6EJ-EZDB.

And many more students have been punished

for expressing views on topics of public concern.

E.g., Gstalter, Principal Told Teen to Remove

Trump ‘MAGA’ Apparel on School’s ‘America

Pride Day,’ The Hill (Apr. 13, 2019),

perma.cc/7X3M-D2PJ; Luca, Colusa Teacher

Threatens to Kick Student Out of Virtual Class

Over ‘Trump 2020’ Flag, ABC10 (Sept. 23,

2020), perma.cc/BKR4-658R; Daley, High

School Cheerleaders on Probation for Holding

MAGA Sign at Football Game, WCNC (Sept.

16, 2019), perma.cc/5SRL-6938; Passoth, Clark

County School District Sued by Pro-Life Students Over Alleged First Amendment Violations, Fox5 (Oct. 4, 2022), perma.cc/T5PQQWBJ.

Tri County Area Schools is part of this unfortunate trend. It punished students for wearing clothing

with the political slogan “Let’s Go Brandon” because

that phrase’s origin is connected to profanity or vulgarity. In doing so, the school district punished speech

at the heart of the First Amendment without a sufficient justification.

II. The Sixth Circuit grievously erred in concluding that the school district didn’t unconstitutionally suppress the students’ speech.

The school district violated the First Amendment

by forbidding the students to wear clothing that said,

“Let’s Go Brandon.” The framers designed the Free

Speech Clause of the First Amendment to “protect the

‘freedom to think as you will and to speak as you

think.’” 303 Creative, 600 U.S. at 584. They did so because “they saw the freedom of speech ‘both as an end

and as a means.’” Id. “An end because the freedom to

think and speak is among our inalienable human

rights,” and “[a] means because the freedom of

thought and speech is indispensable to the discovery

and spread of political truth.” Id. (cleaned up). “‘[I]f

there is any fixed star in our constitutional constellation,’ it is the principle that the government may not

interfere with an uninhibited marketplace of ideas.”

Id. at 584-85 (cleaned up). The First Amendment thus

protects “an individual’s right to speak his mind regardless of whether the government considers his

speech sensible and well intentioned or deeply misguided, and likely to cause anguish or incalculable

grief.” Id. at 586 (cleaned up).

Students, too, have First Amendment rights, and

they do not “shed [them] at the schoolhouse gate.”

Tinker, 393 U.S. at 506. America’s public schools are

“the nurseries of democracy,” and “[o]ur representative democracy only works if we protect the ‘marketplace of ideas.’” Mahanoy, 594 U.S. at 190. Schools

must “ensur[e] 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.’” Id.

Given these bedrock principles, this Court has recognized only four “specific categories of speech that

schools may regulate in certain circumstances,” id. at

187:

(1) “‘indecent,’ ‘lewd,’ or ‘vulgar’ speech uttered

during a school assembly on school grounds,”

id. (quoting Fraser, 478 U.S. at 685);

(2) “speech, uttered during a class trip, that promotes ‘illegal drug use,’” id. at 187-88 (quoting

Morse, 551 U.S. at 408);

(3) “speech that others may reasonably perceive

as ‘bearing the imprimatur of the school,’ such

as that appearing in a school-sponsored newspaper,” id. at 188 (alteration marks omitted)

(quoting Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260, 273 (1988)); and

(4) on-campus and some off-campus speech that

“‘materially disrupts classwork or involves

substantial disorder or invasion of the rights

of others,’” id. (quoting Tinker, 393 U.S. at

513).

Neither the school district nor the court below argued that categories two through four justify the

school district’s speech restriction. That is, the school

district did not claim the students’ speech promotes

illegal drug use, can be reasonably seen as schoolsponsored, or meets the Tinker standard by materially

disrupting the school environment or invading the

rights of others. Nor did the Sixth Circuit rest on those

grounds. App.9-10a.

Instead, the school district argued, and the Sixth

Circuit agreed, that the prohibition satisfied the first

category from Bethel v. Fraser about “vulgar” and

“profane” speech. Though the court agreed that “political speech is ‘at the core of what the First Amendment is designed to protect,’” App.21a (quoting Morse,

551 U.S. at 403), it held that “vulgarity trumps the

political aspect of speech at school,” App.22a. And it

held that “Let’s Go Brandon” was “an obscene or vulgar message,” even though “the words used are not

themselves obscene or vulgar.” App.14a. In so holding,

the Sixth Circuit “stretche[d] Fraser too far.” Morse,

551 U.S. at 409. The Sixth Circuit’s decision was

wrong, gives too much deference to the school district,

and creates a circuit split.

A. The Sixth Circuit’s determination that Fraser

applies here was wrong. The school district’s only conceivable justification for prohibiting the phrase “Let’s

Go Brandon” is “the school’s interest in teaching good

manners” by “punishing the use of vulgar [or profane]

language.” Mahanoy, 594 U.S. at 191. But contra the

Sixth Circuit, that justification is virtually nonexistent—or easily outweighed—here. That’s because the

speech is political speech and at worst a euphemism.

To start, Fraser does not cover a political slogan

with a euphemism. “Political speech … is ‘at the core

of what the First Amendment is designed to protect.’”

Morse, 551 U.S. at 403. Because the students’ speech

“lies at the heart of the First Amendment’s protection,” “the connection between student speech in this

category and the ability of a public school to carry out

its instructional program is tenuous,” which is why

such speech “is almost always beyond the regulatory

authority of a public school.” Mahanoy, 594 U.S. at

205 (Alito, J., concurring).

But even if the phrase “Let’s Go Brandon” could

be understood to be connected to a phrase with vulgarity, the speech here is not akin to vulgarity because it

is not “delivered in a lewd or vulgar manner” but

through a euphemism. Morse, 551 U.S. at 422-23

(Alito, J., concurring). As the Sixth Circuit acknowledged, “Let’s Go Brandon” is “a euphemism.” App.12a

& n.1. It has “quickly entered common usage, appearing in broadcast television, the Congressional record,

and even President Biden’s NORAD Santa tracker

call-in on C-SPAN.” App.4a. There is thus no doubt

that “Let’s Go Brandon” is meaningfully less crude

than using actual vulgarity. Cf. Zamecnik v. Indian

Prairie Sch. Dist. No. 204, 636 F.3d 874, 876 (7th Cir.

2011) (criticizing the idea that “euphemism is to be

the only permitted mode of expressing a controversial

opinion” in the public-school setting). Though the slogan originated as a substitute for another phrase that

contains vulgarity, that does not make it an equivalent of the vulgar phrase. To put it succinctly: “One is

censored; the other is not.” App.53a (Bush, J., dissenting). Plus, for a term to be vulgar or profane, it must

“play no real part in the expression of ideas.” Iancu v.

Brunetti, 588 U.S. 388, 400 (2019) (Alito, J., concurring). But there’s no meaningful dispute that every

word in the phrase “Let’s Go Brandon” plays a significant part in the expression of an idea. The political

slogan itself is thus not vulgarity or profanity.

B. Despite acknowledging the lack of vulgarity or

profanity on the face of the phrase “Let’s Go Brandon,”

App.11a-13a, and the political message inherent in it,

App.21a, the Sixth Circuit decided Fraser applied.

The panel majority reasoned that the school district’s

determination that the phrase was vulgar was not unreasonable, and the school board was entitled to “discretion” to make such a determination. App.13a-14a,

16a. But such discretion runs right up against the

First Amendment. Cf. Tinker, 393 U.S. at 509 (explaining that it is the state’s burden to “justify prohibition of a particular expression of opinion”). The

panel majority gave two reasons for such deference to

the school district, neither of which work.

First, the Sixth Circuit said Fraser’s “core holding

[is] that determinations of what is impermissibly vulgar, lewd, indecent, or plainly offensive should be left

in the hands” of the school. App.16a. But Fraser held

no such thing. “The majority’s reading of Fraser conflicts with what that case said.” App.46a (Bush, J., dissenting). The Court did not ground its decision in the

discretion of the school district to interpret the speech.

Contra App.16a. Instead, the Court explained on its

own that “[t]he pervasive sexual innuendo in Fraser’s

speech was plainly offensive to both teachers and students—indeed to any mature person.” Fraser, 478

U.S. at 683; see also Tinker, 393 U.S. at 509 (perform-

ing an “independent examination of the record” to determine whether school authorities’ concerns were

right).

Second, the Sixth Circuit reasoned that such deference was consistent with the historical understanding of student speech rights, including the doctrine of

in loco parentis. App.17a. But “[t]he doctrine of in loco

parentis treats school administrators as standing in

the place of students’ parents under circumstances

where the children’s actual parents cannot protect,

guide, and discipline them.” Mahanoy, 594 U.S. at

189. As Judge Bush explained in dissent, giving deference to the school district’s ideas of what is appropriate at school “assumes alignment, or at least not

conflict, between the interests of parents and those of

school administrators.” App.59a (Bush, J., dissenting). It is especially “ill-suited to justify the school’s

disciplinary authority” in a case like this, where “the

parent wants her sons to wear a non-vulgar sweatshirt to convey a political message.” Id. (Bush, J., dissenting).

This Court has consistently sought to “balanc[e]”

students’ “freedom to advocate unpopular and controversial views in schools and classrooms” against “society’s countervailing interest in teaching students the

boundaries of socially appropriate behavior.” Fraser,

478 U.S. at 681; see also Morse, 551 U.S. at 396-97.

The Sixth Circuit’s broad deference to the school district eviscerates that balance. Giving the government

the discretion not only to regulate profanity and vulgarity, but also to define what it is, allows the Fraser

exception to swallow the First Amendment rule. But

the rule is that “free speech is the default and censorship is the exception,” see L.M. ex rel. Morrison v.

Town of Middleborough, 145 S. Ct. 1489, 1495 (2025)

(Alito, J., dissenting from denial of cert.), not the other

way around.

C. The Sixth Circuit’s holding creates a circuit

split on how to apply Fraser. Other circuits have applied Fraser to “per se” vulgar, lewd, or profane

speech, not to “ambiguously lewd” speech like “Let’s

Go Brandon,” and they have declined to apply it to

speech that involved political views. See B.H. ex rel.

Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 306-07

(3d Cir. 2013) (en banc); Guiles v. Marineau, 461 F.3d

320, 327-28 (2d Cir. 2006).

For example, in B.H. ex rel. Hawk, the school

banned middle schoolers from wearing “bracelets

bearing the slogan ‘I ♥ boobies! (KEEP A BREAST)’ as

part of a nationally recognized breast-cancer-awareness campaign,” claiming “the bracelet ban [w]as an

exercise of its authority to restrict lewd, vulgar, profane, or plainly offensive student speech under Fraser.” 725 F.3d at 298, 300. The Third Circuit disagreed. Per the Third Circuit, Fraser and Morse “set[]

up the following framework”: (1) “plainly lewd[, vulgar, or profane] speech, which offends for the same

reasons obscenity offends, may be categorically restricted regardless of whether it comments on political

or social issues”; (2) “speech that does not rise to the

level of plainly lewd[, vulgar, or profane speech] but

that a reasonable observer could interpret as lewd[,

vulgar, or profane] may be categorically restricted as

long as it cannot plausibly be interpreted as commenting on political or social issues”; and (3) “speech that

does not rise to the level of plainly lewd[, vulgar, or

profane speech] and that could plausibly be interpreted as commenting on political or social issues may

not be categorically restricted.” Id. at 298. The Third

Circuit held that because the bracelets were “not

plainly lewd” and “comment[ed] on a social issue,” the

school could not rely on Fraser to justify its speech restriction. Id. at 298 (emphasis added).

The decision below goes the other way. Even

though the phrase “Let’s Go Brandon” is not vulgarity,

let alone “plainly” vulgarity, see Fraser, 478 U.S. at

683 (emphasis added), the Sixth Circuit held that Fraser applied. It believed that “it was reasonable” for the

school district to “classify the phrase as vulgar” simply

because of its “association with a vulgar expression.”

App.20a. Instead of the narrow exception for vulgarity

applied by the Third Circuit, the Sixth Circuit adopted

a broad one encompassing any phrase any listener

might reasonably associate with vulgarity.

Similarly, in Guiles, a school punished a middle

schooler for wearing a t-shirt criticizing President

George W. Bush; specifically, the shirt called the president a “Chicken-Hawk-In-Chief”; “Crook”; “Cocaine

Addict”; “AWOL, Draft Dodger”; and “Lying Drunk

Driver” next to images of “alcohol” and “cocaine.” 461

F.3d at 322-23. The school claimed Fraser justified

banning the shirt, but the Second Circuit disagreed.

In the Second Circuit’s view, Fraser only “applies to

the ‘manner of the speech,’” namely “speech containing sexual innuendo and profanity.” Id. at 328. The

shirt didn’t meet that standard because, even though

the shirt’s message and “images of a martini glass, alcohol, and lines of cocaine … may cause school administrators displeasure and could be construed as insulting or in poor taste,” they were not expressly vulgar,

obscene, profane, or offensive. Id. at 329. That the

speech was “part of an anti-drug political message” reinforced the court’s conclusion that Fraser didn’t apply. Id.

Again, the decision below goes the other way.

Though the phrase “Let’s Go Brandon” might give the

school district “displeasure,” it is neither “plainly offensive as the sexually charged speech considered in

Fraser” nor “as offensive as profanity used to make a

political point.” Id. If anything, the students’ “Let’s Go

Brandon” apparel is far less vulgar than the shirt in

Guiles and just as much of a political message. By

broadly applying the Fraser exception to speech that

does not actually include profanity or sexually

charged language, the Sixth Circuit’s rule conflicts

with the Second Circuit’s decision in Guiles.

In short, the Sixth Circuit’s decision goes far beyond the lewd speech in Fraser. In doing so, it joins

the growing number of cases in which the state has

been allowed to elide the First Amendment rights of

students, not to promote decency and order in the

classroom, but to censor political speech administrators disagree with.

CONCLUSION

This Court should grant the petition for a writ of

certiorari.