The conservative media is foaming at its metaphorical mouth after a three-judge panel of the U.S. Court of Appeals for the 1st Circuit upheld a District Court decision from last summer that the Nichols Middle School in Middleborough, Massachusetts didn’t violate then-seventh grader Liam Morrison’s First Amendment rights when he was required to remove his “There are only two genders” T-shirt last year.
Liam, no weenie he, was sent home from school in March 2023 after he refused to change into a more neutral shirt. The case was filed on behalf of Morrison and his family last year by two conservative Christian groups, Alliance Defending Freedom and the Massachusetts Family Institute. Sam Whiting, a staff attorney with MFI, reacted to the ruling by saying in a statement, “This case is about much more than a t-shirt. The court’s decision is not only a threat to the free speech rights of public school students across the country, but a threat to basic biological truths.”
Chief Justice David Barron, writing for the Court, concluded that “the question here is not whether the t-shirts should have been barred. The question is who should decide whether to bar them – educators or federal judges.” He continued, “We cannot say that in this instance the Constitution assigns the sensitive (and potentially consequential) judgment about what would make ‘an environment conducive to learning’ at NMS to use rather than to the educators closest to the scene.”
“An environment conducive to learning” is at the heart of a long line of cases stemming from Tinker v. Des Moines Independent Community School District, a 1968 Warren Court ruling holding that for a school to prohibit wearing black armbands in protest of the Vietnam war violated the students’ freedom of speech protections guaranteed by the First Amendment. The same opinion, however, held that those rights were not absolute, and that speech that “materially and substantially interfere[s]” with the operation of a school could be prohibited. Subsequent decisions have held school speech to be either protected or not based on the facts of the case.
The facts in Middleborough case indicated to the judges that the T-shirt’s message was a direct attack upon or rebuke of a particular group of students, “transgender and gender-nonconforming” and could be fairly be seen as demeaning to a “protected class.” Legally, I could see this case being added to the endless number of gradually thinner slices of this question post-Tinker and end up before the Supreme Court. Ethically, I think the right decision is clear, and that the school made it.
There is no benefit to the public school environment by allowing students to carry messages with them that other students reasonably could believe are hostile, and much that is potentially harmful. It doesn’t matter if the message is factual, indeed beyond dispute; the question is whether a message will create an environment that some students will feel is hostile to their comfort level and ability to learn. Should the children of fundamentalist Christians have to face T-shirts reading “Evolution is Real” or “Scopes Was Right!” ? Should children of German heritage be confronted in their classes with T-Shirts reading, “Germans murdered 6 million Jews”? Why? Factual or not, these messages are just in-your-face efforts to start arguments. Both as a matter of the school’s efficient functioning and as basic education—It’s not wise to set out to deliberately upset others!—the school was right to ban Liam’s shirt.
Ethics Alarms 
Well, they may not have violated his First Amendment rights but it’s still f*&#@d up.
“Oh dear, I can’t learn because someone is wearing an offensive t-shirt. boo hoo”
Every US institution is being destroyed.
Has anyone read Turley today? Snitches Give Stitches: Oregon Moves to Make Reporting Microaggressions Mandatory for Doctors
“Should the children of fundamentalist Christians have to face T-shirts reading “Evolution is Real” or “Scopes Was Right!”? Should children of German heritage be confronted in their classes with T-Shirts reading, “Germans murdered 6 million Jews”?”
Good point, of course. But, then again, it is highly unlikely that a student would be sent home from a public school for wearing any of the messages in your example. If there had been similar incidents at Liam’s school in which students wearing shirts with similarly-provocative messaging on them had been permitted to wear them instead of being required to change them, I wonder if the decision would have been the same?
“From the River to the Sea”
Liam should get bunch of message shirts made and wear them to see which ones get him sent home. Then he can know which viewpoints are acceptably offensive to the groups deemed contemptible.
The article says he wore another shirt that had “censored” over the “two.”
I guess. If the shirt is intended to be provocative, then its a violation of the golden rule. The subject matter might be pushing third niggardly principle territory, but youth children don’t need to be fighting these battles.
Just out of curiosity Jack. Since this takes place in Massachusetts, would the same thing apply for wearing a Yankees jersey?
I’m conflicted on this case. I know Tinker well, and several of its children. I don’t think children give up their first amendment rights at the school house gate. And I think it is instructive for kids to be exposed to contrary ideas. Certainly at college, and if this were college, I hope we would all agree on his right to wear such a shirt, as well as ones endorsing Palestinian rule in Jaffa, or ethnic cleansing of Palestinians in Gaza, or any other contentious political idea. But I’m also sympathetic to the challenges facing K-12 educators. Their job is to teach…not to lead debates on divisive issues. I honestly don’t know who is right.
“Black Lives Matter” vs. “White Lives Matter” vs. “All Lives Matter.”?
I can accept the ruling as proper in a legal (and pragmatic) sense.
I just have no confidence that it will be applied in an even-handed and consistent manner.
-Jut
Agreed.
This is the best, most straightforward example. “All Lives Matter” and “White Lives Matter” and “Blue Lives Matter” as a t-shirt in this example likely would have been worn in response to a “Black Lives Matter” t-shirt being worn. If any of the first 3 would be problematic, the root cause, origin, or incitement of that problem would be with the BLM shirt. If wearing “gender” shirts is a problem to fostering an conducive learning envirnment is then to ban all shirts that comment on gender.
For this specific case, the judges may have decided it correctly, but that doesn’t mean something else isn’t going on. If there’s a bunch of trans flags and pride flags and shirts that promote gender ideology and complaints from students aren’t remediated in a similar fashion, that should constitue a separate cause for legal action now that it is well documented how administrators handle one side of the messaging.
Bingo.
They are not in other students’ shirts. The administration has rainbow flags all over the school (elementary) that my kids attend. It’s lead to uncomfortable conversations with them early on (why do I need to explain this to a first grader?) and I would expect that they do not contribute to the learning environment in any way. I would not be giving leeway to decide to teachers or an administration that cannot see that wearing this shirt and a rainbow shirt are legally equivalent and will not treat both the same.
l go with Harry Silergate on this one.
https://www.bostonherald.com/2024/06/16/letters-to-the-editor-630/
“This is blatant ideological censorship of admittedly non-disruptive conduct.”
Exactly.
It would be clearer if the shirt said “There are 2 sexes”. The schools are pushing an ideological agenda with their gender identity religion. They have replaced biological sex with a gender identity philosophy that is tantamount to a religion. There is no more evidence for the concept of gender than for astrology and neither should be pushed on students by the schools. This is where the court erred. If the schools are teaching gender theories in schools, then the student has every right to wear a t-shirt challenging the existence of a state religion in the schools.
Or if he had thought it through and wanted to have fun the shirt could read “There are two genders”.
In addition, he could have a friend wear a second identical shirt. When questioned, one would declare that his shirt implied only two, and the other could claim that his shirt only declares two but logically does not exclude more.
I find it hard to see how Liam’s t-shirt is all that provocative. Doesn’t it merely state a fact that is currently backed up by science? The only reason it’s controversial is because this fact goes against a du-jour delusion that gender is not binary.
Frankly, even controversial t-shirts like “Germans murdered six million Jews” or “I Heart Palestinians” don’t have to be such. Schools, in addition to teaching students to think for themselves, should also teach children that the First-Amendment rights of others extend to things with which we disagree…and if a student doesn’t agree with Liam Morrison’s “There are only two genders” t-shirt, then just ignore it and move on. That takes what?…ten seconds of class time? Even friends of Liam that disagree with his t-shirt can still be his friend, if the schools – and parents as well, by the way – would just take the five or ten minutes necessary to explain and help students understand the importance of friendship and the even greater importance of free-thinking and disagreement.
Instead, schools take the same road the Left always takes – attempt to silence the dissenter, eradicate the controversial thing from our midst, make sure no one gets a hard feeling about anything. Then we’re back to the whole “white supremacy on Substack” thing. And we inculcate in students the wrong notion that the answer to disagreeable speech is not more speech, but rather silencing that with which we disagree.
And then we wonder why Michael Knowles is attacked on college campuses and Ben Shapiro is shouted off a stage by his detractors.
I’m no legal expert, so maybe the court got the decision right, but in doing so it continues to feed the Left-wing “silence-the-dissent” monster.
Well said Joel. Why is it that only conservatives have to be subject to the proverbial “teachable moment”.
Presumably the school, as well as banning his t-shirt, issued an order banning any t-shirt saying there are multiple genders. Afterall, schools would want to show they treat all sides of a controversy equally wouldn’t they. Right?
One thing that I continually want to stress is that there are not two genders, there are three. I continue to work with my eldest so that she can understand this fact. She sometimes forgets the fact, as do most of both the right and the left. We have redefined this term to mean something it doesn’t.
Sanctus, Sancta, Sanctum….
The genders are masculine, feminine, and neuter. Gender is not sex, but instead a linguistic concept that is of significantly less importance in the English language, but even we have he, she, and it. Since gender is not sex, this shirt is wrong, and there is little need for it.
I will say that I agree with the ruling, but would demand that it be enforced equally, which it won’t be. Perhaps going back to the days of school uniforms is they way to go. Perhaps we don’t need overpriced jumpers and matching blazers, but requiring plain T-shirts and normal jeans without excessive holes could be a start. Heck, all those private schools have approved vendors and specific links. What if public schools had a link to inexpensive Amazon or Walmart shirts and pants? If there was a strict dress code that was affordable for a normal family, instead of those private school uniforms that run about $400 per kid at any given size, I think we could get away with it. Sure, people have arguments on why kids should not have to wear uniforms, but something as simple as requiring T-shirts and jeans can’t be that far out there.
Sarah your post is why I have learned to scan others before I make a similar comment. Specifically the notion of gender being either masculine, feminine or neuter as a linguistic device. I want to see how Spanish deals with more than three genders. Try conjugating verbs in German with more than three. I couldn’t even deal with those three.
I have no idea about German, but conjugating Latin adjectives in three genders sucks. I have got to find a memorable way to get myself and my daughter to remember it. Never Gag Down An Ant (Nomitive, Genitive, Dative, Accusative, Ablative) was hard enough.
As for others making similar points, I always start my treatises and by the time I polish them enough to get rid of 90% of the typos, I always feel someone else has made the same point, but better. Great minds think alike?
I can tell you that German is a bear. Der, Die, Das is bad enough. You get into Dem and your joy faster than Bismarck under the Kaiser.
I will accept the idea that there are 3 or more sexual orientations but not more than 3 genders. Gender cannot be a euphemism for sexual proclivities.
Equal application of both the law and the ruling should demand no messages of any kind are to be displayed on the clothing of all the students.
Or symbols, even benign ones. Sadly, that’s the only way to avoid messes like this.
The facts in Middleborough case indicated to the judges that the T-shirt’s message was a direct attack upon or rebuke of a particular group of students, “transgender and gender-nonconforming” and could be fairly be seen as demeaning to a “protected class.” Legally, I could see this case being added to the endless number of gradually thinner slices of this question post-Tinker and end up before the Supreme Court. Ethically, I think the right decision is clear, and that the school made it.
Completely disagree. Government institutions are obligated to observe viewpoint neutrality. If (more likely because) the school prominently displayed the viewpoint that there are many genders, or that gender is a matter of self-identification, or that gender is unrelated to biological sex, then the school is engaging in one side of a live controversy. In so doing, it must allow alternate viewpoints.
(I don’t know what happened to my previous comment.)
(It was spammed. Sorry.)
The courts have carved out exceptions for schools: they are not absolute free speech zones
That they have carved out exceptions is beside the point, which is whether those exceptions are constitutionally valid.
They aren’t, in either case. Gender is a live controversy. Suppressing one side, while giving full rein to the other, has no limiting principle, and amounts to state sanctioned indoctrination.
In a previous life, I was a Navy squadron commander. As part of the workup, I had to go through a three-day legal course tailored for commanders. Did that make me a JD? Heck, no. But one thing that got hammered home was viewpoint neutrality. If I approved someone putting up a Bible study announcement, then I had to allow a Satanism announcement.
This school has two ethical alternatives: stop it with the parade of rainbows, or allow students to display contrasting opinions.
If this gets appealed, I predict it is overturned, along with all the decisions that gave schools power they can’t be trusted with.
Where do you see that T-shirts with the opposite position have been allowed or challenged? I don’t. That would obviously be viewpoint discrimination. Unless you have evidence of that, your argument is a straw man.
And let me add that a rainbow does not explicitly argue for multiple genders. It theoretically means “we accept gay people, etc.” I would have no problem arguing that acceptance or a statement of such cannot be reasonably found to be disrupting, while a statement rejecting the “accepted” identity of a student is.
re: T-shirts with opposite position. That is hair splitting, and puts Liam in the position of not being able to wear such a T-shirt unless another student displays the opposite position first. Rather, It is very likely that Liam’s wearing of the shirt was in reaction to the school’s open endorsement of LGBTQIA+, which, by definition, includes gender.
I suppose it is possible that the school, a Boston school, was doing no such thing, but the odds against that are very long: my evidence is the plethora of similar situations where schools were up to their hairlines in blatant, and coercive, advocacy. I wonder how many rainbow flags with the gender flourishes on them are flying at that school this very moment?
The school is almost certainly guilty of strong viewpoint preference, and you seem in favor of prior restraint. Neither one flies.
It’s not “hair-splitting” to point out that there is no evidence of the condition you claim the short was in reaction to!
Nor is it “prior restraint” to hold that the SCOTUS standard that schools have a legitimate interest in not allowing contentious speech and messages that have no benefit to the purpose of public education to disrupt that education. Hey, I was the editorial editor om my high school paper (Surprise!) and got in hot water for criticizing the administration and its policies. They hated my guts, but the knew there was no basis on which to muzzle me. But I never attacked a student or a group of students, and wouldn’t.
In addition, a positive message “We support gays etc. and members of the community” is not legitimately challengable as disruptive—it is, after all, the law. A message judged to be critical or in opposition to students is something else entirely.
I understand the whole misapplication of sex and gender, it however is irrelevant. Whether the student’s 1st amendment rights were violated is also irrelevant. Whether anyone truly felt threatened or unsafe by the child’s tee shirt is irrelevant.
What is relevant is that once upon a time in America children were sent to public school to learn the 3 Rs. They were sent to learn science, history, and civics. They were sent to learn different languages and cultures. Politics and culture wars weren’t allowed on school property.
Sadly, that is not the case today. Schools have been turned into indoctrination centers. In the movie Cool Hand Luke, misbehaviors were sent to the box to get their head right. Today children get their heads right at school.
It seems the school objects to “Only Two Genders” but has no objection to “Rise up to protect trans and GNC students” and “Proud friend/ally of LGBTQ+,”. In so doing, as the “Captain” in the movie was fond of saying “what we have here is a failure to communicate”.
The school missed an opportunity to educate through communication. They could have explained that both views are valid. Neither view by itself is hostile. The lifestyles both views support, are complicated and cannot be accurately communicated via slogans.
It could have explained that both views could and should be tolerated. Neither view is mutually exclusive. The school’s actions, however, reinforced today’s cancel culture. What the school taught Liam Morrison was to shut up and obey. I doubt the school’s and court’s actions persuaded any students to be tolerant of views different than their own. The school and courts probably taught them the opposite.
i think that’s exactly right.
It’s not “hair-splitting” to point out that there is no evidence of the condition you claim the short was in reaction to!
Absolutely there is — Bayesian Inference. If every instance I, and likely you, have heard of shows schools adopting a clear preference on LGBTQIA+ issues, then I — and you — should anticipate that this Boston school has preferred one viewpoint at the expense of another.
Ask yourself, should Liam have shown up wearing a shirt proclaiming “Accept all Genders” would he have been directed to remove it?
If no, and that is by far the safest bet, then your position is holed below the water line.
Oh, and while we are discussing evidence of conditions, there is no evidence that his T-shirt disrupted the learning environment. Nor any acknowledgment that education should also consist of learning to deal with having one’s feelings hurt.
Tom P got it right: What the school taught Liam Morrison was to shut up and obey.
In addition, a positive message “We support gays etc. and members of the community” is not legitimately challengable as disruptive—it is, after all, the law.k
And the law is always ethical and in compliance with the Constitution? Seriously? There are some places in the US — Dearborn, MI — where saying kill the Zionist entity is not legitimately challenged as disruptive.
The 1A doesn’t make value distinctions. Neither should you.
Law is about words, and your “hairs” are how cases are determined. Someone is free to argue before a judge that rainbow flags are disrupting education, but you should be able to see that the issues are distinct. My public school had a Christmas assembly, sang carols, and made Santa pictures. Someone was free to argue in court that this was oppressive and unconstitutional. Nobody did. But a T-shirt that said, “Jesus was a human con artist” could have been censored if the school decided that it attacked the belief of other students. If the defense was, “all my anti-Jesus shirt did was oppose the Christmas propaganda,” the question would be, “Is a school promoting a positive message inconsistent with the same school suppressing a negative message?” It’s an interesting question, but not “hair splitting” if a Court determines “no.”
“Ask yourself, should Liam have shown up wearing a shirt proclaiming “Accept all Genders” would he have been directed to remove it?”
I assume not. How would that message be disruptive, and who would be offended by it? Who would feel attacked or demeaned?
If no, and that is by far the safest bet, then your position is holed below the water line. Whatever that’s supposed to mean. My answer is no applying the same principles and standards the court did.
Oh, and while we are discussing evidence of conditions, there is no evidence that his T-shirt disrupted the learning environment
A school administrator is not and should not be required to wait for an educational disruption before preventing what he or she thinks will be one.
“Nor any acknowledgment that education should also consist of learning to deal with having one’s feelings hurt.”
Irrelevant and weak. The same argument could be used to allow students to be bullied
Tom P got it right: What the school taught Liam Morrison was to shut up and obey. No acknowledgment that education should also consist of learning to obey lawful and necessary authority? He doesn’t have to shut up. He just has to avoid parading deliberately provocative political messages that have nothing to do with his education.
“And the law is always ethical and in compliance with the Constitution? Seriously? There are some places in the US — Dearborn, MI — where saying kill the Zionist entity is not legitimately challenged as disruptive.” What does a weird judgment in Dearborn have to do with anything?
The 1A doesn’t make value distinctions. Neither should you. The first amendment doesn’t apply without qualifications in a public school setting. That is a value distinction, and the Supreme Court made it, not me.
It’s not “hair-splitting” to point out that there is no evidence of the condition you claim the short was in reaction to!
If your position relies upon the absence of explicit viewpoint bias, then you are standing on very thin ice, indeed.
The school would clearly look in favor upon “Respect all Genders”, while punishing “There are only two Genders”. This is a very live controversy, and the schools are enforcing one side of it.
Prior court decisions that justify that sort of thing are unconstitutional, full stop. And they are unethical, as well. Additionally, you ignore the certainty that displaying “Respect all Genders” is divisive and offensive to those who are being forced to bend the knee and tug a forelock.
Further, your position isn’t limited to T-shirts. What if, in biology class, Liam asserts that in humans, there are only two genders. Or that biological males are athletically superior to females. Or that allowing biological males into female spaces green lights predators. To the principal’s office with him? Detention? Suspension?
The schools have two ethical ways out of this: prohibit *all* pronouncements on gender, or practice viewpoint neutrality. Anything else is indoctrination and censorship, tout court.