Education Education, Pre K-12, Woke Education
October 6th, 2023 3 Minute Read Press Release

New Amicus Briefs: Schools Cannot Censor Students Expressing Traditional Gender Views

New York, NY – In response to two cases of schools censoring students for expressing beliefs counter to progressive views of transgenderism, the Manhattan Institute has joined amicus briefs defending students' and parents' constitutional rights to free expression. Director of constitutional studies Ilya Shapiro and legal fellow Tim Rosenberger summarize the cases, legal stakes, and the content of the two amicus briefs: 

Regarding L.M. v. Town of Middleborough, Shapiro and Rosenberger write:

"L.M. is a student at Nichols Middle School in Middleborough, Massachusetts, … [who] disagrees with the school-endorsed view and wore a t-shirt to school that said, ‘There are only two genders.’ The shirt caused no disruption. Nevertheless, school officials took L.M. out of his first class and told him that he must remove the shirt or be sent home. He was unwilling to remove the shirt, so his father picked him up from school. … L.M. sought a temporary restraining order and preliminary injunction, which the district court denied, and then with the parties’ consent converted into a final judgment. L.M. has appealed to the First Circuit. The Manhattan Institute joined the Mountain States Legal Foundation on a brief that focuses on the 'harm to others' exception to student speech rights. At base, L.M.'s speech may not be censored by government officials because it constitutes pure speech expressing foundational principles that have been repeatedly reaffirmed by the Supreme Court."

Regarding Parents Defending Education v. Olentangy Local School District Board of Education, Shapiro and Rosenberger write:

"The Olentangy Local School District in the Columbus, Ohio, area maintains three overlapping speech policies that punish students for expressing sincerely held beliefs about sex and gender and force them to affirm beliefs they do not hold. By the district’s own admission, the three policies require students to use classmates’ 'preferred pronouns' and to otherwise refer to peers based on their gender identity rather than their biological sex. The policies likewise prohibit students from using language that is 'based upon [another’s] transgender identity' and that others find 'insulting,'  'dehumanizing,'  'unwanted,'  'discomfort[ing]' or 'offensive.' These speech restrictions apply both on and off campus—even to social media statements posted from a student’s bedroom. Parents Defending Education (PDE) filed a complaint ... alleging violation of students’ First Amendment rights and parents’ Fourteenth Amendment rights. The district court found that PDE had standing but ruled for the school district on the merits. Now on appeal before the Sixth Circuit, the Manhattan Institute has joined the Foundation for Individual Rights and Expression on an amicus brief supporting the parents and defending student speech. We focus on the broad right to engage in nondisruptive speech that students enjoy under Tinker v. Des Moines (1969) and the prohibition on compelled speech in West Virginia v. Barnette (1943). Nor can schools issue speech codes to prevent harassment under the standards the Supreme Court set out in Davisv. Monroe County Board of Education (1999), which defines harassment as pervasive conduct, not speech."

Read the full amicus briefs and summaries here and here.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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