Elementary schools often have themed days to provide a little fun or a reward for the staff and students. This can include "Wacky Hair Day," "Superhero Day," or "Pajama Day." In the Michigan town of Durand, a day that featured wearing a hat ended up in front of an appeals court.
On May 2, 2025, the Sixth Circuit Court upheld a lower court decision that ruled administrators at Robert Kerr Elementary School didn't violate a student's First Amendment rights by requiring her to remove a hat featuring an assault-style rifle and a potentially provocative saying. The three-judge panel agreed that the narrow and situationally unique details justified the grant for summary judgment against the student.
Reading (the Room), Writing, and Arithmetic
February 17, 2022, was designated as "Wear a Hat Day" at Robert Kerr Elementary School. A third-grader identified in court documents as C.S. chose to wear a hat she'd given her father. The black baseball-style cap showed a picture of an assault-style rifle, a star, and the phrase "Come and Take It."
School officials determined that the hat violated school policy for disruptive messaging as listed in the student handbook. The banning of pro-gun clothing in educational settings has been struck down before, but the case at Robert Kerr carried significant extenuating circumstances.
On November 21, 2021, a deadly high school shooting occurred in Oxford, a town less than an hour's drive away from Durand. Some of the children who had been attending school in Oxford on the day of the attack had become transfer students at Robert Kerr, and were undergoing treatment and therapy to help with their struggles.
In light of these students and due to policy on clothing with violent themes in the student handbook, officials required C.S. to remove her hat to avoid disrupting school. They asked her parents to bring her another hat. Three months later, her father filed suit against the Robert Kerr principal, disciplinary official, and superintendent.
Threading a Legal Needle
C.S.'s suit claimed that the defendants had violated her First and Fourteenth Amendment rights by requiring her to stop wearing the pro-gun hat at school. Her attorney argued that the hat was not violent or threatening. And, as held in the seminal 1969 case Tinker v. Des Moines, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."Generally, students have the same free speech rights as anyone else.
However, in order to maintain a safe and orderly school environment, SCOTUS has held that schools can infringe on free speech rights to some extent. In Tinker, the Supreme Court set out the "substantial disruption test." As its name implies, the test measures the disruption any item of clothing or speech has on the school, or any “reasonable forecast of disturbance.” If the student's expression substantially disrupts learning or an orderly environment, then the school can restrict that student's expression.
U.S. District Judge Terrence Berg, who wrote the opinion for the panel, affirmed the lower court's summary judgment for the school. The hat did cause a disturbance considering the circumstances, and school officials were within their rights to ban the image of a gun that could cause a disruption in the learning experience for small children.
C.S.'s attorney had pointed to Schoenecker v. Koopman as proof that the school officials had overstepped their authority and violated C.S.'s rights. The high-school-aged plaintiff in Schoenecker had won the right to wear a shirt that contained the word LOVE spelled with images of firearms. The court had ruled that his First Amendment rights carried more weight than a generalized fear of gun violence.
The two circumstances were different, the Sixth Circuit held. For one, this occurred in an elementary school, not a high school like in Schoenecker. The court pointed to the youth and emotional immaturity of the students at Robert Kerr, who would be unlikely to understand the point of the hat and interpret it as threatening, regardless of the message's intent. Many might have taken the hat's message to "come and take it" literally and tried to remove the hat from the child's head. Importantly, they also noted that the situation was exacerbated by the presence of children who had endured a mass killing in their town less than three months before. While 8-year-olds are unlikely to understand the nuances of the Second Amendment, the students who had to move schools due to a mass shooting event could certainly have an emotional reaction to seeing an automatic weapon so shortly after having experienced a tragedy.
It's uncertain whether C.S.'s father will appeal.
Related Resources
Why Can't Minors File Lawsuits? (FindLaw's Law and Daily Life)
How Do You Sue a School District? (FindLaw's Law and Daily Life)
SCOTUS Upholds Ghost Gun Regulations (FindLaw's Federal Courts)
