C.s., by her next friend, Adam Stroub v. Craig McCrumb; Amy Leffel; Michael Papanek

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0220p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
C.S., by her next friend, Adam Stroub,
Plaintiff-Appellant,
v.
CRAIG MCCRUMB; AMY LEFFEL; MICHAEL PAPANEK,
Defendants-Appellees.
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No. 24-1364
On Petition for Rehearing En Banc
United States District Court for the Eastern District of Michigan at Detroit;
No. 2:22-cv-10993—Terrence George Berg, District Judge.
Decided and Filed: August 12, 2025
Before: CLAY, GIBBONS, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC: Eugene Volokh, STANFORD UNIVERSITY,
Stanford, California, John R. Monroe, JOHN MONROE LAW, P.C., Dawsonville, Georgia,
Michael F. Smith, THE SMITH APPELLATE LAW FIRM, Washington, D.C., for Appellant. ON
RESPONSE: Gregory W. Mair, Daniel J. LoBello, O’NEILL, WALLACE & DOYLE, P.C.,
Saginaw, Michigan, for Appellees.
The court delivered an ORDER denying the petition for rehearing en banc. CLAY, J. (pp.
3–8), delivered an opinion concurring in the denial of the petition for rehearing en banc, in which
STRANCH, J., concurred. GIBBONS, J. (pg. 9), delivered a concurrence in the denial of panel
rehearing and a statement respecting the denial of rehearing en banc. READLER, J. (pp. 10–18),
delivered a separate statement respecting the denial of the petition for rehearing en banc, in which
THAPAR and BUSH, JJ., concurred.
>

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_________________
ORDER
_________________
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision.
The petition was then circulated to the full court.* No judge has requested a vote on the
suggestion for rehearing en banc.
Therefore, the petition is denied.
*In accordance with 28 U.S.C. § 46(c), Judge Gibbons, a senior judge, did not participate in the en banc
proceedings; she writes separately as a member of the original panel in this case. See 6 Cir. I.O.P. 40(h)(1)-(2). Judge
Stranch, who is now a senior judge, was an active judge while this petition was pending. Judge Hermandorfer did not
participate in this decision.

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__________________
CONCURRENCE
__________________
CLAY, Circuit Judge, concurring in the denial of rehearing en banc. The facts presented
in the instant matter are indeed novel. But the panel’s treatment of those facts is consistent with
the Supreme Court’s jurisprudence on student speech and the longstanding principle that school
officials may restrict speech when they reasonably “forecast substantial disruption of or material
inference with school activities.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506
(1969). Because Defendants’ request for C.S. to remove her AR-15-themed hat (“the Hat”) was
predicated on a variety of factors that formed a well-founded fear of disruption in the school
environment, the panel unanimously held that they did not violate C.S.’s First Amendment rights
and were likewise entitled to qualified immunity.
Although this Court properly denied Plaintiff’s petition for en banc rehearing, Judge
Readler has since issued a “statement respecting the denial of rehearing en banc” (which he
conspicuously avoids referring to as either a concurrence or dissent) accusing the original panel of
sanctioning a “likely abridgment of [C.S.’s] First Amendment freedoms.” Readler Op. at 11, 12.
Although Judge Readler’s statement acknowledges that the Oxford Shooting was “undeniably
tragic,” Readler Op. at 14, the statement also accuses the panel of over-emphasizing that tragedy
and backdrop, as well as over-crediting Defendants’ testimony about the impact of that event, as
discussed in Principal Leffel’s deposition. Judge Readler’s contrary statement unduly minimizes
the effect of the students’ young ages and the Hat’s provocative message with respect to the panel’s
treatment of the Oxford Shooting, all of which influenced the outcome of Plaintiff’s appeal.
It also bears emphasis that the Tinker analysis draws from all information in the factual
record and then applies the First Amendment “in light of the special characteristics of the school
environment.” 393 U.S. at 506. In the matter of C.S.’s Hat, the panel judged those key factors to
be the proximity of the Oxford Shooting, the school’s absorption of young students from the
Oxford School District, the young age of C.S. and her third-grade classmates, and the Hat’s
provocative message. It was this unique interplay of factors that drove the panel’s conclusion that

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Defendants made a reasonable forecast of substantial disruption in the school environment under
Tinker. Id. at 514.
Notably, the contrary statement purports to hold Defendants to a standard that Tinker does
not require by suggesting that school officials must provide a contemporaneous written or verbal
justification whenever they perceive a risk of substantial disruption (on account of student speech
or expression) and take action to prevent it. The statement emphasizes that Principal Leffel “never
made [the] connection [to the Oxford Shooting] on the day C.S. was ordered to remove her hat,”
Readler Op. at 15, and instead waited to discuss the shooting during her deposition, including its
impact on certain traumatized members of the student body. Judge Readler further dismisses this
testimony by Leffel as being invented out of thin air, in an attempt to “drum[] up a post hoc
rationale” for asking C.S. to remove her Hat. Id.
But Tinker does not make any specific demands regarding where in the record the school’s
justification must reside, as long as the record altogether shows that school officials acted with
more than an “undifferentiated fear or apprehension of disturbance” when restricting student
speech. Tinker, 393 U.S. at 508. It is well-established that school officials’ actions may be
grounded in the “special characteristics of the school environment” and other facts known to them
at the time, id. at 506, which naturally includes the ambit of recent or local events. Order, R. 25,
Page ID #627 (noting that “‘temporal factors and recent events’ should be considered in evaluating
whether school administrators reasonably anticipated that particular imagery risked creating a
substantial interference” in school activities) (quoting N.J. v. Sonnabend, 37 F.4th 412, 426 (7th
Cir. 2022)).
In the present case, Principal Leffel was aware that the recent and local Oxford Shooting
had a direct impact on a portion of the student body at Robert Kerr Elementary, which had absorbed
students who transferred out of the Oxford School District following the deadly mass-shooting
event at Oxford High School. Leffel testified that these students “were receiving counseling and
social work support to deal with the trauma,” and that she knew this after having “several
conversations with their parents.” Leffel Dep., R. 17-4, Page ID #344. These concerns informed
her belief that C.S.’s Hat, which pictured an AR-15-style weapon along with the slogan “Come
And Take It,” was not “appropriate” for the elementary school setting. See id. But because Leffel

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did not expressly articulate this reasoning on Hat Day, as she did in her deposition, Judge Readler’s
contrary statement would apparently hold that her testimony is noncredible.
This is a hard point to swallow when the Oxford Shooting transpired less than three months
before Hat Day, at a location less than one hour away from Kerr Elementary, with a semiautomatic
handgun that caused the death and serious injury of several students and one staff member.
Stephanie Saul & Anna Betts, Michigan Teenager Who Killed Four Students Is Sentenced to Life,
N.Y. TIMES (Dec. 8, 2023), https://www.nytimes.com/2023/12/08/us/michigan-oxford-school-
shooting-sentencing.html. In the weeks preceding Hat Day, details about the Oxford Shooting
were prevalent in the local and national news,1 and help to contextualize Defendants’ reasonable
belief that C.S.’s AR-15-themed Hat was “[in]appropriate” for school. Emails, R. 17-12, Page ID
#436. Neither Judge Readler’s statement nor C.S’s father dispute the proximity of this tragic event
(nor can they); they simply disagree with the weight the panel afforded it.
But this Court has long recognized that special or unusual circumstances can justify greater
restrictions on student speech than would otherwise be proper. Defoe ex rel. Defoe v. Spiva, 625
F.3d 324, 338 (6th Cir. 2010) (holding that school officials could ban the display of the confederate
flag and other racially divisive symbols at a high school when the school had a history of racial
tension); Barr v. Lafon, 538 F.3d 554, 577 (6th Cir. 2008) (same). This certainly extends to school
officials’ concerns about speech relating to recent, nearby events involving mass-shooting or other
violence, such as the Oxford Shooting, which are made even more salient in an elementary school
comprised of children under the age of ten. In this setting, the probability of a student’s speech or
expression to “solicit viewpoints” from other students is one factor we have considered in
evaluating its appropriateness. Curry ex rel. Curry v. Hensiner, 513 F.3d 570, 578–79 (6th Cir.
2008) (citing Walz ex rel. Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 278 (3d Cir.
2003)). While the slogan on C.S.’s Hat did not solicit other viewpoints outright, Principal Leffel
noted that it arguably solicited a physical response to “Come And Take [the Hat]” if interpreted
literally by students who were young and emotionally immature. Leffel’s concern may seem far-
1Livia Albeck-Ripka & Sophie Kasakove, What We Know About the Michigan High School Shooting, N.Y.
TIMES (Dec. 9, 2021), https://www.nytimes.com/article/oxford-school-shooting-michigan.html. The court further
noted that “on the day [it] held oral argument in this case, the criminal trial for one of the parents of [the shooter]
commenced.” Order, R. 25, Page ID #623.

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reaching to adults or even older children in middle or high school, but it was certainly not out of
bounds for young elementary school students.
The contrary statement fails to adequately address these age-based concerns relating to the
appropriateness of C.S.’s Hat, or how this aspect interacts with Defendants’ apprehensions about
the recent Oxford Shooting. Rather, it complains that Defendants did not tie all of their reasons
neatly together on Hat Day when they asked C.S. to remove her Hat, and that because of this
oversight, their appeal to the Oxford Shooting and the students’ young ages was likely pretextual.
To be sure, Tinker cautions that school officials must be motivated by actual fears of a substantial
disruption in school activities and not just concerns that are simply vague or hypothetical. See 393
U.S. at 509. But Tinker does not require a school’s reasoning to be laboriously or meticulously
detailed in order for its officials to act; a “generalized” explanation of their reasons may suffice if
rooted in facts that were actually known in real-time, and if their forecast of a substantial disruption
was objectively reasonable. See Lowery v. Euverard, 497 F.3d 584, 593 (6th Cir. 2007). Nor does
Tinker require school officials to provide that reasoning to a student subject to a rule’s enforcement
or to the student’s parents. In the instant matter, Principal Leffel cited general concerns in her
email to C.S.’s father about student safety and the inappropriateness of weapon-themed clothing
in school. It may be true that these concerns taken alone would not withstand Tinker’s substantial-
disruption test if not for the context surrounding the School’s decision-making process; however,
when viewed through the lens of the School’s “special characteristics,” 393 U.S. at 506,
Defendants’ actions were objectively reasonable.
Another notable feature of the contrary statement is that it purports to question the extent
of the trauma experienced by the children who transferred to Kerr Elementary from the Oxford
School District. Because the Oxford Shooting transpired at Oxford High School, Judge Readler
remarks that these elementary-aged children were presumably too young to have witnessed the
actual massacre in their school district. Needless to say, young children and their families still
suffer legitimate trauma when their siblings, friends, neighbors, teachers, or other acquaintances
from within the same school system are involved in a deadly school shooting. This is because
tragedies such as the Oxford Shooting affect entire communities in which they occur—not simply
those who personally know the shooting victims. And the specific identities of these victims have

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no bearing on Principal Leffel’s forecast that C.S.’s Hat could cause a substantial disruption in
school activities, which is entitled to considerable deference based on her personal knowledge of
those students’ struggles. See Kutchinski v. Freeland Cmty. Sch. Dist., 69 F.4th 350, 360 (6th Cir.
2023) (noting that courts “provide educators a high degree of deference in the exercise of their
professional judgment”).
Moreover, nothing in the Supreme Court’s jurisprudence on student speech requires school
officials to remain helpless to stave off problems before they occur. Lowery, 497 F.3d at 591–92
(“Tinker does not require school officials to wait until the horse has left the barn before closing
the door. Nor does Tinker ‘require certainty that disruption will occur.’” (quoting Pinard v.
Clatskanie Sch. Dist. 6J, 467 F.3d 755, 767 (9th Cir. 2006))). It is thus perfectly appropriate for
school officials to act preemptively to protect students from a substantial disruption in the school
environment by relying on their professional knowledge of the student body and all relevant
circumstances surrounding the school community. See Barr, 538 F.3d at 573; Kutchinski, 69 F.4th
at 360. Furthermore, when contextual factors such as disruptive or tragic events are present, we
presume that any reasonable forecast of substantial disruption accounting for those factors is
necessarily attributed to school officials’ considered judgment (“personal intuition” is the term
used by Judge Readler’s statement, at 13). Barr, 538 F.3d at 566–67. Just as school officials in
Barr v. Lafon permissibly relied on the school’s history of racial tensions (i.e., racial graffiti,
threats, etc.) in restricting students’ clothing that displayed racially insensitive symbols, see id. at
573–75, Defendants here relied, in part, on the school’s proximity to the Oxford Shooting, and
absorption of young students from the Oxford School District who were actively undergoing
trauma therapy, in restricting C.S.’s Hat displaying an AR-15-style weapon. And as discussed,
the weight of this special circumstance was greatly intensified by other factors in the record,
especially the Hat’s provocative message when viewed by elementary students.
Once again, the young age of these elementary students is paramount in judging their
propensity to react to sensitive issues, which is why the panel’s analysis was not limited to the
proximity and impact of the Oxford Shooting. It also turned on the young age of C.S. and her
schoolmates, and the elementary school setting, where certain topics (such as semiautomatic
weapons) may require increased sensitivity and discretion. See Hazelwood Sch. Dist. v.

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Kuhlmeier, 484 U.S. 260, 272 (1988); see also Egg Harbor, 342 F.3d at 278 (noting that “[c]ontext
is essential in evaluating student speech in the elementary school setting”). Defendants’ age-based
concern regarding the Hat was also clearly supported by the record, by both the obvious character
of an elementary school, as well as Leffel’s express concern that “young kids who can be very
impetuous” may perceive the Hat’s provocative message “as a dare to try and take the hat” off of
C.S. Leffel Dep., R. 17-4, Page ID #344. This broadly tracks the sentiment in Leffel’s email to
C.S.’s father on Hat Day, February 17, 2022, in which she quoted the handbook’s mission to guard
against “distract[ions] from the learning environment of the classroom.” Emails, R. 17-12, Page
ID #436.
For all these reasons, it is difficult to imagine a case better suited to Tinker’s exception than
one where school officials were concerned about preventing a substantial disruption in a setting
filled with elementary-aged students, some of whom were suffering trauma and undergoing school
counseling after a recent massacre in their community. See Tinker, 393 U.S. at 506. The analysis
does not begin and end with what school officials said to C.S., her father, or amongst themselves,
on Hat Day. Rather, we must review the record as a whole and ask whether the decision was
reasonable at the time it was made.
The panel correctly determined that Defendants relied on a number of factors to reasonably
predict that C.S.’s AR-15-themed Hat could cause a substantial disruption in school activities due
to the special characteristics of the student body. Id. at 514. We do not require more under these
circumstances, where the Oxford Shooting was recent, local, and widely known; the principal’s
deposition testimony reflected her reasonable concerns about the effects of that shooting on the
student body; the students were young and emotionally vulnerable; and the speech itself conveyed
a provocative message about semiautomatic weapons (i.e., violence), a “sensitive topic” for
children in C.S.’s age group. See Kuhlmeier, 484 U.S. at 272. The totality of these facts makes
the instant case a prime candidate for Tinker’s allowance for school officials to restrict speech
when they make a reasonable forecast of substantial disruption, 393 U.S. at 514, and indeed,
renders en banc review unnecessary.

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_________________________________________________________________
CONCURRENCE IN THE DENIAL OF PANEL REHEARING AND
STATEMENT RESPECTING THE DENIAL OF REHEARING EN BANC
_________________________________________________________________
JULIA SMITH GIBBONS, Circuit Judge, concurring in the denial of panel rehearing and
respecting the denial of rehearing en banc. Although I do not join the statement concurring in the
denial of rehearing en banc issued by my colleagues on the panel, I do not disagree with its
substance. I believe the panel opinion, in which I concurred, was entirely correct, despite the
concerns raised by Judge Readler, and I stand behind it.

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__________________
STATEMENT
__________________
READLER, Circuit Judge, statement respecting the denial of rehearing en banc. Today’s
case is a poor candidate for en banc review, in multiple respects. One, as the panel itself
acknowledges, the matter was resolved on narrow, “novel,” fact-specific grounds. C.S. ex rel.
Stroub v. McCrumb, 135 F.4th 1056, 1068 (6th Cir. 2025) (noting the “novel circumstances of this
case”); see also Clay Concurring Op. 3, 4 (hereinafter “Clay Op.”) (emphasizing the “novel” and
“unique interplay of facts” that led the panel to its holding). Driving the panel’s conclusion was a
rare confluence of events: the then-recent Oxford High School shooting, the location of C.S.’s
school, and C.S.’s age. Id. at 1067. By the panel’s own admission, in other words, it is exceedingly
unlikely that a future First Amendment challenge will weave together a similar factual tapestry.
None of this, of course, diminishes the importance of C.S.’s claim, which raises a serious charge
of viewpoint discrimination. But the panel’s fact-bound analysis means its opinion has little, if
any, precedential value going forward. And that lowers the justification for rehearing this case en
banc. See Fed. R. App. P. 40(a)–(b). Said differently, we understandably need not commit our
limited en banc resources to further review of this “good for one-ride only” ticket.
Two, relatedly, because the panel’s holding is so narrow, defendants were likely to prevail
on the qualified immunity prong of the analysis, even if, as should have been the case, C.S.’s
constitutional claim survived summary judgment. To overcome defendants’ assertion of qualified
immunity, C.S. had to show that defendants’ conduct violated her clearly established constitutional
rights. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). And given the unusual events at play
here, it would have been difficult for C.S. to cite a prior First Amendment holding establishing
that elementary school students have a right to wear clothing depicting firearms as symbolic speech
in the wake of a nearby school shooting. The panel correctly acknowledged as much. McCrumb,
135 F.4th at 1068. In light of this shared understanding, en banc review would likely have resulted
in the same outcome for the parties, albeit on different grounds. Again, that the underlying First
Amendment holding has exceedingly limited future application makes it an easy decision to leave
the panel’s holding in place.

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That said, there are some odd features of this case that should give one pause. Start from
the understanding that places of learning should welcome student speech and engagement, not fear
it. Some speech, to be sure, may well cross a line that lawfully justifies school intervention. But
before treading into First Amendment terrain, school officials must be reasonably certain that their
actions are warranted. It is difficult to believe that is the case here, where officials at Robert Kerr
Elementary School failed to articulate a contemporaneous justification for their actions restricting
C.S.’s speech. Regrettably, the panel condoned the officials’ likely abridgment of First
Amendment freedoms.
A. As Tinker’s famous refrain reminds us, students do not “shed their constitutional
rights . . . at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
506 (1969). Rather, students retain the ability to express their views on controversial topics. Id.
at 511. But that right is not without limits. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,
692 (1986). Consistent with the First Amendment, schools may restrict student speech that
“materially disrupts classwork.” Tinker, 393 U.S. at 513. And a school need not wait for a material
disruption to surface but instead may reasonably forecast such an event. Id. at 514. That said, the
material disruption standard is “demanding.” Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594
U.S. 180, 193 (2021). A school must, with evidence, “show that its action was caused by
something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509; see also Castorina ex rel. Rewt v.
Madison Cnty. Sch. Bd., 246 F.3d 536, 542 (6th Cir. 2001) (declining to uphold restriction on
Confederate Flags in school “without any showing of disruption”).
With that framework in mind, turn to the events occurring on Kerr Elementary School’s
“Hat Day.” The school principal made C.S., a third grader, remove her cap, which depicted a
firearm and included the phrase “Come and Take It.” The principal’s concerns stemmed from her
forecast about the hat’s potential disruptive effects. Leffel Dep., R. 15-2, PageID 203, 206–07.
That same day, the principal informed C.S. and her father that “[w]eapons of any kind are not
appropriate for students to wear in a school setting.” Id. at PageID 216. Months later, in her
deposition, the principal “theorized” that she asked C.S. to remove the hat out of fear that students
and staff “would be very uncomfortable” with the hat’s depiction, id. at PageID 205, or would

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“perceive [‘Come and Take It’] as a dare” and attempt to remove the hat, id. at PageID 206.
Despite these predictions, all agree there is no evidence that C.S.’s hat caused any actual disruption
on Hat Day or that similar speech had caused disruption at the school in the past. See id. at PageID
203 (noting this was the “first instance” the principal had to address images of guns in the school).
The school’s rationales fail to clear Tinker’s high bar, which “requires a specific and
significant fear of disruption, not just some remote apprehension of disturbance,” before school
officials may silence a student’s speech (in this case, by taking away her hat). Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001) (Alito, J.) (applying Tinker to a college’s
harassment policy). In the words of Tinker itself, the “undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression.” 393 U.S. at 508; see
also Mahanoy, 594 U.S. at 210 (Alito, J., concurring) (“Speech cannot be suppressed just because
it expresses thoughts or sentiments that others find upsetting[.]”). At bottom, rather than providing
evidence of, say, prior material disruption among students upon seeing the image of a gun or,
alternatively, examples of students taking language on clothing literally, the principal simply relied
on her personal intuition about how others would feel “uncomfortable” with C.S.’s hat, a practice
adopted by her successor as well. See Leffel Dep., R. 15-2, PageID 207; see Klount Dep., R. 15-
2, PageID 275 (successor principal opining that “I just think [depictions of guns] would make kids
uncomfortable”).
That makes this case unlike those in Judge Clay’s concurrence. See Clay Op. 5. In both
Defoe ex rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010), and Barr v. Lafon, 538 F.3d 554 (6th
Cir. 2008), the schools at issue banned wearing clothes depicting the confederate flag on the basis
of specific evidence of a history of racial tension at the schools. See Defoe, 625 F.3d at 334 (noting
that the record contained “uncontested evidence of racial violence, threats, and tensions” at the
school); Barr, 538 F.3d at 566 (explaining that the school had presented evidence of racist graffiti
that was accompanied by threats to African American students). No such similar school-specific
evidence was presented here. School officials, at best, presented only generalized concerns. So,
like the Fourth Circuit, I find it difficult to accept the notion that displaying an image of a gun on
one’s clothing at school, without more, would disrupt the school day in substantial ways. See
Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 252 (4th Cir. 2003) (rejecting

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a school’s argument that a middle school student’s shirt with an image of a gun would disrupt the
school day because “there simply [wa]s no evidence in the record . . . demonstrating that clothing
worn by students at [the school] containing messages related to weapons . . . ever substantially
disrupted school operations”).
That leaves the argument that the school’s conduct was justified by the recent Oxford High
School Shooting. Those events were undeniably tragic, one of the worst days on record in the
Oxford community. See Stephanie Saul & Anna Betts, Michigan Teenager Who Killed Four
Students Is Sentenced to Life, N.Y. Times (Dec. 8, 2023), https://www.nytimes.com
/2023/12/08/us/michigan-oxford-school-shooting-sentencing.html. But their legal significance
here is quite contestable. The panel opinion deeply embraced that backdrop, holding that the fact
that students, following the tragedy, had transferred from that district to C.S.’s district—one nearly
an hour away from Oxford—was a significant factor in its analysis. McCrumb, 135 F.4th at 1062–
63.
I am less convinced. As a factual matter, because the Oxford shooting occurred in a high
school, the directly impacted students were unlikely to be elementary school age. Indeed,
defendants do not even suggest as much, noting only that the Durand School District (home of
Kerr Elementary) “had absorbed several students from [the] Oxford Area School District who
moved to the area following the school shooting,” without identifying the grades of those students.
Defs.’ Mot. Summ. J., R. 17, PageID 298–99. Defendants thus failed to directly tie the affected
students in the third grade or, more generally, Kerr Elementary students as a whole to the horrific
events at Oxford High School. See Tinker, 393 U.S. at 509 n.3 (concluding there was not enough
in the record to find a material disruption even when the school provided evidence that a former
student was killed in Vietnam and his friends still attended the high school). Perhaps, as Judge
Clay suggests, the principal had “personal knowledge of . . . students’ struggles.” Clay Op. 7. Yet
even then, the record is silent as to who these students were, how many attended Kerr Elementary,
and whether those affected students interacted with C.S. Indeed, not even defendants advanced
this point as aggressively as does Judge Clay. In their summary judgment briefing, it bears noting,
defendants asserted only that that the Durand School District had “absorbed several students” from

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Oxford, without locating these students specifically in Kerr Elementary School. Defs.’ Mot.
Summ. J., R. 17, PageID 298–99.
None of this should be read to suggest that elementary age students are immune from
suffering the aftereffects of a traumatic high school shooting. Clay Op. 6. They surely can.
Rather, the point is that defendants did not show with sufficient evidence that Kerr Elementary
students were suffering from those effects here and, in light of that shortcoming, failed to clear
Tinker’s high bar for silencing student speech.
More troubling on this front is the fact that Kerr Elementary officials seemingly did not
share this concern as a basis to justify their actions, at least on Hat Day and in its wake. According
to the school principal, any worry by school officials about disruptions tied to the Oxford shooting
did not surface until ten months after the Hat Day incident. See Leffel Dep., R. 15-2, PageID 205;
id. at PageID 216. On the day when C.S. was told to remove her headwear, it bears highlighting,
the principal emailed C.S.’s father to announce, with little explanation, that an image of a weapon
is categorically inappropriate in the school setting. Id. at PageID 216. All parties agree that the
email never invoked the Oxford shooting (nor any of the school’s other late-breaking justifications)
as a basis for that conclusion. Judge Clay too, who, to his credit, admits that the “general concerns”
in the principal’s email, “taken alone[,] would not withstand Tinker’s substantial-disruption test.”
Clay Op. 6. It is thus difficult to reconcile the centrality of the Oxford shooting to both the panel’s
and the district court’s reasoning with the fact that the principal herself never made this connection
on the day C.S. was ordered to remove her hat.
The Oxford-based explanation surfaced only later. Ten months later, in fact, during
discovery, when the school district was working with the aid of legal counsel. That delay should
raise suspicions, especially when viewed in the light most favorable to C.S., as we must at the
summary judgment stage. At that late date, the lengthy delay could fairly be attributable to the
school drumming up a post hoc rationale. That point deserves emphasis, as after-the-fact
justifications are especially problematic in the First Amendment context. The Supreme Court’s
recent decision in Kennedy v. Bremerton School District, 597 U.S. 507 (2022), demonstrates as
much. There, the school district sought to justify its termination of a football coach who prayed
on the field before each game based on the theory that the coach’s pre-game prayer may cause

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disorder and disruption at the game. Id. at 543 n.8. Whatever merit that justification might have
in the abstract, the Supreme Court refused to consider it in Kennedy because the school district
“never raised concerns along th[ose] lines in its contemporaneous correspondence” with the coach.
Id. “Government justifications for interfering with First Amendment rights,” the Supreme Court
emphasized, “must be genuine, not hypothesized or invented post hoc in response to
litigation.” Id. (citation modified). This basic First Amendment principle applies equally well in
the student speech context. That is likely one reason why Tinker requires schools fairly to forecast
a material disruption, rather than justifying their decision to censor speech with the benefit of
hindsight. 393 U.S. at 514. After all, allowing school officials to rely on “shifting rationales may
provide convenient litigating positions for the school administrators in defending their decision,”
but later justifications “are too easily susceptible to abuse by obfuscating illegitimate reasons for
speech restrictions.” Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 26 (1st Cir.
2020).
It may be, as Judge Clay suggests, that these concerns are alleviated when later
justifications are consistent with the earlier ones. Clay Op. 8. But that is not what happened here.
Again, consider the principal’s contemporaneous justifications: that depictions of weapons were
inappropriate for schools and that schools may prevent “distract[ions] from the learning
atmosphere of the classroom.” Emails, R. 17-12, Page ID 436. As a starting point, these generic
justifications are so broadly stated that almost any later explanation would be consistent under
Judge Clay’s rubric. But even taken at face value, those day-of justifications relate to the school
principal’s post hoc rationales in only the loosest sense. Especially when construing the evidence
in C.S.’s favor, as we must at this stage, a reasonable juror could conclude that the school’s later-
stated reasons were pretextual and that officials made C.S. remove her hat simply because they
disagreed or were uncomfortable with the viewpoint displayed there.
Indeed, it is difficult to believe the school officials here would have taken such aggressive
measures against a student who wore a hat with a message contrary to C.S.’s, along the lines of
“ban guns” or “erase the Second Amendment.” And if that were the case, it is easy to detect hidden
viewpoint discrimination in the officials’ actions here, which sounds even more First Amendment
alarms. Bible Believers v. Wayne County, 805 F.3d 228, 248 (6th Cir. 2015) (en banc) (noting that

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“odious viewpoint discrimination” violates the First Amendment). Given that there is no record
evidence one way or the other, we are left to guess as to the actual basis for the officials’ actions.
With that in mind, again, a reasonable jury could find that the school censored first because of its
discomfort with the speech’s viewpoint and drummed up justifications later.
Nor does the age of the students at issue change this conclusion. See Clay Op. 8
(emphasizing the young age of C.S. and her classmates); McCrumb, 135 F.4th at 1065. As an
initial matter, the panel draws the idea that schools can aggressively regulate “potentially sensitive
topics” like guns from Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988). See also McCrumb, 135
F.4th at 1065 (“Naturally, student speech centered on guns and other violent themes embodies this
category.”). Hazelwood, however, sets out a different test for different speakers, namely, that the
government has more leeway for censoring speech that bears the “imprimatur of the school,” id.
at 271. It is odd to import those requirements into a student speech case. Separately, to the extent
Tinker applies differently to different age groups, it does so only as to the type of speech that may
cause a material disruption. Imagine a student who wears a hat to school reading “Santa Claus
isn’t real.” A third grader’s response to the hat may well be different from that of a high schooler.
See McCrumb, 135 F.4th at 1065. Yet even in that instance, the elementary school must support
its reasonable forecast of a substantial disruption before it may censor the student’s speech. And,
in line with Tinker, that evidence may not be speculative or motivated by discomfort for the view
the speech expresses. See 393 U.S. at 509. At bottom, while disruption may be context dependent,
the burden on the school never changes. But the panel erroneously lowered the bar by allowing
school officials to “theorize” about the possibility of disruption and, further, crediting the
principal’s belief that students would be “uncomfortable” with C.S.’s hat. Tinker does not afford
schools carte blanche to regulate “sensitive topics,” even for younger audiences. See Newsom,
354 F.3d at 252 (applying Tinker to non-high school students).
B. Equally unusual is the panel’s passing observation that the school may have been able
to remove C.S.’s hat because her speech “was made as part of school activities,” with Hat Day, a
school-sponsored event. McCrumb, 135 F.4th at 1062 n.4 (acknowledging that this is a “colorable
argument”); id. at 1064 n.7. And if Hat Day is part of the school curriculum, the panel went on to
say, then a more deferential test for school-sponsored speech from Hazelwood School District v.

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Kuhlmeier, 484 U.S. 260 (1988), seemingly would apply. See McCrumb, 135 F.4th at 1062 (noting
that “[u]nder Kuhlmeier, school officials’ actions would likely have been permissible to the extent
that Hat Day was ‘part of the school curriculum’”) (quotation omitted).
As dicta, the panel’s reflection has no legal significance. Nor should it. For this case,
again, is a far cry from Hazelwood. There, the Supreme Court held that a school could censor two
articles scheduled for publication in the school newspaper because the publication was a school
sponsored activity, part of an advanced journalism class. Hazelwood, 484 U.S. at 268. In so
holding, the Supreme Court emphasized that the school always “exercised a great deal of control”
over the paper by selecting publication dates and story topics, assigning authors, providing
supplies, and editing the written product. Id. (quotation omitted). As a result, readers would have
perceived the articles in the paper as “bear[ing] the imprimatur of the school.” Id. at 271. Kerr
Elementary School, however, exercised no similar editorial control over its Hat Day. While the
occasion was an official school event, students were free to select whatever cap they wished.
McCrumb, 135 F.4th at 1059 (“[S]tudents were allowed to wear a hat of their choosing[.]”). No
reasonable observer would assume that the school was endorsing a student’s choice of hat,
including the one worn by C.S. The school, I note, did not provide hats to the students or otherwise
sponsor the messages the students’ hats contained. See Newsom, 354 F.3d at 257 (rejecting the
argument that a student’s shirt constituted “school-sponsored” speech for these reasons). And,
indeed, as students likely wore hats reflecting rival causes—the Wolverines and Spartans, as one
example—it would be difficult to reconcile the school’s supposed message of choice even if one
thought it had some role in selecting student headwear. Cf. Matal v. Tam, 582 U.S. 218, 236
(2017) (explaining that it is “far-fetched” to suggest that something is government speech when
the government allows for the expression of “contradictory views”). At all events, the special
circumstances that led the Supreme Court to conclude the paper was school-sponsored speech in
Hazelwood are absent here. Expanding Hazelwood to cover all speech that occurs against the
backdrop of a school event would likely ensnare nearly every form of student expression and could
be “easily . . . manipulated [by schools] in dangerous ways.” Morse v. Fredrick, 551 U.S. 393,
423 (2007) (Alito, J., concurring). In the end, it would allow schools to sidestep Tinker’s demands
in a large number of cases.

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* * * * *
By all accounts, the panel seemingly read the facts in a light most favorable to the school,
rather than C.S., and, in so doing, justified the school officials’ speech restraint through unstated
or late-breaking explanations. But the panel’s ungenerous (and legally backwards) understanding
of the facts also makes this a very narrow case—one that centers on the unique risks of material
disruption as understood by the panel. While the panel’s factual review deserves no praise, that,
along with the fact that some of its problematic reasoning is dicta, leads me to agree that en banc
review is not justified in this case.
ENTERED BY ORDER OF THE COURT
__________________________________
Kelly L. Stephens, Clerk

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