US appeals court upholds public school ban of student wearing transgender-critical shirt

The US Court of Appeals for the First Circuit on Sunday upheld a Massachusetts public middle school’s prohibition against one of its students from wearing a shirt with a message critical of transgender ideology. The appeals court found the prohibition to be consistent with the free speech protections of the US Constitution’s First Amendment under Tinker v. Des Moines.

John T. Nichols Middle School (NMS) has a dress code with a preface stating, “clothing … that causes distractions and inhibits learning is not allowed.” The dress code forbids “hate speech” and “imagery that target[s] groups based on … gender identity.” It also forbids “apparel that the administration determines to be unacceptable to our community standards.”

On March 21, 2023, Seventh grader Liam Morrison wore a shirt with the message “[t]here are only two genders” to NMS. The school contacted Morrison’s father and requested him to make Morrison wear more appropriate attire. Morrison’s father refused to comply and Morrison was told he could not attend class unless he stopped wearing the shirt. Morrison attempted to wear the shirt again with the message “censored” taped over the “only two” from the original message, but the school demanded him to remove it and he complied. Morrison through his father sued NMS for the shirt bans and alleged that the dress code is too vague and overbroad, violating the right to free speech protected under the First Amendment.

NMS argued at trial that the shirt ban was consistent with both of Tinker‘s restrictions and that Morrison’s dress code claims lacked standing. Tinker is a case that provided First Amendment protection for public school students to wear black armbands at school to protest US involvement in the Vietnam War. The case provided that constitutional restrictions on students’ speech in public schools are speech that “materially disrupts classwork [and] speech that involves substantial disorder or invasion of the rights of others.”

NMS also contended that Morrison’s shirt violates the rights of LGBT+ students “to feel safe in school and to be free from harassment and bullying while in school” and that the strong self-advocacy of LGBT+ students would materially disrupt classwork. The trial court’s decision supported NMS on the basis that the “rights of others” restriction applied to Morrison and that Morrison’s dress code claims would not likely succeed on the merits. The appeals court affirmed the trial court’s decision, but most notably added their support for the “materially disrupts classwork” restriction and Morrison’s dress code claims lacking standing when applied to the “community standards” rule.

In addition, the appeals court concluded that the appropriate decision-makers in deciding what would make “an environment conducive to learning” at NMS are the educators and not federal judges. Accordingly, the educators are better equipped to decide whether to enforce the dress code as they are the closest to the scene.

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