The Volokh Conspiracy

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Free Speech

Court: Public School Likely May Ban Student from Wearing "There Are Only Two Genders" T-Shirt,

notwithstanding the First Amendment.


From L.M. v. Town of Middleborough, decided today by Judge Indira Talwani (D. Mass.):

Plaintiff … is unable to counter Defendants' showing that enforcement of the Dress Code was undertaken to protect the invasion of the rights of other students to a safe and secure educational environment. School administrators were well within their discretion to conclude that the statement "THERE ARE ONLY TWO GENDERS" may communicate that only two gender identities—male and female—are valid, and any others are invalid or nonexistent, and to conclude that students who identify differently, whether they do so openly or not, have a right to attend school without being confronted by messages attacking their identities. As Tinker explained, schools can prohibit speech that is in "collision with the rights of others to be secure and be let alone."

Plaintiff contends that … Defendants could not restrict the Shirt as an "invasion of the rights of others" unless it determined that the speech "targeted a specific student" (quoting Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist. (1st Cir. 2020)). Norris, however, did not attempt to set a rule for all speech that is an "invasion[] of the rights of others" or even "the precise boundaries of what speech constitutes 'bullying' such that it falls within the 'invasion of the rights of others' framework of Tinker." Instead, Norris concluded that where the school had justified the limitation on the student's statement that "THERE IS A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS" on the ground that the student had engaged in "bullying" under the school's policy, the school was required to demonstrate that it had a reasonable basis to determine that the speech targeted a specific student and invaded that student's rights.

Here, the School's rational for prohibiting the Shirt is not that LM is bullying a specific student, but that a group of potentially vulnerable students will not feel safe. A broader view directed at students' safety has been acknowledged by other courts. See, e.g., West v. Derby Unified Sch. Dist. No. 260 (10th Cir. 2000) (holding the display of the confederate flag may interfere with the rights of others to be secure); Chandler v. McMinnville Sch. Dist. (9th Cir. 1992) (recognizing that school officials may suppress speech that is vulgar, lewd, obscene, or plainly offensive as "such language, by definition, may well 'impinge upon the rights of other[s].'"); Scott v. School Bd. of Alchua Cty. (11th Cir. 2003) (recognizing that a students' rights cannot interfere "with a school administrator's professional observation that certain expressions have led to, and therefore could lead to, an unhealthy and potentially unsafe learning environment for the children they serve."); see also Doe v. Hopkinton Pub. Schs. (1st Cir. 2021) ("Tinker holds that schools have a special interest in regulating speech that involves the 'invasion of the rights of others.'").

I don't think this is consistent with students' First Amendment rights under Tinker v. Des Moines Indep. School Dist. (1969) [UPDATE: see this post by Hans Bader (Liberty Unyielding)], but in any event it struck me as important to pass along. It's a vivid illustration of how discussion about gender matters is being restricted, including discussion of mainstream positions, and indeed of positions that need to be aired if there's going to be real debate rather than just government fiat. And it's a reminder of how easily "hate speech" arguments and similar arguments broaden, once a precedent is set, for instance from the Confederate flag to "there are only two genders."

Deborah Ecker (KP Law, P.C.), Garrett Gee, John Simon & Kay Hodge (Stoneham, Chandler & Miller), and Gregg Corbo represent defendants.