Supreme Court declines to review case on student T-shirt rights: Justices Thomas and Alito Dissent
Shreeaa Rathi | TIMESOFINDIA.COM | May 28, 2025, 23:20 IST
( Image credit : AP, TOIGLOBAL )
In a recent decision, the Supreme Court opted not to take up a case concerning a student's provocative T-shirt emblazoned with the phrase, "There Are Only Two Genders." Justices Clarence Thomas and Samuel Alito voiced their dissent, advocating for the court to tackle the pressing First Amendment implications.
The Supreme Court declined to hear an appeal Tuesday in L.M. v. Middleborough, a case involving a middle school student barred from wearing a T-shirt with the message “There Are Only Two Genders,” prompting dissents from Justices Clarence Thomas and Samuel Alito, who argued the court should have addressed the First Amendment implications, despite their previous rulings against students in similar cases. Thomas asserted the lower court should have faithfully applied Tinker v. Des Moines Independent Community School District precedent, while Alito contended the case raised concerns about schools suppressing student speech based on viewpoint or potential offense.
The denial occurred during the court’s routine order list announcement. This list primarily includes cases the justices decline to review.
The court grants review in relatively few cases. It takes four justices to do so.
In the T-shirt case, called L.M. v. Middleborough, Thomas and Alito each wrote dissents.
Both are notable, especially since both justices have (in different ways) previously ruled against students in First Amendment cases.
In Thomas’ brief dissent, he reminded readers that he thinks the landmark precedent upholding student speech rights was wrongly decided.
That precedent is Tinker v. Des Moines Independent Community School District, which, he noted, said in 1969 that public schools can’t restrict student speech unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Thomas cited his prior concurring opinion from a 2007 case in which he wrote that the Tinker standard “is without basis in the Constitution.”
He wrote in that concurring opinion, “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”
The formal reason he gave is that while he thinks Tinker is wrong, “unless and until this Court revisits it, Tinker is binding precedent that lower courts must faithfully apply.”
He wrote that the student here didn’t create a material disruption by wearing the two-genders shirt or a later one that said, “There Are CENSORED Genders.”
Alito’s lengthier dissent said (in part) that the case presented “an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive.”
The 2007 case that Thomas brought up, Morse v. Frederick (which Alito also cited in his dissent), involved a high school principal ordering students at a school-supervised event to take down a banner that said, “BONG HiTS 4 JESUS.”
The Supreme Court split 5-4, siding with the school and finding no First Amendment violation for confiscating what the court called “the pro-drug banner” and suspending the student responsible.
Thomas and Alito were both in the majority in that case.
As Thomas noted in his dissent Tuesday, he wrote a concurring opinion in Morse, explaining his view that went even further in the school’s favor.
Alito also wrote a concurring opinion in that case, seeking to keep his options open to side with students in future cases.
He wrote that he joined the majority “on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”
In the Massachusetts case rejected by the majority Tuesday, a federal appeals court panel had deferred to school officials, citing Tinker and subsequent cases, including Morse.
“We see little sense in federal courts taking charge of defining the precise words that do or do not convey a message demeaning of such personal characteristics, so long as the words in question reasonably may be understood to do so by school administrators,” the appeals court wrote, citing Morse.
Successfully opposing Supreme Court review, school officials from Massachusetts cited Morse to bolster the court’s endorsement of deference to school officials.
While Alito sought to cabin his Morse concurrence to the drug context, and while a shirt about gender can be distinguishable from that context, it’s cases like Morse that Alito and Thomas made possible that also helped make possible the appeals court ruling that the Supreme Court just declined to review.
The denial occurred during the court’s routine order list announcement. This list primarily includes cases the justices decline to review.
The court grants review in relatively few cases. It takes four justices to do so.
In the T-shirt case, called L.M. v. Middleborough, Thomas and Alito each wrote dissents.
Both are notable, especially since both justices have (in different ways) previously ruled against students in First Amendment cases.
In Thomas’ brief dissent, he reminded readers that he thinks the landmark precedent upholding student speech rights was wrongly decided.
That precedent is Tinker v. Des Moines Independent Community School District, which, he noted, said in 1969 that public schools can’t restrict student speech unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Thomas cited his prior concurring opinion from a 2007 case in which he wrote that the Tinker standard “is without basis in the Constitution.”
He wrote in that concurring opinion, “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”
The formal reason he gave is that while he thinks Tinker is wrong, “unless and until this Court revisits it, Tinker is binding precedent that lower courts must faithfully apply.”
He wrote that the student here didn’t create a material disruption by wearing the two-genders shirt or a later one that said, “There Are CENSORED Genders.”
Alito’s lengthier dissent said (in part) that the case presented “an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive.”
The 2007 case that Thomas brought up, Morse v. Frederick (which Alito also cited in his dissent), involved a high school principal ordering students at a school-supervised event to take down a banner that said, “BONG HiTS 4 JESUS.”
The Supreme Court split 5-4, siding with the school and finding no First Amendment violation for confiscating what the court called “the pro-drug banner” and suspending the student responsible.
Thomas and Alito were both in the majority in that case.
As Thomas noted in his dissent Tuesday, he wrote a concurring opinion in Morse, explaining his view that went even further in the school’s favor.
Alito also wrote a concurring opinion in that case, seeking to keep his options open to side with students in future cases.
He wrote that he joined the majority “on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”
In the Massachusetts case rejected by the majority Tuesday, a federal appeals court panel had deferred to school officials, citing Tinker and subsequent cases, including Morse.
“We see little sense in federal courts taking charge of defining the precise words that do or do not convey a message demeaning of such personal characteristics, so long as the words in question reasonably may be understood to do so by school administrators,” the appeals court wrote, citing Morse.
Successfully opposing Supreme Court review, school officials from Massachusetts cited Morse to bolster the court’s endorsement of deference to school officials.
While Alito sought to cabin his Morse concurrence to the drug context, and while a shirt about gender can be distinguishable from that context, it’s cases like Morse that Alito and Thomas made possible that also helped make possible the appeals court ruling that the Supreme Court just declined to review.