School administrators were not infringing on a student’s constitutional rights when they ordered him to remove a shirt that said, “there are only two genders,” a district judge ruled on June 17.
Massachusetts middle-schooler Liam Morrison’s lawyers said the order violated his First Amendment rights to free speech and his Fourteenth Amendment rights to due process, but U.S. District Judge Indira Talwani said the violations have not been proven.
The school “permissibly concluded that the Shirt invades the rights of others,” Talwani, an Obama appointee, said.
Schools can bar speech that is in “collision with the rights of others to be secure and be let alone,” Talwani said, quoting from the 1969 ruling in Tinker v. Des Moines Indep. School Dist.
That means the administrators appropriately exercised their discretion when concluding the statement “may communicate that only two gender identities–male and female are valid, and any others are invalid or nonexistent, 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,” she added.
Talwani’s ruling rejected a request from the boy for a temporary restraining order that would have stopped administrators from prohibiting the student from wearing the shirt at John T. Nicholas Middle School.
The case has not been thrown out and Talwani could ultimately rule in the boy’s favor.
Tyson Langhofer, senior counsel and director of the Center for Academic Freedom at Alliance Defending Freedom who is helping defend the plaintiff, said that the ruling was disappointing.
“Public school officials cannot censor a 7th grader’s free speech by forcing him to remove a shirt that states a scientific fact,” Langhofer told The Epoch Times via email. “Doing so is a gross violation of the First Amendment and we will be appealing this ruling to the First Circuit Court of Appeals.”
Lawyers for the defendants, which include acting principal Heather Tucker and Middleborough Public Schools Superintendent Carolyn Lyons, did not return an inquiry.
First Amendment expert Eugene Volokh said the ruling does not appear to be consistent with the Tinker ruling, which held that school officials in Iowa illegally ordered students to remove armbands amid protests against the Vietnam war. Lawyer Hans Bader, who is not involved in the case, said the ruling was wrong, noting that previous cases have upheld students’ rights to convey messages “as long as they weren’t vulgar or likely to cause a disruption,” including a ruling in favor of wearing a shirt that said “Be Happy, Not Gay.”
“The judge suggested that the T-shirt interfered with other students’ ‘right to attend school without being confronted by messages attacking their identities,’” Bader said. “But other courts have refused to recognize a right to attend school without being confronted by messages attacking one’s identity, when the messages don’t disrupt school, and don’t involve ‘independently tortious speech like libel, slander or intentional infliction of emotional distress.’”
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