The First Amendment And Biologically Correct Pronouns In Schools: Defending Education v. Olentagny Local School District

When people comment on politically or culturally charged topics, the likelihood that someone is going to be offended is extremely high. While some people are much quicker to take offense than others, it is also safe to say that “offensive” statements are frequently used to make a point or to challenge the status quo. While using overtly offensive statements is in bad taste, the use of offensive comments in political and cultural debates has a long and storied history. Over 50 years ago, the United States Supreme Court, in Cohen v. California, held that the State of California violated the First Amendment rights of Paul Cohen when it prosecuted him for disorderly conduct based on a jacket he was wearing. On the back the jacket was prominently displayed the following statement to protest the United States’ involvement in Vietnam: “Fuck the Draft.” It is certain that in 1968, many people would have viewed Mr. Cohen’s statement as offensive, while many others would have applauded the statement. Despite the statement’s vulgarity and patently offensive nature, the Supreme Court held that Mr. Cohen had a right under the First Amendment to make the statement.

In Matal v. Tam, the United States Supreme Court addressed a federal law that prohibited the Patent and Trademark Office from registering trademarks that make disparaging comments based on race or ethnic origin. Simon Tam was the lead singer in a band called “The Slants,” and wanted to register the band’s name as a Trademark. The request was denied. It is fairly obvious that many people would find the band’s name offensive. The Supreme Court nonetheless held that the Patent and Trademark Office could not refuse to register the band’s name as a trademark consistently with the First Amendment.

Cases like Cohen and Tam show that the First Amendment protects statements that many people would consider offensive and upsetting. There are, however, well accepted limits on the use of “offensive” statements. Making false and defamatory comments about another individual are not protected by the First Amendment (provided the individual is not a public figure). Further, comments that do not address an issue of public interest are not entitled to much protection under the First Amendment. The concept of public interest is broadly defined, but it does have limits. For instance, government entities can protect people from verbal harassment in a wide range of circumstances. Repeatedly mocking a private individual’s appearance is not going to get much, if any, protection under the First Amendment. But mocking a politician’s appearance to make a political point or to express disapproval with the politician’s positions is protected by the First Amendment. The First Amendment would, for example, prohibit the government from passing a law that only allowed people to make positive comments about politicians (viewpoint censorship).

Oftentimes, “offensive speech” and “hate speech” are conflated. While “offensive speech” and “hate speech” cover a lot of the same ground, they are not identical. Obscene speech is offensive to many people, but it is generally not going to be viewed as “hate speech.” “Hate speech” is typically related to comments that address, for example, political, racial, ethnic and gender issues. Despite what many pundits say in the media or in podcases, “hate speech” is protected under the First Amendment. As with offensive speech, what an individual views as “hate speech,” is typically based on where they land on the relevant issue. As a practical matter, calls to prohibit “hate speech” typically represent calls to suppress certain viewpoints.

The acceptance of gender theory in many parts of the United States has led to a significant increase in calls for censorship and compelled speech. The use of pronouns in everyday conversation has become a flashpoint with respect to demands for censorship and compelled speech. Transgender activists insist that people with whom they interact use their “preferred pronoun,” even when their chosen gender does not correspond to their biological sex. Many people object to using biologically incorrect pronouns for political, cultural and religious reasons. One venue in which this issue has generated considerable attention are schools.

In Defending Education v. Olentangy Local School District, the United States Court of Appeals for the Sixth Circuit addressed a school district’s policy that prohibited students from using personal pronouns when addressing another student that conflicted with that student’s preferred pronouns. The Sixth Circuit held that the school district’s policy violated the First Amendment rights of students.

A. Background

Since the 1940s the Supreme Court has consistently held that students have First Amendment rights while they are in school. Schools do have more control over speech by students in school than the government has with respect to the general public. For example, a school can demand that students not give political speeches that disrupt a lesson during class, refrain from sexually suggestive comments in a public assembly (even if those comments do not rise to the level of obscene speech), control the content of a student run school newspaper, or prohibit students from encouraging drug use.

In Tinker v. Des Moines Independent School District, decided in 1969, the Supreme Court held that students have First Amendment rights when they are in school, and that a school can restrict student speech when the speech would (a) itself disrupt the school’s operations, or (b) violate the rights of other students. In Tinker, the plaintiffs were punished because they wore black armbands to school to show their disapproval with the war in Vietnam. The Supreme Court held that the school did not provide any evidence that the students’ wearing the black armbands caused any disruption within the school, other than triggering some discussion and upsetting a few other students.

Since Tinker was decided, the Supreme Court has modified the Tinker test by excluding from the First Amendment’s scope certain student speech made in the school setting. For example, a school can discipline a student using sexual themes in a speech given to a school assembly. In the case before the Supreme Court that raised this issue, the student’s comments did not address a topic of public interest (like the black armbands in Tinker) and were age inappropriate given the composition of the assembly. In other case, the Supreme Court held that a student could be disciplined for displaying a poster that read “Bongs for Jesus.” The Supreme Court held that a school could prohibit students from endorsing drug use by other students during a school event.

B. Pronouns and The Compelled Speech Issue

Despite these exceptions, students still retain significant First Amendment rights when they are in school. The level of protection the First Amendment gives to students depends on the type of restraint at issue. School policies that compel speech face the most rigorous level of scrutiny and are generally considered per se unlawful.

In 1942, not long after Pearl Harbor was attacked, the West Virginia Board of Education implement a policy requiring all students to salute the American flag and recite the Pledge of Allegiance. Students, who were Jehovah’s Witnesses, refused to comply on the ground that the actions demanded by the Department of Education violated their religious beliefs. The Supreme Court addressed the case under the First Amendment’s free speech clause and held, in West Virginia State Board of Education v. Barnett, that the West Virginia Board of Education could not compel students to recite the Pledge of Allegiance. Barnett was decided in 1943, when the outcome of World War II was in no way certain. The Supreme Court viewed the Board of Education’s policy as compelling political speech that was forbidden by the First Amendment. In the decades following its decision in Barnett, the Supreme Court has treated compelled speech extremely harshly under the First Amendment.

In Defending Education, the Sixth Circuit noted that it is practically impossible to have a normal discussion with someone, or to refer to that person, without using any personal pronouns. The Sixth Circuit could have concluded at this point that the School District’s pronoun policy amounted to compelled speech and ended its analysis. The Sixth Circuit, however, chose to follow a different path. Oftentimes, courts will try to avoid potentially complex constitutional questions, particularly in a school setting, when an easier approach is available. In Defending Education, the Sixth Circuit concluded it did not have to address the compelled speech issue, because it could strike down the School District’s policy using a more traditional basis.

This leaves open for subsequent cases, whether prohibiting biologically correct pronouns when talking or referring to transgender individuals is per se prohibited compelled speech. Pronouns are an integral part of the English language and play a key role in basic sentence structure when referring to another person. Until very recently, using biologically correct pronouns was almost universally accepted. The acceptance of gender theory by many individuals and the growth of the transgender movement led to a corresponding attack on the use of pronouns based on biological sex. The concept that gender is not tied to biology led many to view it as offensive and demeaning even to presume a person’s pronoun was connected to their biological sex.

Implicit in this theory is the demand that people use “preferred pronouns” instead of biologically based pronouns. While some people will use a person’s “preferred pronouns,” doing so is a tacit acceptance of modern gender theory. Many people do not accept modern gender theory for scientific, political, philosophical and religious reasons. People who reject modern gender theory view the demand that they use “preferred pronouns” as a demand that they endorse the gender theory underlying the very concept of a “preferred pronoun.”

But this gets to the nub of the problem. Under one interpretation, the School District’s policy effectively demands that students who refuse to use another student’s “preferred pronouns” not talk to the student. From this angle, the policy looks more like censorship than the compelled speech. On-the-other-hand, telling someone that they can either not speak at all (not using pronouns is extremely difficult, if not impossible) or speak in a government approved manner, looks more like compelled speech. The Sixth Circuit apparently decided it did not have to wade into these waters.

C. Viewpoint Discrimination and The Tinker Test

Turning to the Tinker test, the Sixth Circuit first addressed two issues: (a) whether the use of personal pronouns touched an issue of public interest, and (b) whether the School District’s policy represented viewpoint discrimination. The Sixth Circuit found for the plaintiffs on both points. The Sixth Circuit had little difficulty finding that the use personal pronouns was a hotly contested public issue that implicated political, cultural and religious issues. Many individuals do not believe that a person can change their gender and that gender is not a social construct but rooted in biology. For this group, using a “preferred pronoun” that does not correspond to biological reality is contrary to their beliefs. Others strongly believe that gender is mutable and that refusing to recognize a person’s chosen gender is highly offensive. Regardless of which side of the debate you are on, the fact remains that this is a hotly contested social and public issue.

It is also equally clear that the School District chose one side of the issue. While the School District could certainly have remained neutral, its chosen policy concerning the use of “preferred pronouns” at a minimum forced students to censor themselves when referring to other students who identified as transgender. The Sixth Circuit explained that: “The School District permits certain approved messages on this topic – that individuals can have genders that differ from their sex or at least that our society should refer to individuals using preferred pronouns to be courteous.”

This holding raised another issue that the majority chose to avoid. An open legal issue is whether a viewpoint restraint is per se unlawful under the First Amendment. The majority noted that when a school district imposes a viewpoint restraint on students, it is unclear that the school should have the ability to defend the restraint using the substantial disruption test. Put differently, a school district can only defend a speech restraint by claiming a substantial disruption, if the restraint is viewpoint neutral.

Instead of resolving this legal question, the Sixth Circuit stated that, at a minimum, the School District needed evidence that the refusal by some students to use “preferred pronouns” caused an extremely significant disruption to its operations. The Sixth Circuit held that the School district had no evidence to support any type of substantial disruption let alone on extreme level of disruption to the school. The Court, therefore, did not have to address what would happen if a substantial disruption had occurred.

D. What Does The “Legal Rights” of Others Mean

The Sixth Circuit did evaluate the School District’s proffered justifications. One justification asserted by the School District was that it was trying to protect the “legal rights” of transgender students. The Court pointed out that is “unclear” what “legal rights” actually means. The Sixth Circuit rejected the School District’s suggestion that the “legal rights” standard allowed courts to create substantive rights for certain students that would allow schools to limit the speech of other students. Put differently, the Sixth Circuit rejected the School District’s request that the Court engage in social engineering.

The Sixth Circuit stated that the phrase “legal rights” pointed to preexisting laws such as the Constitution, a federal law or a state law. The Sixth Circuit gave as an example a case in which some students “forcibly placed ‘freedom buttons’ on classmates without their consent.” This type of conduct can easily constitute a battery that is unlawful under well-established state law. Further, laws against battery are viewpoint neutral. The Sixth Circuit’s example indicates that what will constitute “legal rights” in a First Amendment case is a fairly narrow category of conduct.

While both state and federal laws prohibit harassment, the Sixth Circuit, once again, chose to narrowly construe “harassment” for purposes of the First Amendment. The Sixth Circuit stated that “no laws give members of our society the ‘right’ to avoid messages they dislike.” The Sixth Circuit also rejected the School District’s argument that using biologically correct pronouns was abusive: “the School District is wrong to treat the use of biological pronouns alone as analogous to abusive invective.” The Court stressed that “[t]hroughout most of our country’s history, our society viewed biological pronouns as proper (perhaps the only proper) way to refer to others.” The Court refused to let the phrase “legal rights” become an exception to the First Amendment that swallowed the rule.

E. What is a Substantial Disruption

Like the phrase “legal rights,” the phrase “substantial disruption” could swallow the First Amendment rights of students. At one extreme, disrupting a classroom with a political speech or blocking a hallway as part of a demonstration can easily fall within the meaning of a “substantial disruption.” At the other extreme are comments made by students in the hallway that upset some students but do not have any further consequences. At this end of the spectrum, a school would have little basis for censoring student speech, unless the speech had little value within the First Amendment framework or was otherwise excluded from protection. In the vast middle are situations in which the speech upsets some students who choose to become disruptive as a result. This phenomenon is also called the heckler’s veto.

The Sixth Circuit did not provide a general definition for the phrase “substantial disruption.” The Court drew the line much closer to speech or expressive conduct that directly impacts the operations of the school. For example, students that block a doorway so other students cannot get to class, or shouting while a class is in session, directly disrupt the operations of the school. These are the easy cases. The more difficult questions arise when the disruption is caused by other students who do not like the message conveyed by the speakers.

The heckler’s veto happens when the government censors the speech of one group because people who hear the speech react in a disruptive or even violent manner. One basic question is why the government should ever help one group that is trying to shout down or physically shut down otherwise protected speech. A basic duty of any government is to protect the civil rights of its citizens. A government fails in that duty when it censors one group of speakers because another group becomes disruptive or violent.

A school district should never reward or assist a heckler’s misconduct. This does not mean a school is powerless to deal with immature students who have poor impulse control. One option is for a school to discipline the students who are actually causing the disruption. If an actual substantial disruption occurs or is reasonably certain to occur, the school can take more aggressive actions. A school, however, should never be permitted to censor certain viewpoints because some students will react in a disruptive manner.

In Defending Education, the court did not have to address the heckler’s veto problem because there was no evidence that the use of biologically correct pronouns by some students led to disruptive conduct by other students. Further, because the School District was engaging in viewpoint discrimination, the Sixth Circuit stated that the School District needed, at a minimum, significant evidence of a disruption that the school could not realistically handle. The School District did not have any such evidence.

F. The Relic of in loco parentis

School districts have tried to rely on the concept of in loco parentis to justify many blatant speech restraints. In the 1800s, when children started attending public schools in large numbers, the schools were deemed to step into the shoes of the parents while the children were in school. This concept was called in loco parentis, and was based on the idea that parents implicitly consented, when they sent their children to the school, to give the teacher authority to impose some discipline on their child and to instill some moral beliefs. At the time this doctrine was developing in the United States, schools were very different from the schools that exist today. First, the vast majority of schools handled a small number of students from small communities or neighborhoods in a city. The assumption was that teachers would share the values and outlook of the children’s parents. Second, public education was not mandatory. Parents that pulled their children from a school did not face potential criminal exposure or the possibility that their children could be taken from them by the state.

Today’s education system leaves the concept of in loco parentis untethered from its initial rationale. As a practical matter, parents must send their children to a public school, unless they have the resources or means to pay for a private school or to homeschool their children. For the vast majority of parents, public schools are the only realistic option they have. The claim that parents today consent to teachers and schools imposing certain values on children is manifestly untrue. The implications of this new reality are important. Schools should not silence certain viewpoints by students that are not currently in fashion or are even hotly disfavored based on a fiction that parents would agree with the school’s decisions to censor their children’s speech.

The use of personal pronouns by students is an issue that many courts are going to have to address. Recent news articles suggest that a school district in Maine is currently suspending students who do not use another student’s “preferred pronouns.” The acceptance of modern gender theory in many parts of the country and the vehemence with which some hold those beliefs means that this issue is not going away anytime soon.