'Come and take it' hat is no threat to school safety, Michigan elementary student argues at appeals court

CINCINNATI (CN) — Students do not abandon their First Amendment rights when they enter the classroom — and a hat depicting an assault rifle is not threatening or inappropriate, a Michigan father argued Thursday at the Sixth Circuit, seeking to overturn a lower court loss in the lawsuit he filed on behalf of his daughter.

Adam Stroub’s daughter C.S. was in third grade in February 2022 when her school had “hat day” and encouraged students to wear their favorite hats. She decided on a hat she had given to her father: a black baseball cap with a star above an assault rifle and the phrase “come and take it” in block letters.

Administrators at Kerr Elementary School in Durand, Michigan, forced her to take it off.

Stroub, who says he and his daughter share an interest in rifle shooting, claims in his lawsuit that the hat contains “pure speech” protected by the First Amendment and was not threatening in any manner.

Notably, Durand is less than hour’s drive from Oxford, the site of the worst school shooting in Michigan history, and C.S. chose to wear the hat less than three months after the horrific tragedy left four dead and eight others injured.

U.S. District Judge Terrence Berg, an appointee of Barack Obama, granted several school officials’ motion for summary judgment in March 2024. While he acknowledged “the First Amendment does not end at the doors of a schoolhouse,” he found the school’s dress code justified the administrators’ decision to ask C.S. to remove her hat.

“The record is undisputed that school officials made the decision to prohibit clothing featuring ‘violence themes,’ interpreted as depictions of any sort of weapons, because they teach elementary school students, and they believed such depictions could cause disruptions in the school environment,” Berg said.

The lower court judge emphasized the dearth of any evidence the policy was applied selectively. He also pointed out that several students had transferred into the school from nearby Oxford.

Attorney Eugene Volokh, a senior fellow at the Hoover Institution at Stanford University, argued Thursday on C.S.’s behalf. He told the panel there “is no exception to free speech rights for elementary school students.”

Volokh called the present case a “straightforward application of Tinker v. Des Moines ,” the landmark 1969 First Amendment ruling from the U.S. Supreme Court that extended free speech protection to students so long as they do not disrupt the educational process.

U.S. Circuit Judge Eric Clay, an appointee of Bill Clinton, disputed the attorney’s argument that his client’s case is run-of-the-mill.

“Don’t you think there are special circumstances deserving of exceptional consideration because of student transfers from Oxford?” he asked.

“We don’t think so,” Volokh answered. “There is no evidence of a material chance of disruption, and the only argument put forth by the school was that they thought there might be some trauma.”

U.S. Circuit Judge Jane Stranch, an appointee of Barack Obama, pressed the attorney.

“What kind of evidence would you expect? These students came from a mass murder, two counties over. The school knows these students are in counseling. How is that not evidence of danger and harm?” she asked.

Volokh repeatedly spoke to the lack of evidence that anyone, including the students, took the phrase “come and take it” literally, and argued the school could not act until there was an imminent threat of some kind of harm.

“It is similar to the phrase, ‘don’t tread on me.’ It is understood, even by children, that it is metaphorical and not literal,” he told the panel. “If the harm is imminent, the school can remove the hat, but if it’s simply possible, they cannot.”

Stranch flatly rejected the attorney’s position.

“Elementary schools are different from high schools, the law is clear on that. A second or third grader is not an adult. These officials were allowed to exercise their expertise,” she said.

Attorney Daniel LoBello from the Saginaw, Michigan firm O’Neill, Wallace, and Doyle PC, argued on behalf of the officials and needed only a few of his allotted 15 minutes to make his case to the court.

“We as adults can sit here all day and say we know it doesn’t actually mean ‘come and take it,’ but these are reasonable and specific concerns that allowed the school to remove the hat,” he said.

LoBello emphasized rulings made in the wake of Tinker allow for the consideration of special characteristics, like the age of the students, by school officials who decide to limit student speech.

The phrase ‘come and take it’ is synonymous with Second Amendment rights groups and is derived from several historical sources, including Spartan King Leonidas at the Battle of Thermopylae, Greek infantry troops during World War I, and a group of Texans who created the “Gonzales flag” during the Texas Revolution.

Included as defendants in Stroub’s lawsuit are Craig McCrumb, superintendent of Durand schools; Amy Leffel, principal at Robert Kerr Elementary School; and Michael Papanek, track coach at Kerr Elementary.

Senior U.S. Circuit Judge Julia Gibbons, an appointee of George W. Bush, rounded out the panel and participated remotely.

No timetable has been set for the court’s decision.

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