First Amendment Challenge to ‘Come and Take It’ Hat Ban Denied by Supreme Court

The Supreme Court has let an appellate court ruling stand in a case involving a third grade student’s “Come and Take It” hat, denying cert in a petition filed on behalf of the student and her father. 

The student in question wore a cap with the words “Come and Take It” and an AR-15 to her Michigan school during a “Hat Day” event, but was told she needed to remove it because of the disruption and concern it might cause. 

We’ve been following this case for several years here at Bearing Arms; ever since the federal lawsuit was filed in May, 2023. As I wrote in my first story on the litigation:

The Firearms Policy Coalition, which is supporting the litigation, argues that the student’s First and Fourteenth Amendment rights were violated by the district’s refusal to let her wear her chosen headgear on “Hat Day”, and attorney John Monroe, who’s representing the family, notes that  “[t]he Supreme Court ruled 50 years ago that schoolchildren do not shed their First Amendment rights at the schoolhouse gate,” referring to the Supreme Court’s seminal decision on student free speech Tinker v. Des Moines. 

In their response to the lawsuit, the defendants claimed that Tinker isn’t applicable, and that a case from the 1980s called Hazelwood v. Kuhlmeir should be what guides the court. In that case, the Supreme Court ruled that a high school principle did not violate the First Amendment rights of high school students when they nixed the publication of articles about teen pregnancy and divorce because the paper was sponsored by the school and not independently produced by the students. Given that, the Court found that the school district had a legitimate interest in preventing the publication of articles officials found inappropriate and that might appear to have the “imprimatur” or endorsement of the school itself.

U.S. District Judge Terrence G. Berg ruled against the student, identified by her initials C.S., and her father Adam Stroud. The judge argued hat while C.S. might have some First Amendment rights while on campus, her young age and the proximity of the elementary school to Oxford, Michigan (where a school shooting had taken place four months earlier) meant school officials had a “reasonable” belief that her ballcap would be disruptive to the learning environment. 

C.S. and her dad appealed to the Sixth Circuit Court of Appeals, but a three-judge panel upheld the dismissal of the lawsuit, claiming the school’s decision to forbid C.S. from wearing the ballcap was “reasonable” given the 2021 shooting at Oxford High School, the age of the elementary school students, and the hat’s “provocative” message.

In the Michigan student’s unsuccessful appeal, her lawyers argued school officials provided no evidence that the hat was disruptive because their real motivation was to silence a viewpoint with which they disagreed. 

“Rather than take the opportunity to convey to a bright, politically aware 8-year-old that her voice and thoughts matter, school officials instead told her to sit down and shut up − presumably because they personally don’t like the Second Amendment or the rights it protects,” lawyers for the student and her father, Adam Stroub, said in the appeal.

Today’s rejection of C.S.’s cert petition came without any kind of written dissent from any of the Court’s conservative members, which is disappointing. 

Perhaps it shouldn’t be all that surprising, though. SCOTUS has turned away other First Amendment cases dealing with student speech in the past couple of years, including a Massachusetts teen’s attempt to wear a t-shirt emblazoned with the words “There are only two genders,” which his school had banned under the premise that its message would be disruptive to the learning process. 

C.S.’s case leaves a lot of unanswered questions. Both the district court and appellate court decisions indicate their might be some settings where a school official demanding a student take off the exact same hat would violate their First Amendment rights; if the school wasn’t near another campus where a shooting had taken place, if the school shooting had occurred decades earlier and not a few years beforehand, or if the students were older and might more easily understand the message behind the cap. 

I think the courts got it wrong here, but I hope that students around the country will continue to express their support for the right to keep and bear arms while on school grounds. If expressing approval of the Second Amendment is considered “disruptive,” then things in our public schools are even more messed up than we’ve thought… which is saying something. 

Editor’s Note: Gun owners across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.

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