SCOTUS rejects challenge to ban on student’s “only two genders” T-shirt

The high court on Tuesday chose not to take up a student’s legal challenge to his school’s ban on his T-shirt, which stated that there are only two genders. By rejecting the challenge, the court effectively allowed the ban to remain in effect. Justice Samuel Alito and Justice Clarence Thomas disagreed with the order rejecting the challenge, with Alito filing a 14-page dissent.

What’s this case about? Liam Morrison, a student from Massachusetts, was wearing the T-shirt when he showed up to attend his seventh grade class at Nichols Middle School in Middleborough in 2023. The principal told him he had to change into a different shirt or go home. The teacher who reported Morrison expressed concern for what the teacher characterized as the physical safety of the other students. The teacher also claimed the T-shirt could prompt disruptions in the classroom. Morrison said he wore the shirt in response to his school’s celebration of PRIDE Spirit Week, according to court documents.

What happened next? After Morrison went home, his father emailed the school and asked why Morrison could not wear the shirt. The superintendent argued that the shirt targeted students of a protected class and therefore violated the school’s dress code. Morrison’s father insisted his son was expressing his viewpoint like the other student and that his shirt did not target any particular person.

In a later effort to protest what he perceived as the inconsistent standards of the school, Morrison returned wearing the same shirt but with marked tape covering words “only two” so that it read, “There are CENSORED genders.” Before the end of his first class, he was sent to the principal’s office again. This time he changed clothes, according to court documents.

Morrison’s parents filed a lawsuit on his behalf against the district and town of Massachusetts, alleging that his First and 14th Amendment rights had been violated. The conservative legal nonprofit Alliance Defending Freedom handled the case.

How did the lower courts rule? Both a federal district court and appeals court denied his claim. In its decision, the district court cited precedent from Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court decision. That decision found that students were allowed to wear black armbands to protest the Vietnam War because their protest was quiet, passive, and did not infringe upon the rights of others. The district court argued in its ruling that Morrison’s shirt, unlike the armbands, infringed upon the rights of others by its message, which they said attacked the identities and invalidated the existence of other students. The lower court further argued that while students keep their First Amendment rights at public school, anything that invades the rights of others can be restricted.

What about the appeals court? Upon appeal, the 1st U.S. Circuit Court of Appeals affirmed that the school can bar Morrison from wearing the shirt, but on different grounds. The lower court claimed the shirt’s message materially disrupted classwork or involved substantial disorder. The court agreed with Morrison that the protest was passive and impersonal, but insisted that there was a material difference in his speech because it demeaned the existence of other students and was reasonably expected to, in the court’s words, poison the educational atmosphere.

What reasons did Justices Thomas and Alito give for their dissent? Alito filed a 14-page dissenting opinion in which he argued that because of the appeals court’s opinion, thousands of students have been robbed of their First Amendment rights. In addition, he argued that the lower courts misunderstand the tension between students’ rights and schools’ obligations. He also warned that the high court’s failure to take up the case will ultimately result in lingering confusion.