While it is well established that a finding of viewpoint discrimination suffices to hold government regulation of speech unconstitutional in nonschool contexts,1 the interaction between viewpoint discrimination and the regulation of student speech in schools remains a highly uncertain area of the law.2 Recently, in Defending Education v. Olentangy Local School District Board of Education,3 the en banc Sixth Circuit found that a school district’s policy prohibiting students from misgendering their peers constituted viewpoint discrimination but reserved decision on whether the general ban on viewpoint discrimination extends to regulations of student speech in schools.4 The court instead applied a distorted version of the test for regulating student speech from Tinker v. Des Moines Independent Community School District,5 raising the evidentiary bar, to hold that the policy was likely unconstitutional.6 By punting on the issue of whether viewpoint discrimination overrides Tinker, the Sixth Circuit missed an important opportunity to clarify an unsettled area of student speech doctrine.
On May 11, 2023, Parents Defending Education (PDE), “a nationwide membership organization whose members include . . . parents whose children attend [Olentangy Local School District] schools,”7 sued the Olentangy Local School District’s board and its administrators and moved for a preliminary injunction to bar three of the school district’s policies from governing student conduct.8 The policies prohibited students from “engaging in discriminatory harassment or bullying based on the personal characteristics of other students”; from using their personal devices to send threatening and humiliating messages; and from using speech that involved “‘discriminatory language,’ including the intentional misgendering of transgender students.”9 PDE challenged the constitutionality of the policies on First and Fourteenth Amendment grounds, arguing that the policies unconstitutionally compelled speech, represented impermissible viewpoint-based and content-based restrictions on speech, were unconstitutionally overbroad, and infringed on parental rights.10
The district court denied PDE’s preliminary injunction motion, holding that, although PDE likely had standing to challenge the policies, it had failed to show a likelihood of success on the merits.11 The district court found that “[t]he challenged speech policies fit squarely within [the Tinker] carve-out to schoolchildren’s First Amendment rights”12 and rejected PDE’s arguments that the policies otherwise violated the First Amendment.13 The court also rejected PDE’s Fourteenth Amendment claim, finding that “[t]he fundamental right of parents to direct the care, upbringing, and education” of their children does not include a right to control how a public school teaches or disciplines children.14
PDE appealed, and a panel of the Sixth Circuit affirmed, holding that PDE had not met its burden of showing a clear likelihood of success on the merits.15 The full court granted rehearing en banc, vacated the panel decision, and agreed to rehear the case.16 Before rehearing en banc was granted, the school district amended its policies to change the definition of bullying.17 PDE altered its requested relief accordingly, seeking an injunction barring the school district “only ‘from punishing students for misgendering other students’ based on their honest belief that only two genders exist and that individuals cannot change their genders.”18
The Sixth Circuit reversed and remanded.19 Writing for an en banc court, Judge Murphy20 held that PDE21 was “entitled to a preliminary injunction.”22 The court first examined the school district’s standing and mootness challenges, rejecting both.23 The court held that PDE likely had associational standing and that its claims were not moot despite the amendments, as the school district could still punish students for using “biological pronouns”24 if it determined that doing so constituted bullying or harassment.25
The court then addressed the likelihood of success on the merits. Because the school district justified its policies under Tinker,26 the court focused on whether the school district had met the Tinker standard.27 The court explained that, under Tinker, schools may only restrict speech if it will “cause a ‘substantial disruption’ or infringe ‘the rights of others.’”28 The court emphasized that schools bear the burden of proof under Tinker and “must ‘reasonably forecast’ that the speech will cause a disruption or violate the rights of others.”29 Nonetheless, the court explained that this evidentiary burden varies based on the type of speech such that “the closer the speech resembles political expression at the First Amendment’s core, the more evidence a school must present.”30 The court concluded that the school district’s ban warranted a “heavy evidentiary burden,” as it constituted regulation of speech on a “sensitive topic of public concern” — namely, the debate over transgender rights.31
Applying the heightened evidentiary standard, the court concluded that the school district had failed to meet its burden.32 Beginning with Tinker’s substantial-disruption prong, the court found that the school district had “presented no evidence” of the speech’s disruptive effects and rejected its reliance on the “relaxed fighting-words doctrine that applies in the school context.”33 The court stated that the use of biological pronouns does not constitute “abusive invective”34 as students misgender peers not to “belittle” them but because they have “no practical alternative short of expressing a viewpoint with which they might fundamentally disagree.”35 Turning to Tinker’s violation-of-rights prong, which the court interpreted to require the violation of “some source of positive law,”36 the court found that the school district had “all but concede[d]” that the speech was permissible under Title IX and failed to offer any evidence that the speech would qualify as bullying or harassment under Ohio law.37
The court also undertook a viewpoint discrimination analysis. Finding that the school district had not only entered the policy debate but also taken a side — that is, had targeted the use of biological pronouns as improper while allowing the use of preferred pronouns — the court held that the school district had discriminated based on viewpoint.38 The court noted its precedent might warrant extending to student expression governed by Tinker the categorical viewpoint discrimination ban that operates in other contexts, such that a school could not justify viewpoint discrimination under Tinker even upon “show[ing] that the forbidden speech would cause a substantial disruption.”39 However, the court opted to reserve this question “for another day,”40 as it found the school district failed to meet Tinker’s evidentiary burden.41
Judge Batchelder wrote a concurring opinion in which she agreed that the school district failed to satisfy Tinker but disagreed with applying Tinker to viewpoint discrimination claims,42 asserting that it is a “bedrock principle . . . that a school may not engage in viewpoint discrimination when it regulates student speech.”43
Judge Kethledge concurred to criticize modern free speech doctrine as incoherent,44 highlighting disagreement among circuit courts as to whether schools can discriminate based on viewpoint when student speech causes substantial disruption,45 and to urge reliance on historical analogues.46
Judges Thapar and Nalbandian concurred to assert that the school district’s policies were invalid because they discriminated based on viewpoint, arguing that “even the ‘special characteristics’ of public schools can’t justify viewpoint discrimination on a matter of public concern.”47
Judge Bush concurred to argue that an examination of history and tradition indicated that the regulation was invalid while “eliminat[ing] the need to weigh in on the scope of Tinker” as was done by the other concurrences.48
Judge Stranch wrote the sole dissenting opinion.49 She agreed with the majority’s decision to leave undecided “the question of how the categorical ban on viewpoint discrimination interacts with Tinker,” noting that “[t]he Supreme Court . . . has never held that where Tinker is satisfied, the First Amendment’s categorical prohibition on viewpoint discrimination also applies.”50 However, she disagreed with the majority’s finding of probable viewpoint discrimination,51 asserted that the school district’s forecast of disruption was reasonable under Tinker,52 and criticized the majority’s “‘political’ sliding scale approach” as unsupported by precedent.53
Together with the various concurrences and dissent, the Olentangy majority’s analysis exemplifies judicial confusion regarding the interaction of viewpoint discrimination doctrine with Tinker’s test for student speech. By raising the standard of proof required under Tinker, the majority fell into a pattern of lower courts contorting Tinker to avoid deciding its interaction with viewpoint discrimination, missing an important opportunity to resolve incoherence in student speech doctrine. Instead of skirting the issue, the Sixth Circuit should have clarified that Tinker permits viewpoint discrimination in the student speech context in order to align the doctrine with precedent and recognize the deference traditionally afforded to schools.
As the Supreme Court has yet to opine expressly on “the relationship between viewpoint discrimination and student speech,”54 lower courts remain divided.55 Tinker itself only mentioned the word “viewpoint” once in the context of requiring state actors to demonstrate “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” in order “to justify prohibition of a particular expression of opinion.”56 It was not until Rosenberger v. Rector & Visitors of University of Virginia57 that the Supreme Court solidified viewpoint discrimination as “an egregious form of content discrimination.”58 Since then, circuit courts have split on the doctrine’s interaction with Tinker.59 While the Sixth and Eleventh Circuits have held that regulations of student speech must avoid discriminating on viewpoint,60 the Fifth, Eighth, and Ninth Circuits have instead decided that the “special First Amendment context” of public schools “admits of no categorical prohibition on viewpoint discrimination.”61 Because of doctrinal confusion, other lower courts have opted to employ a viewpoint-discrimination-avoidance pseudocanon and avoid the issue altogether, distorting the Tinker standard in the process. In L.M. ex rel. Morrison v. Town of Middleborough,62 for example, the First Circuit relegated petitioner’s viewpoint discrimination argument to a brief footnote discussion,63 crafting instead “a novel and permissive test” for assessing material disruption to decide the case under Tinker.64
Olentangy is another example of courts departing from precedent and distorting Tinker to avoid addressing its interaction with viewpoint discrimination. Declining to “resolve [the] question” of Tinker’s relationship with viewpoint discrimination,65 the court invalidated the school district’s regulation via a novel sliding-scale application of Tinker, under which the evidentiary burden increases the more the speech in question “resembles political expression at the First Amendment’s core.”66 This sliding-scale approach deviates sharply from circuit precedent, calling for a higher “quantum of evidence”67 to prohibit political speech than “what has been required under Tinker’s ‘uniform ground rules.’”68 Indeed, the Sixth Circuit has previously acknowledged that school officials will sometimes be unable “to offer any ‘proof’ beyond common-sense conclusions based on human experience.”69 And, only six months prior to Olentangy, in C.S. ex rel. Stroub v. McCrumb,70 the Sixth Circuit applied a lenient standard of proof under Tinker to uphold a school regulation of speech concerning gun advocacy71 —speech that is “paradigmatically ‘political.’”72 In order to avoid deciding the question of viewpoint discrimination’s interaction with Tinker, then, the Sixth Circuit in Olentangy and other courts have contorted precedent in their applications of Tinker, highlighting the “pressing need for clarification” of the doctrine.73
While guidance is ultimately required from the Supreme Court, the Sixth Circuit missed an opportunity to clarify how Tinker fits with viewpoint discrimination. Instead of punting on the issue, the Olentangy court had three options to resolve the doctrinal incoherence: (1) extend the categorical ban on viewpoint discrimination to student speech in schools,74 (2) clarify that Tinker can sometimes permit viewpoint discrimination,75 or (3) characterize regulation of disruptive speech under Tinker as viewpoint neutral.76 The Sixth Circuit should have opted for the second approach, clarifying that Tinker permits at least some viewpoint discrimination in the context of making a disruption argument.
Extending a categorical ban on viewpoint discrimination to student speech governed by Tinker might seem attractive since it would align with the Supreme Court’s recent emphasis on absolute viewpoint neutrality.77 Indeed, as part of “an increasingly absolutist approach to speech rights” taken by members of the Court,78 content and viewpoint neutrality have “emerged as the bedrock principle[s] of the First Amendment.”79 However, while the absolutist approach has been praised as “relatively firm ground in the sometimes confusing world of constitutional speech doctrine,”80 it has also been criticized by scholars for “justifying a nearly constant expansion of the First Amendment.”81 Here, an absolutist approach would undermine the Tinker test and deviate further from precedent.
The Sixth Circuit should have instead adhered to existing jurisprudence and Tinker’s purpose by recognizing that Tinker permits some form of viewpoint discrimination. First, precedent supports permitting some viewpoint discrimination under Tinker. Most notably, as acknowledged by the Olentangy majority, the Supreme Court in Morse v. Frederick82 “seemed to suggest that schools may engage in some viewpoint discrimination (for example, by allowing students to discourage drug use but not promote it).”83 Other circuit courts have interpreted precedent accordingly. Middleborough, for instance, did “not read Tinker . . . to require ‘positive messages’ be prohibited if a ‘negative’ message is regulable because it materially disrupts or invades others’ rights.”84 Second, permitting viewpoint discrimination under Tinker properly recognizes the deference Tinker intended to afford schools given the unique context of the public elementary and secondary school environments.85 Tinker’s substantial-disruption test “is something of a constitutional anomaly” for a reason.86 Charged with maintaining safe learning environments, schools must have “the latitude necessary to act in loco parentis and regulate speech that ‘would undermine the school’s basic educational mission.’”87 Misgendering speech undermines schools’ missions in part because its underlying view of gender ideology necessitates “stigmatization [that] prevents . . . adjustment and, ultimately, the ability to learn in school.”88 Of course, as with all First Amendment doctrine, the political flip side of permitting viewpoint discrimination under Tinker must be considered — scholars are right to be concerned that permitting viewpoint discrimination might enable schools to ban diversity, equity, and inclusion or gender ideology speech for materially disrupting school operations, for instance.89 Nonetheless, the second approach remains the most doctrinally coherent.
Although the third option of defining the regulation of disruptive conduct as viewpoint neutral under Tinker is perhaps the most doctrinally conservative, it is also incoherent. In the Olentangy context, unlike with secondary effects or time, place, and manner restrictions, the disruption being regulated flows directly from the speech’s meaning. Thus, as misgendering speech is disruptive not just for the manner in which it is expressed — such as volume or timing — but also for its underlying stigmatizing view of gender ideology,90 defining the regulation as viewpoint neutral amounts to an exercise in doctrinal gymnastics that sidesteps the First Amendment’s core prohibition on viewpoint discrimination in the nonschool context.
In sum, the Sixth Circuit should have recognized that Tinker permits some form of viewpoint discrimination. This approach best aligns with precedent and Tinker’s deference to schools, clarifies the doctrine, and avoids further contortions of Tinker’s evidentiary standard.