US district court MA judge refuses to grant injunction over "two gender" shirt ban.

[lfromnj]

https://reason.com/volokh/2023/06/16/court-public-school-likely-may-ban-student-from-wearing-there-are-only-two-genders-t-shirt/

Plaintiff … is unable to counter Defendants' showing that enforcement of the Dress Code was undertaken to protect the invasion of the rights of other students to a safe and secure educational environment. School administrators were well within their discretion to conclude that the statement "THERE ARE ONLY TWO GENDERS" may communicate that only two gender identities—male and female—are valid, and any others are invalid or nonexistent,3 and to conclude that students who identify differently, whether they do so openly or not, have a right to attend school without being confronted by messages attacking their identities. As Tinker explained, schools can prohibit speech that is in "collision with the rights of others to be secure and be let alone."

[President Punxsutawney Phil]

So is this good news or bad news?

[lfromnj]

So is this good news or bad news?

It means the school can currently still ban the two gender shirt.

[I spent the winter writing songs about getting better]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

[Ferguson97]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

Should a school be able to ban a shirt that says "the white race is superior"?

I'm just trying to understand where we draw the line on political statements.

[I spent the winter writing songs about getting better]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

Should a school be able to ban a shirt that says "the white race is superior"?

I'm just trying to understand where we draw the line on political statements.

The equivalent to that would be a shirt saying "men are superior" or "women are superior".

[lfromnj]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

A conservative school ban would probably be something like banning a shirt that says "god isn't real"

[Ferguson97]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

Should a school be able to ban a shirt that says "the white race is superior"?

I'm just trying to understand where we draw the line on political statements.

The equivalent to that would be a shirt saying "men are superior" or "women are superior".

How do you determine "equivalency" in this context?

[Torie]

I would ban all message shirts in secondary public schools, or better yet require uniforms. Absent that one is left with what messages are unacceptably disruptive to the educational mission, and what are not. I don't trust school bureaucrats to decide that. I don't trust myself to decide that. Ban them all. The 1st Amendment is truncated when it comes to minors in public schools while on campus. Thank heavens. Can you imagine what this site would be like if the 1st Amendment obtained?

[I spent the winter writing songs about getting better]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

Should a school be able to ban a shirt that says "the white race is superior"?

I'm just trying to understand where we draw the line on political statements.

The equivalent to that would be a shirt saying "men are superior" or "women are superior".

How do you determine "equivalency" in this context?

Your example is an expression of supremacy. My examples do not.

[Ferguson97]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

Should a school be able to ban a shirt that says "the white race is superior"?

I'm just trying to understand where we draw the line on political statements.

The equivalent to that would be a shirt saying "men are superior" or "women are superior".

How do you determine "equivalency" in this context?

Your example is an expression of supremacy. My examples do not.

Either you can ban clothing with political messaging in schools, or you can't.

What is the legal difference between a shirt that says, "The white race is superior" and shirt that says "there are two genders"?

[I spent the winter writing songs about getting better]

Stupid decision. The school shouldn't be allowed to ban this shirt and a school in a conservative district shouldn't be able to ban a shirt proclaiming that there are *insert high number* genders.

Should a school be able to ban a shirt that says "the white race is superior"?

I'm just trying to understand where we draw the line on political statements.

The equivalent to that would be a shirt saying "men are superior" or "women are superior".

How do you determine "equivalency" in this context?

Your example is an expression of supremacy. My examples do not.

Either you can ban clothing with political messaging in schools, or you can't.

What is the legal difference between a shirt that says, "The white race is superior" and shirt that says "there are two genders"?

No, such a ban would also cover a Joe Biden shirt. There's a difference between political messaging and hate speech.

[Ferguson97]

There's a difference between political messaging and hate speech.

The Supreme Court disagrees with you.

[I spent the winter writing songs about getting better]

There's a difference between political messaging and hate speech.

The Supreme Court disagrees with you.

What case?

So you're saying wearing the shirt you mentioned and wearing a Joe Biden shirt would be the same thing and either both would have to be prohibited or neither?

[Ferguson97]

There's a difference between political messaging and hate speech.

The Supreme Court disagrees with you.

What case?

So you're saying wearing the shirt you mentioned and wearing a Joe Biden shirt would be the same thing and either both would have to be prohibited or neither?

Matal v. Tam
Tinker v. Des Moines

There is no Supreme Court case that says there is a hate speech exception to the First Amendment.

[Donerail]

Matal v. Tam was a case about trademarks, not school speech. Schools have much broader leeway than other government actors, Tinker notwithstanding, to regulate speech where it might be disruptive to the classroom. So to answer this:

Either you can ban clothing with political messaging in schools, or you can't.

What is the legal difference between a shirt that says, "The white race is superior" and shirt that says "there are two genders"?

If one disrupts the school environment and the other does not, the disruptive shirt may be forbidden while the other is permitted. There is no "hate speech" exception, but in the school context, there is a "speech that is inconsistent with [the school's] 'basic educational mission'" exception under Hazelwood and Fraser.

[Ferguson97]

Matal v. Tam was a case about trademarks, not school speech. Schools have much broader leeway than other government actors, Tinker notwithstanding, to regulate speech where it might be disruptive to the classroom. So to answer this:

Either you can ban clothing with political messaging in schools, or you can't.

What is the legal difference between a shirt that says, "The white race is superior" and shirt that says "there are two genders"?

If one disrupts the school environment and the other does not, the disruptive shirt may be forbidden while the other is permitted. There is no "hate speech" exception, but in the school context, there is a "speech that is inconsistent with [the school's] 'basic educational mission'" exception under Hazelwood and Fraser.

Whether or not something disrupts the school environment is entirely subjective. A "Make America Great Again" shirt is going to get a very different reaction at a public school in rural West Virginia vs a public school in Philadelphia.

[Brother Jonathan]

Matal v. Tam was a case about trademarks, not school speech. Schools have much broader leeway than other government actors, Tinker notwithstanding, to regulate speech where it might be disruptive to the classroom. So to answer this:

Either you can ban clothing with political messaging in schools, or you can't.

What is the legal difference between a shirt that says, "The white race is superior" and shirt that says "there are two genders"?

If one disrupts the school environment and the other does not, the disruptive shirt may be forbidden while the other is permitted. There is no "hate speech" exception, but in the school context, there is a "speech that is inconsistent with [the school's] 'basic educational mission'" exception under Hazelwood and Fraser.

Whether or not something disrupts the school environment is entirely subjective. A "Make America Great Again" shirt is going to get a very different reaction at a public school in rural West Virginia vs a public school in Philadelphia.

Well, it's not totally subjective from the administrative point of view; presumably student response to a political message, without regard to what the message itself is by the administration, is at least theoretically possible. But of course I think, as you are suggesting and seems to have happened here (inferring from the reasoning the Court uses), most of these decisions are taken before any such disruptions occur on the presumption that they will, but it seems that has generally been considered permissible, and could still probably be made on the basis of likely student reaction alone, where something like a "reasonable person" standard could apply—i.e. they know that a Trump shirt is likely to create disruption so they ask the student to wear something over it, not considering the content but only the likely response. I take the point, drawn from Matal v. Tam that there could be a sense of viewpoint discrimination here (if, for example, a Trump shirt is prohibited but a Biden shirt is not), but as noted before I think the Courts might be willing to permit it in public schools simply because their primary goal is education; they have been pretty favorable to schools since Tinker. In such a case the argument could be made that the decision is subjective in responding to subjective student opinions (which I think is problematic), but it could still be regarded as a fairly objective consideration of the shirt's possible impact in light of the subjective opinions of students.

I feel like at that point though we could see a bit of a pushback on the argument that then the school is going too far in suppressing speech and then we could see more reasoning as we have seen with cases dealing with school libraries in the past, where the Courts have been much deferential to schools from what I recall.

[Ferguson97]

Matal v. Tam was a case about trademarks, not school speech. Schools have much broader leeway than other government actors, Tinker notwithstanding, to regulate speech where it might be disruptive to the classroom. So to answer this:

Either you can ban clothing with political messaging in schools, or you can't.

What is the legal difference between a shirt that says, "The white race is superior" and shirt that says "there are two genders"?

If one disrupts the school environment and the other does not, the disruptive shirt may be forbidden while the other is permitted. There is no "hate speech" exception, but in the school context, there is a "speech that is inconsistent with [the school's] 'basic educational mission'" exception under Hazelwood and Fraser.

Whether or not something disrupts the school environment is entirely subjective. A "Make America Great Again" shirt is going to get a very different reaction at a public school in rural West Virginia vs a public school in Philadelphia.

Well, it's not totally subjective from the administrative point of view; presumably student response to a political message, without regard to what the message itself is by the administration, is at least theoretically possible. But of course I think, as you are suggesting and seems to have happened here (inferring from the reasoning the Court uses), most of these decisions are taken before any such disruptions occur on the presumption that they will, but it seems that has generally been considered permissible, and could still probably be made on the basis of likely student reaction alone, where something like a "reasonable person" standard could apply—i.e. they know that a Trump shirt is likely to create disruption so they ask the student to wear something over it, not considering the content but only the likely response. I take the point, drawn from Matal v. Tam that there could be a sense of viewpoint discrimination here (if, for example, a Trump shirt is prohibited but a Biden shirt is not), but as noted before I think the Courts might be willing to permit it in public schools simply because their primary goal is education; they have been pretty favorable to schools since Tinker. In such a case the argument could be made that the decision is subjective in responding to subjective student opinions (which I think is problematic), but it could still be regarded as a fairly objective consideration of the shirt's possible impact in light of the subjective opinions of students.

I feel like at that point though we could see a bit of a pushback on the argument that then the school is going too far in suppressing speech and then we could see more reasoning as we have seen with cases dealing with school libraries in the past, where the Courts have been much deferential to schools from what I recall.

I just have a hard time wrapping my mind around the legal argument that a student's free speech rights depend on what their individual school district decides. That seems like it could violate the equal protection clause.

[Brother Jonathan]

Matal v. Tam was a case about trademarks, not school speech. Schools have much broader leeway than other government actors, Tinker notwithstanding, to regulate speech where it might be disruptive to the classroom. So to answer this:

Either you can ban clothing with political messaging in schools, or you can't.

What is the legal difference between a shirt that says, "The white race is superior" and shirt that says "there are two genders"?

If one disrupts the school environment and the other does not, the disruptive shirt may be forbidden while the other is permitted. There is no "hate speech" exception, but in the school context, there is a "speech that is inconsistent with [the school's] 'basic educational mission'" exception under Hazelwood and Fraser.

Whether or not something disrupts the school environment is entirely subjective. A "Make America Great Again" shirt is going to get a very different reaction at a public school in rural West Virginia vs a public school in Philadelphia.

Well, it's not totally subjective from the administrative point of view; presumably student response to a political message, without regard to what the message itself is by the administration, is at least theoretically possible. But of course I think, as you are suggesting and seems to have happened here (inferring from the reasoning the Court uses), most of these decisions are taken before any such disruptions occur on the presumption that they will, but it seems that has generally been considered permissible, and could still probably be made on the basis of likely student reaction alone, where something like a "reasonable person" standard could apply—i.e. they know that a Trump shirt is likely to create disruption so they ask the student to wear something over it, not considering the content but only the likely response. I take the point, drawn from Matal v. Tam that there could be a sense of viewpoint discrimination here (if, for example, a Trump shirt is prohibited but a Biden shirt is not), but as noted before I think the Courts might be willing to permit it in public schools simply because their primary goal is education; they have been pretty favorable to schools since Tinker. In such a case the argument could be made that the decision is subjective in responding to subjective student opinions (which I think is problematic), but it could still be regarded as a fairly objective consideration of the shirt's possible impact in light of the subjective opinions of students.

I feel like at that point though we could see a bit of a pushback on the argument that then the school is going too far in suppressing speech and then we could see more reasoning as we have seen with cases dealing with school libraries in the past, where the Courts have been much deferential to schools from what I recall.

I just have a hard time wrapping my mind around the legal argument that a student's free speech rights depend on what their individual school district decides. That seems like it could violate the equal protection clause.

I think that's understandable, it does seem like there might be some obvious issues if districts are only banning one set of political shirts while allowing others since only one generates disruption, which is basically what prompted Tinker in the first place, but of course, even there the Court was willing to allow the restrictions if there was evidence to back up the school's claims that it might have disrupted education. But honestly Tinker seems like the high water mark for student speech rights; it seems like the court has progressively been watering down protections since.

I do wonder about a situation where the district bans Trump shirts but does not ban Biden shirts in a heavily Democratic area, for example. It's odd because it seems then that Tinker basically requires districts to comply with the prevailing political sentiments of an area. And the problem really is that it would not even be viewpoint discrimination in that case. Granted, I honestly think any school which can pass muster on claims that a shirt for a particular candidate is going to be so disruptive they ban it is also probably so polarized that it would likely have to ban shirts for all candidates, so it's probably not likely to come up. If they did ban one and not the other in the absence of a belief the shirt would be disruptive then the restriction can't stand since it violates the basic holding in Tinker; the interesting question arises when one is prohibited, the other is not, and the one that is not restricted creates disturbances anyway and the administration, for whatever reason, decides not to similarly restrict the other shirt. But that is such an odd, if not impossible, series of events so I really think the question of viewpoint discrimination is hard to even reach on the disruption point.

I add that the right of the school to restrict speech which "is in collision with the rights of others to be secure and be let alone" does arguably provide a sort of hate speech exemption to free speech rights in schools, though that, of course, opens a whole new can of worms and another potential avenue in which we might consider viewpoint and what limitations attach to schools there. I suspect the courts would remain generally deferential to schools as they have tended to be.

[Donerail]

I just have a hard time wrapping my mind around the legal argument that a student's free speech rights depend on what their individual school district decides. That seems like it could violate the equal protection clause.

Modern equal protection doctrine really requires some kind of suspect classification to have any bite. If the school was using "disruption" as a pretext for some sort of racial (or gender, religious, &c) discrimination, that'd be an equal protection issue — in your example, if "the white race is superior" t-shirts were okay but "the black race is superior" was banned, that'd probably raise some equal protection questions.

But just being able to communicate different messages in different places, while it sits somewhat uncomfortably with most other speech doctrines, isn't really an equal protection issue. There's a better argument that it's a First Amendment problem — outside of contexts like obscenity, we don't usually think about the impact on listeners as determining what speech is permissible where — but the Court has given courts a lot of leeway in managing speech to ensure minimal disruptions.

For perhaps the furthest end of this, see Dariano v. Morgan Hill Unified, a case where the court okayed making a student change out of a t-shirt that displayed a message that could provoke violence. That t-shirt? The American flag. Okay in most other schools on most other days, but an issue in a mostly Mexican school on Cinco de Mayo.

[I spent the winter writing songs about getting better]

I just have a hard time wrapping my mind around the legal argument that a student's free speech rights depend on what their individual school district decides. That seems like it could violate the equal protection clause.

Modern equal protection doctrine really requires some kind of suspect classification to have any bite. If the school was using "disruption" as a pretext for some sort of racial (or gender, religious, &c) discrimination, that'd be an equal protection issue — in your example, if "the white race is superior" t-shirts were okay but "the black race is superior" was banned, that'd probably raise some equal protection questions.

But just being able to communicate different messages in different places, while it sits somewhat uncomfortably with most other speech doctrines, isn't really an equal protection issue. There's a better argument that it's a First Amendment problem — outside of contexts like obscenity, we don't usually think about the impact on listeners as determining what speech is permissible where — but the Court has given courts a lot of leeway in managing speech to ensure minimal disruptions.

For perhaps the furthest end of this, see Dariano v. Morgan Hill Unified, a case where the court okayed making a student change out of a t-shirt that displayed a message that could provoke violence. That t-shirt? The American flag. Okay in most other schools on most other days, but an issue in a mostly Mexican school on Cinco de Mayo.

LOL Cinco de Mayo isn't even a Mexican holiday. It's a minor holiday in one state in Mexico.

[I spent the winter writing songs about getting better]

I'm reminded of a time in 8th grade when a science teacher called out a student in class (wasn't a bad kid, but had a tendency to be a bit of class clown at times) for something unrelated...and then brought up that he was wearing a shirt with a beer logo on it. I didn't think it was that big of a deal, because beer advertising was everywhere, but the teacher made him go to the bathroom and turn it inside out. I was a bit surprised because this teacher was usually pretty lax, then again that could be why he simply made him turn it inside out instead of actually getting him in real trouble. Also was surprised because it was an afternoon class so he already got through all the morning classes, but it's also just likely no teacher noticed (it wasn't big, like a small Budweiser logo in one of the corners.) Today I wouldn't be surprised if such a student would get some sort of draconian punishment for that, although teachers who think such things are dumb (usually most of them) might hint at him to turn it inside out before getting formally punished.

Also anecdotally, I've heard from teachers today that they often decline to just enforce dress code rules at all, because it's not worth it and could potentially even get the teacher in trouble...there's now kind of a unwritten rule that no male teacher ever cites a female student for a dress code violation and just refers her to a female colleague at most. I imagine this usually involves things like skirt length instead of content on a shirt, but still, and yeah it makes sense. Also some teachers say they ignore dress code when it's huge troublemaking students because then they just cause more trouble if called out, similarly in middle school I remember a huge troublemaking student (eventually got suspended for the rest of the year) who would regularly listen to a Walkman in class, clearly in violation of the rules but it also kept him out of trouble so the teachers just ignored it.