High School’s Ordering Parents to Remove Pink “XX” Protest Wristbands at Girls’ Soccer Game Likely Violated First Amendment

The district court analyzed the school playing fields and adjacent parking lot, as appellants requested, under the mode of First Amendment law applicable to limited public fora as to impermissible viewpoint discrimination…. [The] appellee school district argues that this case must be analyzed more in the mode of Tinker v. Des Moines Independent Community School District (1969) … [and other cases that] recognize the particular interests inherent in the public elementary and high school settings, and the necessary discretion given to public school administrators in the difficult job of running public schools….

Neither of those two different classic modes of First Amendment analysis, urged on by these opposing parties, is a perfect fit for this public high school speech case, and we note that the Supreme Court has not addressed this precise question. We need not and do not reach the complex question of which (or whether) either of these alternate modes is the appropriate First Amendment type of analytical model for the facts of record here. We conclude that on these facts the differences in analysis would not affect the outcome here….

The school’s legitimate interest in regulating certain kinds of speech on the playing field sidelines … is not demonstrated by the evidence in this record. There is no evidence that appellants’ protest caused a material disruption [which would be relevant under Tinker]. There was no disruption until school officials chose to intervene, after which the referee suspended the game for approximately fifteen minutes and the school officials chose to impose restrictions on appellants’ speech and impose sanctions. The appellants did not stage any pregame demonstrations; did not march, shout, chant, or otherwise disrupt the game; and did not confront Tirrell or any other player. Instead, they waited until halftime before donning the “XX” wristbands in a passive, silent gesture of protest. There is also no evidence of harassment, given there is no evidence in the record that any player actually saw the wristbands.

The lack of any evidence demonstrating harassment also defeats the school district’s argument that it had an affirmative duty under Title IX to protect students from the speech in which appellants engaged…. While it is true that appellants chose to protest at the September 17 game because of Tirrell being a player, the record does not contain evidence of appellants engaging in harassment before or during the game. To the contrary, appellants did not shout, chant, make threats, or aggressively gesture at Tirrell to communicate their views against her participation. Nor is there evidence that Tirrell or any other player even saw the wristbands or “subjectively perceived the environment to be hostile or abusive.”

Principal Fisk did note the challenges that transgender students face generally. But Fisk did not ever explain how appellants’ display of the “XX” symbol constituted sufficiently severe or pervasive conduct to qualify as harassment under Title IX. And to the extent the district court concluded that the silent wearing of “XX” wristbands on the sidelines of a school soccer field, without more, always amounts to harassing speech, we disagree.

The school district responds that it may make “predictive judgment[s]” to proactively prohibit conduct that it believes will eventually lead to an actionable Title IX claim….. We agree with the general proposition. But the argument fails on the facts of this record…. We need not decide in this appeal whether and under what circumstances passive speech, on other facts, consisting of displaying the “XX” symbol on school property during school events could be reasonably thought to be harassing. But appellants’ silent display of the “XX” symbol at the September 17 game fell short of harassment and disruption, and we conclude that the district court erred in holding that the school’s interest in prevention of harassment justified the prohibition.

While it is a closer issue, we conclude that the school district likely was not justified in sanctioning the appellants for their passive speech based on its concerns derived from the earlier exchanges with the appellants and other parents. None of appellants’ reported discussions, including their possible different methods of protest reported to Bow High School officials by other parents, led to any attempt to “heckle and intimidate” Tirrell. And that was evident both before and throughout the game.

It is true that Fellers initially attempted to convince his daughter to get the Bow High School players to wear the wristbands, but his daughter informed him that “she could not get full support from the team and was afraid that it would divide them.” Fellers’s Facebook post made the night before the game encouraged spectators “to protect the integrity and safety of female athletics” and “come out to support our XX Lady Falcons and show your solidarity with our girls’ team.” But the record shows only that the appellants and perhaps others of similar views engaged in a passive protest and only started the protest at halftime. While the school district may make predictive judgments about whether disruption may occur and “need not be certain of its forecast,” it cannot use those projections to immediately suppress a passive, silent protest, that did not impair any of the legitimate school administration interests recognized by the Supreme Court.

This brings us to the school officials’ other stated reasons for sanctioning appellants. Superintendent Kelley stated that the “XX” symbol conveyed an “exclusionary” message about gender. Principal Fisk, who ordered appellants to remove the wristbands, described the symbol both as “hateful” and as “anti-trans.” As to these justifications for the sanctions imposed, the record evidence demonstrates the likelihood that the school district imposed sanctions on the appellants’ wearing of the wristbands because it disagreed with the protest message conveyed….

Although the leading Supreme Court case on viewpoint discrimination in academic limited public fora, involved colleges and not high schools, and involved a limited public forum, both significant differences, Rosenberger‘s anguage about viewpoint discrimination is pertinent. “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

The characteristics of the school as a place of learning reinforce that administrators cannot favor one side of a debate involving parental speech on an issue of prominent public concern, and which, in those parents’ views, concerned the safety of their children. As the Supreme Court stated in a case involving a high school football game, “learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society.'”

Judge Julie Rikelman concurred in the judgment, reasoning that Tinker might not prohibit viewpoint-discriminatory speech restrictions, but that in this case the school district had accepted the viewpoint neutrality requirement:

The school district accepted that the limited public forum framework applied to the facts here and conceded repeatedly, both in its brief and at oral argument, that it could restrict speech at the September 17 soccer game only for viewpoint neutral reasons…. Although it did urge us to conduct our First Amendment analysis with the principles of Tinker in mind, it did so only in arguing that its actions were reasonable and thus satisfied the [reasonableness] prong of the limited public forum test….

With the school district’s concession in mind, I agree that the record lacks evidence of actionable harassment or material disruption from the plaintiffs’ speech at the September 17 soccer game. The record also demonstrates that school officials likely restricted the XX symbol because they viewed it as “exclusionary” and demeaning to transgender students. That amounts to viewpoint discrimination under relevant precedent.