Court comes close to adopting the “words are violence” campus mantra, finding the words on the t-shirt put other students at risk. And you can’t even mock the ban by putting “Censored” over the censored words. That is banned too. Hopefully this absurd ruling will be overturned on appeal.
I’m asked from time to time whether the radical race and gender ideologies penetrating deeply into all levels of education eventually will corrupt the legal system, harming our freedom of speech and other individual rights. Usually the question regards Critical Race Theory and its progeny, such as “Diversity, Equity, and Inclusion” and Ibram Kendi’s “anti-racism.”
The short answer is yes, but not in the way you expect.
The legal system will be corrupted for the same reason free speech has suffered on campuses – various forms of the “words are violence” argument. You see, the argument goes, we are not stifling speech, we are stifling the harm you cause the listener or reader of the words. The non-legal term “hate speech” usually is the banner under which this censorship flies. Your words allegedly are the equivalent of a violent assault causing physical and emotional manifestations that themselves are not speech, and in the educational context, damage the educational opportunities of others by making them feel unsafe.
This turns freedom of speech into a power play — who gets to decide what is “hate speech” turns into who has political and cultural power.
The fiercest cultural battle is being fought by gender identity activists, and as a Massachusetts federal court decision that was just handed down shows, the courts—or at least that judge—are ready to sacrifice free speech in school for the comfort of the gender-identity cultural and political power.
The case involved a t-shirt worn by “LM”—a middle school student at Middleborough, Massachusetts—that said “There are only Two Genders”. The school made him take it off. At a later date, he wore the shirt again with the words “two genders” covered over with masking tape that said “Censored.” They made him take it off again.
This seems like it should be a slam dunk for the student. The First Amendment does not stop at the school door, though schools do have some leeway to prevent disruption of the educational process. That’s a loophole that a federal judge just drove a truck through to uphold the censorship of a completely common and traditional opinion unpopular with school officials and gender identity activists on the grounds that it made some students feel unsafe and at at risk.
In the Order denying a preliminary injunction, the court found that the student could not prove a likelihood of success on the merits (required for an injunction).
First, the judge laid the groundwork for the equivalent of the campus “words are violence” mantra by reciting claims that LGBTQ+ students are at risk of suicide:
Student survey data collected in June 2022 at Nichols “show over 20 individual student comments about perceived bullying at school, feeling unwelcome at school, and expressing specific concerns about how the LGBTQ+ population is treated at school.” Affidavit of Carolyn Lyons (“Lyons Aff.”) ¶ 23 [Doc. No. 45]. Lyons is aware of several Nichols students, including “members of the LGBTQ+ community,” having attempted to commit suicide or having had suicidal ideations, and that “[t]hese situations have frequently cited LGBTQ+ status and treatment as a major factor.” Id. at ¶ 25. In July 2022, one Middleborough High School student committed suicide. Id.; see also Second Affidavit of Heather Tucker (“Tucker Aff.”) ¶ 32 [Doc. No. 46] (Tucker was informed of the student suicide). Before assuming her position at Nichols, Tucker had met with parents of students and students themselves who have been bullied “because of the lack of acceptance of their gender identify.” Tucker Aff. ¶ 2 [Doc. No. 46]. Tucker has also worked closely with students who have been hospitalized for attempted suicide or suicidal ideation or who have self-harmed “because of their gender identity.” Id. Tucker is aware of several students at Nichols who identify as “transgender or gender nonconforming.” Id. at ¶ 31.
In January 2022, May 2022, and January 2023, teachers and staff at Nichols received training “to further the goal of providing support to students who are part of the LGBTQ+ community.” Lyons Aff. ¶ 24 [Doc. No. 45].
Second, the judge explained the prevailing gender ideology culture in the district:
Nichols promotes messages commonly associated with “LGBTQ Pride.” Affidavit of L.M. (“L.M. Aff.”) ¶ 5 [Doc. No. 43]. Nichols also observes events like “Pride Month,” and “Pride Day” in support of the “LGBTQ+ community.” Tucker Aff. ¶ 27 [Doc. No. 46]. Nichols has had a Gay Straight Alliance Club since at least 2018, “[t]o further the goal of providing support to students who are part of the LGBTQ+ community.” Lyons Aff. ¶ 22 [Doc. No. 45]. The club is a student-run organization, id., that is intended as a space for students who “fit under the LGBTQ+ umbrella or are their allies.” Tucker Aff. ¶ 31 [Doc. No. 46]. Generally, approximately ten to twenty students attend the club meetings. Id.
And third, the judge addressed the school’s rules against disruptive speech as reflected in a dress code barring, among other things, “hate speech”:
… The Dress Code provides, in relevant part, that Nichols: expect[s] all students to conform to the following:
• Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.
• Any other apparel that the administration determines to be unacceptable to our community standards will not be allowed.
Id. The Dress Code states further that “[i]f students wear something inappropriate to school, they will be asked to call their parent/guardian to request that more appropriate attire be brought to school. Repeated violations of the [D]ress [C]ode will result in disciplinary action.” Id
The court further agreed with the district that wearing a t-shirt that said “there are only two genders” put students at risk of harm and was disruptive:
…. So while students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” schools may impose limitations on speech. Tinker, 393 U.S. at 506. “[C]onduct by the student, in class or out of it, which for any reason–whether it stems from time, place, or type of behavior–materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Id. at 513. This interest in regulating speech is at its strongest when the speech occurs under the school’s supervision, where the school stands in loco parentis towards all students, and of lesser interest where the speech or expression occurs outside of school. Mahonoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038, 2046 (2021).2 While a school bears the burden of justifying restrictions on student speech, Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 25 (1st Cir. 2020), courts should generally defer to school administrators’ decisions regarding student speech so long as the administrators’ judgment is reasonable, id. at 30.
* * *
Plaintiff has not established a likelihood of success on the merits where he is unable to counter Defendants’ showing that enforcement of the Dress Code was undertaken to protect the invasion of the rights of other students to a safe and secure educational environment. School administrators were well within their discretion to conclude that the statement “THERE ARE ONLY TWO GENDERS” may communicate that only two gender identities–male and female– are valid, and any others are invalid or nonexistent,3 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. As Tinker explained, schools can prohibit speech that is in “collision with the rights of others to be secure and be let alone.” 393 U.S. at 508.
3 L.M. attests that he does not believe his views about sex and gender to be inherently hateful and does not intend to deny any individual’s existence. L.M. Aff. ¶¶ 8-9 . His intent is not relevant to the question of whether the school permissibly concluded that the Shirt invades the rights of others.
* * *
Here, the School’s rational for prohibiting the Shirt is not that LM is bullying a specific student, but that a group of potentially vulnerable students will not feel safe. A broader view directed at students’ safety has been acknowledged by other courts. See, e.g., West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th Cir. 2000) (holding the display of the confederate flag may interfere with the rights of others to be secure) ….
Accordingly, Plaintiff has not shown a substantial likelihood of success on his claim that Defendants violated his constitutional rights in requiring him to remove the Shirt at school.4
The court then went on to find no likelihood of success as to other aspects of enforcement of the dress code as to the shirt nor that the dress code was overly broad.
In a ruling that comes close to fully embracing the “words are violence” mantra, the court found that the balancing of the equities (also required for an injunction) did not favor the student:
Defendants, by contrast, contend that, were an injunction to issue, the hardship to Defendants and students at Nichols would not be insignificant. First, Defendants contend that the Shirt would cause harm to students who identify as transgender or gender nonconforming because it would prevent them from attending school without harassment. See Defs. Opp. 17-19 [Doc. No. 44]. Second, Defendants contend that, were Plaintiff permitted to wear the Shirt, Defendants would fail to comply with their mandate from the Massachusetts Legislature prohibiting discrimination, bullying, or harassment in schools based on gender identity or expression and directives from the Massachusetts Department of Elementary and Secondary Education (“DESE”) requiring that schools provide a safe environment to progress academically and developmentally regardless of gender identity….
While Plaintiff may experience some limited restriction in his ability to convey a specific message during the school day absent injunctive relief, were an injunction to issue, the court credits Defendants’ contention that other students’ rights to be “secure and to be let alone” during the school day would be infringed upon, as would Defendants’ ability to enforce policies required under state law and
regulations. Accordingly, this prong weighs against Plaintiff’s requested relief.
Marina Medvin called it a “Bonkers ruling.” It’s worse than that, it’s extremely dangerous to our First Amendment free speech rights based on the same hocus pocus that results in safe spaces on campuses because “words are violence.”
Expression of a viewpoint that until a few years ago was the norm—there are two genders—is now banned. And you can’t even mock the ban by putting “Censored” over the censored words. That is banned, too. Hopefully this absurd ruling will be overturned on appeal.
This is a sign of things to come. As mentioned before, “You may not be interested in culture war, but culture war is interested in you.”
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