Justice Samuel Alito slammed an appeals court on Tuesday for its ruling in a student free speech case, which he said in a dissent “departed from the standard” the Supreme Court had set for similar First Amendment cases.
The Supreme Court, in a 7-2 order, denied a petition to hear a challenge to an appeals court ruling regarding a student who fought for his right to wear a provocative T-shirt to school.
Liam Morrison, a student at Nichols Middle School in Middleborough, Massachusetts, was banned from wearing a shirt to school that said, “There are only two genders.” This led to a lengthy court battle and a petition for the nation’s highest court to take up the case last year. Justices Alito and Clarence Thomas dissented from the majority of justices who decided against taking up the case.
Alito, in his lengthy dissent, excoriated the U.S. Court of Appeals for the First Circuit for its ruling against the student, accusing the appeals court of using a “vague, permissive, and jargon-laden rule,” which did not follow the student free speech rights established in the landmark 1969 Supreme Court ruling in Tinker v. Des Moines Independent School District. The Supreme Court ruled in Tinker that students’ free speech rights may only be limited if school officials can show that the conduct in question causes “substantial interference” with school activities, with the justices ruling that students could wear black armbands to protest the Vietnam War because the items did not meet that standard.
“We should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech. Tinker itself made that clear,” Alito wrote. “Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates.”
“By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection,” he added.
Alito affirmed, with the standard established by Tinker, which was upheld in the 2021 decision Mahanoy Area School District v B.L., schools may only suppress student free speech on the basis that the speech “presents a risk of material disruption,” adding that the high court described this standard in the 2021 decision as “demanding” for schools to meet to censor student speech legally.
“The lower courts are divided on how to apply Tinker’s ‘material disruption’ standard in a context like
this one, and the decision below underscores the pressing need for clarification,” Alito said.
The Republican-appointed justice warned that the First Circuit’s decision showed lower courts are “confused on how to manage the tension between students’ rights and schools’ obligations” and said by not taking up the case, the Supreme Court was letting “confusion linger.”
“So long as the First Circuit’s opinion is on the books, thousands of students will attend school without the full panoply of First Amendment rights. That alone is worth this Court’s attention. The problem, however, runs deeper: as this case makes clear, some lower courts are confused on how to manage the tension between students’ rights and schools’ obligations,” Alito said.
“Our Nation’s students, teachers, and administrators deserve clarity on this critically important question. Because the Court has instead decided to let the confusion linger, I respectfully dissent,” he concluded.
The June 2024 decision by the First Circuit Court of Appeals upheld the district court’s ruling, which sided with the school, and dismissed Morrison’s claims that the school had infringed on his First Amendment rights. With the Supreme Court’s denial of the petition for writ of certiorari on Tuesday, the appeals court’s ruling will stand as the final decision.
Thomas also offered a brief dissent, in which he renewed his concerns over the standard set by Tinker but acknowledged that it should remain the standard the lower courts apply in these cases. He also said the appellate court’s ruling “distorted this Court’s First Amendment case law in significant ways that warrant this Court’s review.”
The other seven justices did not elaborate in the unsigned rejection of the petition.
The Alliance Defending Freedom, which was representing the student in the case, expressed its disappointment in the Supreme Court’s decision to pass on the case, echoing Alito’s concerns.
“As Justice Alito recognized: ‘The case presents an issue of great importance for our Nation’s youth.’ Students don’t lose their free speech rights the moment they walk into a school building. Schools can’t suppress students’ views they disagree with,” ADF Senior Counsel and Vice President of U.S. Litigation David Cortman said in a statement.
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Cortman also slammed the Massachusetts school for allowing students to wear shirts that express one view of gender and ideology, while punishing Morrison’s “only two genders” shirt.
“Here, 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,” Cortman added. “Our legal system is built on the truth that the government cannot silence any speaker just because it disapproves of what they say.”