The Supreme Court let stand a lower court decision that allowed a public school in Massachusetts to prevent a 7th grader identified in court documents as "L.M." from wearing a T-shirt that read, "There are Only Two Genders."
The student was given the option of removing the shirt or going home. When he returned, he was wearing a shirt that read, “There Are CENSORED Genders.” Rather than miss more school, the student took off the shirt.
The parents sued on First Amendment grounds but were denied relief by an appeals court.
Justices Samuel Alito and Clarence Thomas wrote a scorching dissent based on the First Amendment rights enjoyed by students. That right was codified in a 1969 decision, Tinker v. Des Moines Independent Community School District, where the Supreme Court allowed students to wear a black armband to protest the Vietnam War.
Justice Abe Fortas famously wrote that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The exception Fortas cited was "disruptive speech."
In this current case, the school felt justified in banning the "There Are Only Two Genders" T-Shirt because the shirts had "invaded the rights of other students," as the New York Times explained.
The district court agreed, saying the school "could ban messages that demean other students’ deeply rooted characteristics in a way that poisons the educational atmosphere," according to the Times. The Supreme Court upheld the district court's ban.
Alito's dissent was spot on.
“Like the black armbands in Tinker, L.M.’s shirts were a ‘silent, passive expression of opinion, unaccompanied by any disorder or disturbance,’” he wrote, quoting from the decision. “And just as in Tinker, some of L.M.’s classmates found his speech upsetting. Feeling upset, however, is an unavoidable part of living in our ‘often disputatious’ society, and Tinker made abundantly clear that the ‘mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint’ is no reason to thwart a student’s speech.”
Offensive speech, no matter who it offends, is protected as long as it doesn't run afoul of the "disruptive speech" standard set out by Fortas.
Justice Alito continued, writing that the school “promotes the view that gender is a fluid construct” and should allow dissenting opinions. “If anything, viewpoint discrimination in the lower grades is more objectionable because young children are more impressionable and thus more susceptible to indoctrination,” he wrote.
The school promoted the many-gender theory on several occasions.
The principal told the student that other students had complained about the T-shirt and that it had “made them upset.” The student declined to remove the shirt, so the principal sent him home for the day.
The father of the student emailed the school district superintendent to say the T-shirt was not directed at any particular student and his son was expressing his views on a topic that was being widely discussed across the country.
The father pointed out that the school has promoted pro-transgender messages and posted a photo on its social media of a student wearing a T-shirt that read, “HE SHE THEY IT’S ALL OKAY.”
As is customary in cases where the high court declines to intervene, the majority did not author a written opinion, so we don't know their reasoning.
But Justice Alito thinks it's time for the Supreme Court to decide the free speech issue in schools once and for all.
“This case makes clear, some lower courts are confused on how to manage the tension between students’ rights and schools’ obligations,” Alito wrote. “Our Nation’s students, teachers, and administrators deserve clarity on this critically important question.”
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