Five months before the nation's largest federal appeals court affirmed that elementary school students have the same First Amendment rights as older students, a different federal appeals court authorized teachers and administrators to clamp down on student expression that they subjectively interpret as code for profanity.

Middle school students banned by Michigan's Tri County Area Schools from wearing sweatshirts that read "Let's Go Brandon," the media-devised euphemism for a profane chant against then-President Biden, have now petitioned the Supreme Court to review the split decision by a 6th U.S. Circuit Court of Appeals panel, which created a circuit split.

Lower courts are "guessing" how to interpret the confusing SCOTUS precedent Fraser, upon which the Cincinnati-based 6th Circuit relied, which let a school district punish a student for giving a speech with "a rather elaborate sexual metaphor," according to the petition filed on the students' behalf by the Foundation for Individual Rights and Expression.

The petition noted that courts have contradicted each other, under Fraser, on how to treat student-worn "I ♥ boobies!" breast cancer awareness bracelets, with the Philadelphia-based 3rd Circuit finding a middle school cannot ban the expression without disruption, while Indiana and Wisconsin district courts authorized bans in high school and middle school, respectively.

Displaying the message "Let's Go Brandon" is no different than students saying "heck" or "shoot" as euphemisms for profanity, the civil liberties group said in a press release. "The school district’s censorship assumes that students cannot handle seeing even sanitized expressions," FIRE Supervising Senior Attorney Conor Fitzpatrick said.

Used "everywhere from campaign rallies to the floor of Congress to convey disapproval of President Biden and his administration," the euphemism "fits squarely within our nation’s deeply rooted tradition of peaceful dissent under the First Amendment," the petition says.

It's analogous to the Republican slogan "Ma. Ma. Where’s My Pa?” in 1884, which reminded voters that Democratic presidential candidate Grover Cleveland had a bastard child.

"The Sixth Circuit’s approach defies common sense" by authorizing administrators to "reasonably" determine "Let's Go Brandon" conveyed the same vulgar message as the NASCAR chant where it was conceived, the petition says. "English speakers throughout history have turned to sanitized expressions to avoid the social taboo of profanity."

A California school district avoided a FIRE lawsuit this week by expunging its suspension of a student caught posting flyers that praise Immigration and Customs Enforcement in response to anti-ICE posters featuring lewd slogans that were carried by hundreds of students during a school walkout, for which none was punished.

Though it didn't send a "formal demand letter" to Torrey Pines High School in the San Dieguito Union High School District, "FIRE's litigators made prompt and immediate document requests and the school district understood that the family had retained FIRE's litigation attorneys as counsel in the matter," a FIRE spokesperson told Just the News.

FIRE said it told the school that administrators "can’t pick and choose which opinions students are allowed to express," especially given that the flyers caused no disruption and were "displayed in a common area where other students have posted political material."

The school told the student's guardians he was "directing harassment, threats or intimidation toward district staff or other students" by posting "We ❤️ I.C.E. – Real Americans" flyers, The Times of San Diego reported.

Torrey Pines cited state law prohibiting speech that "incites pupils so as to create a clear and present danger," district policy prohibiting "conduct that creates a hostile or intimidating environment" and the SCOTUS "fighting words" doctrine from 1942, the Times reported. (The high court has implicitly abandoned, but never overruled, the Chaplinsky precedent.)

No censorship for 'plausibly interpreted' political or social commentary

Sixth Circuit Judge John Bush, who dissented from the "Let's Go Brandon" ruling, marveled that the panel majority sees a "political slogan critical of a president but containing no words that are vulgar or profane" more like Fraser's nonpolitical crude speech than the constitutionally protected antiwar armbands in the earlier Tinker precedent.

The decision followed the refusal of SCOTUS, over the heated objections of justices Samuel Alito and Clarence Thomas, to review the 1st Circuit's approval of a Massachusetts middle school's ban on "Only Two Genders" and "Only Censored Genders" shirts while itself promoting gender ideology and encouraging students to do the same.

FIRE's petition to SCOTUS on behalf of the pseudonymous middle schoolers emphasizes that the ruling is not only at odds with the 3rd and 9th circuits, which require student speech to be "plainly" lewd or profane for schools to regulate it, but it authorizes contradictory decisions among schools in the same district and even "between classes" in the same school.

"Students’ First Amendment rights do not and must not depend on the sensitivities of individual teachers," the petition says. "As Judge Bush explained in dissent, subjective standards are a petri dish for viewpoint discrimination and thus anathema to the First Amendment."

SCOTUS itself admitted it wasn't sure how to apply Fraser 21 years later in Morse, the petition says, when it narrowly upheld a school's punishment of a student for holding a "pro-drug" banner reading "Bong Hits 4 Jesus" across the street from campus during a school-supervised recess to watch the Winter Olympics Torch Relay as it passed by.

FIRE noted the New York City-based 2nd Circuit has complained that Fraser and other precedents on exceptions to the broad speech protections in Tinker are "difficult and confusing, even for lawyers, law professors, and judges," and that it limited Fraser to only similarly vulgar speech, such as upholding punishment for calling administrators "douchebags."

The 3rd Circuit's reading of Fraser grants the most protection, prohibiting censorship of "ambiguously lewd, vulgar, or profane" student speech if it is “plausibly interpreted as political or social commentary," the petition says, recommending this "commonsense, workable approach" of only permitting restrictions on "swearwords" or lewd actions at school.

"For close calls on the margins, Tinker stands ready as a circuit breaker, immediately available to teachers and administrators if expression causes, or is reasonably forecasted to cause, disruption, or invades the rights of others," FIRE said.

By one estimate the second-most overturned federal appeals court in the country, the 6th Circuit has been stretching Fraser beyond its sex-themed subject matter since the turn of the century, when it upheld a ban on t-shirts featuring Marilyn Manson because the shock-rocker's lyrics — "none of which were on the shirt" — violated the school's educational mission, FIRE said.

The court justified its approach based on "how free speech rights were understood at the time of the Fourteenth Amendment’s ratification," but that was a time when "schools exercised total control over students" at the direction of parents, the petition says.

The public education system now "implicates direct, coercive interactions between the State and its young residents," as SCOTUS said in rejecting a Maryland school district's secret LGBTQ lessons for young children, FIRE said. 

The 6th Circuit ruling "attempts to resuscitate the ironfisted authority over student speech that private school headmasters enjoyed in the 19th century. That era is over," the petition says.