Judge Dismisses First Amendment Lawsuit Over Student's 'Come and Take It' Hat

AP Photo/San Antonio Express-News, Kin Man Hui, File

When a Michigan elementary school held a "Wear a Hat" day as part of its week-long "Great Kindness Challenge” in 2022, Adam Stroud's third-grade daughter decided to wear a cap emblazoned with an AR-15 and the phrase "Come and Take It." When school officials spotted the hat, they took her up on the challenge and demanded she remove the headwear, telling the student it "isn’t something that’s appropriate for school.”

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Stroud took exception to the school's censorious attitude and, after failing to convince them of the error of their ways, filed suit in federal court arguing that his daughter's First Amendment rights were violated. 

On Saturday, Obama-appointed U.S. District Judge Terrence G. Berg granted the school's request to dismiss the complaint, ruling that while the student (identified in the complaint by her initials C.S.) may have some First Amendment rights while on the school campus, her young age and the proximity of the elementary school to Oxford, Michigan (where a school shooting took place four months earlier) gave educators a "reasonable" belief that the hat would be disruptive to the learning environment. 

Robert Kerr Elementary is a school for students in the second to the fifth grades. These students are less mature and capable of reigning in emotional outbursts than junior high or high schoolers. And given that some of these students were actively receiving counseling for shooting-related trauma, the administrative decision to interpret the dress code to prohibit depictions of weapons that could trigger emotional and fear-based responses was reasonably related to the legitimate pedagogical objective of preventing school and classroom disturbances before they occurred. 

Part of the problem is that the school's dress code is so vague that it could allow virtually any picture or words to be banned as inappropriate or disruptive: "Anything printed on clothing must not be offensive in any way. The building principal/staff has the right to decide what is offensive, but some examples are: words/slogans that advertise illegal substances, words/slogans that are racially or religiously offensive, violence themes, vulgar or sexual innuendo, etc."

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The school's then-principal contended that any depiction of a firearm was inappropriate, telling attorneys during a deposition "[W]e’re in an elementary school setting and it is a gun-free zone. And I didn’t feel that any type of weapons are appropriate in the school setting or anything that suggests violence. Guns often suggest violence." 

Berg didn't buy that argument completely, but he did rule that both the image and the text could reasonably be seen by school officials to be disruptive to the learning environment. Even though the phrase "Come and Take It" can be traced back to the Spartans at Thermopylae almost 2500 years ago, and could easily spark an ad hoc history lesson, Berg accepted without reservation the principal's contention that students may have taken the words as a challenge to literally snatch the hat off of C.S.'s head. 

Based on all accounts, though, it seems like the only individuals who took notice of the cap were adults; the principal, a behavioral therapist in the school, and C.S.'s teacher. None of them indicated that the hat caused any disruption whatsoever, but Berg concluded that so long as administrators "reasonably" believe that it could have been a distraction, they were within their authority to order C.S. to remove her offending ballcap. 

I guess for the judge "reasonableness", like obscenity, is in the eye of the beholder: hard to define, but you know it when you see it. In his decision, Berg left open the possibility that the very same hat would be considered protected First Amendment speech, so long as the wearer wasn't in elementary school. 

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C.S. is now in the fifth grade. Next year, she is bound for middle school. In reaching the conclusion that it does, the Court does   C.S.’s sincere support for the Second Amendment, or her right to express that support. But under First Amendment case law, school administrators may place reasonable regulations governing the manner of that expression while she is in the school setting if 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. 


It may very well be that, in school settings with older students, the rules will allow her greater latitude to express her opinions through clothing. But here, Robert Kerr Elementary school officials made a policy decision to prohibit the wearing of a hat with an AR-15 and the phrase “Come and Take It” based on the written requirements of the student handbook and out of concern that the violence associated with an assault rifle and the aggressive nature of the slogan would be disruptive to the teaching atmosphere. The decision was justified by undisputed evidence in the record and therefore does not violate the First Amendment.


The written requirements of the school handbook are so vague that anything upsetting to any student would be grounds to suppress another student's First Amendment rights. Combine that with Berg's embrace of the school's position that the hat could have disrupted class (even though there's no evidence that was the case) and you get this screwy decision. 

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Berg's ruling doesn't make much sense to me, and I'd love to see C.S.'s dad appeal the judge's decision. With his daughter set to attend middle school in just a few months, though, he might have a problem establishing standing. 

Of course, with a new school comes new opportunities, and the Firearms Policy Coalition has a few shirts that C.S. could add to her wardrobe that might prompt another court fight. I myself am partial to the Gun Control is Violence t-shirt, though the Rights of the People Are Not Negotiable shirt might work too, since both feature an image of an AR-15 on the back. If a "Come and Take It" hat isn't protected speech in an elementary school, let's see what Berg has to say about middle schoolers showing their support for the Second Amendment with those messages. 


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