By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

Recently, a teacher alerted me to a student’s wearing a “Let’s Go Brandon” shirt, and she asked how to deal with students who wear clothing with this slogan since it is a euphemism for “F$%k Joe Biden.” In fact, the song that helped get this slogan in the mainstream has become one of the most popular songs on iTunes.

The way I see it, the shirt does not say the “F word” and, therefore, does not violate the dress code. To me, “Let’s Go Brandon” is the equivalent of wearing any political phrase on a shirt, which I know falls under the Tinker standard i.e., student speech is protected unless it causes a material disruption or substantial interference with the educational process or invades the rights of others.

Help me here! If the phrase is a euphemism for a swear word we would not allow on a shirt, is there anything that a school can do? Would we even be able to discuss with the student the meaning of the phrase without violating Constitutional free speech rights?

Signed,
Ripped from the Headlines
 

Dear Ripped:

Legal Mailbag is inspired by your respect for the free speech rights of students, as well as your understanding that school officials may regulate vulgarity without a showing of disruption. The challenge is to define “vulgarity” appropriately here, and Legal Mailbag reluctantly concludes that restraint is the best course unless you can show that the Let’s Go Brandon shirt causes disruption.

To understand how we should define vulgarity in the school setting, we should start at the beginning. The United States Supreme Court decided Des Moines Independent Community School District v. Tinker in 1969, and as you describe in your question, the Tinker rule is that student speech is protected by the First Amendment unless administrators reasonably forecast material disruption or substantial interference with the educational process or the invasion of the rights of others. For some years thereafter, the Tinker rule was controlling law, and school administrators were hamstrung when confronted with vulgarity in student speech unless the speech was seriously disruptive.

The rules changed in 1986 when the Court decided Bethel School District No. 403 v. Fraser (U.S. 1986). Matthew Fraser included graphic sexual innuendo in a nominating speech he gave at a student assembly. School officials suspended Matthew for three days and denied him the opportunity to speak at graduation. He sued in federal court, claiming that school officials had violated his First Amendment rights. Given the expansive free speech rights as described in Tinker, the district court and the Ninth Circuit Court of Appeals ruled in Matthew’s favor, and the school district appealed to the United States Supreme Court.

In reversing the Ninth Circuit ruling in favor of Matthew, the Court established for the first time an exception to the Tinker rule, holding that school officials may regulate vulgarity in school without having to show disruption as is otherwise required under Tinker. School is a place of business, and the Court ruled that school officials may prohibit vulgarity in school-sponsored activities as they see fit. In Bethel School District v. Fraser, the sexual innuendo was extreme, and the Court was concerned that the students exposed to Matthew’s speech were as young as fourteen. Accordingly, the Court ruled that Matthew’s speech was not protected by the First Amendment.

The challenge here is how one defines vulgarity. It is clear that “Let’s Go Brandon” is a euphemism for an Anglo-Saxon vulgarity that would not be protected speech if it were expressed directly. But the phrase is indeed a euphemism. Moreover, the phrase is political speech, to which the courts have given special protection, starting with Mary Beth Tinker’s black armband to protest the war in Viet Nam.

The Second Circuit Court of Appeals (the federal appellate court for Connecticut) decided a student free speech case in 2006 that illustrates the challenge here. Guiles v. Marineau, 461 F.3d 320 (2d. Cir. 2006). There, the student wore a T-shirt criticizing President Bush, which the court described as follows:

The front of the shirt, at the top, has large print that reads “George W. Bush,” below it is the text, “Chicken–Hawk–In–Chief.” Directly below these words is a large picture of the President’s face, wearing a helmet, superimposed on the body of a chicken. Surrounding the President are images of oil rigs and dollar symbols. To one side of the President, three lines of cocaine and a razor blade appear. In the “chicken wing” of the President nearest the cocaine, there is a straw. In the other “wing” the President is holding a martini glass with an olive in it. Directly below all these depictions is printed, “1st Chicken Hawk Wing,” and below that is text reading “World Domination Tour.”

The back of the T-shirt has similar pictures and language, including the lines of cocaine and the martini glass. The representations on the back of the shirt are surrounded by smaller print accusing the President of being a “Crook,” “Cocaine Addict,” “AWOL, Draft Dodger,” and “Lying Drunk Driver.” The sleeves of the shirt each depict a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a bottle and three lines of cocaine with a razor.

School officials claimed that the T-shirt violated the prohibition in the school’s dress code against images on clothing of drugs or alcohol, and it required that the student either cover the images with tape or wear another shirt. Unwilling to adhere to these directives, the student sued, claiming that his First Amendment rights were violated. The district court ruled in favor of school officials, holding that they could prohibit the student from wearing the shirt with the controversial images. However, the Second Circuit reversed, ruling that the actions of school officials violated the student’s First Amendment rights.

The court described its ruling in favor of the student as follows:

While the exact contours of what is plainly offensive are not so clear to us as the star Arcturus is on a cloudless night, they are evident enough for us to hold that the images of drugs and alcohol on Guiles’s T-shirt are not offensive, let alone plainly so, under Fraser. We believe this is especially so given that these images are presented as part of an anti-drug T-shirt, and, moreover, a T-shirt with a political message. Indeed the Fraser court distinguished its holding from Tinker in part on the absence of any political message in Fraser’s speech. See Fraser, 478 U.S. at 685, 106 S.Ct. 3159 (refusing to apply Tinker because Fraser’s speech did not involve political viewpoint).

It is not possible to predict with certainty whether the courts would similarly rule that “Let’s Go Brandon” is protected speech. However, the Second Circuit’s focus on the political nature of the student’s speech in Guiles v. Marineau gives cause for significant concern, since “Let’s Go Brandon” is certainly political speech. On balance, Legal Mailbag concludes that school officials should take action if and when students display that slogan on their clothing only if they can point to significant disruption that results.

Finally, you ask whether you can discuss the meaning of the phrase with the student without violating his constitutional rights. You may certainly do so, because that conversation would be in the nature of counseling, not a restriction of free speech rights. However, before you do so, please consider the individual student in question and whether that conversation will be productive, or whether the attention related to such a conversation would simply encourage the student’s actions.