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
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
