The First Amendment Clinic filed a brief of amici curiae in December in D.A. v. Tri County Area Schools in the Sixth Circuit supporting two middle school students who were punished for their in-school political speech. Represented by the Foundation for Individual Rights and Expression (“FIRE”), the students sued their Michigan school district for forcing them to remove sweatshirts reading “Let’s Go Brandon,” a phrase that has become a rallying cry for some conservative voices across the country.
The District Court for the Western District of Michigan, holding that school administrators had “reasonably interpreted” the phrase as “profane”, determined that the school’s action against the students did not violate the students’ First Amendment rights. The students appealed to the Sixth Circuit Court of Appeals, where a decision is now pending.
The Clinic represented a group of First Amendment legal scholars—Erwin Chemerinsky, Clay Calvert, Roy Gutterman, Mary-Rose Papandrea, and Joseph A. Tomain—in arguing that the Western District of Michigan failed to apply the proper constitutional standard in rendering its decision. Specifically, the brief argues that by deferring to the school’s interpretation of a popular political phrase as “profane,” the district court improperly ignored the test established by the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
In Tinker, the Court held that a school may only prohibit student expression in the school environment that communicates a political message when the expression creates a “substantial disruption of or material interference with school activities.” The scholars’ brief pointed out that school administrators in D.A. v. Tri County Area Schools acknowledged that the students’ “Let’s Go Brandon” sweatshirts caused no such disruption, so the school could not have satisfied the Tinker test even if it had been properly applied.
The scholars also made the case that other Supreme Court precedents limiting student free speech rights were inapplicable in this instance due to “Let’s Go Brandon’s” non-profane, political nature.
Under the supervision of Adjunct Professor Michael Grygiel and Stanton Fellow Daniela del Rosario Wertheimer, Clinic students Lexie Kapilian ‘26, Alex Strohl ‘25, and Robert Plafker ’25 worked to develop and write the amici brief over the course of the fall 2024 semester.
According to Grygiel, “It is particularly essential in today’s polarized climate that the free speech rights of public school students are protected when their expression does not result in a disruption to the school environment. Our students’ work underscored the basic First Amendment principle that when political beliefs – regardless of where they fall on the political spectrum – are communicated without using profanity, they are protected.”