Kyle Fellers and Anthony Foote were banned from school grounds in Bow after wearing the wristbands to a soccer game in September that included a transgender girl on the opposing team. They later sued the school district, and while the no-trespass orders have since expired, they asked the judge to allow them to carry signs and wear the wristbands featuring the symbol for female chromosomes at school events while the case proceeds.
Both men testified at a hearing in November that they didn’t intend to harass or otherwise target transgender athlete Parker Tirrell, and their attorneys argued they did nothing more than silently express their support for reserving girls’ sports for those assigned female at birth.
But in denying their motion Monday, U.S. District Court Judge Steven McAuliffe said the parents’ “narrow, plausibly inoffensive” intentions weren’t as important as the wider context, and that adults attending a high school athletic event do not enjoy a First Amendment protected right to convey messages that demean, harass or harm students.
Public schools aren’t private institutions though, which is where things get so convoluted. The school is a government funded organization, and therefore has to do its best to avoid infringing on constitutional rights. However, courts have repeatedly ruled that schools have a higher obligation to protect the students in their care, even if it means restricting first amendment rights. So schools have a fairly high degree of discretion on what they do and don’t allow.
A more mild example is dress codes. Students could easily argue that a dress code violates their freedom of speech, as the way they dress is a form of speech. However, courts have ruled that dress codes are allowed, because the school has a duty to maintain an environment that is conducive to learning; even if it means restricting their students’ freedom of expression.