By S.A. McCarthy
The Washington Stand
Despite the protests of its two most conservative-aligned members, the U.S. Supreme Court is declining to hear a First Amendment case centered on a student who challenged gender ideology at his school. In a list of orders published Tuesday, the Supreme Court announced that it would not hear arguments in the case of L.M. v. Town of Middleborough, which centers on a Massachusetts middle school student Liam Morrison, who was ordered not to wear a shirt stating “There are only two genders” to school.
In 2023, Morrison was told by school administrators that he could not wear the shirt to school, with officials citing a school dress code barring “hate speech” featured in clothing. When Morrison would not remove the shirt, administrators called his father, who supported Morrison’s decision and picked his son up from school rather than ask him to remove the shirt. The Morrison family later informed the school through an attorney that their son would wear the shirt again and that they would pursue legal action if Morrison was asked to remove the shirt again. Morrison once again wore the shirt to school, this time with a piece of tape in the middle, replacing the words “only two” with the word “censored.” When he was asked to remove the shirt, his parents filed a lawsuit against the town, the school committee, the school superintendent, and the school principal, citing a violation of Morrison’s First Amendment right to freedom of speech.
The U.S. District Court for the District of Massachusetts ruled in favor of school officials in 2023, as did the U.S. Court of Appeals for the First Circuit last year, which ruled that “school officials may bar passive and silently expressed messages by students at school,” even if those messages “target no specific student.” The case was subsequently presented to the Supreme Court, which declined to take it up, allowing the lower courts’ rulings to stand.
In comments shared with The Washington Stand, Alliance Defending Freedom Senior Counsel and Vice President of U.S. Litigation David Cortman said, “We’re disappointed the Supreme Court chose not to hear this critical free speech case.” He explained, “Students don’t lose their free speech rights the moment they walk into a school building. Schools can’t suppress students’ views they disagree with.” The veteran constitutional lawyer and litigator continued, “Here, the school actively promotes its view about gender through posters and ‘Pride’ events, and it encourages students to wear clothing with messages on the same topic — so long as that clothing expresses the school’s preferred views on the subject.” Cortman declared, “Our legal system is built on the truth that the government cannot silence any speaker just because it disapproves of what they say.”
Justice Clarence Thomas, the longest-serving member of the Supreme Court at present, dissented from the court’s rejection of the petition, arguing that the case should be taken up. He specifically cited a 1969 Supreme Court ruling, Tinker v. Des Moines Independent Community School District, which held that school officials could only restrict students’ free speech in cases where that speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Tinker, which centered on students wearing black armbands to protest the Vietnam War, served as the basis for both the district court’s and circuit court’s rulings. Thomas wrote, “I have previously explained why Tinker’s holding is ‘without basis in the Constitution’ and should be ‘dispense[d] with … altogether.’” The 33-year veteran justice said that Morrison’s shirts did not constitute a “material disruption” and added, “In holding otherwise, the First Circuit distorted this Court’s First Amendment case law in significant ways that warrant this Court’s review.”
Justice Samuel Alito wrote a lengthier dissent, in which he was joined by Thomas. “This case presents an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive,” Alito wrote. He explained that the circuit court “held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist.”
“I would grant the petition for two 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,” Alito wrote. He accused the circuit court of “cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates.” Alito added, “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,” Alito continued. He noted that the circuit court and many other inferior courts “are divided on how to apply Tinker’s ‘material disruption’ standard in a context like this one, and the decision below underscores the pressing need for clarification.” The justice emphasized, “Students do not relinquish their First Amendment rights at school…”
Hans Von Spakovsky, a senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told The Washington Stand, “The Supreme Court made a grievous error in refusing to take this case. As the court has famously said, students do not shed their First Amendment rights at the schoolhouse door.” He continued, “While the court has previously given school administrators at the K-12 level considerable leeway in imposing some restrictions on students to prevent speech that could incite violence or interfere with the promotion of civic values, the unfair and unjustified disciplinary action against this student for simply expressing a biological and scientific fact went too far.”
Von Spakovsky added, “The court should have stepped in to apply the same standard it applies to defamation actions — the truth is a defense, and students should not be punished for speaking the truth. This is an example of political correctness and woke ideology poisoning public education.”
Originally published at The Washington Stand!
