In February 2022, Robert Kerr Elementary School in Durand, Michigan, took part in the “Great Kindness Challenge,” which it marked with kindness-themed activities and dress-up days, including “Hat Day,” on which students could wear a hat of their choosing throughout the school day. C.S., who was then in third grade at Kerr, chose to wear “a black baseball cap featuring a white star, a white image of an AR-style rifle, and the phrase ‘come and take it,’” according to her petition for review, which invites the Supreme Court to revisit under what circumstances public school officials can limit students’ First Amendment rights.
After noticing the gun on C.S.’s hat, the school’s behavioral specialist notified the principal, who determined that the hat violated Kerr’s dress code. School officials contacted C.S.’s parents to ask if they would drop off a different hat. When her parents declined, officials asked C.S. to remove the hat and put it in her locker.
Approximately three months later, C.S.’s family brought a Section 1983 claim against school officials, contending, among other things, that their Hat Day decision violated the First Amendment. Before a federal district court, the officials defended their choice by emphasizing not just the school’s dress code, which prohibits wearing “offensive” clothing, including clothes with violent themes, but also their desire to avoid disruption, particularly among students who had transferred to Kerr after a November 2021 school shooting in a nearby town.
In March 2024, the district court granted school officials’ motion for summary judgment, holding that school administrators did not violate C.S.’s free speech rights by having her remove the hat because removal was “reasonably necessary to avoid disruptions of the teaching and learning process in light of the age of the students and the context of recent experiences.”
Last year, the U.S. Court of Appeals for the 6th Circuit affirmed that decision, emphasizing the limits on student speech articulated by the Supreme Court in 1969’s Tinker v. Des Moines Independent Community School District, which centered on middle and high school students who wore black armbands to school to protest the Vietnam War. Tinker, according to the 6th Circuit, “protects the First Amendment rights of teachers and students in public school as long as their speech does not threaten to substantially disrupt or interfere with school activities.” When confronted with C.S.’s hat, the court concluded, “school officials made a reasonable forecast of substantial disruption to the school’s educational environment.”
In her petition for review at the Supreme Court, C.S. contends that the 6th Circuit’s decision “exposes large and growing cracks in Tinker.” In that 1969 case, C.S. continues, the Supreme Court held “that avoiding ‘discomfort and unpleasantness’ are insufficient grounds for restricting” student speech, and yet “the Sixth Circuit now has recognized such an exception, covering speech that school officials speculate could cause hurt feelings or emotional harm.”
The appellate court’s emphasis on how C.S.’s hat might make her classmates feel is especially problematic, according to C.S., given that school officials did not offer the November 2021 school shooting as an explanation of their decision until after the lawsuit was filed. “The Sixth Circuit has approved the squelching of First Amendment protected rights based on nothing but sheer speculation about the effect C.S.’s hat conceivably could have on other students—assumptions school officials did not voice until months later, and which conveniently dovetail with their personal dislike of guns.”
Initially, school officials waived their right to respond to the petition, but the court requested a response in early March. In that brief, filed last month, the officials counter that C.S. is not asking the court to clarify its holding in Tinker, but instead to “rewrite” it by “requir[ing] school officials to disclose all justifications for restricting student speech at some unknown point pre-lawsuit.” They further argue that the case is an “exceptionally poor vehicle” for addressing students’ free speech rights, in part because of the “unusual” circumstances, which include the nearby school shooting just months before Hat Day.
C.S. v. McCrumb is scheduled to be considered by the justices for the first time at their conference on Thursday.
