PDE Files 6th Circuit Court of Appeals Amicus Brief in B.A. v. Tri County Area Schools

Public schools in the United States are supposed to be “the nurseries of democracy” and to “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.” 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. Especially for issues of public concern, like politics.

But not at Tri County Area School District. There, the 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. And the district court upheld the District’s speech restriction not because the phrase isn’t a political slogan but because the phrase’s origin is connected to profanity.
D.A. ex rel. B.A. v. Tri Cnty. Area Sch., 2024 WL 3924723 (W.D. Mich. Aug. 23).

The district court was wrong. To pass constitutional muster, the District, at a minimum, must show its prohibition of the phrase “Let’s Go Brandon” falls under one of four narrow categories for restricting K-12 student speech. See Kutchinski v. Freeland Cmty. Sch. Dist., 69 F.4th 350, 356 (6th Cir. 2023). The District only asserts that its speech restriction is justified because of the exception for plainly profane, vulgar, and lewd speech. But the phrase “Let’s Go Brandon” is at worst a euphemism that members of Congress have said during floor speeches, broadcast television has aired without censoring, and the sitting President has uttered during an interview on a news network. See Blue-Br.27-29, 9-10. 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) (plurality).

This Court should reverse the district court and hold that the First Amendment protects the students’ political speech.