A federal appeals court has raised new questions about student free speech by ruling that a Michigan elementary school did not violate a third grader’s First Amendment rights when it told her to remove a hat displaying an AR-15 style rifle and the slogan “Come and Take It.”

Origin of “Come and Take It” (Jud McCranie/Wikipedia Creative Commons)

The US Court of Appeals for the Sixth Circuit denied an en banc rehearing this week, leaving intact a panel decision that sided with the school. Judges said the restriction was justified under Tinker v Des Moines, the landmark 1969 case on student expression, because administrators reasonably feared disruption in the wake of the deadly Oxford High School shooting just months earlier.

Writing in support of the denial, Judge Eric Clay stressed the “unique interplay” of factors: the school’s absorption of students traumatized by the Oxford tragedy, the young age of the student body, and the provocative imagery of the hat itself. “We do not require certainty that disruption will occur,” he wrote, “only that officials acted reasonably in forecasting it.”

But not all judges agreed. Judge Chad Readler, joined by two colleagues, warned that the decision condoned “a likely abridgment” of student rights. He argued the school never connected its decision to the Oxford shooting at the time and only invoked it months later during litigation. “Government justifications for interfering with First Amendment rights must be genuine, not invented [after the fact],” Readler cautioned, raising the specter of viewpoint discrimination.

The ruling underscores how courts continue to wrestle with the scope of Tinker in a time when everybody is more sensitive to school violence. Unlike in Tinker, where students wore black armbands to protest the Vietnam War, the Sixth Circuit concluded that a gun-themed hat in a post-shooting environment presented a different and more volatile risk.

For now, the decision leaves intact a narrow but significant precedent: that schools may restrict student expression if recent local tragedies and the age of the students make disruption reasonably foreseeable. But the sharp disagreement among the judges suggests the boundaries of student speech rights remain unsettled, more than half a century after Tinker.