New Hampshire case focuses on the right to silent protest

U.S. District Judge Steven J. McAuliffe held hearings Thursday and Friday in a case involving a silent protest that took place at a high school soccer game at a New Hampshire public school. They had donned wristbands expressing their view that males should not be allowed to play on female sports teams. Two fathers sued the Bow School District, located outside the state capital city of Concord, in September. 

They argued that administrators and police violated their First Amendment rights to expression by ordering them to leave school property after they put on wristbands during the girls soccer game. The district argued that the pair violated policies set by the district and the school athletic program.

What did the parents do? Fathers Kyle Fellers and Anthony Foote wore pink wristbands, printed with the letters “XX” representing biological female chromosomes, while attending their daughters’ soccer game. The men chose to wear the wristbands supporting women in sports the night Bow High School faced off against a team with a male player who identified as female.

Other parents in the stands requested bands of their own, though no one wore them until after halftime, according to the lawsuit. Fellers and Foote were approached by the school’s athletic director who requested the men remove the bands or leave the game. While Foote agreed to remove his wristband, Fellers refused, citing the First Amendment. A local police lieutenant repeated the order, telling Fellers he was not entitled to free expression on what the officer characterized as private property. The game’s referee noticed the confrontation, stopped the game, and told spectators that Bow would automatically forfeit the game if the wristbands were not removed. The game continued when it appeared that all the wristbands had been removed. District Superintendent Marcy Kelley later mailed no-trespassing orders to Foote and Fellers, alleging that the pair led a protest to intimidate and harass an opposing team member, according to the lawsuit.

The lieutenant's body camera footage showed that the fathers were silent and not disruptive until administrators took issue with their expression, the court filing alleged. School officials, local law enforcement, and the state referee used intimidation to unconstitutionally censor parents who were legally exercising free expression, the complaint alleged. The complaint went on to cite the U.S. Supreme Court’s 1969 ruling in Tinker v. Des Moines, which held that the Constitution protects non-disruptive free expression on public school grounds.

The fathers requested a federal injunction to stop the school’s no-trespassing order barring them from attending athletic events. The injunction would also overrule the school’s new policies on protests that limit demonstrations to only taking place under the field’s scoreboard and only for the time periods of 30 minutes before and after a game. If granted, the requested injunction would allow parents and spectators to have silent free expression at any school event. The parents continue to push for the protective order despite the end of the soccer season, citing their desire to continue silently protesting at other athletic events.

What did attorneys for the school district have to say? The district argued Thursday that the parents’ trespassing orders have expired and the soccer season has ended, so the case is moot. They also said that as a publicly funded institution, the school was obligated to enforce Title IX laws guarding against discrimination.

Title IX protects against sex discrimination. How does that apply to a male in women's sports? President Joe Biden redefined sex discrimination under Title IX in a rule change announced in April. That rule change added gender identity and sexual orientation, alongside biological sex, to classes legally protected from discrimination. Biden’s change sparked many court battles and resulted in several differing federal opinions. The new Title IX rule took effect in August, except in areas where judges have placed it on hold due to court challenges.

Dig deeper: Read Steve West’s report in WORLD Magazine examining emerging abuses of civil rights statutes in the name of grievance politics. Read Ray Hacke’s report for more insight on Biden’s executive order to redefine Title IX, and listen to Travis K. Kircher’s report on The World and Everything in It about women’s athletics advocate Riley Gaines and her push to protect women in sports.