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The Supreme Court just declined to review a case that threatens freedom of speech for over a million students across New England. In thousands of public schools, administrators now have power to silence student speech they dislike.

Last year, the First Circuit Court of Appeals significantly weakened student speech rights in L.M. v. Town of Middleborough. The case involved a Massachusetts middle schooler named Liam Morrison who was  for wearing a shirt that read, “There are only two genders.” When he taped “CENSORED” over the original message, the school banned that, too.

Morrison’s school encourages students to express the view that there are many genders, but when he offered a contrary view — the school silenced him. However, if schools want to teach gender identity to seventh graders, the law says they must tolerate dissenting views on the issue. As the Supreme Court famously held in Police Dept. of Chicago v. Mosley, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The prohibition on viewpoint-based censorship is a cornerstone of our First Amendment. Without it, the concept of free speech loses much of its meaning. Yet when Morrison and his parents, represented by the Alliance Defending Freedom, brought suit against the school and the town of Middleborough for violating his freedom of speech, the First Circuit disregarded settled First Amendment law to uphold the school’s censorship. Specifically, the First Circuit misapplied the Supreme Court’s landmark 1969 student speech case Tinker v. Des Moines Independent Community School Dist., which established the baseline rule that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

According to Tinker, schools cannot censor student speech absent evidence that doing so is “necessary” to avoid “material and substantial interference with schoolwork or discipline” or “invasion of the rights of others.” A few years ago, the Court reaffirmed the Tinker standard and emphasized that it’s a “demanding” one.

But the First Circuit’s recent decision lowers that bar, replacing Tinker’s “substantial interference” test with a far more permissive one. Now, in thousands of public schools across Rhode Island, Massachusetts, New Hampshire, Maine, and Puerto Rico, student speech that is “reasonably interpreted” to “demean personal characteristics” and thus “reasonably forecasted to poison the educational atmosphere” can be censored even if it doesn’t target any particular student. 

That isn’t just a bad ruling. It’s a dangerous one.

It distorts Tinker’s long-established standard and gives school administrators enormous power to silence unpopular student opinions. In doing so, it elevates disagreement to the level of “disruption” — and permits those experiencing the “discomfort and unpleasantness that always accompany an unpopular viewpoint” to silence dissenters in ways that directly contradict Tinker.

The Supreme Court could have reviewed the First Circuit’s problematic decision and put it to rest. Instead, it looked the other way, leaving the lower court’s decision to remain on the books.

That is quite a blow to student speech rights. As the Supreme Court recently said in Mahanoy Area School District v. B.L., “America’s public schools are the nurseries of democracy.” 

Unfortunately, the First Circuit’s decision sends a very different message — and the Supreme Court has failed to set the record straight.