Such bans are up to school officials, not judges, court rules.
The ban on a student wearing a shirt that said “there are only two genders” is permissible, a U.S. appeals court ruled on June 9.
Administrators later forbidding the same student from wearing the shirt with “only two” covered by tape, on which was written “censored,” is also allowed under court precedent, according to the ruling by the U.S. Court of Appeals for the First Circuit.
“The question here is not whether the t-shirts should have been barred. The question is who should decide whether to bar them—educators or federal judges. Based on Tinker, the cases applying it, and the specific record here, we cannot say that in this instance the Constitution assigns the sensitive (and potentially consequential) judgment about what would make ‘an environment conducive to learning’ at NMS to us rather than to the educators closest to the scene,” U.S. Circuit Judge David Barron wrote for a unanimous panel of the court.
In Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court in 1969 ruled that a ban on students wearing armbands in protest against the Vietnam War violated the students’ First Amendment rights.
U.S. District Judge Indira Talwani cited the ruling when in 2023 she ruled in favor of the administrators at the John T. Nichols Middle School (NMS) and Middleborough school district in Massachusetts against Liam Morrison, the boy who wore the “two genders” shirt to school.
The school “permissibly concluded that the shirt invades the rights of others,” Judge Talwani said. “Schools can prohibit speech that is in ‘collision with the rights of others to be secure and be let alone,’” she added, quoting from Tinker.
The NMS dress code states in part that students must not wear pieces of clothing that “state, imply, or depict hate speech or imagery that target[s] groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”
Liam was removed from class after a teacher raised concerns about his shirt. He was ultimately sent home after he declined to remove the shirt, and his father said he would not force the removal.
