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Only two genders? Jesus is only savior? School district won't tell court they're protected speech

First Circuit implies promoting sexual binary might harm nonbinary students, but won't give schools "total deference" to censor students for sharing beliefs.

Published: February 8, 2024 11:25pm

Can public schools legally ban T-shirts that reads, "Judaism Is the Only True Religion"? What about "Jesus Is the Only Savior"? 

Federal appellate judges became youth clothing consultants as they heard arguments Thursday in a lawsuit against school administrators prohibiting messages that allegedly target "potentially vulnerable" students, probing how far a Massachusetts school district would take its censorship.

Middleborough Public Schools sent Liam Morrison home after he refused to remove his "There Are Only Two Genders" shirt, and coerced him to remove his "There Are Only Censored Genders" shirt the next day when told he'd get sent home again.

U.S. District Judge Indira Talwani denied Morrison's motion for a preliminary injunction and entered final judgment "as a matter of law" for the district with the parties' agreement in July.

The questions by the judges on the 1st U.S. Circuit Court of Appeals panel, all appointed by Democrat presidents, suggest they see Morrison's message as categorically different than religious claims of absolute truth and prone to cause disruptions that administrators can legally preempt.

Upholding Talwani's ruling, however, could tee up a circuit split and the biggest Supreme Court student speech case since the Vietnam war. 

The 8th Circuit issued an injunction last fall against an Iowa school district's policy against refusal to "respect" a peer's gender identity, quoting the 1969 Tinker ruling upholding antiwar armbands in school. 

Schools cannot regulate student speech as an "invasion of the rights of others" because it is "merely offensive to some listener," according to that three-judge panel, which had two Republican appointees. Talwani's ruling said Morrison's shirt invaded nonbinary students' rights with a message "attacking their identities."

Morrison's lawyer David Cortman of the Alliance Defending Freedom didn't get far with his argument that the student addressed "the same subject matter" as his school, which celebrates Pride Month and encourages students to do the same.

While Cortman emphasized the "passive wearing" of clothing didn't violate others' rights, Judge Ojetta Rogeriee Thompson said Morrison's shirt was "worn all day" and students "have to read it."

They don't have to look at Morrison and may not see him all day, Cortman retorted.

Court rulings upholding school bans on Confederate flag displays all involved "actual violence," Cortman told Judge David Barron, who responded that Morrison's shirt prompted dueling protests and a "police detail" outside the school. 

"In context" and "in this circumstance," administrators may determine they could ban Morrison's message because "this shirt led to these dynamics," Barron said, citing testimony that "other kids were going to wear" the same shirt. But the school board itself contributed to the disruption and arguably "invade[d] the rights of others" such as Morrison, Cortman said.

Barron and Thompson cited data provided by administrators on mental health harm to children whose gender identities are questioned, including increased risk of suicide. Experts have warned that such research, invoked to justify so-called gender affirming medicine, is often methodologically dubious.

The 7th Circuit explicitly rejected this "general concern" in 2011's Zamecnik, upholding a student's right to wear a "Be Happy, Not Gay" shirt despite an expert witness's report that called the slogan "particularly insidious" to homosexual kids, Cortman responded.

He allowed that a shirt reading "All Trans Kids Are Retarded" – a theoretical raised by Thompson – could be construed as "fighting words" that administrators could prohibit.

Morrison's shirt "trivializes the significant harm" to nonbinary students "captive in this classroom looking at it," district lawyer Deborah Ecker argued, calling Cortman's argument "false equivalency" because the government should promote an inclusive view of gender identity.

She said the school can regulate speech that is "severe or harassing or pervasive," apparently citing but botching the Supreme Court's definition of school harassment, which is "severe, pervasive, and objectively offensive," requiring all three prongs. 

While none of the judges corrected Ecker, they objected to the district's implication that it has unfettered and indefinite discretion to regulate absolute-truth claims. 

"The courts are obviously struggling with this," neither wanting to write speech codes nor giving schools "total deference," Barron said. 

When Ecker called Morrison's message "vile," Barron asked whether exclusivity claims about Judaism and Jesus were too.

"Maybe, maybe not," Ecker responded, comparing it to saying "only two races exist."

The school can not only promote the gender-inclusive view because it "supports the educational mission" and doesn't threaten the "core identity" of Morrison or others, but statutes require it, Ecker said. She wasn't sure whether a "Male Is Not a Gender" shirt would attack a core identity.

Judge Lara Montecalvo didn't speak up until nearly the end, asking Ecker to define a "reasonable forecast of disruption" that lets the school censor student messages. 

Administrators knew students' grades could fall if they let Morrison wear the shirt, Ecker said. When Montecalvo said the school initially received "a complaint," not a barrage, Ecker responded: "You don't have to wait until there's actually a brawl."

Judges also asked how they should regard the eighth-grader's upcoming graduation from middle school for the purpose of the sought injunction and school's plans.

The school plans to keep enforcing the prohibition because it will still have nonbinary students or "those who support them," Ecker said. The high school Morrison will be joining has the same prohibition but he needs an injunction immediately, Cortman said.

It wasn't his shirt that caused the disruption but media attention and the school board meeting that followed, Cortman said. Morrison "was addressing a concept, not a person," and he doesn't lose his rights because he's not in a protected class.

The Oct. 7 Hamas terrorist attack on Israeli civilians and Israel's offensive on Hamas could change the ideological dynamics of student speech battles, including over clothing.

The Georgia affiliate of the Council on American-Islamic Relations filed a federal civil rights complaint Wednesday against a middle school for allegedly ordering a Palestinian-American student to remove his Palestinian flag scarf because another student found it "offensive."

That complaint resembles Tinker because administrators "can't ban political attire simply because they disagree with the message or think it's offensive," Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression, told Just the News.

The civil liberties group, which filed a friend-of-the-court brief supporting Morrison, joined with the American-Arab Anti-Discrimination Committee on Thursday in a related dispute Thursday.

They demanded D.C.'s Jackson-Reed High School stop preventing a recognized student group from screening an anti-Israel documentary on the basis that it could "provoke strong emotional responses or polarizing views within our diverse school community."