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'Profane'? School district sued for banning 'Let's Go Brandon' clothing, Trump flag

District interprets anti-Biden slogan as "lewd" under dress code to get around Supreme Court ruling on Vietnam protest armbands. Allows LGBTQ apparel, suit claims.

Published: April 25, 2023 11:11pm

A Michigan school district is picking sides in a possible rematch of the 2020 election, not only showing a "continuing pattern of discrimination" against students who support former President Trump but flouting a major Supreme Court precedent on student speech, according to a lawsuit filed Tuesday.

Tri County Area Schools ruled that student clothing that reads "Let's Go Brandon" is prohibited as "lewd, indecent, vulgar, or profane" under its dress code. The phrase was originally improvised by a sports reporter amid "F— Joe Biden" chants after a NASCAR race, then adopted as a G-rated slogan against President Biden.

It's far from the first K-12 district or school to allegedly single out pro-Trump messages for prohibition. 

A Mississippi district revised its dress code following a legal warning about a student ordered to remove a Trump face mask while it permitted masks for Biden, gay rights and Black Lives Matter. A North Carolina principal was "replaced" after telling a student to remove a Trump jersey. 

A California high school banned Make America Great Again hats, while a California teacher allegedly threatened to eject a student from virtual class for a Trump banner in his background.

Andrew Buikema, assistant principal of Tri County Middle School, told both pseudonymous student plaintiffs to remove their Let's Go Brandon sweatshirts, the suit claims. He pulled aside the first in the hallway in February 2022, claiming the slogan was akin to "the f-word," and called the second student out of class that May, deeming the slogan prohibited "political" speech. 

Teacher Wendy Bradford also issued the decree in February 2022, telling one plaintiff the sweatshirt was "not permitted" without elaborating. Neither has since worn "non-disruptive, non-vulgar politically expressive attire to school" out of fear of punishment, the suit says.

The district stood firm against threatened litigation by the students after the May incident. In a June 9 response letter attached to the suit, outside lawyer Kara Rozin of Clark Hill claimed the slogan was "transparent code for using profanity against the President" and that one student admitted knowing this.

Rozin said a "simple Google search" verifies that "Let's Go Brandon" in and of itself is a crude slogan, pointing to its Wikipedia page, which means Supreme Court precedents on student speech don't apply. She provided other federal rulings below SCOTUS that support the district, citing rulings upholding public school bans on clothing that features shock-rocker Marilyn Manson and the words "suck" and "douchebags."

The lawyer didn't mention Buikema's alleged claim that the school bans political speech. Just the News received an email auto-reply from Rozin that she is at the Michigan School Business Officials Conference Tuesday.

A week before the district rebuffed the legal threat, the middle school allegedly expanded beyond suppressing criticism of Biden. Buikema ordered a student to remove a Trump flag worn as a cape during the June 2 "field day," when the dress code is relaxed, while leaving alone several students wearing LGBTQ flags as capes, the plaintiffs claim.

The Foundation for Individual Rights and Expression is representing the students in its first legal foray into K-12 education since expanding its purview beyond higher education last year. The 24-year-old civil liberties group celebrated its broader mission with a gala this month.

"A public school district cannot censor speech just because it might cause someone to think about a swear word," FIRE attorney Conor Fitzpatrick said in a written statement. A spokesperson told Just the News it doesn't have visual documentation of political apparel the district permitted, though its video on the case appears to include a field day image of a student wearing a pride flag.

FIRE is challenging the dress code as unconstitutionally vague and likely to result in "subjective and discriminatory enforcement." 

The code prohibits apparel that is "disruptive to the teaching and/or learning environment by calling undue attention to oneself," but the district allegedly provides no guidance about what that means to parents, students or employees, who have individual discretion to enforce the code. It is "substantially and unlawfully overbroad on its face," chilling a wide range of protected expression, FIRE argues.

The district has not even claimed, much less provided evidence, that it predicted or witnessed "material disruption, substantial disorder, or invasions of the rights of others" as a result of the anti-Biden sweatshirts or pro-Trump flag, according to FIRE. The Trump flag specifically was worn "for about two hours, with little to no reaction from other students."

All students are in "immediate danger of direct injury" to their constitutional rights and "constant risk of discipline" should they wear "politically expressive clothing" the district determines calls undue attention to them, the suit claims.

FIRE highlighted the Supreme Court's 1969 Tinker decision that upheld the right of students to wear divisive political symbols to school: black armbands in protest of the Vietnam War. Apparel that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others" is exempted from protection.

Buikema and Bradford should have known that they had "no legitimate, let alone compelling state interest in prohibiting peaceful, non-disruptive support for or opposition to political candidates and figures in schools" and that this was not "the least restrictive means of achieving such an interest" as constitutionally required, the suit says.

At the least, they should have known that "ambiguously lewd, vulgar, or profane speech" that "comments on a matter of political or social concern" is constitutionally protected, FIRE said, pointing to a 2013 appeals court decision protecting "I (heart) boobies!" breast-cancer awareness bracelets on those grounds.

The plaintiffs seek punitive damages against the individual defendants and damages against the district, as well as a declaration that the "policy, practice, and custom of prohibiting" the anti-Biden slogan infringes their free speech and discriminates by viewpoint in light of the district's tolerance for "other political and social messages." (Only the LGBTQ messages are specified.)

Superintendent Allen Cumings told Just the News the district has "no comment at this time regarding pending litigation or matters that involve students of the District due to federal privacy laws and Board Policy."

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