The First Amendment has long been understood to protect messages on kids’ T-shirts in school, as long as they weren’t vulgar or likely to cause a disruption. For example, a federal appeals court ruled that a kid had the right to wear a T-shirt saying, “Be Happy, Not Gay.” But that was back in 2008, a less woke time, when judges were not as eager to sacrifice free speech rights at the altar of political correctness.
Today, in L.M. v. Town of Middleborough, a federal judge in Massachusetts has ruled that a school can ban a student from wearing a T-shirt that says “there are only two genders.” Supposedly, this is because if the T-shirt is allowed, there is the risk that a “group of potentially vulnerable students will not feel safe.”
This decision is wrong. The T-shirt saying “there are only two genders” is milder and more non-threatening than the “Be Happy, Not Gay” T-shirt found to be protected by the First Amendment in Nuxoll v. Indian Prairie School District, 523 F.3d 668 (7th Cir. 2008). It also less insulting than wearing a button calling your non-union teacher a “scab,” which a federal appeals court ruled was protected in Chandler v. McMinnville School District (1992). One could try to label the T-shirt as “harassment,” but that would be untenable — it obviously comes nowhere near creating a hostile environment, and a viewpoint-based “harassment” code for T-shirts was struck down as a violation of the First Amendment in Pyle v. South Hadley School Committee, 861 F.Supp. 157, 170-74 (D. Mass. 1994). As Judge Rovner observed in her concurring opinion in Nuxoll v. Indian Prairie School District, a “Be Happy, Not Gay” T-shirt “won’t by itself…create a hostile environment.”
But times have changed, and Massachusetts is one of America’s politically correct states. This decision was issued by a progressive judge appointed by President Obama. If this decision is appealed, it is conceivable that it could be upheld by the progressive-leaning First Circuit Court of Appeals, which has allowed student speech to be restricted in the name of anti-bullying even when it would obviously be protected in society at large. One lawyer guessed that there is a one-in-three chance the First Circuit would uphold this decision. On the other hand, even this decision recognizes that “the School’s rational [sic] for prohibiting the Shirt is not that LM is bullying a specific student.” So this censorship can’t be justified by an anti-bullying rationale.
UCLA Law Professor Eugene Volokh, whose writings on the First Amendment have been cited by the Supreme Court, criticized the decision in L.M. v. Town of Middleborough, saying, “I don’t think this is consistent with students’ First Amendment rights under Tinker v. Des Moines Indep. School Dist. (1969).”
The judge suggested that the T-shirt interfered with other students’ “right to attend school without being confronted by messages attacking their identities.” But other courts have refused to recognize a right to attend school without being confronted by messages attacking one’s identity, when the messages don’t disrupt school, and don’t involve “independently tortious speech like libel, slander or intentional infliction of emotional distress.” See Saxe v. State College Area School District, 240 F.3d 200, 217 (3d Cir. 2001).
Here is an excerpt from the court’s decision:
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.'”).
