Yesterday the Supreme Court denied a cert petition in L.M. v. Town of Middleborough, in which the First Circuit upheld the prohibition of a student from wearing a t-shirt with a message that disagreed with school officials’ embrace of gender ideology. Justice Samuel Alito published a dissent, joined by Justice Clarence Thomas, that took issue with the school’s viewpoint discrimination. “Inside and outside the classroom,” Alito explained, the school promoted “the view that gender is a fluid construct and that a person’s self-defined identity—not biological sex—determines whether that person is male, female, or something else.” The school encouraged students to express that viewpoint and even had its own “PRIDE Spirit Week” during which students were invited to wear “Pride gear.”

A seventh grader who disagreed was prohibited from wearing a t-shirt that said, “There Are Only Two Genders.” And after the student blocked out the words “Only Two” and replaced them with “CENSORED,” the school prohibited that shirt as well. The First Circuit tried to work around the Supreme Court’s landmark decision striking down a school’s ban on students wearing black armbands to protest the Vietnam War in Tinker v. Des Moines Independent Community School District (1969), maintaining that the expression was a “demeaning message . . . reasonably forecasted to ‘poison the educational atmosphere.’”

Alito asserted that the lower court “sidestepped” arguments concerning “the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech,” which “we should reaffirm.” The First Circuit’s decision “robs a great many students of that core First Amendment protection.”

There was additionally the question of how to construe Tinker’s standard accommodating speech suppression based on the risk of “material disruption.” That requires satisfaction of a “demanding” standard according to recent Supreme Court precedent. After all, Alito pointed out, “free speech is the default and censorship the exception.” Like the black armbands involved in Tinker, the student protest in this case entailed a “silent, passive expression of opinion” on “an emotionally charged topic,” and the First Circuit ignored “Tinker’s speech-protective standards” in favor of “a novel and permissive test that distorts the ‘material disruption’ rule beyond recognition.” Lower courts have been divided on how to apply the rule, “underscor[ing] the pressing need for clarification.”

In addition to joining Justice Alito, Justice Thomas wrote in his own dissenting opinion that the First Circuit’s decision “distorted this Court’s First Amendment case law in significant ways that warrant this Court’s review” and that “until this Court revisits it, Tinker is binding precedent that lower courts must faithfully apply.”

The silver lining in the Court’s denial is that another free speech claim involving Tinker and gender ideology is being considered by the Sixth Circuit en banc in Parents Defending Education v. Olentangy Local School District Board of Education. I previously discussed that case here.