“The U.S. Supreme Court has declined to hear the appeal of a middle school student who was banned from wearing a ‘There Are Only Two Genders’ t-shirt at school,” reports The College Fix. Even though this blog explained why that ban violated the First Amendment, at this link.
As The Fix notes,
Over two years ago, seventh-grade honor student Liam Morrison was prohibited from wearing the shirt based on Nichols Middle School’s speech code.
The code says “clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”
Morrison refused to change his shirt when ordered to do so by school officials, and thus was sent home. He later wore a “There Are CENSORED Genders” shirt which also was banned from school, and which also led to him being sent home from school. As The Fix adds,
Morrison eventually sued the town of Middleborough, the “school committee, superintendent, and principal,” alleging violation of his First Amendment rights.
The suit claimed that under the speech policy, Middleborough Public School officials could “censor expression that they deem inappropriate or that they subjectively determine targets a certain group even if this expression is not materially and substantially disruptive….The 1st U.S. Circuit Court of Appeals upheld a federal judge’s dismissal of Morrison’s suit; the SCOTUS, by refusing to hear the appeal, leaves the 1st Circuit decision intact. The 1st Circuit said in part that while Morrison’s shirt didn’t “target” a specific student, the school is justified in banning such messages if “the expression is reasonably interpreted to demean one of those characteristics of personal identity; and […] the demeaning message is reasonably forecasted to ‘poison the educational atmosphere.’”
Many lawyers disagreed with the 1st Circuit Court of Appeals’ decision. That includes Foundation for Individual Rights and Expression (FIRE) co-founder Harvey Silverglate, who said the censorship of Morrison’s speech was “the simplest of cases” and “a clear violation of [the Supreme Court’s] Tinker” decision issued back in 1969.
“The infection of political correctness is very dangerous in our society,” Silverglate laments. “If we can’t listen to opinions or [tolerate] demonstrations that bother us, we are training our students to be little hot-house flowers. When they graduate, they are going to encounter all kinds of hate speech and ideas they find abhorrent.”
Justices Thomas and Alito dissented from the Supreme Court’s refusal to hear the case. Justice Thomas said that Morrison’s shirt “plainly did not create a ‘material disruption,” and thus could not be banned under the Supreme Court’s Tinker decision, while Justice Alito criticized the 1st Circuit’s decision for having “cherry-pick[ed] which First Amendment principles it thought worthy of allowing through the schoolhouse gates.” Alito added that “absent a ‘specific showing’ of such a [classroom] disruption—like ‘threats or acts of violence on school premises’—this justification for suppressing student speech does not apply.”
Lawyers have also pointed out that in other parts of the country, appeals courts have ruled that kids could wear T-shirts that were more contentious, like a T-shirt that said “Be Happy, Not Gay.”
So the 1st Circuit’s decision creates a split among the courts about what sorts of speech are protected in school.
