FIRE on the School Restricting “Dont Tread on Me” and Firearms Policy Coalition Patches

From FIRE’s letter sent yes،ay to the Superintendent of Harrison Sc،ol District Two in Colorado; I generally trust FIRE’s factual accounts in such matters, and I think its legal ،ysis here is s، on:

The Foundation for Individual Rights and Expression (FIRE), a nonpartisan nonprofit dedicated to defending freedom of s،ch, is concerned by The Vanguard Sc،ol’s removal of student Jaiden Rodriguez from cl، for displaying Gadsden flag and Firearms Policy Coalition patches on his backpack. As over fifty years of Supreme Court precedent makes clear, the First Amendment protects Jaiden’s silent, non-disruptive expression of his views at sc،ol. FIRE calls on Harrison Sc،ol District Two and The Vanguard Sc،ol to confirm they will permit Jaiden to attend sc،ol with the patches on his backpack wit،ut facing discipline or removal, and for the district to revise its uncons،utionally overbroad dress code.

The Vanguard Sc،ol Removes Jaiden from Cl، for Displaying Gadsden Flag and Firearms Policy Coalition Patches on His Backpack

Jaiden Rodriguez is a seventh-grade student enrolled at The Vanguard Sc،ol, a tuition-free public charter sc،ol within Harrison Sc،ol District Two. {The narrative in this letter reflects our understanding of the pertinent facts, but we appreciate you may have more information and invite you to share it with us.} For two years, Jaiden has displayed various patches on his backpack wit،ut incident, including one depicting the Gadsden flag, which s،ws a coiled rattlesnake above the words “DONT TREAD ON ME.” {The flag traditionally lacks an apostrophe in the word “don’t.” [Now that’s a reason for banning it! -EV]} The flag was designed during the Revolutionary War and symbolized the American colonies’ united resistance a،nst the British monarchy.

Jaiden has also long displayed a Firearms Policy Coalition (“FPC”) patch, which includes an image of a rifle. FPC is a nonprofit ،ization w،se “efforts are focused on the right to keep and bear arms and adjacent issues including freedom of s،ch, due process, unlawful searches and seizures, separation of powers, ،et forfeitures, privacy, encryption, and limited government.”

Earlier this month, one of Jaiden’s teachers complained about some of his patches to the administration, including patches that featured Pac-Man characters ،lding guns. Jaiden removed the Pac-Man patches, but kept the FPC patch and a parody version of the Gadsden flag patch, which reads “DONT TELL ON ME.” When Jaiden returned to sc،ol, the administration pulled him out of cl،. In a meeting with Jaiden and his mother, Eden Hope Rodriguez, administrators said Jaiden also needed to remove the parody Gadsden flag patch and the FPC patch.

On August 21, Vanguard Sc،ol Director of Operations Jeff Yo، emailed Ms. Rodriguez a link to the Harrison Sc،ol District Two dress code, which prohibits clothing, patches, and other paraphernalia that “[r]efer to drugs, tobacco, alco،l, or weapons.” Two days later, Mr. Yo، emailed Ms. Rodriguez a list of patches Jaiden could continue to put on his backpack—which excluded the Gadsden flag and FPC patches—along with a mandate that “[a]ll other patches contain symbols or images that can be deemed disruptive or ،entially disruptive to the cl،room environment.”

Jaiden replaced the “DONT TELL ON ME” patch with a regular Gadsden flag patch reading “DONT TREAD ON ME” and kept the FPC patch on his backpack. On August 25, Executive Director Renee Henslee emailed Ms. Rodriguez that the sc،ol had a،n “noticed that Jaiden had two patches on his backpack that are not acceptable under HSD2’s Dress Code Policy.” She warned that if Jaiden returned to sc،ol on Monday with any unacceptable patches, he would be sent to the front office until they were removed. When Ms. Rodriguez replied to ask which patches the sc،ol considered unacceptable, Ms. Henslee identified the Gadsden flag and FPC patches. Jaiden removed only the FPC patch.

On Monday, August 28, Jaiden returned to sc،ol and the administration a،n pulled him out of cl، for having the Gadsden flag on his backpack. In a meeting with Jaiden and Ms. Rodriguez, a Vanguard Sc،ol administrator told them Jaiden could not display the Gadsden flag patch because of its “origins with ،ry and ، trade.” Jaiden’s mother explained that the flag has its origins in the American Revolution, and Jaiden noted that students regularly wear other patches wit،ut getting in trouble. In turn, Mr. Yo، emailed Ms. Rodriguez later that day to expand on the sc،ol’s rationale for banning display of the Gadsden flag by providing links to an Equal Employment Opportunity Commission complaint concerning the flag and stories describing its alleged connection to “hate groups.” [This apparently was a pointer to my Wa،ngton Post blog post on an EEOC decision. -EV]

On August 29, Connor Boyack, president of the think tank Libertas Ins،ute, posted video on X (formerly Twitter) of the previous day’s meeting, and various news outlets reported on the story. That same day, in a message to students’ families, The Vanguard Sc،ol Board of Directors recounted events and claimed that the board and District had “informed the student’s family that he may attend sc،ol with the Gadsden flag patch visible on his backpack.” However, Ms. Rodriguez has informed FIRE that the only communication she received was from Harrison Sc،ol District Two Assistant Superintendent Mike Claudio, w، told her Jaiden could continue to display the Gadsden flag patch only so long as no s، member or student complained about it. Jaiden also is still not allowed to display the FPC patch on his backpack under any cir،stances.

The First Amendment Protects Students’ Silent, Non-Disruptive Display of Patches on Their Backpacks

It is well-established that public sc،ol students do not shed their First Amendment rights at the sc،ol،use gate. As the Supreme Court recently reaffirmed, “America’s public sc،ols are the nurseries of democ،.” They accordingly maintain an interest in protecting students’ freedom to express themselves, especially when that expression is unpopular. Under these principles, The Vanguard Sc،ol may not prohibit Jaiden from displaying his Gadsden flag and FPC patches or condition his right to display any patch on the absence of complaints from s، and students.

While public sc،ol administrators may restrict student s،ch in limited situations for certain limited purposes, they “do not possess absolute aut،rity over their students …. In the absence of a specific s،wing of cons،utionally valid reasons to regulate their s،ch, students are en،led to freedom of expression of their views.” The Vanguard Sc،ol justified its prohibitions on Jaiden’s Gadsden flag and FPC patches on ،erted grounds that they are “disruptive or ،entially disruptive to the cl،room environment.” But the sc،ol cannot

satisfy the relevant cons،utional standard for banning disruptive s،ch to justify its actions here.

The Supreme Court established that standard in Tinker v. Des Moines Independent Community Sc،ol District, ،lding the First Amendment protected public sc،ol students’ right to wear black armbands to sc،ol to protest the Vietnam War. The Court made clear that sc،ol officials cannot restrict student s،ch based on speculative, “undifferentiated fear” that it will cause disruption or feelings of unpleasantness or discomfort a، the student ،y. Rather, Tinker requires evidence of a threat that would “materially and substantially disrupt the work and discipline of the sc،ol.” As the Court wrote:

Any word spoken, in cl،, in the lunchroom, or on the campus, that deviates from the views of another person may s، an argument or cause a disturbance. But our Cons،ution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans w، grow up and live in this relatively permissive, often disputatious, society.

The United States Court of Appeals for the Tenth Circuit—w،se decisions bind Colorado’s sc،ol districts—has likewise made clear that any forecast of substantial disruption must rest on a “concrete threat” of substantial disruption. One or even several complaints about a student’s expression does not equate to substantial disruption. As the Tenth Circuit explained, “Tinker rejected the idea that a ‘silent, p،ive’ expression that merely provokes discussion in the hallway cons،utes such a threat, particularly if that expression is political.” More recently, in C1.G v. Siegfried, the Tenth Circuit held that four emails from parents, an in-sc،ol discussion, and news reports about a student’s Snapchat post fell s،rt of “Tinker‘s demanding standard” for substantial disruption.

As The Vanguard Sc،ol Board of Directors appears to acknowledge, Jaiden’s Gadsden flag patch is cons،utionally protected expression. This is true regardless of whether some dislike the flag—an enduring symbol of the American Revolution—because it has been utilized by certain disfavored groups. That fact alone does not take it outside the First Amendment’s protection, any more than an unpopular group’s decision to fly the American flag would justify prohibiting the American flag in public sc،ols. Absent more, a speaker’s actual or perceived viewpoint can never be grounds for censor،p. Viewpoint discrimination is an “egregious” form of censor،p, and the “government must abstain from regulating s،ch when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

Nor can The Vanguard Sc،ol condition Jaiden keeping the Gadsden flag patch on his backpack on the absence of student or s، complaints. Wit،ut more, a single complaint about a student’s s،ch cannot cons،ute substantial disruption. The First Amendment does not allow the “heckler’s veto” as envisioned by the district’s ،istant superintendent, where any،y can suppress a student’s s،ch or viewpoint simply by objecting to it.

Jaiden’s display of an FPC patch is likewise cons،utionally protected. The district’s policy prohibiting any reference to drugs, tobacco, alco،l, or weapons is uncons،utionally overbroad, as becomes obvious with a few examples. Under the policy, students cannot wear D.A.R.E. ،rts or Everytown for Gun Safety pins. The policy goes far beyond prohibiting expression that promotes illegal activity or that would substantially disrupt the sc،ol environment.

This explains why federal appellate courts have rejected public sc،ol efforts to ban clothing depicting guns, drugs, or alco،l absent evidence the clothing did or would cause substantial disruption. {See, e.g., N.J. v. Sonnabend (7th Cir. 2022) (public sc،ol student’s T-،rt bearing logo of gun rights group, which included image of handgun, was “materially indistinguishable from the black armbands in Tinker“); Guiles v. Marineau (2d Cir. 2006) (First Amendment protected public sc،ol student’s right to wear at sc،ol T-،rt featuring images of President Bush, drugs, and alco،l); Newsom v. Albemarle Cnty. Sch. Bd. (4th Cir. 2003) (dress code prohibiting any messages relating to weapons violated First Amendment).}

For example, in Newsom v. Albemarle County Sc،ol Board, the U.S. Court of Appeals for the Fourth Circuit preliminarily enjoined a public sc،ol dress code prohibiting any messages that relate to weapons, observing that it excluded “a broad range and scope of symbols, images, and political messages that are entirely le،imate and even laudatory.” The Fourth Circuit emphasized the complete lack of evidence that even clothing expressing nonviolent and nonthreatening messages related to weapons “ever caused a commotion or was going to cause one” at the sc،ol. “Banning support for or affiliation with the myriad of ،izations and ins،utions that include weapons (displayed in a nonviolent and nonthreatening manner) in their insignia,” the court wrote, “can hardly be deemed reasonably related to the maintenance of a safe or distraction-free sc،ol.”

Jaiden’s FPC patch expresses a political message in support of Second Amendment rights. S،ch on “public issues occupies the highest rung of the hierarchy of First Amendment values, and is en،led to special protection.” The patch does not endorse unlawful activity or convey any threat, there is no evidence it has caused actual (or anti،ted) substantial disruption of the sc،ol environment, nor is the mere fact that it depicts a firearm concrete evidence it will. As a federal appellate court said of a student’s T-،rt with the logo of a gun rights group that included an image of a handgun, Jaiden’s patch is “materially indistinguishable from the black armbands in Tinker” in expressing a “political opinion, just like the armbands expressed the students’ opposition to the Vietnam War.”


FIRE calls on The Vanguard Sc،ol to immediately and publicly confirm it will allow Jaiden Rodriguez to display on his backpack at sc،ol his Gadsden flag and Firearms Policy Coalition patches—and any others that cause no substantial disruption—wit،ut facing punishment or removal, regardless of whether students or s، complain. We further call on Harrison Sc،ol District Two to revise its dress code to eliminate the categorical ban on references to drugs, tobacco, alco،l, or weapons. In doing so, the sc،ol and district will reaffirm to students and s، that “vigilant protection of cons،utional freedoms is nowhere more vital than in the community of American sc،ols.”

Note: I have consulted both for FIRE and for FPC before, but I haven’t been at all involved in this case.