Over the sharp dissent of two justices, the U.S. Supreme Court on Tuesday declined to hear the case of a student who was barred by his Massachusetts middle school from wearing a T-shirt with the message, “There Are Only Two Genders.”
The court’s refusal to take up the issue offers schools no additional clarity for now on student speech that many school administrators perceive as harmful to LGBTQ+ students or other vulnerable populations.
Justice Samuel A. Alito Jr., in a dissent from the denial of review that was joined by Justice Clarence Thomas, said, “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.”
The case of L.M. v. Town of Middleborough involves Liam Morrison, who was a 7th grader at Nichols Middle School in April 2023 when he wore the “Two Genders” shirt—a message he and his father viewed not as targeting any group, but as a comment on the debate over gender identity, according to court papers.
School administrators, citing concerns for several transgender or gender nonconforming students at the school, invoked a provision of the student dress code that barred “hate speech or imagery that target[s] groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”
Morrison was not disciplined, but his father came to school to take him home when he refused to remove the T-shirt. Later, the father told administrators that the shirt merely stated his son’s view “on a subject that has become a political hot topic.” The student was later barred from wearing the shirt with the words “Only Two” covered with a piece of tape with the word “Censored” written with a marker.
A concern for transgender and gender nonconforming students
Morrison and his parents sued under the First Amendment. A federal district judge ruled for the school system, analyzing the case under the U.S. Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District, which upheld the right of students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.
The district judge cited Tinker’s language allowing schools to restrict student speech that would invade “the rights of others.” The U.S. Court of Appeals for the 1st Circuit, in Boston, last June affirmed the ruling in favor of administrators but grounded its decision in Tinker’s “substantial disruption” test.
School administrators were not unreasonable in concluding that Morrison’s shirt “would be understood—in this middle school setting in which the children range from 10-to-14 years old—to demean the identity of transgender and gender-nonconforming NMS students,” the appeals court said.
The Morrisons appealed to the Supreme Court with the aid of Alliance Defending Freedom, the conservative legal group that is battling school policies supportive of transgender students. The appeal drew the support of several friend-of-the-court briefs from 18 Republican-led states, other conservative groups, and one free-speech advocacy group.
In a brief urging the court not to take up the case, the Middleborough district argued that Morrison’s lawyers failed “to meaningfully grapple with the evidence” that the 1st Circuit relied on or that motivated school administrators.
“School administrators attested to the young age of [Nichols Middle School] students, the severe mental health struggles of transgender and gender-nonconforming students (including suicidal ideation), and the then-interim principal’s experience working with gender-nonconforming students who had been bullied in other districts and had harmed themselves or were hospitalized due to contemplated, or attempted, suicide,” the district’s brief said.
Concern about how lower courts are applying speech precedents
Alito, in his 14-page dissent on May 27, said he would grant review of the case for two reasons.
First, to “reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech,” Alito said, adding that “a school cannot censor a student’s speech merely because it is controversial.”
Second, Alito said, the court should clarify Tinker’s material-disruption standard because lower courts are divided on how to apply it “in a context like this one.” He added a footnote citing student speech cases going back more than 20 years in which federal appeals courts have reached conflicting conclusions on such T-shirts as “Be Happy, Not Gay” (permitted) and “Homosexuality Is Shameful” (prohibited).
Like the black armbands in Tinker, Morrison’s shirts were a “silent, passive expression of opinion,” unaccompanied by any disruption caused by the student, Alito said.
“And just as in Tinker, some of [Morrison’s] classmates found his speech upsetting,” Alito said. “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.”
Alito also addressed a point made by the 1st Circuit and the school district that a middle school setting with students as young as 10 gave administrators greater leeway in regulating student speech.
He noted that Mary Beth Tinker was a 13-year-old junior high school student who had joined her brother John and other high school students in donning the black armbands that were upheld in the Supreme Court’s Tinker decision.
“If a school sees fit to instruct students of a certain age on a social issue like LGBTQ+ rights or gender identity, then the school must tolerate dissenting student speech on those issues,” Alito said. “If anything, viewpoint discrimination in the lower grades is more objectionable because young children are more impressionable and thus more susceptible to indoctrination.”
Thomas signed Alito’s dissent and issued his own short dissent, repeating his call for the court to “dispense with” Tinker because, as he first put it in a 2007 concurrence, it is “without basis in the Constitution.”
Thomas was the lone dissenter in 2021 when the court overruled the discipline of a high school cheerleader for her vulgar criticism of the school on social media. And in a 2007 concurrence when the court upheld a school’s discipline of a student for displaying a “Bong Hits 4 Jesus” banner, Thomas first issued his call to reconsider Tinker and celebrated earlier eras of American education when “Teachers commanded, and students obeyed.”
“In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools,” Thomas wrote in Morse v. Frederick.
In his separate dissent on Tuesday, Thomas said Tinker was still binding precedent that lower courts must “faithfully apply,” and because he believed the 1st Circuit had failed to do so, he was joining Alito’s dissent.
