Educators justified in taking kid’s ‘come and take it’ pro-gun hat

CINCINNATI (CN) — A Michigan elementary school that includes transfer students from the site of the state's worst school shooting did not violate a third-grader's free speech rights when it asked her to remove a hat featuring an assault rifle, a Sixth Circuit panel ruled Friday.

Based on the totality of the circumstances, including the provocative "come and take it" message and the student's age, school officials made the reasonable decision to remove the hat and prevent any disruption to the learning environment, according to the panel.

C.S., a third-grader at the time of the incident, sued several officials through her father, Adam Stroub, at Robert Kerr Elementary School in Durand, Michigan, after she was forced to remove a hat worn as part of the school's "wear a hat day."

On the morning of Feb. 17, 2022, C.S. chose her father's black "come and take it" hat, which featured the phrase, a single white star and a picture of an assault rifle.

Michael Papanek, the school's disciplinary official, Principal Amy Leffel and Superintendent Craig McCrumb determined the hat likely violated school policy and could cause disruptions among students, some of whom had recently transferred from nearby Oxford, the site of the deadly Nov. 30, 2021, school shooting.

The administrators asked her to remove the hat, called her parents and told them to bring a replacement hat.

Stroub filed his First Amendment lawsuit on C.S.'s behalf three months later, but a federal judge found the administrators' decision was reasonable based on the unique circumstances of the case.

"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," U.S. District Judge Terrence Berg, a Barack Obama appointee, said in his opinion.

U.S. Circuit Judge Eric Clay, a Bill Clinton appointee, upheld Berg's ruling Friday and wrote the Sixth Circuit panel's opinion, which included significant analysis of the Oxford shooting.

"The school's relationship to the Oxford massacre was both spatial and temporal. The school is less than a one-hour drive from Oxford Township ... and also transpired less than three months before 'hat day' on Feb. 17, 2022, when third-grader C.S. wore the gun-themed hat to school.

"Undoubtedly, the record proves that 'the Oxford shooting was very close in both time and place. This striking closeness lends context to the school's apprehensions about plaintiff's hat disrupting the school environment," he said.

According to Clay, the officials were also well aware of the struggles facing students who transferred to Kerr Elementary after the shooting and feared the hat could exacerbate their trauma.

In his arguments to the appeals court, Stroub cited Shoenecker v. Koopman, a case in which the Eastern District of Wisconsin determined "generalized fear of gun violence" among students is insufficient to suppress speech in support of the Second Amendment.

Clay was nonplussed and accused Stroub of "glossing over the sizeable contrast" between the factual circumstances of the two cases.

"Clearly, there is a distinction between the generalized fear of school shootings in Schoenecker versus the potential for very particularized fears in the instant case. At Robert Kerr, school officials did not base their forecast of a substantial disruption on an out-of-state or other remote shooting; they were concerned about inflaming the effects of a recent, local shooting that had a direct impact on a portion of the student body," he said.

Clay also emphasized the contrasting messages of the clothing and said the "love" and "diversity" phrases in the Schoenecker case — which were spelled out in guns on T-shirts — lacked the provocative nature of "come and take it."

Age was a considerable factor in the court's decision as well, and while Clay agreed with Stroub that students do not abandon their First Amendment rights entirely upon entering the classroom, the "emotional immaturity" of C.S. and her classmates could not be ignored.

"We nowhere suggest that the generalized potential for students' discomfort, offense or other psychological distress, without more, is enough for schools to ban speech on topics such as the Second Amendment. The record must show the existence of facts allowing school officials to reasonably forecast a 'substantial disruption of or material interference with school activities,'" he said.

Senior U.S. Circuit Judge Julia Smith Gibbons, a George W. Bush appointee, and U.S. Circuit Judge Jane Branstetter Stranch, an Obama appointee, also sat on the panel and joined with Clay's opinion.

Stroub also argued the lower court should not have considered the officials' motion for summary judgment — filed two days after the court's submission deadline — but Clay dismissed the claim out of hand.

"Because the delay was only two weekend days, it can hardly be argued that this slip had any impact on judicial proceedings," he said.

Neither party immediately responded to requests for comment.

Follow @kkoeninger44