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Justices Alito and Thomas Dissent from Court's Declining to Hear "There Are Only Two Genders" School T-Shirt Case
From Justice Alito's dissent from the denial of certiorari in L.M. v. Town of Middleborough, joined (with a twist) by Justice Thomas:
This case presents an issue of great importance for our Nation's youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive. In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders. But when L.M., a seventh grader, wore a t-shirt that said "There Are Only Two Genders," he was barred from attending class. And when he protested this censorship by blocking out the words "Only Two" and substituting "CENSORED," the school prohibited that shirt as well.
The First Circuit held that the school did not violate L.M.'s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist. (1969).
The First Circuit's decision calls out for our review….
[T]he First Circuit relied on the … [Tinker principle that the First Amendment allows discipline for student speech that] "materially disrupts classwork or involves substantial disorder." The court acknowledged that L.M.'s shirts—like the black armbands in Tinker—expressed his views "passively, silently, and without mentioning any specific students." But the court saw a material difference between L.M.'s speech and that of the students in Tinker. According to the First Circuit, L.M.'s expression—unlike the speech in Tinker—"demean[ed] characteristics of personal identity, such as race, sex, religion, or sexual orientation" that "other students at the school share." After surveying decisions from other Circuits that have encountered similar situations, the First Circuit fashioned a bespoke two-pronged test to apply in this context:
"[S]chool officials may bar passive and silently expressed messages by students at school that target no specific student if: (1) the expression is reasonably interpreted to demean one of those characteristics of personal identity, given the common understanding that such characteristics are unalterable or otherwise deeply rooted and that demeaning them strike[s] a person at the core of his being; and (2) the demeaning message is reasonably forecasted to poison the educational atmosphere due to its serious negative psychological impact on students with the demeaned characteristic and thereby lead to symptoms of a sick school—symptoms therefore of substantial disruption."
When both prongs are satisfied, the First Circuit explained, a court can be confident "that speech is being barred only for reasons Tinker permits and not merely because it is 'offensive' in the way that a controversial opinion always may be."
Applying this standard to the facts at hand, the First Circuit resolved both prongs in favor of the School. Specifically, it determined (1) that NMS reasonably interpreted L.M.'s shirts as asserting that anyone who identifies as anything other than male or female is "'invalid or nonexistent,'" which would "demean the identity of transgender and gender-nonconforming NMS students"; and (2) such an affront on the very "existence" of these students would "'materially disrupt [their] ability to focus on learning.'"In making the latter determination, the court deferred to the School's prior experiences with the "'LGBTQ+ population at NMS,'" particularly "the serious nature of the struggles, including suicidal ideation, that some of those students had experienced." Given the "'vulnerability'" of these students, the court saw no reason to second guess NMS's prediction that the shirts "would so negatively affect the[ir] psychology" that their academic performance and class attendance would decline.
Finally, the First Circuit sidestepped L.M.'s viewpoint-discrimination arguments. Rather than fully engage with those arguments on the merits, the court, in a footnote, declined to import this Court's broader viewpoint-discrimination jurisprudence into the school context….
I would grant the petition for two reasons.
First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech. Tinker itself made that clear…. ("Clearly, the prohibition of expression of one particular opinion … is not constitutionally permissible"). Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates. By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.
Second, we should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption. We have described this standard as "demanding." But the First Circuit fashioned a rule that is anything but. The lower courts are divided on how to apply Tinker's "material disruption" standard in a context like this one, and the decision below underscores the pressing need for clarification. {See, e.g., Zamecnik v. Indian Prairie School Dist. No. 204 (CA7 2011) (upholding a student's right to wear a shirt that read, "Be Happy, Not Gay"); Nuxoll v. Indian Prairie School Dist. No. 204 (CA7 2008) (same); Sypniewski v. Warren Hills Regional Bd. of Educ. (CA3 2002) (upholding a student's right to wear a shirt "inscribed with 'redneck' jokes"); see also Harper ex rel. Harper v. Poway Unified School Dist. (CA9 2006) (upholding a school's ban of a shirt that read, "Homosexuality Is Shameful"), vacated as moot (2007); Parents Defending Education v. Olentangy Local School Dist. Bd. of Educ. (CA6) (holding that a school could satisfy Tinker's material-disruption standard by relying on "common-sense conclusions based on human experience" to punish students for the "dehumanizing and humiliating effects of non-preferred pronouns"), reh'g en banc granted (CA6 2024)….
[A.] "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Otherwise, the government could purge entire topics from the public discourse. And as our cases recognize, these freedom-of-speech harms become "all the more blatant" when the government "targets not subject matter, but particular views taken by speakers on a subject."
Nor is there a carveout from this principle for controversial, offensive, or disfavored views. For example, we recently held unconstitutional a statute prohibiting the registration of "immoral or scandalous" trademarks, explaining that "a law disfavoring 'ideas that offend'" is "the 'essence of viewpoint discrimination.'" Indeed, the presumption against viewpoint discrimination is of such importance to our constitutional order that we have even applied it to categories of speech—like fighting words—that do not enjoy full First Amendment protection. So, for example, Congress could ban all fighting words, but it could not ban only those fighting words directed toward Protestants.
Unsurprisingly, the viewpoint-neutrality rule also applies to student speech. Students do not relinquish their First Amendment rights at school, and by extension, a school cannot censor a student's speech merely because it is controversial. As Tinker itself made clear, the viewpoint-neutrality rule plays an important role in safeguarding students' First Amendment right to express an "unpopular viewpoint" at school. There, in holding unconstitutional the decision to prohibit students from wearing black armbands to protest the Vietnam War, we emphasized that the school authorities "did not purport to prohibit the wearing of all symbols of political or controversial significance." "[S]tudents in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism." The schools allowed this speech but not the armbands. We concluded that such viewpoint discrimination "is not constitutionally permissible." …
[T]he First Circuit … [stated] in a footnote …: "We see no reason to take up L.M.'s invitation to be, as far as we can tell, the first court to import recent decisions that clearly did not contemplate the special characteristics of the public-school setting into that setting." The court below erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle proclaimed only in "recent decisions" …. To the contrary, viewpoint neutrality has long been seen as going to "the very heart of the First Amendment." B
[B.] The First Circuit also watered down the test adopted in Tinker for determining whether a school's restriction of student speech is allowed. Because free speech is the default and censorship the exception, Tinker set forth a "demanding standard." We held that a school can restrict speech when it has "evidence" that such restrictions are "necessary" to "avoid material and substantial interference with schoolwork or discipline." Thus, absent a "specific showing" of such a disruption—like "threats or acts of violence on school premises"—this justification for suppressing student speech does not apply.
Under this standard, NMS had no right to censor L.M. Like the black armbands in Tinker, L.M.'s shirts were a "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitione[r]." 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. True, NMS also forecasted that L.M.'s shirts could lead to a "standoff " between students who support L.M.'s view and those who oppose it. 103 F. 4th, at 880. But the schools in Tinker were similarly worried that students "would wear arm bands of other colors" and that this could "evolve into something which would be difficult to control." 393 U. S., at 509, n. 3 (internal quotation marks omitted). If anything, the risk in Tinker was far less speculative than in this case. In Tinker, several students had already "made hostile remarks to the children wearing armbands," and a math teacher "had his lesson period practically 'wrecked' chiefly by disputes with Mary Beth Tinker" over her armband. Even so, Tinker deemed the schools' concern an "undifferentiated fear" that could not "overcome the right to freedom of expression."
Instead of applying Tinker's speech-protective standards, the court below crafted a novel and permissive test that distorts the "material disruption" rule beyond recognition. The First Circuit identified a special category of speech, i.e., speech that can be interpreted as demeaning a deeply rooted characteristic of personal identity. And if student speech, as interpreted by the school, falls into this category, the school may ban that speech if the school "reasonably forecast[s]" that it may have a "serious negative psychological impact on students with the demeaned characteristic."
This rule cannot be squared with Tinker. The black armbands in that case also involved an emotionally charged topic, and the students in the Des Moines public schools were not somehow immune from those intense feelings. Justice Black made precisely this point in his dissent, writing: "Of course students … cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and neighbors." … "[T]he armbands … took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war" …. Indeed, a "former student of one of [the] high schools was killed in Viet Nam," and "[s]ome of his friends [were] still in school." The Tinker Court nevertheless held that this stress and these distractions did not trump the students' constitutional rights.
The First Circuit's test dilutes Tinker in other ways too. To name just a few, it defines "material disruption" to include anything that correlates with "a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school," whatever that means. That is a highly permissive standard, and it certainly requires far less than that which Tinker suggested would constitute a "material disruption." See Tinker ("aggressive, disruptive action"); ibid. ("threats or acts of violence on school premises"); ibid. ("group demonstrations").
Further, the First Circuit's test demands that a federal court abdicate its responsibility to safeguard students' First Amendment rights and instead defer to school officials' assessment of the meaning and effect of speech. The court below, for example, deferred to the School administrators' determination that L.M.'s shirts conveyed a message that demeaned others' personal identity. That court also deferred to the administrators' speculation about the likely effects of the t-shirts on students—even though L.M.'s speech resulted in no actual disruptions, and even though NMS "was not aware of any prior incidents or problems caused by th[e] [shirts'] message[s]." That approach defies Tinker, in which we performed our own "independent examination of the record" without trusting school administrators' self-serving observations.
Tinker's "material disruption" standard is demanding by design. That is because free speech is the rule, not the exception. The First Circuit's test flips that principle on its head….
Justice Thomas noted that he had called for Tinker to be overruled, and for the Court to conclude that public schools have essentially plenary authority to restrict students' speech. But he joined Justice Alito's opinion on the grounds that, "unless and until this Court revisits it, Tinker is binding precedent that lower courts must faithfully apply." [UPDATE: I originally wrote Justice Black in the first sentence of this opinion, but of course this was Justice Thomas, who has long defended Justice Black's position in Tinker. In general, Justice Thomas's constitutional jurisprudence has in many ways echoed Justice Black's, just as Justice Breyer's had echoed Justice Frankfurter's.]
