CHARLESTON — West Virginia Attorney General Patrick Morrisey’s office is co-leading a multistate amicus brief to the U.S. Supreme Court aimed at protecting students’ First Amendment free speech rights.
The case focuses on a middle school student from Massachusetts who wore a t-shirt to school that had the message, “There are only two genders.” School officials told the student he couldn’t wear the shirt. The student then put tape over the word “two,” so the message read, “There are only (censored) genders,” but school officials banned that, too.
In June, the First Circuit Court of Appeals affirmed the school’s decision, prompting Alliance Defending Freedom attorneys, who represent the student, to ask the high court to review the case and rule that Nichols Middle School in Middleborough violated the First Amendment when it stopped the student from wearing his shirts to school.
Morrisey
| File photo
The friend of the court brief filed by Morrisey and the other AGs also asks the Supreme Court to hear the case after a lower court sided with the school.
“Free speech is just that, free speech no matter where it is — it is guaranteed by the U.S. Constitution,” Morrisey said. “Schools should encourage students to exercise their constitutional rights to freedom of speech and expression.”
The coalition notes a 1969 Supreme Court ruling in Tinker v. Des Moines Independent Community School District, which said teachers and students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The AGs say that’s exactly what’s happening here.”
“By silencing L.M., the First Circuit created a speech-hostile standard that — contrary to (Tinker) — allows schools to restrain even silent, passive displays of speech that cause no actual disruption,” the coalition’s brief states. “It split from other circuits on issues like what facts a school must show to justify a restriction on student speech. And it effectively sanctioned viewpoint discrimination in public schools.”
The Tinker ruling states that “A student may express his mind ‘if he does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.’”
Joining the coalition led by Morrisey and South Carolina AG Alan Wilson are the AGs from Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Texas, Utah and Virginia.
“Students don’t lose their free speech rights the moment they walk into a school building,” ADF Senior Counsel and Vice President of U.S. Litigation David Cortman said. “This case isn’t about T-shirts; it’s about a public school telling a middle-schooler that he isn’t allowed to express a view that differs from their own.
The school actively promotes its view about gender through posters and ‘Pride’ events, and it encourages students to wear clothing with messages on the same topic — so long as that clothing expresses the school’s preferred views on the subject. Our legal system is built on the truth that the government cannot silence any speaker just because it disapproves of what they say.”
Education experts and free speech advocates also have filed separate amicus briefs in the case.
“If the First Circuit’s broad expansion of Tinker’s ‘invasion of the rights of others’ exception is allowed to stand, school administrators nationwide will wield it to censor unpopular or dissenting viewpoints — miseducating students about their expressive rights in our pluralist society,” a brief filed by Foundation for Individual Rights and Expression states.
U.S. Supreme Court case number 24-410