On June 8, 2026, the Supreme Court denied certiorari in C.S. v. McCrumb, No. 25-831, leaving in place a Sixth Circuit ruling that school officials in Durand, Michigan did not violate the First Amendment when they ordered a third-grader to remove a black baseball cap depicting an ArmaLite AR-15 and the words “COME AND TAKE IT.” The denial came without comment; no Justice wrote, and no dissent was noted. The Sixth Circuit’s reasoning now stands as binding law — and it should trouble anyone who takes the First Amendment seriously.
Hat Day, and a Viewpoint the School Would Not Tolerate
On February 17, 2022, Robert Kerr Elementary School was holding “Hat Day” as part of the Great Kindness Challenge, a national anti-bullying program. Every student could wear the hat of her choice. C.S., a third-grader roughly eight years old, wore the “COME AND TAKE IT” cap, and school officials ordered her to remove it. Her father, Adam Stroub, sued on her behalf, naming Superintendent Craig McCrumb and other officials. The U.S. District Court for the Eastern District of Michigan granted summary judgment to the school. A unanimous Sixth Circuit panel — Judge Eric Clay, joined by Judges Julia Smith Gibbons and Jane Branstetter Stranch — affirmed on May 2, 2025. Represented by First Amendment scholar Eugene Volokh of UCLA, C.S. petitioned the Supreme Court. On June 8, 2026, the Court declined to hear the case.
The Sixth Circuit’s Reasoning: A Heckler’s Veto in Plain Sight
The governing standard comes from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and that officials may restrict student speech only on a reasonable forecast of “substantial disruption of or material interference with school activities.” The panel found that forecast reasonable for two reasons: the school had absorbed transfer students from the Oxford Community School District after the November 30, 2021 Oxford High School shooting, and elementary-age children are emotionally immature.
That is a heckler’s veto, and a serious one. The government may not suppress speech because a sensitive audience might react badly to its content. When the disruption rationale rests entirely on how other students will respond to the message — not to any conduct by the speaker — the veto power passes to the most sensitive listener in the room. Worse, the Oxford shooting that anchored the rationale was committed by fifteen-year-old Ethan Crumbley with a 9mm handgun, not an AR-15. The hat depicted the rifle that was not used in the tragedy the court invoked to justify banning it.
The Viewpoint Problem the Court Did Not Confront
The deeper defect is viewpoint discrimination. Hat Day was an open forum; every student could wear whatever she chose. I have little doubt that a cap carrying a fashionable political message — on identity, climate, or a progressive cause — would have passed without a second look. It was the pro-Second Amendment content of this hat that drew the order. Tinker’s substantial-disruption test was meant to give schools a narrow tool for genuine behavioral emergencies, not a license to silence messages that some students or faculty find politically objectionable. When a school predicts disruption precisely because others disagree with a speaker’s viewpoint, and then silences the speaker on that basis, it has not applied Tinker — it has inverted it.
Why the Supreme Court Passed
My read is not that the Justices approved of the Sixth Circuit’s reasoning, but that the explanation is institutional bandwidth. The Court hears only about seventy cases a term across the whole of federal law. On the intersection of student rights and school authority, its attention appears fixed elsewhere — parental rights, religious accommodation, and disputes over what schools may conceal from parents about a child’s gender identity. This student-speech case, significant as it is, did not clear that bar. That does not make the result acceptable. It means the Sixth Circuit’s heckler’s-veto reasoning is now binding law in Michigan, Ohio, Kentucky, and Tennessee, with no correction in sight.
Justice Thomas, In Loco Parentis, and the Second Amendment
There is a final dimension that cuts against C.S. from an unexpected direction — and bears directly on the Second Amendment. Justice Clarence Thomas does not believe public-school students hold any First Amendment rights at all. In his solo concurrence in Morse v. Frederick, 551 U.S. 393 (2007), he argued that the common-law doctrine of in loco parentis — under which school officials stand in the place of parents during the school day — leaves students no free-speech rights against the school, and he called for overruling Tinker as inconsistent with the original understanding of the First Amendment. He has held to that position, dissenting alone in Mahanoy Area School District v. B.L., 594 U.S. 180 (2021), when eight Justices sided with a student.
This matters for the Second Amendment in a precise way. Anti-gun litigants argue that because colleges exercised in loco parentis authority over students at the 1791 founding, history supports disarming students on campus today. The argument fails on its own terms: that authority rested on students being legal minors subject to quasi-parental control. Today’s eighteen-, nineteen-, and twenty-year-old students are full adults — they vote, sit on juries, and sign contracts. A rationale built to govern minors in 1791 cannot be bootstrapped into a power to disarm adults in 2026.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.