Between Tinker and Fraser: The Impacts of the Sixth Circuit’s Decision in B.A. v. Tri County Area Schools

by Faith Howard, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

The First Amendment of the United States Constitution states, “Congress shall make no law. . . abridging the freedom of speech,” thereby safeguarding the fundamental right to expression for individuals.¹ The Supreme Court, throughout its rulings, has consistently held that these protections regarding freedom of speech extend to students even while attending school, famously acknowledging that, “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”² However, the Court has also recognized that these rights “are not automatically coextensive with the rights of adults in other settings,” and has consistently found that there are some limited circumstances where students’ right to free speech and expression in public schools can be restricted.³ Following its landmark decision in Tinker v. Des Moines Independent Community School District, the Supreme Court has established various standards throughout various rulings for lower courts to use when evaluating the circumstances under which student speech may be restricted.⁴ Nevertheless, even with these various tests, lower courts still sometimes struggle to decide which standard applies when evaluating student speech, especially when it is unclear if a student’s expression might fall into a recognized category of restriction.

This Article analyzes the recently decided case B.A. v. Tri County Area Schools.⁵ Section II outlines two of the standards federal courts use when evaluating student speech in public schools, specifically focusing on the standards established in Tinker v. Des Moines Independent Community School District and Bethel School District No. 403 v. Fraser.⁶ It then explains the origin of the phrase “Let’s go Brandon,” and concludes with a brief overview of the facts in B.A. v. Tri County Area Schools. Section III analyzes the majority and dissent’s approaches to the extent to which Fraser addresses student political speech and messages and explains how the decision results in a circuit split amongst the Sixth and Third Circuits regarding how narrowly Fraser should be applied. Section IV concludes that, given the lack of clarity in the court’s opinion and the resulting circuit split, it would be helpful for the Supreme Court to review the case to provide clarity for the lower courts.

II. Background

A. Some of the Standards Courts Use When Analyzing Student Speech in Public Schools

1. Tinker v. Des Moines Independent Community School District

The Supreme Court’s most notable standard regarding student speech in public schools came from its 1969 ruling in the case Tinker v. Des Moines Independent Community School District.⁷ This case involved John F. Tinker, Mary Beth Tinker, and Christopher Eckhardt, who attended middle and high school at Des Moines schools.⁸ In December 1965, some adults and students met at Eckhardt’s house to devise a plan to wear black armbands as a way of publicizing their objection to the Vietnam War.⁹ Upon hearing of this plan, the principals at the Des Moines schools enacted a policy that would require any student wearing an armband to remove it or be suspended from school.¹⁰ The students were aware of this policy when they chose to wear the black armbands to school, and were suspended until they agreed to return without wearing them.¹¹

Following their suspension, the students’ fathers filed a complaint in the U.S. District Court for the Southern District of Iowa, asking the court to restrain the school district from disciplining the students.¹² However, after an evidentiary hearing, the district court dismissed the complaint, reasoning that the school’s actions were constitutionally permissible because they were “reasonable in order to prevent disturbance of school discipline.”¹³ On appeal, the Eighth Circuit affirmed the district court’s ruling.¹⁴ The students then appealed to the Supreme Court, which reversed and remanded the decisions.¹⁵

In reaching its conclusion, the Supreme Court addressed how the student’s speech did not involve aggressive and disruptive action.¹⁶ Instead, their armbands were passive and closely akin to “pure speech.”¹⁷ The Court noted how in the students’ circumstances, there was no actual indication that wearing the armbands had caused any significant disruption to the school’s work or classes, apart from a few hostile remarks.¹⁸ The Court acknowledged the district court’s conclusion that the school’s actions were reasonable because they were based upon a fear of a disturbance that could result from the students armbands.”¹⁹ But, in the U.S. system, “fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.²⁰ As such, the Court held that absent a showing that “engaging in the forbidden conduct would materially and substantially interfere” with the school’s operations, a prohibition of that expression cannot be sustained.²¹

2. Bethel School District No. 403 v. Fraser

Following its decision in Tinker, it would be approximately seventeen years before the Supreme Court took up another case involving student speech in public schools, this time in the form of Bethel School District No. 403 v. Fraser.²² This case centered on Matthew Fraser, a student at Bethel High School who gave a speech in front of nearly 600 students nominating a classmate for a student elective office.²³ Before delivering the speech, Fraser had met with two of his teachers who informed him that his speech’s contents were inappropriate and that delivering it could lead to severe consequences.²⁴ However, Fraser proceeded to give the speech, where he referred to the candidate as “an elaborate, graphic, and explicit sexual metaphor.”²⁵ The following morning, Fraser was called into the assistant principal’s office, where she informed him that his speech violated the school’s rule prohibiting “the use of obscene language.”²⁶ As a result, Fraser was suspended for two days.²⁷

Upon returning to school, Fraser’s father filed suit against the school in the U.S. District Court for the Western District of Washington alleging that the school violated his son’s First Amendment right to freedom of speech.²⁸ The district court agreed.²⁹ On appeal, the Ninth Circuit Court affirmed the district court’s judgment, holding that Fraser’s speech was “indistinguishable” from the armbands worn by the students in Tinker.”³⁰ The Ninth Circuit rejected the school’s argument that it possessed “an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school” and that “incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity.”³¹ The school again appealed the decision, which the Supreme Court reversed.³²

In its analysis, the Court openly chastised the Ninth Circuit for equating Fraser’s sexual innuendo to the Tinkerarmbands used for political expression.³³ Turning to the speech itself, the Court further rebuked the Ninth Circuit’s reasoning, recognizing that a public school’s ability to “prohibit the use of vulgar and offensive terms” is a highly appropriate function and found that “the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”³⁴ Drawing attention to the fact that the Court’s First Amendment jurisprudence had already carved out free speech limitations in instances of sexually explicit speech where “the audience may include children” and that the government has an interest in protecting minors from vulgar and offensive language, the Court found that the school was not forced to tolerate “lewd, indecent, or offensive speech or conduct.”³⁵ Therefore, given that “unlike the sanctions imposed on the student’s wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint,” the Court found the school’s actions were consistent with the First Amendment.³⁶

B. Where Did “Let’s Go Brandon” Originate

On October 2, 2021, NASCAR driver Brandon Brown had just won his first Xfinity Series at the Talladega Superspeedway in Alabama when he was approached for an interview by an NBC Sports reporter.³⁷ As the reporter began talking, the background was filled with the sound of the crowd yelling “F— Joe Biden.”³⁸ However, the reporter stated on air that the crowd was chanting “Let’s go Brandon.”³⁹ From then on, the phrase “Let’s go Brandon,” became widely used among conservatives as a way to insult former President Joe Biden.⁴⁰

C. Facts of B.A. v. Tri County Area Schools

B.A. v. Tri County Area Schools involved brothers D.A. and X.A., sixth and eighth graders at Tri County Middle School who wore sweatshirts to school displaying the phrase “Let’s go Brandon.”⁴¹ In February 2022, D.A. wore the sweatshirt to school, where he was confronted by the assistant principal who asked him to remove the shirt because “the phrase means the F-word.”⁴² Since D.A.’s T-shirt underneath also said the phrase, he was instructed to change, which he agreed to do.⁴³ However, just a few weeks after the incident, D.A. returned to school wearing the “Let’s go Brandon” sweatshirt and was confronted by a teacher who instructed him to take it off, which he did.⁴⁴ In May 2022, X.A. wore his “Let’s go Brandon” sweatshirt and was approached by the assistant principal, who instructed him to remove it because the phrase’s “profane double meaning” violated the school’s dress code.⁴⁵ X.A. complied with the request.⁴⁶

At the time these incidents occurred, the school’s dress code outlined that it prohibited “attire with messages or illustrations” that were “lewd, indecent, vulgar, or profane.”⁴⁷ But did not otherwise prevent students from wearing clothes that expressed political statements.⁴⁸ The school noted that a student’s clothing need not be deemed disruptive to violate the dress code and that no disruption had resulted from the boys wearing their “Let’s go Brandon” apparel.⁴⁹ Both the principal and assistant principal stated that the boy’s sweatshirts were banned not because of their political ideology, noting that they had previously allowed students to wear apparel supporting phrases like “Make America Great Again,” but in this case, because the phrase was vulgar, they could not permit it.⁵⁰

In May 2022, the plaintiffs sent the school a cease-and-desist letter, detailing why they believed prohibiting the boys from wearing their “Let’s Go Brandon” sweatshirts violated their First Amendment rights.⁵¹ The school responded that the phrase “Let’s Go Brandon” was commonly understood as “profane or vulgar” and that the dress code prevented clothing containing profanity or vulgarity.⁵² Following this exchange, the plaintiffs filed suit in district court, arguing that D.A. and X.A.’s First Amendment rights had been violated.⁵³ After discovery, both parties moved for summary judgment, which the district court granted in favor of the school.⁵⁴ The court reasoned that, because “schools can prohibit students from wearing apparel that contains profanity, schools can also prohibit students from wearing apparel that can reasonably be interpreted as profane.”⁵⁵ Ultimately, the court held that because the school could reasonably interpret “Let’s go Brandon” as possessing a profane meaning, it could regulate students’ apparel displaying the phrase without needing to show interference or disruption.⁵⁶ The plaintiffs appealed the decision to the Sixth Circuit.⁵⁷

III. Discussion

In a 2-1 decision, the Sixth Circuit affirmed the district court’s judgment and ruled in favor of the school district applying the Fraser standard.⁵⁸ This Section analyzes the Sixth Circuit’s decision in B.A. and addresses some of the fundamental differences between the majority and dissent’s approach to understand why Fraser was or was not the appropriate standard for analyzing the student’s speech. It argues that based on the majority, dissent, and other federal courts’ fundamentally different understanding of the degree to which Fraser addresses political speech or messages, the decision has created a circuit split regarding how narrowly Fraser should be applied, and the Supreme Court should take up the case to provide clarity for the lower courts, if the plaintiffs appeal.

A. Conflicting Judicial Interpretations of Political Speech or Political Messages in Fraser

One of the fundamental roles of federal judges is to interpret legal authorities such as statutes, regulations, and legal principles derived from case law to ensure that laws are applied fairly and consistently.⁵⁹ While judges have these guiding principles for interpretation, judicial discretion often leads to situations where a rule may be upheld in one court and not in another, raising fairness concerns for litigants.⁶⁰ Although there are a variety of factors that can influence a judge’s approach to interpretation, such as different modes of interpretation, it becomes troubling when a decision highlights how fundamentally different judges from different circuits, and even within the same circuit, understand the guiding principles of cases handed down by the Supreme Court.⁶¹ This is exactly what the B.A. decision highlights.

For instance, the majority believes that Fraser is the appropriate standard for analysis because it “focuses on the discretion that school administrators have to regulate speech that is reasonably understood as vulgar,” even when that speech is political, as evidenced by the Supreme Court’s decision in Fraser itself.⁶² To support this position, the majority explains that it believes that Matthew Fraser’s speech nominating his classmate was political speech in and of itself because he delivered it during a school election which resulted in his desired outcome— his candidate winning and receiving 90% of the vote.⁶³ From the majority’s perspective, Fraser’s speech—because of its political setting and outcome—was like the jacket worn by the defendant in Cohen v. California: political and vulgar.⁶⁴ And because schools may regulate students from wearing a Cohen-style jacket, Fraser becomes the relevant standard when a student’s speech involves both aspects, as it does here.⁶⁵

However, the majority’s understanding of Fraser is far from uncontested. For example, one of the fundamental reasons the dissent rejects the application of Fraser, as opposed to Tinker, is because Fraser is “not a case about political speech or political viewpoint.”⁶⁶ The dissent reaches the opposite conclusion of the majority, emphasizing that the Supreme Court in Fraser “emphasized the ‘marked distinction’ between political expression, like the silent protests in Tinker and the ‘sexual content’ of Fraser’s speech,” and underscoring that the Court criticized the lower courts in that case for giving “too little weight” to that difference.⁶⁷ Additionally, as the dissent points out, other federal circuits have reached similar conclusions.⁶⁸ For instance, in the Second Circuit’s case of Guiles v. Marineau a student wore a shirt to school featuring a picture of former President George W. Bush wearing a helmet superimposed on the body of a chicken with the words “Chicken–Hawk–In–Chief” surrounded by images of oil rigs, dollar signs, cocaine, and a razor blade.⁶⁹ In reversing the district court’s use of Fraser to analyze the student’s expression, the Second Circuit noted that “the Fraser court distinguished its holding from Tinker in part on the absence of any political message in Fraser’s speech.”⁷⁰ Considering the political nature of the shirt, the Second Circuit found that Tinker was the appropriate standard to analyze the student’s expression.⁷¹

Given that Fraser is one of only five cases that federal judges rely on to interpret school speech, and that different judges interpret such a core aspect of the decision so differently, this divergence underscores the need for greater judicial clarity in defining the boundaries of schools’ authority to regulate students’ political speech.

B. Circuit Split Regarding How Narrowly Fraser Should Be Applied

The existence of a circuit split is one of the primary factors that the Supreme Court considers when deciding whether to grant certiorari.⁷² Following the Sixth Circuit’s decision in B.A., a split has emerged between the Sixth Circuit and the Third Circuit regarding the extent to which the exceptions outlined in Fraser should apply to students’ speech. This discrepancy could lead to judicial review by the Supreme Court to resolve these inconsistencies.

A fundamental part of the majority’s reasoning for applying Fraser to the facts of B.A. is its reliance on its own precedent established in Boroff v. Van Wert City Board of Education, which addressed the degree of deference schools receive when restricting student speech under the Fraser standard.⁷³ In that case, a student wore a Marilyn Manson shirt to school that depicted a three-faced Jesus, with the words “See No Truth. Hear No Truth,” and “BELIEVE” with the letters “LIE” capitalized.⁷⁴ The student was suspended from school for violating the dress code, which prohibited “clothing with offensive illustrations.”⁷⁵ On appeal from the district court, the Sixth Circuit agreed with the lower court that Fraser was the correct standard of analysis to apply to the student’s expression because it is the standard for reviewing the suppression of “vulgar or plainly offensive speech.”⁷⁶ There, the Sixth Circuit held that the school was justified in restricting the student’s expression because in addition to Marilyn Mason’s promotion of demoralizing values, the shirt’s depictions of a distorted Jesus figure conveyed messages that were blatantly offensive and contrary to the school’s educational mission.⁷⁷ Revisiting Boroff and applying its findings to the facts of the student’s expression in B.A., the majority held that its prior ruling “shows that schools have significant latitude to find that speech is vulgar—even when there are other plausible interpretations of the same speech” thereby allowing teachers, school administrators, and school board officials to determine “what is impermissibly vulgar, lewd, indecent, or plainly offensive.”⁷⁸ Thus, following that logic the majority found that it was within the school officials capacity to determine “Let’s go Brandon” as vulgar speech, even though its words are not facially vulgar.⁷⁹

An issue arises from the B.A. decision because its holding stands in direct contrast to the Third Circuit’s decision in B.H. ex rel. Hawk v. Easton Area School District, which outlined how narrowly Fraser must be applied.⁸⁰ In that case, students wore bracelets to school reading “I ♥ boobies! (KEEP A BREAST)” to bring attention to breast cancer awareness.⁸¹ The school officials ordered the students to remove the bracelets citing their authority to do so under Fraser, claiming that the bracelets “conveyed a sexual double entendre” and that “middle-school students, who often have immature views of sex, were particularly likely to interpret the bracelets that way.”⁸² However, the district court disagreed with the school, finding the bracelets outside the scope of Fraser and concluding that the bracelets also failed to meet the Tinker substantial disruption test.⁸³ On appeal, the Third Circuit agreed with the district court, finding the bracelets inapplicable for analysis because “Fraser involved only plainly lewd speech.”⁸⁴ Additionally, the court held that, “under Fraser, a school may also categorically restrict speech that—although not plainly lewd, vulgar, or profane—could be interpreted by a reasonable observer as lewd, vulgar, or profane so long as it could not also plausibly be interpreted as commenting on a political or social issue.”⁸⁵ Therefore, because the student’s speech involving the bracelets was not plainly lewd, although it could be interpreted as such, but clearly expressed support for an important social issue, the Third Circuit found that the school could not categorically restrict them under Fraser due to their exception for speech, which involves social and political issues.⁸⁶

Applying the Third Circuit’s interpretation of Fraser to the facts of B.A., the plaintiffs would have yielded a drastically different outcome. For instance, as the dissent points out, “unlike Fraser, “Let’s Go Brandon!” is not plainlylewd,” but as evidenced by the majority’s decision, the phrase could be interpreted as so.⁸⁷ However, just like how the phrase “I ♥ boobies! (KEEP A BREAST)” fell outside the scope of the Third Circuit’s application of the Fraser standard because it touched on a social issue, “Let’s Go Brandon,” clearly focused on a political issue, which would have also allowed it to fall outside of the standard. As previously mentioned, one of the concerns of litigants is when a rule is applied against one set of plaintiffs but not another, leading to fairness concerns.⁸⁸ Such a concern is evident between the Sixth Circuit’s and Third Circuit’s approaches to the Fraser standard, further supporting why the Supreme Court should take up the case for review.

IV. Conclusion

Following the Sixth Circuit’s decision, the Foundation for Individual Rights and Expression, the free-speech group that represented the plaintiffs, stated that it was disappointed in the decision and would appeal it.⁸⁹ Following their rulings in Tinker and Fraser, the Supreme Court has taken on three additional student speech cases to help resolve disputes regarding the circumstances under which student speech in public schools can be limited.⁹⁰ The Court’s willingness to revisit student speech cases demonstrates the justices’ commitment to clarifying the scope of students’ free speech rights, especially as confusion occurs through different societal changes. Therefore, given how the Sixth Circuit’s decision in B.A. creates more questions than it resolves, it is not out of the question that the phrase “Let’s go Brandon” reaches the highest court for further clarification.

Cover Photo by Markus Winkler on Unsplash

Faith Howard

References

1
U.S. Const. amend. I.
2
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
3
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
4
Tinker, 393 U.S. at 509.
5
B. A. v. Tri Cnty. Area Sch., 2025 WL 2911071 (6th Cir. Oct. 14, 2025).
6
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
7
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
8
Tinker, 393 U.S. at 504.
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Id.
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13
Id. at 504-05.
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Id. at 505.
15
Id. at 505, 514.
16
Id. at 508.
17
Id. Pure speech refers to the expression of ideas through spoken or written words, or through conduct that is so closely akin to speech that it is protected by the First Amendment. Id.
18
Id.
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Id.
20
Id. at 508-509.
21
Id. at 509.
22
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 677 (1986).
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Id.
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Id. at 678.
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Id. at 677-78.
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Id.
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Id. at 679.
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Id. at 680.
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Id. at 687.
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Id. at 680.
34
Id. at 683.
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Id.
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Id.
37
Where did Lets go Brandon come from?, Fox5 New York, (Nov. 11, 2021 at 14:27 EST) https://www.fox5ny.com/news/lets-go-brandon-meaning [https://perma.cc/3DCM-R5V5].
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Id.
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41
B. A. v. Tri Cnty. Area Sch., 2025 WL 2911071, at *2 (6th Cir. Oct. 14, 2025).
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Id.
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Id. at *3.
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58
Id. at *10.
59
See generally, Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends, (2023).
60
Stephanie L. Adler-Paindiris and Patricia Anderson Pryor, Go Fish! U.S. Supreme Court Overturns ‘Chevron Deference’ to Federal Agencies: What It Means for Employers, JacksonLewis, (June 28, 2024) https://www.jacksonlewis.com/insights/go-fish-us-supreme-court-overturns-chevron-deference-federal-agencies-what-it-means-employers#:~:text=Of%20course%2C%20just%20because%20a,arguments%20in%20defense%20of%20litigation [https://perma.cc/2KBD-X7S6].
61
Beneath the Gavel: Unveiling the Factors Shaping Judicial Decision Making, JusCorpus, (Jul. 1, 2023) https://www.juscorpus.com/beneath-the-gavel-unraveling-the-factors-shaping-judicial-decision-making/#:~:text=Government%20authorities%20nominate%20or%20elect,their%20desire%20for%20public%20favour.&text=The%20institutional%20structure%20amid%20which,the%20consequences%20of%20their%20judgements. [https://perma.cc/B4AS-BRAR].
62
B. A. v. Tri Cnty. Area Sch., 2025 WL 2911071, at *5 (6th Cir. Oct. 14, 2025).
63
Id. at *8.
64
Id.
65
Id.; In Cohen, the Supreme Court considered a defendant’s criminal conviction under a California law prohibiting “disturbing the peace…by offensive conduct,” for wearing a jacket with the phrase “F—the Draft” in a Los Angeles County Courthouse to express his feelings on the Vietnam War and the draft.
66
Id. at *17.
67
Id.
68
Id. at *14.
69
Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 322 (2d Cir. 2006).
70
Id. at 330.
71
Id. at 327.
72
Circuit Split, Cornell Law Sch.: Legal Info. Inst., (Jul. 2025) https://www.law.cornell.edu/wex/circuit_split [https://perma.cc/BB64-V8T5].
73
B. A., WL 2911071 at *5.
74
Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 467 (6th Cir. 2000).
75
Id.
76
Id. at 469.
77
Id.
78
B. A., WL 2911071 at *5-6.
79
Id. at *10.
80
B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013).
81
Id. at 298.
82
Id. at 301.
83
Id. at 298.
84
Id. at 302.
85
Id.
86
Id.
87
B. A. v. Tri Cnty. Area Sch., 2025 WL 2911071, at *17 (6th Cir. Oct. 14, 2025).
88
See Adler-Paindiris & Pryor, supra note 60.
89
Mark Walsh, Appeals Court Backs School Administrators Who Banned ‘Let’s Go Brandon!’ Shirts, EducationWeek, (Oct. 16, 2025) https://www.edweek.org/policy-politics/appeals-court-backs-school-administrators-who-banned-lets-go-brandon-shirts/2025/10#:~:text=%E2%80%9CThe%20Constitution%20doesn’t%20hamstring,and%20banners%20with%20the%20phrase [https://perma.cc/GT38-LJRZ].
90
See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007); B.L. by & through Levy v. Mahanoy Area Sch. Dist., 594 U.S. 180 (2021).