Justices allow Middleborough school to bar student from wearing ‘Only Two Genders' shirt
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'The dissent both illuminates and underscores a significant divide among the six Republican-appointed justices,' he said, 'with Alito and Thomas comfortable voicing positions that the other four would prefer to avoid.'
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The case involved a student identified in court papers as L.M. who tried to wear the shirt at Nichols Middle School in Middleborough in 2023. When students and a teacher complained, the principal told the student that he could not return to class unless he changed clothes. He refused and was sent home.
Later, the student came to school wearing a T-shirt that this time said 'There Are CENSORED Genders.' He was told that was not permitted, either. Rather than missing more school, he changed clothes.
His parents sued, saying the school's policy violated the First Amendment. They relied on a landmark 1969 Supreme Court decision, Tinker v. Des Moines Independent Community School District, which held that public school students have First Amendment rights. In that case, students sought to wear black armbands to protest the Vietnam War.
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Justice Abe Fortas, writing for the majority, said students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' But he added that disruptive speech could be punished.
In the Massachusetts case, a federal trial judge ruled for the school, saying the student's shirts had invaded the rights of other students. The US Court of Appeals for the 1st Circuit, in Boston, affirmed that ruling.
Judge David J. Barron, writing for a unanimous three-judge panel, said the school could ban messages that demean other students' deeply rooted characteristics in a way that poisons the educational atmosphere.
Alito wrote that the 1st Circuit's approach was at odds with Tinker and violated the First Amendment's prohibition of viewpoint discrimination by the government.
'Like the black armbands in Tinker, L.M.'s shirts were a 'silent, passive expression of opinion, unaccompanied by any disorder or disturbance,'' he wrote, quoting from the decision. 'And just as in Tinker, some of L.M.'s classmates found his speech upsetting. 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 added that the Massachusetts school 'promotes the view that gender is a fluid construct' and should allow other perspectives. 'If anything, viewpoint discrimination in the lower grades is more objectionable because young children are more impressionable and thus more susceptible to indoctrination,' he wrote.
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The court will soon decide a case on a related question: whether public schools in Maryland must allow parents with religious objections to withdraw their children from classes in which storybooks with LGBTQ+ themes are discussed.
Driver said 'Justice Alito's emphasizing the dangers of 'indoctrination' of younger students could well preview a theme' in the Maryland case.
In addition to joining Alito's dissent, Thomas, long a skeptic of minors' First Amendment rights, wrote separately to say he believed that Tinker should be overruled. 'But, unless and until this court revisits it, Tinker is binding precedent that lower courts must faithfully apply,' he wrote.
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