The Supreme Court refused to hear an appeal over a middle schooler being barred from wearing a T-shirt to class that said, “There Are Only Two Genders.” Justices Clarence Thomas and Samuel Alito dissented, arguing that the court should have taken up the First Amendment dispute.
The denial came Tuesday on the court’s routine order list, a document that announces action in pending appeals, mostly consisting of the justices declining to take up cases for review. The court grants review in relatively few cases and it takes four justices to do so.
In the T-shirt case, called L.M. v. Middleborough, Thomas and Alito each wrote dissents. Both are notable, especially since both justices have (in different ways) previously ruled against students in First Amendment cases.
In Thomas’ brief dissent, he reminded readers that he thinks the landmark precedent upholding student speech rights was wrongly decided. That precedent is Tinker v. Des Moines Independent Community School District, which, he noted, said in 1969 that public schools can’t restrict student speech unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Thomas cited his prior concurring opinion from a 2007 case in which he wrote that the Tinker standard “is without basis in the Constitution”; he wrote in that concurring opinion, “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”
So if Thomas doesn’t think kids have speech rights in school, why does he care about this one?
The formal reason he gave is that while he thinks Tinker is wrong, “unless and until this Court revisits it, Tinker is binding precedent that lower courts must faithfully apply.” He wrote that the student here didn’t create a material disruption by wearing the two-genders shirt or a later one that said, “There Are CENSORED Genders.”
Alito’s lengthier dissent said (in part) that the case presented “an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive.”
Put that way, it sounds like an important issue. But let’s take a step back and look at that 2007 case that Thomas brought up, Morse v. Frederick (which Alito also cited in his dissent). That one involved a high school principal ordering students at a school-supervised event to take down a banner that said, “BONG HiTS 4 JESUS.” The Supreme Court split 5-4, siding with the school and finding no First Amendment violation for confiscating what the court called “the pro-drug banner” and suspending the student responsible. Thomas and Alito were both in the majority in that case. As Thomas noted in his dissent Tuesday, he wrote a concurring opinion in Morse, explaining his view that went even further in the school’s favor. Alito also wrote a concurring opinion in that case, seeking to keep his options open to side with students in future cases. He wrote that he joined the majority “on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’” In the Massachusetts case rejected by the majority Tuesday, a federal appeals court panel had deferred to school officials, citing Tinker and subsequent cases, including Morse. “We see little sense in federal courts taking charge of defining the precise words that do or do not convey a message demeaning of such personal characteristics, so long as the words in question reasonably may be understood to do so by school administrators,” the appeals court wrote, citing Morse. Successfully opposing Supreme Court review, school officials from Massachusetts cited Morse to bolster the court’s endorsement of deference to school officials. So while Alito sought to cabin his Morse concurrence to the drug context, and while a shirt about gender can be distinguishable from that context, it’s cases like Morse that Alito and Thomas made possible that also helped make possible the appeals court ruling that the Supreme Court just declined to review. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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