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Student tests school free speech with anti-gay tee-shirt

The Supreme Court ruled decades ago that students have some free speech rights, but left the water muddied, perplexing courts and schools to the present day.

Consequently, school free speech cases are very complicated. School authorities usually “are motivated by a desire to maintain order, avoid controversy, and minimize criticism from members of the communities they serve” (see article here). Obviously, they want to keep classrooms focused on schools’ educational mission.

But sometimes parents and outside groups have other missions, often of a political nature. In Massachusetts, a 12-year-old student wore a t-shirt to school saying “There are only two genders.” School officials nixed it, and the dispute landed in federal courts.

“The case is one of a growing number of lawsuits by conservative litigants challenging school policies aimed at protecting LGBT students from harassment and respecting their preferred pronouns and gender identities,” Reuters says (read story here).

This student’s family probably was recruited by a public-interest law firm pushing a conservative anti-gay political agenda. It seems likely school officials saw the t-shirt as bullying of gay students.

The conservative lawyers lost in federal district and appeals courts. But the federal appeals court ruling issued on June 10, 2024, is problematical. It says, “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,” and concludes the school should make the call.

This isn’t the first time judges have shown deference to school authorities in free speech cases. That’s not totally unreasonable, because school officials have to make these decisions on the fly, and they’re in a better position to judge whether a student’s particular actions are disruptive, which might vary from school to school.

But ultimately it’s the job of courts, not schools, to draw constitutional boundaries in school free speech cases. Educators aren’t trained for this task; this approach leaves them without guidance for handling such issues, and will result in great inconsistency among school districts.

This suggests the 1st Circuit will agree to review the case en banc, and then come up with a definitive ruling, instead of kicking the can onto the school bus. But that ruling won’t necessarily be in the student’s favor. In 2008, a 7th Circuit ruling went against a student whose t-shirt said, “Be happy, not gay.”

The 7th Circuit ruling isn’t binding on the 1st Circuit, but could be used as persuasive precedent. If the 1st Circuit goes the other way, that might motivate the Supreme Court to grant certiorari in order to resolve the conflicting circuit court rulings.

Do the rulings need to be consistent? It’s tempting to say the two cases are factually indistinguishable, but the same (or very similar) t-shirt message might be disruptive in one school but not in another, depending on the makeup of the student body, prevalence of bullying, and other school-specific factors.

The problem would be simple if school authorities were allowed to rule their roost without court interference, but the Supreme Court complicated things, so here we go again.

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