Supreme Court will not hear student speech case over t-shirt promoting only "two genders"

The Supreme Court has declined to take up an appeal involving student speech relating to the the culture wars of the Trump-era, relating to LGBTQ and gender identity. Strong dissents from Justices Thomas and Alito.

The case is L.M. v. Town of Middleborough, dated May 27. The middle school student in this case wore a shirt to school stating there are only two genders. The school made him change his clothing on the basis that the shirt was offensive to members of the LGBTQ population at the school and might disrupt the educational environment. Plaintiff argued this was viewpoint discrimination in violation of the First Amendment, as other students routinely expressed contrary opinions during school hours.

Normally, viewpoint discrimination is struck down in the federal courts., even in limited public forums. But the First Circuit said in this case that the seminal student speech precedent, Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), does not recognize that viewpoint discrimination in the educational context violates the First Amendment. That ends the case. 

Tinker is a famous precedent, one of the high points of the Warren Court, which held that students were allowed to wear black armbands to protest the Vietnam War. I had a law school classmate who went to school in Des Moines  and he emphasized in one of our constitutional law classes that, in Iowa during the 1960's, protesting the war in this manner was socially unacceptable. He could not emphasize this point strongly enough. All hell probably broke loose when the students in Tinker wore those armbands. Anti-war activism may have been fashionable in New York City or San Francisco back then, but Iowa was not New York City or San Francisco. The decision in Tinker was written by Justice Fortas, one of the great defenders of civil liberties who eventually resigned from the Court over financial conflict-of-interest allegations. Those were the days when allegations like that could ruin your career in public office.

Justice Alito objects, arguing that language in Tinker does in fact hold that the First Amendment does not tolerate viewpoint discrimination in the grade school setting, and that the two-part test that the First Circuit formulated in resolving cases like this -- which takes into account whether the speech would demean "characteristics of personal identity" and potentially "poison the educational atmosphere" -- finds no place in the Supreme Court's jurisprudence. Alito writes that the Court should take up this case, for these reasons:

First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech.  Tinker itself made that clear. See 393 U.S. at 511 (“Clearly, the prohibition of expression of one particular opinion . . . is not constitutionally permissible”). Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates. By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we  should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption. We have described this standard as “demanding.” But the First Circuit fashioned a rule that is anything but. The lower courts are divided on how to apply Tinker’s “material disruption” standard in a context like this one,1 and the decision below underscores the pressing need for clarification.

Justice Thomas signs onto Alito's dissent from the denial of certiorari, But Thomas also reminds the reader that he has previously said that Tinker was wrongfully decided and the First Amendment does not recognize that grade-school students have any free speech rights at all. So far, no one else on the Supreme Court has agreed with this proposition.