Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0307p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

DEFENDING EDUCATION, fka Parents Defending

│

Education,

│

Plaintiff-Appellant, │

v. │ No. 23-3630

>

OLENTANGY LOCAL SCHOOL DISTRICT BOARD OF │

EDUCATION; MARK T. RAIFF, in his official capacity │

as Superintendent of Olentangy Local School District; │

PETER STERN, in his official capacity as Olentangy’s │

Assistant Director of Equity and Inclusion; RANDY │

WRIGHT, in his official capacity as Olentangy’s Chief │

of Administrative Services; KEVIN DABERKOW, in his │

official capacity as a member of the Olentangy Board │

of Education; BRANDON LESTER, in his official │

capacity as a member of the Olentangy Board of │

Education; KEVIN O’BRIEN, in his official capacity as │

a member of the Olentangy Board of Education; │

LIBBY WALLICK, in her official capacity as a member │

of the Olentangy Board of Education; LAKESHA │

WYSE, in her official capacity as a member of the │

Olentangy Board of Education, │

Defendants-Appellees. │

┘

On Petition for Rehearing En Banc.

United States District Court for the Southern District of Ohio at Columbus.

No. 2:23-cv-01595—Algenon L. Marbley, District Judge.

Argued En Banc: March 19, 2025

Decided and Filed: November 6, 2025

Before: SUTTON, Chief Judge; BATCHELDER, MOORE, CLAY, GRIFFIN, KETHLEDGE,

STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY, DAVIS,

MATHIS, BLOOMEKATZ, and RITZ, Circuit Judges.*

*

Pursuant to 6 Cir. I.O.P. 40(g), Composition of the En Banc Court, Judge Batchelder, a senior judge of the

court who sat on the original panel in this case, participated in this decision. Judge Hermandorfer, whose commission

date is July 17, 2025, did not participate in this appeal.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 2

Sch. Dist. Bd. of Educ., et al.

_________________

COUNSEL

ARGUED EN BANC: Cameron T. Norris, CONSOVOY MCCARTHY PLLC, Arlington,

Virginia, for Appellant. Jaime A. Santos, GOODWIN PROCTER LLP, Washington, D.C., for

Appellees. T. Elliot Gaiser, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Amici Curiae. ON SUPPLEMENTAL BRIEF: Cameron T. Norris, J. Michael Connolly,

Thomas S. Vaseliou, CONSOVOY MCCARTHY PLLC, Arlington, Virginia, Emmett E.

Robinson, ROBINSON LAW FIRM LLC, Cleveland, Ohio, for Appellant. Bartholomew T.

Freeze, Genevieve M. Hoffman, FREUND, FREEZE & ARNOLD, Columbus, Ohio, Jessica K.

Philemond, Sandra R. McIntosh, Mitchell L. Stith, SCOTT SCRIVEN LLP, Columbus, Ohio, for

Appellees. ON AMICUS BRIEF: T. Elliot Gaiser, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, Joseph D. Spate, OFFICE OF THE ATTORNEY GENERAL OF

SOUTH CAROLINA, Columbia, South Carolina, Kayla A. Toney, FIRST LIBERTY

INSTITUTE, Washington, D.C., Brett R. Nolan, INSTITUTE FOR FREE SPEECH, Washington,

D.C., Adam E. Schulman, HAMILTON LINCOLN LAW INSTITUTE, Washington, D.C., Ilya

Shapiro, MANHATTAN INSTITUTE, New York, New York, David J. Carey, AMERICAN

CIVIL LIBERTIES UNION OF OHIO FOUNDATION, Columbus, Ohio, Amy R. Gilbert, Freda

J. Levenson, AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,

Ohio, J. Marc Wheat, ADVANCING AMERICAN FREEDOM, INC., Washington, D.C.,

Benjamin Isgur, SOUTHEASTERN LEGAL FOUNDATION, Roswell, Georgia, Tyson C.

Langhofer, Matthew W. Hoffmann, ALLIANCE DEFENDING FREEDOM, Lansdowne,

Virginia, John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Talmadge

Butts, FOUNDATION FOR MORAL LAW, Gallant, Alabama, Kerry Lee Morgan, THE

LONANG INSTITUTE, Wyandotte, Michigan, Donald A. Daugherty, Jr., DEFENSE OF

FREEDOM INSTITUTE, Washington, D.C., William J. Olson, WILLIAM J. OLSON, P.C.,

Vienna, Virginia, Robert L. Corn-Revere, FOUNDATION FOR INDIVIDUAL RIGHTS AND

EXPRESSION, Philadelphia, Pennsylvania, Scott C. Peters, Sherrie C. Massey, Daniel R. Shisler,

PETERS KALAIL & MARKAKIS CO., L.P.A., Cleveland, Ohio, Jaime A. Santos, GOODWIN

PROCTER LLP, Washington, D.C., Karen L. Loewy, LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, INC., Washington, D.C., Mark P. Herron, HERRON LAW OFFICES,

Lyndhurst, Ohio, Paul Giorgianni, GIORGIANNI LAW LLC, Columbus, Ohio, for Amici Curiae.

MURPHY, J., delivered the opinion of the court in which, SUTTON, C.J., and

BATCHELDER, GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, and

READLER, JJ., concurred. BATCHELDER, J. (pp. 36–38), KETHLEDGE, J. (pp. 39–45),

THAPAR and NALBANDIAN, JJ. (pp. 46–57), and BUSH, J. (pp. 58–83), delivered separate

concurring opinions. STRANCH, J. (pp. 84–112), delivered a separate dissenting opinion in which

MOORE, CLAY, DAVIS, MATHIS, BLOOMEKATZ, and RITZ, JJ., concurred.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 3

Sch. Dist. Bd. of Educ., et al.

_________________

OPINION

_________________

MURPHY, Circuit Judge. An Ohio public school district bars its students from referring

to transgender and nonbinary classmates using the pronouns that match their biological sex if the

classmates prefer to go by different pronouns. The plaintiff in this case has parent and student

members who believe that a person’s sex is immutable. The members want to express this view

by using biological pronouns. And they believe that they would convey a falsehood—that a

person’s gender is fluid—if they use preferred pronouns. So the plaintiff challenged the school

district’s speech ban on behalf of its members under the First Amendment’s Free Speech Clause.

This case about pronouns pits two important interests against each other. On the one hand,

the school district has prohibited speech (biological pronouns) that expresses a message on a matter

of pressing public concern. And because the district requires other speech (preferred pronouns)

that expresses a competing view, it has discriminated based on its students’ viewpoints. Its

approach thus raises serious free-speech concerns. On the other hand, the school district rightly

responds that it has a duty to protect all students—including transgender and nonbinary students—

from bullying and harassment. And this protection, while necessarily restricting speech, does not

violate the Free Speech Clause. So which of these competing concerns should prevail in this case?

The Supreme Court’s cases provide a clear answer. A school district may not restrict

personal speech on matters of public concern unless the speech would “materially and substantially

disrupt” school activities or infringe the legal “rights of others” in the school community. Tinker

v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969). In this case’s current posture,

the school district has fallen far short of meeting this demanding standard. It introduced no

evidence that the use of biological pronouns would disrupt school functions or qualify as

harassment under Ohio law. Our society continues to debate whether biological pronouns are

appropriate or offensive—just as it continues to debate many other issues surrounding transgender

rights. The school district may not skew this debate by forcing one side to change the way it

conveys its message or by compelling it to express a different view. We thus reverse and remand

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 4

Sch. Dist. Bd. of Educ., et al.

for the entry of an appropriately tailored preliminary injunction barring the district from punishing

students for the commonplace use of biological pronouns. Yet nothing we say here forecloses the

district from enforcing its anti-harassment policies against the abuse of transgender students just

as it enforces those policies against the abuse of all other students.

I

The Olentangy Local School District Board of Education operates a large school district in

central Ohio that has four high schools and many elementary and middle schools. In February

2023, a concerned parent emailed Olentangy officials about the School District’s transgender

policies. The parent has a “devoutly Christian child” who believes that only “two biological

genders” exist (“male/female”) “and that those genders are decided at conception by God[.]”

Emails, R.7-2, PageID 357. The parent thus asked whether Olentangy’s policies would force

students “to use the pronouns that a transgender child identifies with or be subject to reprimand

from the district if they refuse to do so[.]” Id.

A few days later, the School District’s legal counsel responded “on behalf of the District.”

Id., PageID 356. Counsel explained that Olentangy’s anti-harassment policy “prohibits

discrimination and harassment based upon a student’s sex, including sexual orientation and gender

identity.” Id. She added: “A student purposefully referring to another student by using gendered

language they know is contrary to the other student’s identity would be an example of

discrimination under Board Policy.” Id. In a later email, though, counsel suggested that district

administrators would happily discuss “accommodations to avoid using pronouns where doing so

would be contrary to [a child’s] religious beliefs[.]” Id., PageID 355.

This email exchange led to this lawsuit. As it turns out, the parent who sent the email

belonged to an organization that now goes by “Defending Education.” Defending Education’s

president has described it as a “nationwide, grassroots membership organization whose members

are primarily parents of school-aged children.” Neily Decl., R.7-2, PageID 345. At least four of

its members—whom the parties have called Parents A, B, C, and D—have children who attend

Olentangy schools. The children of these four Parents often interact “with students that identify

as transgender or nonbinary at school.” See, e.g., Parent A Decl., R.7-3, PageID 363. The children

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 5

Sch. Dist. Bd. of Educ., et al.

have “no ill-will toward children or adults who identify as transgender or nonbinary[.]” See, e.g.,

id. But they believe that people are born “either male or female and that a child cannot ‘transition’

from one sex to another.” See, e.g., id. The children thus desire “to use pronouns that are consistent

with a classmate’s biological sex, rather than the classmate’s ‘preferred pronouns’—i.e., the

pronouns that the classmate has decided reflect[] the classmate’s gender identity.” See, e.g., id.

And they assert that they would violate their scientific and religious beliefs if they were “to ‘affirm’

that a biologically female classmate is actually a male—or vice versa—or that a classmate is

‘nonbinary’ and neither male nor female.” See, e.g., id. Yet the children have “self-censor[ed]”

for fear that the School District will punish them if they adhere to what they believe to be the

undeniable truth by using biological pronouns. See, e.g., id., PageID 364.

Parents A, B, C, and D do not want to reveal their identities because they worry that school

officials or members of the broader community will retaliate against them for their beliefs.

Defending Education thus sued the School District’s board and administrators on behalf of its

members who live in the District. In the email response to the concerned parent, the District’s

legal counsel had not identified the specific policies that barred the use of biological pronouns. So

Defending Education opted to challenge several parts of three policies: Policy 5517, Policy 5136,

and the Code of Conduct.

Policy 5517. Policy 5517 lists the School District’s anti-harassment rules. See Policy

5517, R.7-1, PageID 121. It explains that the District will “vigorously enforce its prohibition

against discriminatory harassment based on” “gender identity” (among other traits). Id. The

policy defines “harassment” to mean “any threatening, insulting, or dehumanizing gesture, use of

technology, or written, verbal or physical conduct directed against a student or school employee

that” meets various elements. Id., PageID 123. Speech can qualify as harassment if it has “the

effect of substantially interfering with a student’s educational performance, opportunities, or

benefits” or of “substantially disrupting the orderly operation of a school.” Id.

Policy 5517 separately bars “bullying” if it rises “to the level of unlawful harassment[.]”

Id., PageID 122. The policy notes that bullying would reach this prohibited level if it

“systematically and chronically inflict[s] physical hurt or psychological distress” on a student

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 6

Sch. Dist. Bd. of Educ., et al.

“based upon” a protected category such as gender identity. Id. At the start of this suit, the policy

clarified that “bullying” covered “unwanted and repeated” speech, “including any threatening,

insulting, or dehumanizing gesture . . . that is severe or pervasive enough to create an intimidating,

hostile, or offensive educational or work environment; cause discomfort or humiliation; or

unreasonably interfere with the individual’s school or work performance or participation[.]” Id.

Policy 5136. Policy 5136 regulates the student use of “personal communication devices,”

including cellphones, tablets, and computers. Policy 5136, R.7-1, PageID 133. It bars students

from using these devices “in any way that might reasonably create in the mind of another person

an impression of being threatened, humiliated, harassed, embarrassed or intimidated.” Id., PageID

134. It specifically mentions that students may not use their devices to “transmit material” that

qualifies as “disruptive” or that could “be construed as harassment or disparagement of others

based upon” protected characteristics, including gender identity. Id.

Code of Conduct. The School District’s student handbook also includes a Code of Conduct

for students. This code reiterates that students may not engage in “harassment” or “bullying”

during school activities. Handbook, R.7-1, PageID 157. It defines harassment and bullying in a

similar way. Id. Elsewhere, the code bars students from using “discriminatory language,” defined

“as verbal or written comments, jokes, and slurs that are derogatory towards an individual or group

based on,” among other characteristics, gender identity. Id., PageID 150.

According to Defending Education, these policies violated the Free Speech Clause in

several ways. Its complaint alleged that the policies unconstitutionally compelled speech by

requiring students to use preferred pronouns rather than biological pronouns. Compl., R.1, PageID

39–42. Alternatively, the complaint alleged that the policies engaged in improper content- and

viewpoint-based discrimination. Id., PageID 42–44. Lastly, the complaint alleged that the policies

suffered from unconstitutional overbreadth. Id., PageID 45–48.

Defending Education moved for a preliminary injunction to bar the School District from

enforcing the policies. The district court denied the motion. See Parents Defending Educ. v.

Olentangy Loc. Sch. Dist. Bd. of Educ., 684 F. Supp. 3d 684, 694–712 (S.D. Ohio 2023). A panel

of our court affirmed over Judge Batchelder’s dissent. See Parents Defending Educ. v. Olentangy

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 7

Sch. Dist. Bd. of Educ., et al.

Loc. Sch. Dist. Bd. of Educ., 109 F.4th 453, 474 (6th Cir. 2024). The full court granted rehearing

en banc, vacated the panel decision, and agreed to rehear this case. See Parents Defending Educ.

v. Olentangy Loc. Sch. Dist. Bd. of Educ., 120 F.4th 536, 537 (6th Cir. 2024) (order).

II

A request for a preliminary injunction requires us to ask four questions: Will the plaintiff

likely succeed on the merits? Will it suffer an irreparable injury without the injunction? Which

way do the balance of any equities tip? And does the public interest favor one side or the other?

See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Our answers to these questions

establish that Defending Education is entitled to a preliminary injunction.

A. Likelihood of Success: Justiciability

We begin with the likelihood-of-success factor—the most important one in First

Amendment cases. See Fischer v. Thomas, 52 F.4th 303, 307 (6th Cir. 2022) (per curiam) (order).

In its supplemental briefing, the School District challenged this likelihood with standing and

mootness objections to our review of the free-speech claims on the merits. But both objections

fall short.

Standing. Plaintiffs who want to invoke a federal court’s coercive powers against state

officials must show that they seek to litigate an actual “Case[]” or “Controvers[y]” under Article

III. U.S. Const. art. III, § 2, cl. 1; see Ass’n of Am. Physicians & Surgeons v. U.S. FDA, 13 F.4th

531, 536–37 (6th Cir. 2021). To make out an Article III case, they must satisfy standing’s three

well-known elements. See Murthy v. Missouri, 603 U.S. 43, 57 (2024). That is, they must show

that they have incurred (or face an imminent risk of incurring) a cognizable injury; that this injury

flows out of the defendant’s conduct; and that their requested relief will redress the injury. See id.

They must establish these three elements at each stage of a case in the same way they must prove

the merits of their claims at each stage. See Ass’n of Am. Physicians & Surgeons, 13 F.4th at 543–

44. To obtain a preliminary injunction, then, plaintiffs must show that they “likely” will prove

standing’s elements. Murthy, 603 U.S. at 58 (citation omitted).

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 8

Sch. Dist. Bd. of Educ., et al.

Defending Education does not try to prove its own standing. Rather, it relies on the

“associational standing” doctrine. This doctrine sometimes permits an entity to sue as a

representative of its members. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333,

342–43 (1977). To do so, an organization must satisfy three other requirements: that at least one

of its members can prove the three usual elements of standing; that the organization has filed the

suit to promote “interests” relevant to its “purpose”; and that the proposed claims and remedies do

not require the individual members with standing to join the suit. Id. at 343.

The School District raises a narrow argument under these rules. Starting with the second

associational-standing requirement, the District does not dispute that this case advances Defending

Education’s purposes. That entity seeks to protect against efforts to “usurp parents’ rights and to

silence students who express opposing views.” Neily Decl., R.7-2, PageID 345. And it advances

this goal through “litigation” like this suit. Id. Turning to the third associational-standing

requirement, the School District does not argue that the nature of the claims or remedies requires

Defending Education’s members to join the suit. And because the Supreme Court has called this

element prudential rather than jurisdictional, we need not find it met ourselves. See United Food

& Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 554–55 (1996).

These concessions leave only associational standing’s first requirement. The School

District suggests that no member of Defending Education has asserted a “redressable injury” and

thus that no member has standing. Appellees’ Supp. Br. 8. The type of injury that a plaintiff must

assert depends on the type of relief the plaintiff seeks. See Davis v. Colerain Township, 51 F.4th

164, 171 (6th Cir. 2022). Defending Education requests injunctive relief to bar the School District

from punishing its members for their speech. To pursue this type of relief tied to possible future

harm, the organization must show that its members plan to speak in a way “that the Free Speech

Clause arguably protects”; that their speech is “arguably proscribed” by the School District’s

policies; and that “they face a credible threat” that the District will punish the speech. Fischer, 52

F.4th at 307 (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014)).

Defending Education has “likely” shown all these things. See Murthy, 603 U.S. at 58

(citation omitted). To start, the School District does not dispute that the children of Parents A, B,

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 9

Sch. Dist. Bd. of Educ., et al.

C, and D want to engage in speech (the use of biological pronouns) that is at least “arguably”

protected by the First Amendment. See Fischer, 52 F.4th at 307. Next, the School District does

not dispute that its policies could be read to “proscribe” this speech. Id. To give one example, the

School District could treat a knowing use of biological pronouns as “discriminatory language” if

the District decided that the speech was “derogatory towards” transgender students “based on”

their gender identity. Handbook, R.7-1, PageID 150. Lastly, a “credible threat” likely exists that

the School District will enforce these policies against students who engage in this speech. See

Christian Healthcare Ctrs., Inc. v. Nessel, 117 F.4th 826, 843 (6th Cir. 2024) (quoting Driehaus,

573 U.S. at 167). The School District’s counsel already warned a parent that the District

interpreted its policies to bar students from “purposefully referring to another student by using

gendered language they know is contrary to the other student’s identity[.]” Emails, R.7-2, PageID

356. Even at oral argument, counsel refused to “disavow[] enforcement against” students using

that specific speech as long as students intentionally and repeatedly engaged in it. See Christian

Healthcare Ctrs., 117 F.4th at 850.

The School District responds with just one point: that it has never disciplined a student for

using biological pronouns during the decade that it has maintained its anti-harassment policies.

Appellees’ Supp. Br. 7–8. The District correctly recognizes that a government’s enforcement of

its policies in the past can help illustrate how it will enforce them in the future. See Christian

Healthcare Ctrs., 117 F.4th at 848–49. But plaintiffs “need not always show” that the defendant

has enforced the policies in the feared way. Id. at 849. Indeed, this enforcement history tells us

little without more. Of most note, the School District offers no evidence of any students ever

engaging in the speech at issue or of any transgender or nonbinary students ever claiming that the

speech qualified as bullying or harassment. If the District had previously permitted that speech,

those hypothetical facts might make enforcement less likely. As far as the record reveals, however,

this issue has never come up. When measured against the District’s warning that its policies bar

the speech, the lack of any enforcement history cannot eliminate the credible threat of enforcement.

In sum, Defending Education likely has standing to seek an injunction barring the School District

from enforcing its policies against the specific speech that the entity’s members wish to convey.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 10

Sch. Dist. Bd. of Educ., et al.

Mootness. Article III of the Constitution applies just as much to appellate courts as it does

to district courts. For us to have jurisdiction, then, the case or controversy that existed at the start

must continue to exist on appeal. See Brown v. Yost, 122 F.4th 597, 601 (6th Cir. 2024) (en banc)

(per curiam). If “later events” eliminate the credible threat of enforcement, those events could

render the case moot. Davis, 51 F.4th at 174. A defendant, for example, might repeal the

challenged law that threatened the feared injury. See id. at 174–75; Resurrection Sch. v. Hertel,

35 F.4th 524, 528 (6th Cir. 2022) (en banc). To prove that such a change moots a case, though,

the defendant must show that enforcement cannot “reasonably be expected” to occur any longer.

FBI v. Fikre, 601 U.S. 234, 241 (2024) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000)).

The School District argues that it enacted this type of repeal. In September 2024, while we

were deciding whether to rehear this case en banc, its board amended Policies 5517 and 5136. For

example, in Policy 5517 (the anti-harassment rules), the board eliminated speech that might “cause

discomfort or humiliation” or amount to “teasing” from the definition of “bullying.” Add., 6th

Cir. R.126, at 50. And in Policy 5136 (the rules for personal-communication devices), the board

clarified that the policy should “not be interpreted to infringe upon the First Amendment rights of

students (i.e., to prohibit a reasoned and civil exchange of opinions, or debate, that is conducted at

appropriate times and places during the school day and is protected by State or Federal law).” Id.

at 47.

But these modest changes do not moot the threatened freedom-of-speech injury. See Ne.

Fla. Chapter, Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 661–63

(1993). To the contrary, the School District admits that it will continue to bar what it calls

“misgendering” if it determines that this speech “rises to the level of bullying or harassment.”

Appellees’ Supp. Br. 23. The District thus might punish a student for using biological pronouns

because the District could perceive that speech as creating an “offensive” educational

environment—no matter the student’s audience, the student’s good faith, or any other

circumstance. Policy 5517, R.7-1, PageID 122.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 11

Sch. Dist. Bd. of Educ., et al.

That said, these changes have altered Defending Education’s requested relief. It now asks

for an injunction that bars 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. Appellant’s Supp. Br. 10. We thus turn to considering whether Defending

Education has likely shown that the First Amendment protects this proposed speech in schools.

B. Likelihood of Success: Merits

1. How May Public Schools Regulate Student Speech?

As incorporated against the States by the Fourteenth Amendment, the First Amendment

prohibits those wielding state power from “abridging the freedom of speech[.]” U.S. Const.

amend. I; see W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). What must state

actors do to “abridg[e]” (that is, “contract” or “diminish”) this freedom? 1 Samuel Johnson,

Dictionary of the English Language 65 (4th ed. 1773). Most obviously, they can infringe the

freedom by punishing speech through a criminal prosecution or civil fine. See Am. Freedom Def.

Initiative v. Suburban Mobility Auth. for Reg’l Transp., 978 F.3d 481, 489 (6th Cir. 2020). If, for

example, an Ohio criminal law barred the use of biological pronouns in public because this speech

offends the transgender community, the law would raise “grave constitutional” doubts. Id. (citing

Snyder v. Phelps, 562 U.S. 443, 451–58 (2011)). As the Supreme Court has explained, the Free

Speech Clause exists to stop the government from banning speech because of disdain for “its

message, its ideas, its subject matter, or its content.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,

790–91 (2011) (citation omitted). Or, as James Madison explained, “[t]he censorial power is in

the people over the Government, and not the Government over the people.” Nathan S. Chapman

& Michael W. McConnell, Agreeing to Disagree 191 (2023) (quoting 1 Annals of Congress 934

(1794)). And a legislature commits perhaps the greatest of free-speech evils—discrimination

based on a speaker’s viewpoint—if it bars “speech found offensive to some portion of the

public[.]” Matal v. Tam, 582 U.S. 218, 253 (2017) (Kennedy, J., concurring in part and concurring

in the judgment).

But the government does not just affect speech through criminal or civil regulations alone.

It can also burden speech in other ways. For instance, the government might require applicants to

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 12

Sch. Dist. Bd. of Educ., et al.

refrain from speech as a condition of obtaining a public benefit (say, a money grant or access to a

public venue). See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 210, 213

(2013); Am. Freedom Def. Initiative, 978 F.3d at 486–90. Or it might limit its employees’ speech

as a job requirement and enforce this ban through an employment action (say, a note to an

employee’s personnel file) rather than a criminal punishment. See Meriwether v. Hartop, 992 F.3d

492, 501 (6th Cir. 2021). The Supreme Court has held that the government has “broader powers”

to restrict speech in these nonregulatory settings than the powers it possesses to restrict speech as

a “sovereign” exercising the police power. Waters v. Churchill, 511 U.S. 661, 671–75 (1994)

(plurality opinion). That is why the government may fire employees for speech on important

public topics if a court finds that the government’s operational interests in limiting the speech

outweigh an employee’s interests in speaking. See Meriwether, 992 F.3d at 507, 509–10.

This case involves the government acting as an “educator” of children. Hou. Cmty. Coll.

Sys. v. Wilson, 595 U.S. 468, 480–81 (2022). When wearing its teaching hat, does the government

look more like a “sovereign” issuing criminal laws or an “employer” issuing employee codes of

conduct? Id. The answer is debatable. See Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S.

180, 196–201 (2021) (Alito, J., concurring). States have long offered parents a free education for

their children. See Ellwood P. Cubberley, Public Education in the United States 163–206 (revised

ed. 1947). So one might argue the government has broader power to impose speech “conditions”

on this educational benefit like the power it possesses when imposing conditions on public jobs or

money grants. Barnette, 319 U.S. at 632; see Ward v. Polite, 667 F.3d 727, 734 (6th Cir. 2012).

Yet States have long coerced parents to send their children to school (public or private) on threat

of punishment. See Ingraham v. Wright, 430 U.S. 651, 660 n.14 (1977). Indeed, the Jehovah’s

Witnesses who violated the flag-salute law in Barnette could have been found “delinquent”—and

their parents “liable to prosecution”—for their expulsion from school after they refused to salute

the flag. 319 U.S. at 629–30 & n.5. If parents cannot afford private school and if a State lacks a

voucher program, then, their children might have no choice but to follow a public school’s speech

codes. See Mahmoud v. Taylor, 145 S. Ct. 2332, 2351, 2359–60 (2025); Mahanoy, 594 U.S. at

199–200 (Alito, J., concurring). And if those codes could trigger these types of sanctions, they

look a lot more like sovereign regulations than conditions on benefits.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 13

Sch. Dist. Bd. of Educ., et al.

Ultimately, the Court has settled on a unique middle ground in the educational context. It

has held that students do not forfeit their First Amendment rights when they choose to attend public

school to satisfy their state-mandated educational obligations. See Mahanoy, 594 U.S. at 187;

Tinker, 393 U.S. at 506. But it has also held that the government has greater power to restrict

student speech within a school’s walls than the power it possesses to punish adult speech outside

those walls. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). The reason? The

Court has justified this view on the ground that educators act “in loco parentis” (“in the place of

parents”) when they supervise children during the school day. Id. at 684; see Mahanoy, 594 U.S.

at 187. Under that common-law doctrine, judges assumed that parents impliedly gave school

authorities a portion of their disciplinary power to allow those authorities to perform the

educational tasks for which they were paid. Mahanoy, 594 U.S. at 198 (Alito, J., concurring); see

2 St. George Tucker, Blackstone’s Commentaries 453 (1803).

This dichotomy has led the Court to adopt different standards of review based on the speech

at issue: Did a student engage in school-sponsored expression “as part of the school curriculum”

or did the student engage in “personal expression” with no connection to official school activities?

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988); see Ward, 667 F.3d at 732–34. The

Court applies a more deferential test to the former type of speech that a child conveys as a

student—say, expression on a math exam or in a history essay. See Hazelwood, 484 U.S. at 271.

Just as the government has greater power to control an employee’s on-the-job speech expressed as

part of official duties, see Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), so too it has greater

power to control a student’s on-the-school speech expressed as part of official instruction, see

Hazelwood, 484 U.S. at 271. If a school’s regulation of this speech “reasonably relate[s] to

legitimate pedagogical concerns,” it will pass First Amendment muster. Ward, 667 F.3d at 734

(quoting Hazelwood, 484 U.S. at 273). So, for example, teachers act reasonably when they give

students a failing grade for stating that 2 + 2 = 5 on a math test or for denying the Holocaust in a

history essay. See id. at 733; see also Mahanoy, 594 U.S. at 196–97 (Alito, J., concurring).

Likewise, Hazelwood found that this deferential reasonableness test applied to a school principal’s

decision to cut two student-written articles from a student newspaper because the students wrote

the articles as part of the official journalism curriculum. See 484 U.S. at 274–76.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 14

Sch. Dist. Bd. of Educ., et al.

The Court, by contrast, applies a different test for “personal expression” at school—one

that demands more of school officials before they may restrict speech. Id. at 271. In Tinker, it

held that schools generally may not restrict this personal speech unless the speech “substantially

interfere[s] with the work of the school or impinge[s] upon the rights of other students.” 393 U.S.

at 509. Tinker’s facts show this test’s “demanding” nature. Mahanoy, 594 U.S. at 193. There,

the Court held that students had the right to wear armbands to school as a protest of the then-

ongoing conflict in Vietnam. Tinker, 393 U.S. at 507–14. This private speech merely “happen[ed]

to occur on the school premises” and had nothing to do with classwork. Hazelwood, 484 U.S. at

270–71. The speech also had not “disrupted” classes or generated more than a few “hostile

remarks” outside of the classroom. Tinker, 393 U.S. at 508. And while administrators feared a

disturbance because a former student had died in Vietnam and his friends still attended school, this

“undifferentiated fear” did not suffice to prohibit speech. Id. at 508–09 & n.3.

That said, the Court has adopted two exceptions to Tinker’s rigorous test for personal

speech. To begin with, it has held that schools may bar “offensively lewd and indecent speech”

on school grounds without asking whether this speech disrupts school. Fraser, 478 U.S. at 685–

86; see Morse v. Frederick, 551 U.S. 393, 405 (2007). In Fraser, the Court found that a school

could punish a student for giving a speech filled with sexual innuendo while nominating a

classmate for student council during an assembly. 478 U.S. at 677–78, 680–86. This speech would

have fallen within the Free Speech Clause’s protections outside school. See Morse, 551 U.S. at

405 (citing Cohen v. California, 403 U.S. 15, 22–26 (1971)). But administrators have greater

“latitude” to ban “vulgar” language during the school day. Fraser, 478 U.S. at 682–83. The Court

reasoned that schools must teach students about “the appropriate form of civil discourse” in our

society. Id. at 683. It added that the speech was “plainly offensive” to all in the audience and

potentially “damaging” to younger students. Id. at 683–84. So schools “acting in loco parentis”

may protect a student speaker’s “captive audience” classmates “from exposure to sexually explicit,

indecent, or lewd speech.” Id. at 684.

Schools also may bar students from “encouraging illegal drug use” at school functions.

Morse, 551 U.S. at 397. In Morse, the Court allowed a school to discipline a student for refusing

to take down a banner with the message “BONG HiTS 4 JESUS.” Id. at 397–98, 403–10. Here

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 15

Sch. Dist. Bd. of Educ., et al.

too, the government could not have barred this speech outside school under its strict “incitement”

test for speech encouraging illegal acts. See id. at 436 (Stevens, J., dissenting) (citing Brandenburg

v. Ohio, 395 U.S. 444, 449 (1969) (per curiam)). Still, the Court held that schools have the power

to bar speech promoting illegal drug use even if they allow speech discouraging that use. Id. at

403–09 (majority opinion). It explained that drug abuse by children remained a serious problem

substantially exacerbated by peer pressure from classmates. Id. at 407–08.

Apart from Tinker and its exceptions, the Court has also adopted a separate category of

personal speech that it has seemingly rendered off limits to school regulation: compelled speech.

See Barnette, 319 U.S. at 642. When holding that a State could not force children to salute the

flag during the school day, the Court stated a strict rule: public schools may not “prescribe what

shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.” Id. At the least, the government must rely on “more

immediate and urgent grounds” to compel a student to make an “‘involuntary affirmation’ of

objected-to beliefs” than to require the student only to maintain “silence.” Janus v. Am. Fed’n of

State, Cnty., & Mun. Emps., 585 U.S. 878, 893 (2018) (quoting Barnette, 319 U.S. at 633).

2. How Do These First Amendment Standards Apply Here?

This school-speech framework shows that we must first categorize the type of speech at

issue when children use biological or preferred pronouns to refer to classmates. The School

District has not even tried to describe its general mandate to use preferred pronouns “as part of the

school curriculum,” which might trigger Hazelwood’s deferential test for school-sponsored

speech. 484 U.S. at 271; see Ward, 667 F.3d at 733–34. For good reason. The School District’s

ban on biological pronouns extends far beyond the classroom—indeed, its anti-harassment policies

reach personal speech on social media off school grounds. Cf. Mahanoy, 594 U.S. at 191–92; Saxe

v. State Coll. Area Sch. Dist., 240 F.3d 200, 216 (3d Cir. 2001) (Alito, J.). And the State in Barnette

could just as well have called its flag-salute law part of the educational curriculum designed for

“the training of children in good citizenship[.]” 319 U.S. at 655 (Frankfurter, J., dissenting). But

the Court rejected that view and the deferential test that Hazelwood later adopted. See id. at 631,

640–42 (majority opinion). Barnette thus shows that schools do not have free license to make all

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 16

Sch. Dist. Bd. of Educ., et al.

speech regulations part of their “educational mission” and thereby obtain a more favorable

standard of review. Morse, 551 U.S. at 423 (Alito, J., concurring).

Next, the School District has not tried to argue that the use of biological pronouns qualifies

as the type of “‘indecent,’ ‘lewd,’ or ‘vulgar’ speech” that schools may ban on school grounds

regardless of its disruptive effects. Mahanoy, 594 U.S. at 187 (quoting Fraser, 478 U.S. at 685).

Again, for good reason. Since Fraser, the Supreme Court has clarified that we should not read its

exception to Tinker broadly to “encompass any speech that could fit under some definition of

‘offensive.’” Morse, 551 U.S. at 409. And nobody would describe the words in this case—mere

pronouns—as an inherently offensive “form of expression” like the sexual innuendo from Fraser

or the F-word from Cohen. Fraser, 478 U.S. at 682 (discussing Cohen, 403 U.S. at 15).

The School District instead justifies its ban on biological pronouns under Tinker’s test for

“personal expression” at school. Hazelwood, 484 U.S. at 271. For its part, Defending Education

argues that Barnette’s more categorical ban on compelled speech should apply instead because the

School District requires students to use preferred pronouns and to affirm a belief with which they

disagree: that gender is fluid. See 319 U.S. at 642. Yet the School District responds that it would

permit “accommodations” that would allow students to “avoid using pronouns” at all if they refuse

to use preferred pronouns. Emails, R.7-2, PageID 355. Ultimately, we need not decide whether

Barnette’s test for compelling speech should apply because the District has not met Tinker’s test

for silencing personal (non-school-sponsored) speech on school grounds.

a. What Does Tinker Require?

Under Tinker, schools may restrict speech if the speech will cause certain school-related

harms. See 393 U.S. at 507–14. This test raises both substantive constitutional questions (what

school-related harms suffice to allow schools to restrict private student speech?) and procedural

evidentiary questions (what must the record contain to show that the speech will likely cause the

feared harms?). It is useful to differentiate these two distinct types of questions.

Substantive Constitutional Questions. Tinker tells school officials that they may silence

speech if the speech will either cause a “substantial disruption” or infringe “the rights of others.”

Id. at 513–14. We will discuss each alternative path in turn.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 17

Sch. Dist. Bd. of Educ., et al.

Path One: Begin with the “substantial disruption” path. Tinker described this path in

different ways at different places. At one point, it said that schools may ban speech that “materially

and substantially interfere[s] with the requirements of appropriate discipline in the operation of the

school[.]” Id. at 509 (citation omitted). It later said that schools may ban speech that “materially

disrupts classwork or involves substantial disorder[.]” Id. at 513. And it said that schools may

ban speech that “materially and substantially disrupt[s] the work and discipline of the school.” Id.

These varied formulations unambiguously allow schools to ban speech that itself disrupts

school functions. Tinker likely had this “aggressive, disruptive” expression in mind. Id. at 508.

The Court contrasted the armbands in that case with a case in which a student entered a classroom

without permission to interrupt ongoing class instruction. See id. at 505 n.1, 513 (citing Blackwell

v. Issaquena Cnty. Bd. of Educ., 363 F.2d 749, 751–53 (5th Cir. 1966)). So if a student had given

a speech criticizing our country’s involvement in Vietnam during “math class,” the school could

have stopped it. See Mahanoy, 594 U.S. at 196–97 (Alito, J., concurring). The students in Tinker,

though, engaged in no similar “disturbance” by wearing armbands. 393 U.S. at 508. (Although

Justice Black’s dissent suggested that a discussion about the armbands had interfered with a math

lesson, the majority did not agree. Compare id., with id. at 517–18 (Black, J., dissenting).)

Tinker thus did not confront when schools may ban speech that is not inherently disruptive

but that causes a disruption because of the audience’s reaction to it. According to the Court, the

armbands in that case had led to only a few “hostile remarks” without any “threats or acts of

violence on school premises.” Id. at 508 (majority opinion). Suppose instead that the classmates

who had lost a friend in Vietnam had threatened to assault the armband wearers, shouted them

down in math class to an extent that barred all instruction, or simply skipped school because they

could not bear to see the armbands. See id. at 509 n.3. Would Tinker have allowed the school to

bar the silent political protest based on any of these reactions by other students?

This question poses a tougher free-speech problem. The government typically may not

ban speech simply because the audience will respond with “violence or threats or other

unprivileged retaliatory conduct[.]” Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874,

879 (7th Cir. 2011). If schools enforced this type of “heckler’s veto” (barring speech because of

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 18

Sch. Dist. Bd. of Educ., et al.

an audience’s reaction), they would commit the “odious viewpoint discrimination” that cuts to the

First Amendment’s core. Bible Believers v. Wayne County, 805 F.3d 228, 248 (6th Cir. 2015) (en

banc). At the same time, schools contain a “captive audience” filled with “immature” students.

Zamecnik, 636 F.3d at 879–80. So the Court has held that schools may ban speech that is vulgar

or promotes drug use because of the speech’s specific message to its student audience. See Morse,

551 U.S. at 408; Fraser, 478 U.S. at 684. Given these seemingly conflicting principles, the Court’s

cases leave unclear when (if ever) schools may silence nondisruptive speakers because of the way

that listeners will react to their message. See B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725

F.3d 293, 322 n.24 (3d Cir. 2013) (en banc); compare Barr v. Lafon, 538 F.3d 554, 566–68 (6th

Cir. 2008), with Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1274–76 (11th Cir. 2004).

That said, we find two extremes clear. On the one hand, schools may not ban student

speech just because the audience will suffer “discomfort and unpleasantness” from hearing ideas

they dislike. Tinker, 393 U.S. at 509; see Saxe, 240 F.3d at 212, 215. Morse made this clear when

it held that schools could ban speech promoting illegal drug use only because of the harms that

drugs cause—not because this speech’s content was “offensive.” 551 U.S. at 407, 409. And as

the Court added when distinguishing the lewd speech in Fraser from the armbands in Tinker, this

principle reaches its apex if a listener’s discomfort arises from a “political” idea. Fraser, 478 U.S.

at 680. Speech on public policy has long received special protection under the First Amendment.

See Snyder, 562 U.S. at 452–53; Buckley v. Valeo, 424 U.S. 1, 14–15 (1976) (per curiam).

On the other hand, schools may ban student speech that resembles statements that generally

fall outside the First Amendment because of their likely effects on their audience. Take “fighting

words.” See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). The government may ban

“personally abusive epithets” targeting a specific recipient because these words are “inherently

likely to provoke violent reaction” from that recipient. Virginia v. Black, 538 U.S. 343, 359 (2003)

(quoting Cohen, 403 U.S. at 20). And just as schools have “greater authority” to prohibit student

advocacy of illegal drug use than the general incitement test would allow, Morse, 551 U.S. at 425

(Alito, J., concurring) (citing Brandenburg, 395 U.S. 444), they likely have greater authority to

restrict harassing speech “targeting particular individuals” than the general fighting-words doctrine

would allow, Mahanoy, 594 U.S. at 188; see Chen ex rel. Chen v. Albany Unified Sch. Dist., 56

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 19

Sch. Dist. Bd. of Educ., et al.

F.4th 708, 717 (9th Cir. 2022); Zamecnik, 636 F.3d at 876. In the school setting, then, this

expanded fighting-words doctrine prevents students from directing “abusive language” at students

or teachers. Chen, 56 F.4th at 717 (quoting Mahanoy, 594 U.S. at 191).

Or take “true threats.” See Counterman v. Colorado, 600 U.S. 66, 74 (2023). The

government may ban threats of harm because of the “fear of violence” that the threats instill in

their victims and the “disruption” in the victims’ lives that they cause. Id. (quoting Black, 538

U.S. at 360). And again, schools likely have greater authority to regulate threatening speech than

the Court’s true-threats test would permit for adults. See Chen, 56 F.4th at 718, 722; Bell v.

Itawamba Cnty. Sch. Bd., 799 F.3d 379, 397–400 (5th Cir. 2015) (en banc); see also Kutchinski ex

rel. H.K. v. Freeland Cmty. Sch. Dist., 69 F.4th 350, 359–60 (6th Cir. 2023). In short, although

the Court’s cases have never allowed a heckler’s veto, they have sometimes allowed what might

be called a “victim’s veto.”

Path Two: Tinker also held that schools may restrict speech that infringes the “rights of

others” in the school community. 393 U.S. at 513. Decades after Tinker, this path to restricting

speech still has an “unclear” scope. Saxe, 240 F.3d at 217; see Chen, 56 F.4th at 717. The

uncertainty arises from the Court’s failure to articulate what it meant by the word “rights.” Did it

mean to give the judiciary the power to pick the substantive privileges that a speaker’s audience

should possess based on their own philosophical predilections? We doubt it. Instead, we interpret

the word to require schools to identify some source of positive law—whether the Constitution, a

federal statute, or a state law—that the speaker violated. See Saxe, 240 F.3d at 217.

Tinker proves this point. Again, the Court contrasted the silent political speech in that case

with the “aggressive, disruptive” speech in another one. Tinker, 393 U.S. at 505 n.1, 508, 513

(distinguishing Blackwell, 363 F.2d 749). In the other case, students forcibly placed “freedom

buttons” on classmates without their consent. See Blackwell, 363 F.2d at 751. The speakers’

“offensive contact” with their classmates could have constituted a battery under state tort law. See

Restatement (Second) of Torts § 18(1) (A.L.I. 1965). Besides, “physically harassing conduct”

falls outside the First Amendment’s protections for speech. Saxe, 240 F.3d at 206.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 20

Sch. Dist. Bd. of Educ., et al.

Other examples of positive “rights” readily come to mind. As a general matter, tort laws

bar speakers from defaming others, intentionally inflicting emotional distress on them, or intruding

on their seclusion. See Restatement (Second) of Torts §§ 46, 558, 652B. As a school-specific

matter, federal law requires schools to bar student-on-student “harassment based on,” among other

traits, sex and race. Saxe, 240 F.3d at 210; see Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of

Educ., 526 U.S. 629, 649–53 (1999); Meriwether, 992 F.3d at 511. And Ohio law requires schools

to bar students from engaging in “harassment, intimidation, or bullying” of others. Ohio Rev.

Code § 3313.666(B)(1); cf. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 29 (1st

Cir. 2020).

Conversely, no laws give members of our society the “right” to avoid messages they

dislike. As the Seventh Circuit put it, “people in our society do not have a legal right to prevent

criticism of their beliefs or even their way of life.” Zamecnik, 636 F.3d at 876. Nor do they have

a right to avoid speech that they find “offensive” in some way. Saxe, 240 F.3d at 217. If anything,

we suspect that the First Amendment may well limit a state legislator’s ability to create these types

of unprecedented “rights” for students or teachers. Cf. Harper v. Poway Unified Sch. Dist., 445

F.3d 1166, 1197–98 (9th Cir. 2006) (Kozinski, J., dissenting).

Procedural Evidentiary Questions. Apart from these substantive constitutional questions,

Tinker also implicates a few procedural or evidentiary ones. For instance, who bears the burden

of proof? Circuit precedent reveals the answer: schools. As Judge Batchelder noted at the panel

stage, schools may restrict speech under Tinker only if they prove that the speech will disrupt

school activities or infringe the rights of others. See Parents Defending Educ., 109 F.4th at 489–

90 (Batchelder, J., dissenting) (citing, among others, Norris, 969 F.3d at 25; B.H., 725 F.3d at 321;

N.J. ex rel. Jacob v. Sonnabend, 37 F.4th 412, 426 (7th Cir. 2022)). So schools may not require

students to prove the value of their message before allowing them to convey it. See id. at 490.

Next, should this burden of proof change at the preliminary-injunction stage? The Supreme

Court’s cases reveal the answer: No. Admittedly, plaintiffs (not defendants) typically must prove

that they will likely succeed on the merits to obtain a preliminary injunction. See Gonzales v.

O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006). But the Supreme

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 21

Sch. Dist. Bd. of Educ., et al.

Court has clarified that the burdens of proof that parties must meet at the preliminary-injunction

stage “track” those they must meet at a trial. Id. at 429. So courts must hold that a student speaker

will “likely” prevail at this stage “unless” a school establishes one of Tinker’s two paths to

restricting speech. Ashcroft v. Am. Civ. Liberties Union, 542 U.S. 656, 666 (2004).

Lastly, what “standard of proof” must schools meet to satisfy their burden? Nuxoll ex rel.

Nuxoll v. Indian Prairie Sch. Dist. #204, 523 F.3d 668, 674 (7th Cir. 2008). The answer likely

changes based on the speech. To be sure, our cases seem to set uniform ground rules. We have

made clear that school officials need not wait to see if the speech will have harmful effects before

restricting it. See Kutchinski, 69 F.4th at 359. We have also made clear that they need not prove

with “certainty” that the feared effects will arise. Id. (quoting Lowery v. Euverard, 497 F.3d 584,

592 (6th Cir. 2007)). Rather, we hold schools to a reasonableness test: they must “reasonably

forecast” that the speech will cause a disruption or violate the rights of others. Barr, 538 F.3d at

565; see Kutchinski, 69 F.4th at 359; see also Zamecnik, 636 F.3d at 876; Saxe, 240 F.3d at 217.

In practice, though, this reasonableness test requires different things for different speech.

The closer the speech resembles the fighting words, true threats, defamation, or other statements

that fall outside the First Amendment, the less evidence a school must present to show that the

speech will likely cause a substantial disruption or infringe the rights of others. So, for example,

we held that a school reasonably predicted a disruption with little need for evidence when students

operated a “fake Instagram account that impersonated a” teacher and targeted members of the

school community with “sexual and violent posts” from this account. Kutchinski, 69 F.4th at 359–

60; cf. Novak v. City of Parma, 33 F.4th 296, 305 (6th Cir. 2022).

But the closer the speech resembles political expression at the First Amendment’s core, the

more evidence a school must present of the disruption or violation of rights. Our cases about the

Confederate flag prove this point. Compare Barr, 538 F.3d at 565–69, with Castorina ex rel. Rewt

v. Madison Cnty. Sch. Bd., 246 F.3d 536, 541–44 (6th Cir. 2001). In Castorina, we held that a

school’s ban on images of that flag would have violated the First Amendment under the student’s

version of the record evidence, which showed that the flag had not caused any prior disruption.

See 246 F.3d at 541–44. We refused to uphold the principal’s prediction that the flag would cause

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 22

Sch. Dist. Bd. of Educ., et al.

a disruption based on its “controversial” nature alone. Id. at 542. The record also suggested that

the school had allowed other students to wear attire containing images “associated with Malcolm

X and the Black Muslim movement,” so the school had engaged in an egregious “targeted ban”

that discriminated based on viewpoint. Id. at 541–42. In Barr, by contrast, we held that a school

could ban images of the Confederate flag because the record contained substantial evidence of the

ongoing “racial tension” at the school, which had resulted in recent and repeated racial violence

and threats. 538 F.3d at 565–69. Requiring this real-world evidence for political (if offensive)

speech makes good sense. Tinker would not create much of a “demanding” test if officials could

freely bar that speech based on hunches. See Mahanoy, 594 U.S. at 193.

Our colleagues in dissent reject any notion that administrators should have to shoulder a

heavier burden when they seek to silence private student speech that discusses matters of public

concern as compared to private student speech that, say, hurls abusive invective at a classmate.

By doing so, the dissent conflicts with bedrock First Amendment principles. Expression about

“matters of public concern,” the Supreme Court has repeatedly reminded us, falls “at the heart of

the First Amendment’s protection.” Snyder, 562 U.S. at 451–52 (citation omitted). Or, as the

Court put it in another case, this type of speech “occupies the ‘highest rung of the hierarchy of

First Amendment values’” and so receives “special protection” from the courts. Connick v. Myers,

461 U.S. 138, 145 (1983) (citation omitted). When, by contrast, the speech has “purely private

significance,” courts “often” apply “less rigorous” review to it. Snyder, 562 U.S. at 452.

We thus break no new ground in applying this well-established dichotomy in the student-

speech context. Indeed, the Court has repeatedly made this distinction. When allowing school

administrators to bar the “sexual content” conveyed in Fraser, the Court distinguished that speech

from “the political ‘message’ of the armbands in Tinker[.]” Fraser, 478 U.S. at 680. And when

holding that school administrators could punish speech promoting illegal drug use, the Court

disavowed any claim that this speech concerned a “political debate” about drug legalization.

Morse, 551 U.S. at 403, 408; see also Mahanoy, 594 U.S. at 203–05 (Alito, J., concurring).

Nor do the decisions from our court on which the dissent relies require a different rule. See

C.S. v. McCrumb, 135 F.4th 1056, 1060–68 (6th Cir. 2025); Lowery, 497 F.3d at 589, 593–95. In

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 23

Sch. Dist. Bd. of Educ., et al.

McCrumb, we granted qualified immunity to administrators who barred a student from wearing a

hat with the phrase “COME AND TAKE IT” and a picture of an AR-15-style rifle. 135 F.4th at

1058–59. Yet McCrumb acknowledged that its “fact-driven” result turned on “novel” facts: the

school was close to a district at which a tragic school shooting had just occurred and some students

from that district had transferred to the McCrumb school. Id. at 1058, 1062, 1067–68. Indeed,

McCrumb suggested it might have reached a different result if the tragedy had not just happened

or if the students had not transferred. See id. at 1067–68. Given its admitted narrowness,

McCrumb “has little, if any, precedential value going forward.” C.S. v. McCrumb, 149 F.4th 848,

853 (6th Cir. 2025) (Readler, J., statement respecting the denial of rehearing en banc).

And, if anything, Lowery supports our interpretation of Tinker. There, disgruntled players

on a high-school football team hoped to get their coach fired by asking teammates to sign a petition

opining that they hated their coach and did not want to play for him. Lowery, 497 F.3d at 585–86.

The coach dismissed these players. Id. at 586. Lowery held that they did not have a First

Amendment right “to remain on the football team after” engaging in this insubordination. Id. at

589–601. Yet we made clear that Tinker did not adopt “a uniform, ‘one size fits all’” approach

and that a court’s analysis must turn on the “content and context of the speech” at issue. Id. at 588.

And we opted for a deferential standard of review because speech “[r]estrictions that would be

inappropriate for the student body at large may be appropriate in the context of voluntary athletic

programs.” Id. at 597. We follow the same context-specific approach here.

b. Has the School District Satisfied Tinker’s Requirements?

Defending Education now seeks a narrow injunction that would bar the School District

from punishing students for using biological pronouns to refer to transgender and nonbinary

individuals without any subjective “ill will” toward those individuals. Parent A Decl., R.7-3,

PageID 364. When we compare this proposed speech against the record evidence, we readily

conclude that the School District has failed to satisfy either part of Tinker’s test. Mahanoy, 594

U.S. at 193. As a summary: the District’s ban on the use of biological pronouns regulates speech

on a public concern in a way that discriminates based on viewpoint. So the District bears a heavy

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 24

Sch. Dist. Bd. of Educ., et al.

evidentiary burden to justify its ban. But it presented no evidence at all that the use of biological

pronouns would disrupt school functions or violate anyone’s rights.

Type of Speech. To start, the School District has regulated personal expression—the use

of biological pronouns to convey a student’s scientific and religious beliefs—that addresses a

“sensitive topic of public concern.” Meriwether, 992 F.3d at 508; see Mahmoud, 145 S. Ct. at

2354. As part of the broader debate over transgender rights, the question whether speakers should

use preferred pronouns to refer to transgender individuals—and whether we should treat the

commonplace (and non-antagonistic) use of biological pronouns as proper or offensive—has

stirred a “passionate political and social debate” in our society. Meriwether, 992 F.3d at 508.

The different sides of this debate are clear. Like Defending Education’s members, many

believe that only two sexes (male and female) exist, that a person’s “immutable” sex is “determined

at birth,” and that the “internal perceptions” that people have about their sex cannot alter biological

facts. Neily Decl., R.7-2, PageID 346; see Parent A Decl., R.7-3, PageID 363. Those in this camp

“convey a message” consistent with these scientific beliefs when they use biological pronouns to

refer to all individuals, including transgender or nonbinary individuals. Meriwether, 992 F.3d at

508. In contrast, they would “affirm a belief with which [they] disagree[]” if the School District

required them to use preferred pronouns that differ from a person’s biological sex. Tenn. Code

Ann. § 49-6-5102(a)(4). These views also sometimes stem from “sincerely held religious beliefs.”

Parent A Decl., R.7-3, PageID 363; see Meriwether, 992 F.3d at 498–99. So forcing these

individuals to choose between either violating their scientific and religious beliefs or facing

punishment for adhering to those beliefs can cause “mental and psychological harm” to them.

Parent A Decl., R.7-3, PageID 366. And some holding these views also believe that they will help

individuals with gender dysphoria more by affirming their biological sex than by refuting it. See

Parents Defending Educ., 109 F.4th at 492 (Batchelder, J., dissenting) (citing Ryan T. Anderson,

A Brave New World of Transgender Policy, 41 Harv. J. L. & Pub. Pol’y 309, 318–19 (2018)).

Yet many others in our society hold a conflicting view. They believe that people can have

a “sense of their gender” that differs from their biological sex. Nondiscrimination on the Basis of

Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 25

Sch. Dist. Bd. of Educ., et al.

33474, 33809 (Apr. 29, 2024); see Bostock v. Clayton County, 590 U.S. 644, 660, 669 (2020); id.

at 715 & n.30, 726 & n.45 (Alito, J., dissenting). Indeed, many in this camp view gender as a fluid

concept, so a person’s preferred pronouns can expand beyond the standard “he” or “she” and

include terms like “ve,” “ze,” or a singular version of “they.” See United States v. Varner, 948

F.3d 250, 257 (5th Cir. 2020). Individuals who hold this view tend to believe that we can best

help those with gender dysphoria (“a lack of alignment between their biological sex and perceived

gender”) by allowing them to disregard biology and instead socially and medically transition to

the gender that they prefer. L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 466 (6th Cir. 2023),

aff’d sub nom., United States v. Skrmetti, 145 S. Ct. 1816 (2025). They also believe that everyone

should use a person’s preferred pronouns as a matter of basic courtesy, denying that this usage

conveys a belief about the broader transgender debate. See Chan Tov McNamarah, Misgendering

as Misconduct, 68 UCLA L. Rev. Discourse 40, 48–50 (2020). And they believe that the failure

to use preferred pronouns can cause “measurable psychological and physiological harms” to those

who have a sense of their gender that differs from their biological sex. Id. at 43.

This general debate—including the specific debate about whether to use preferred

pronouns—has spilled over into the broader political arena. The practices of the two most recent

presidential administrations emphatically prove the point. The Biden Administration concluded

that federal transgender employees should be able to express their perceived gender “and have

these identities affirmed” in the workplace. Exec. Order No. 14035, 86 Fed. Reg. 34593, 34600

(June 30, 2021) (emphasis added). It also contended that the use of biological pronouns might rise

to the level of unlawful sexual harassment in some circumstances. See, e.g., Tennessee v. Dep’t

of Educ., 104 F.4th 577, 585 (6th Cir. 2024); Tennessee v. Cardona, 737 F. Supp. 3d 510, 544–45

(E.D. Ky. 2024), stay pending app. denied, 2024 WL 3453880 (6th Cir. July 17, 2024), appeal

dismissed as moot sub nom., Tennessee v. McMahon, 2025 WL 848197 (6th Cir. Mar. 18, 2025).

The Trump Administration, by contrast, changed course. See Exec. Order No. 14168, 90

Fed. Reg. 8615 (Jan. 30, 2025). It criticized efforts at “replacing the immutable biological reality

of sex”—what it described as the “truth”—with “an internal, fluid, and subjective sense of self

unmoored from biological facts.” Id. at 8615. And it suggested that “[t]he erasure of sex in

language and policy has a corrosive impact not just on women but on the validity of the entire

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 26

Sch. Dist. Bd. of Educ., et al.

American system.” Id. So the Administration decided to use language that “recognize[s] [only]

two sexes, male and female.” Id. It also ordered officials to read the civil-rights laws to give

individuals “the freedom to express the binary nature of sex” in their workplaces. Id. at 8617; see

also Exec. Order, No. 14190, 90 Fed. Reg. 8853, 8854–55 (Feb. 3, 2025).

Even more concerning from a First Amendment perspective, the School District has not

just entered this policy debate. It has taken a side. The School District has “targeted” a speaker’s

use of biological pronouns as improper while allowing students to use preferred pronouns (no

matter how novel). See Castorina, 246 F.3d at 541. As Judge Batchelder well explained, this

differential treatment qualifies as the type of “viewpoint discrimination” that raises the most

serious red flags under the First Amendment. See Parents Defending Educ., 109 F.4th at 485–89

(Batchelder, J., dissenting). A government that discriminates based on viewpoint does not just put

an entire topic off limits; it allows certain speech on the topic but silences other points of view.

See Iancu v. Brunetti, 588 U.S. 388, 393 (2019); Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819, 829–30 (1995). This viewpoint discrimination is “uniquely harmful to a free and

democratic society” because it skews the marketplace of ideas by putting a thumb on the scale in

favor of certain perspectives. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 187 (2024).

Any ordinary person who learned of the School District’s anti-harassment policies would

believe that it has engaged in this type of viewpoint discrimination. Under its reading of those

policies, a student speaker may not consistently and intentionally use the pronoun “he” to refer to

a biological male who identifies as female. But the speaker may use that pronoun to refer to a

biological female who identifies as male. What separates the lawful and unlawful uses of “he”?

The “message” conveyed about the individual’s gender. Meriwether, 992 F.3d at 508. 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. And the School District prohibits a disfavored view on the topic—that individuals

can have only one gender determined at birth and that it is perfectly appropriate to refer to others

using biological pronouns. See Iancu, 588 U.S. at 393.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 27

Sch. Dist. Bd. of Educ., et al.

A counterfactual confirms this discrimination. Suppose that a school required students to

use biological pronouns and barred students from referring to others by preferred pronouns that

differed from their biological sex. Cf. Fla. Stat. § 1000.071(3). Like the School District’s policies

at issue, it is hard to see how that competing policy does not discriminate based on viewpoint.

The School District (supported by our colleagues in dissent) responds that the District has

not engaged in viewpoint discrimination because it allows those who believe that sex is immutable

to express this view in other ways, and it has restricted just one way to express that message:

through pronouns. Appellees’ Supp. Br. 14–15. The District, for example, would seemingly allow

a shirt that read “There Are Only Two Genders.” But cf. L.M. v. Town of Middleborough, 103

F.4th 854, 860–61 (1st Cir. 2024). This logic—that a regulation targeting a disfavored message is

neutral if it allows the speaker to express the message in other ways—conflicts with many cases.

Take R.A.V. There, the Court held that a ban on fighting words that insulted others on the basis of

race discriminated based on “viewpoint” because it applied to those expressing hatred toward a

race but not those “arguing in favor of” racial tolerance. 505 U.S. at 391–92. Under the School

District’s logic, though, this ban did not engage in viewpoint discrimination because it allowed

racist speakers to express their hostility in ways other than through fighting words. Or take Iancu.

There, the Court held that a ban on “scandalous” trademarks discriminated based on viewpoint

because it allowed trademarks “inducing societal nods of approval” but not “those provoking

offense and condemnation.” 588 U.S. at 394. Yet that case would have been simple under the

School District’s logic. Those who sought to register scandalous marks could express their

offensive speech in any other conceivable way. So the fact that people may speak in other ways

does nothing to eliminate the viewpoint discrimination.

The dissent also seeks to avoid the viewpoint-discrimination label through a creative

hypothetical. According to the dissent, the School District’s policies do not just prohibit students

from using biological pronouns for transgender students. The policies also would prohibit a

student from using male pronouns for a female classmate who identified as female even if this

student acted with the good-faith belief that the classmate had suppressed her true transgender

identity. Even accepting this (somewhat fanciful) hypothetical, it does not eliminate the viewpoint

discrimination. Quite the contrary. That the policies might cover a second viewpoint on a second

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 28

Sch. Dist. Bd. of Educ., et al.

set of facts “makes [them] more viewpoint based, not less so.” Matal, 582 U.S. at 249 (Kennedy,

J., concurring in part and concurring in the judgment). Indeed, the Supreme Court’s cases reject

the dissent’s narrow view of viewpoint discrimination. The Court has instead defined that phrase

in a “broad” way when finding unconstitutional a law that restricted all speech that disparaged

others. Id. at 243 (Alito, J., lead opinion). The Court reasoned that “[g]iving offense is a

viewpoint,” id., and that the government targets points of view when it permits all “positive”

speech but bars all “derogatory” speech, id. at 249 (Kennedy, J., concurring in part and concurring

in the judgment). The Court reached this conclusion even though the law equally prohibited speech

that ridiculed “Democrats and Republicans, capitalists and socialists, and those arrayed on both

sides of every possible issue.” Id. at 243 (Alito, J., lead opinion). The same logic covers the

School District’s policies here. If anything, the dissent’s hypothetical shows why the Court

adopted this broad definition. In nearly all real-world cases, the School District’s policies would

prohibit just one point of view in an ongoing political debate and so would “silence dissent and

distort the marketplace of ideas.” Id. at 249 (Kennedy, J., concurring in part and concurring in the

judgment).

In other contexts, a viewpoint-discrimination finding suffices—without more—to hold a

government action unconstitutional. Iancu, 588 U.S. at 393; Rosenberger, 515 U.S. at 829–30.

And our precedent (in particular, Barr) might extend this categorical viewpoint-discrimination ban

to the student expression governed by Tinker. See Barr, 538 F.3d at 571. That holding would

mean that a school could not justify this discrimination under Tinker even if it showed that the

forbidden speech would cause a substantial disruption. For three reasons, though, we opt to save

whether this bright-line rule applies in this context for another day. To start, Barr also seemed to

use a narrow definition of viewpoint discrimination that sits in tension with the Supreme Court’s

broader view because it treated a ban on “racially divisive” (but not racially inclusive) speech as

viewpoint neutral. 538 F.3d at 572; but cf. Matal, 582 U.S. at 249 (Kennedy, J., concurring in part

and concurring in the judgment). Next, the Supreme Court has since seemed to suggest that

schools may engage in some viewpoint discrimination (for example, by allowing students to

discourage drug use but not promote it). See Morse, 551 U.S. at 409. Lastly, other courts have

recognized the uncertainty over how the law on viewpoint discrimination interacts with Tinker.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 29

Sch. Dist. Bd. of Educ., et al.

See Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 443 (4th Cir. 2013). To be clear, we

do not foreclose the possibility that the general ban on viewpoint discrimination extends to this

context. But we need not resolve that question. At the least, the School District must present

substantial evidence establishing the harmful effects that Tinker requires to justify its “targeted

ban” on student speech about an issue of important public concern. Castorina, 246 F.3d at 541.

Record Evidence. Yet the School District presented no evidence on this score. Starting

with Tinker’s substantial-disruption prong, the District does not even try to argue that the speech

itself—the commonplace use of biological pronouns—would “materially disrupt[] classwork” or

other school activities. 393 U.S. at 513. Unlike, say, a political diatribe about transgender rights

in math class, the mere use of biological pronouns does not entail “aggressive, disruptive action[.]”

Id. at 508. Nor does the School District suggest that such speech has ever disrupted any school

activity in the past. Cf. Barr, 538 F.3d at 565–69.

To justify its prohibition under the substantial-disruption prong, the School District instead

turns to the speech’s effects on only a part of its potential audience: the transgender or nonbinary

students who would prefer to be called by different pronouns. At times, the District suggests that

the use of biological pronouns amounts to the type of “abusive language” that schools may ban

under the relaxed fighting-words doctrine that applies in the school context. See Chen, 56 F.4th

at 717 (quoting Mahanoy, 594 U.S. at 191). For example, the District compares a student’s use of

biological pronouns for transgender or nonbinary classmates to another student’s mocking a

smaller male student by referring to him with feminine pronouns or shouting “go back to Mexico!”

to Hispanic students. Appellees’ Supp. Br. 12, 16. The School District is right that schools may

bar abusive “invective” that targets “specific” students—whether transgender students, religious

students, female students, Hispanic students, or any others. See Chen, 56 F.4th at 717. That is, a

school could bar a student from abusively ridiculing a transgender classmate’s “physical

characteristics” in the same way it could bar a student from abusively ridiculing a smaller student’s

physical characteristics. See id. at 718.

But the School District is wrong to treat the use of biological pronouns alone as analogous

to this abusive invective. Defending Education’s members want to use biological pronouns not

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 30

Sch. Dist. Bd. of Educ., et al.

because they seek to ridicule others but because they want to speak what they view as the truth

(and cannot “affirm” a view with which they disagree on a pressing matter of public concern).

Parent A Decl., 7-3, PageID 363. What evidence permits the School District to treat this speech

as “abusive”? It points to none. Throughout most of our country’s history, our society viewed

biological pronouns as a proper (perhaps the only proper) way to refer to others. Even today, many

States (including two in our circuit) have passed laws that bar schools from punishing teachers or

students for refusing to use preferred pronouns. See Ky. Rev. Stat. § 158.191(5)(c); Tenn. Code

Ann. § 49-6-5102(b); see also Ark. Code Ann. § 6-1-108(d)(2)(B), (e)(B); Fla. Stat.

§ 1000.071(2); Idaho Code § 67-5909B(2)(b), (4)(b); La. Stat. Ann. § 17:2125(C)(1)(a)–(c); 2025

Mont. Laws ch. 275, § 3 (H.B. 400); N.D. Cent. Code § 15.1-06-21(1).

The choice to use biological pronouns also fundamentally differs from, say, the choice to

wear a t-shirt with the message “There Are Only Two Genders.” A student prohibited from

wearing that shirt to school is not forced to wear one that reads “Gender Is Fluid.” But it is much

more difficult to avoid the pronoun debate. For centuries, the English language has relied on

pronouns “to designate” someone or something who or which “is known from context” or “has

been already mentioned[.]” XII Oxford English Dictionary 624 (2d. ed. 1989); see Meriwether,

992 F.3d at 508–09. Perhaps in formal writing, one can work hard to delete all pronoun references

and still avoid bewildering prose. Compare Burt v. Titlow, 571 U.S. 12, 15–18 (2013) (avoiding

pronouns), with id. at 24 (Sotomayor, J., concurring) (using pronouns). But in ordinary

conversations (especially conversations between young students), it would be all but “impossible”

to train oneself not to use pronouns when referring to others. Meriwether, 992 F.3d at 517.

Students do not use this speech to belittle others; they use it because there is no practical alternative

short of expressing a viewpoint with which they might fundamentally disagree.

We made a similar point when protecting a professor’s First Amendment right to avoid

using preferred pronouns during class discussions. See Meriwether, 992 F.3d at 517. Meriwether

held that the Free Speech Clause barred a university from punishing a professor for refusing to use

preferred pronouns (or from using no pronouns at all) during class discussions. Id. at 509–11.

That decision all but compels our result here. Because Meriwether involved on-the-job speech

that a professor conveyed during official instruction, we applied a balancing test like the one that

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 31

Sch. Dist. Bd. of Educ., et al.

Hazelwood applied for school-sponsored speech that children use in their capacity as students

during official instruction. Yet this case involves “personal expression” that students use during

the school day—not “school-sponsored” speech. Hazelwood, 484 U.S. at 271. If a requirement

to use preferred pronouns cannot even satisfy the judicial balancing test for employee speech, it is

hard to see how it could survive Tinker’s more “demanding standard.” Mahanoy, 594 U.S. at 193.

At most, the School District highlights the concession from some of Defending Education’s

members that transgender or nonbinary students might view the use of biological pronouns as

“‘insulting,’ ‘humiliating,’ ‘dehumanizing,’ ‘derogatory,’ and ‘unwanted’” because they prefer to

be called by other pronouns. Parent A Decl., R.7-3, PageID 364. In other words, these members

acknowledge the risk that their speech might offend others—even though the members do not mean

for their speech to come across that way and even though they have no “ill will” toward anyone.

Id. Under Tinker, however, this “undifferentiated fear” of the possibility for offense does not

suffice to proscribe speech on an important matter of public policy. 393 U.S. at 508. As the Court

explained, a school must identify “something more than a mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular viewpoint.” Id. at 509.

What “more” is required under Tinker to show a disruption that might suffice to silence

political speech? Id. Like the dissent, some courts have suggested that schools may prohibit

speech if they can prove that it will interfere with the “educational performance” of other students.

Saxe, 240 F.3d at 216–17. Because “[t]he primary function of a public school is to educate its

students,” this reasoning goes, “conduct that substantially interferes with [that] mission is, almost

by definition, disruptive to the school environment.” Id. at 217. Under this view, a school might

ban speech if it could show that speech has led to a “decline in students’ test scores,” an “upsurge

in truancy,” or other harmful effects. Zamecnik, 636 F.3d at 876. We have our doubts about this

approach. Could the school in Tinker really have barred the students’ political armbands if other

classmates had done worse on exams, suffered distress, or refused to attend school in response?

See L.M. ex rel. Morrison v. Town of Middleborough, 145 S. Ct. 1489, 1495–96 (2025) (Alito, J.,

dissenting from the denial of certiorari). Our colleagues in dissent would presumably answer “yes”

to this question. But we need not decide the question here. Even under this view, the School

District has made no claim (and presented no evidence) that the mere use of biological pronouns

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 32

Sch. Dist. Bd. of Educ., et al.

would create these types of educational problems. Suffice it to say, we also do not think that the

district court’s efforts to fill in the evidentiary void with citations to law-review articles meets

Tinker’s high bar for the speech at issue here. See Mahanoy, 594 U.S. at 193.

Turning to Tinker’s violation-of-rights prong, the School District all but concedes that it

has not shown that the use of biological pronouns would violate the rights of any students under

Title IX—the federal law barring a school’s deliberate indifference to student-on-student sexual

harassment. Appellees’ Supp. Br. 20–21; see Saxe, 240 F.3d at 210. Title IX bars only speech

(typically combined with conduct) that is “so severe, pervasive, and objectively offensive that it

denies its victims the equal access to education that Title IX is designed to protect.” Davis, 526

U.S. at 652. And the School District lacks evidence that the use of biological pronouns would

deny any students an equal access to education in this way. See Meriwether, 992 F.3d at 511.

The School District responds that transgender and nonbinary students have a right to be

free from “harassment” and “bullying” under Ohio law. Ohio Rev. Code § 3313.666(B)(1); see

Appellees’ Supp. Br. 11. But this argument suffers from similar problems. Again, the District is

right that it has the same power to discipline students for bullying or harassing transgender

classmates that it has to discipline students for bullying or harassing other classmates for other

reasons—whether their bodily appearances, unusual names, or religious affiliations. But again,

the District is wrong to equate the speech here (the use of biological pronouns) with the bullying

and harassment that it may prohibit. Ohio law defines “harassment, intimidation, or bullying” to

cover speech directed at another student only if the speech both “[c]auses mental or physical harm

to the other student,” and “[i]s sufficiently severe, persistent, or pervasive that it creates an

intimidating, threatening, or abusive educational environment for the other student.” Ohio Rev.

Code § 3313.666(A)(2)(a). And the School District has offered no evidence that the commonplace

use of biological pronouns would create an intimidating, threating, or abusive environment.

One final point: When a political debate has fractured our society in such a significant way,

the originalist case for giving schools greater power to regulate a student’s personal speech loses

its force. That case rests on the “in loco parentis” doctrine—that is, on the notion that parents

have impliedly delegated their disciplinary power to schools. See Mahanoy, 594 U.S. at 187.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 33

Sch. Dist. Bd. of Educ., et al.

Perhaps when schools punish students for widely condemned behavior, one can reconcile this

doctrine with the traditional rule that, “[i]n our society, parents, not the State, have the primary

authority and duty to raise, educate, and form the character of their children.” Id. at 201–02 (Alito,

J., concurring). Yet a world of difference exists between punishing a student for taking part in a

national policy debate and for mocking a teacher’s old age. See id. at 202 n.14 (citing Lander v.

Seaver, 32 Vt. 114 (1859)). It is implausible to suggest that parents with strong feelings on this

sensitive issue have impliedly given schools the power to force their children to express viewpoints

at odds with those they teach at home. Cf. Mahmoud, 145 S. Ct. at 2351–52. How can we say that

parents have delegated to schools the authority to dictate “the boundaries of socially appropriate

behavior” on the issue when those boundaries continue to get worked out in our broader society?

Fraser, 478 U.S. at 681.

Like all language, pronouns can affect culture. “Words and images act at the level of the

subconscious before they persuade at the level of the conscious.” Am. Booksellers Ass’n, Inc. v.

Hudnut, 771 F.2d 323, 329 (7th Cir. 1985) (Easterbrook, J.). The use of “he” or “she” will lead

most to believe that the identified person is male or female. And if our society makes it socially

unacceptable for people to speak about transgender individuals using their biological pronouns, it

may well establish a new cultural norm about the thoughts that are “expected” or “permissible.”

Id. at 328. Perhaps this significant social change may one day arise. But the First Amendment

bars the government from enforcing the change through its control of language. The government

may not restrict the speech that individuals use to alter the beliefs that they hold. That is “thought

control.” Id. And “[i]f there is any fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or

other matters of opinion[.]” Barnette, 319 U.S. at 642. The School District’s ban on the use of

biological pronouns violates this principle. So Defending Education is likely to succeed on the

merits of its claim that the District may not punish students solely for the use of biological

pronouns at school.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 34

Sch. Dist. Bd. of Educ., et al.

C. Other Injunction Factors

The remaining preliminary-injunction factors need not detain us long. As we said at the

outset, the likelihood-of-success factor looms large over the others in constitutional cases. See

Fischer, 52 F.4th at 307. Take the irreparable-harm factor. The “loss of First Amendment

freedoms, for even minimal periods of time, unquestionably” qualifies as the kind of “irreparable

injury” that courts cannot adequately fix after the fact with a damages remedy. Roman Cath.

Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per curiam) (quoting Elrod v. Burns, 427

U.S. 347, 373 (1976) (plurality opinion)). The School District’s ban on the use of biological

pronouns triggers this rule because the ban likely violates the Free Speech Clause.

The School District responds that a plaintiff still must show that the constitutional injury

will arise during the lawsuit to establish the need for a preliminary injunction (as compared to a

permanent injunction at the suit’s end). See Fischer v. Thomas, 78 F.4th 864, 868–69 (6th Cir.

2023); see also D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 326–27 (6th Cir. 2019). In other words,

when speakers do not want to speak until well into the future, they may not need a preliminary

injunction to protect this speech if a court can resolve the dispute before then. See Fischer, 78

F.4th at 868–69. But that principle does not apply here. The record shows that the children of

Parents A, B, C, and D know transgender students in their school and want to use biological

pronouns “now” rather than at some unknown future date. Id. at 868 (quoting D.T., 942 F.3d at

327); see, e.g., Parent A Decl., R.7-3, PageID 363–66. And again, the School District has made

clear that it prohibits this speech. So this irreparable injury is occurring every school day.

Or take the balance of the equities and public interest. On one side of this balance, our

cases make clear that protecting constitutional rights serves the public interest. See, e.g., Dahl v.

Bd. of Trs. of W. Mich. Univ., 15 F.4th 728, 736 (6th Cir. 2021) (per curiam) (order); Deja Vu of

Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001).

Defending Education has also identified other injuries that might arise absent an injunction. Its

parent members worry that the School District’s policies cause their children “mental and

psychological harm” by forcing them to choose between their beliefs and potential punishment.

See, e.g., Parent A Decl., R.7-3, PageID 366. And this injury becomes more acute for those who

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 35

Sch. Dist. Bd. of Educ., et al.

fear violating their “sincerely held religious beliefs.” Id., PageID 363. On the other side of the

balance, the School District rightly highlights the potential psychological harms to transgender and

nonbinary students from an injunction barring enforcement of its anti-harassment policies. We

can best balance these competing equities by granting a “tailored injunction” that covers the speech

Defending Education seeks to protect but permits the School District to discipline bullying and

harassment separate from that speech. Ramirez v. Collier, 595 U.S. 411, 433–34 (2022); see

Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017) (per curiam).

For the foregoing reasons, Defending Education is entitled to an appropriately tailored

preliminary injunction. We reverse and remand for proceedings consistent with this opinion.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 36

Sch. Dist. Bd. of Educ., et al.

__________________

CONCURRENCE

__________________

ALICE M. BATCHELDER, Circuit Judge, concurring. The School District’s policies are

unconstitutional for at least three separate and stand-alone reasons. One, they violate the

constitutional prohibition against compelled speech. See W. Va. Bd. of Educ. v. Barnette, 319 U.S.

624, 642 (1943). Two, they constitute impermissible viewpoint discrimination. See Police Dept.

of Chicago v. Mosley, 408 U.S. 92, 95 (1972). And three, while Tinker v. Des Moines Independent

Community School District, 393 U.S. 503, 513 (1969), would permit the School District to

suppress certain types of student speech under certain circumstances by showing that the speech

would cause certain consequences (i.e., it would “materially and substantially disrupt” school

activities, or it would infringe the legal “rights of others”), the School District has made no such

showing and, in fact, it produced no evidence whatsoever to support such a showing.

The majority opinion states that it decides this case solely on the School District’s failure

to satisfy Tinker, and I agree with the majority’s conclusion as to that failure. But insofar as any

language in the opinion would have Tinker apply to Defending Education’s compelled-speech or

viewpoint-discrimination claims, that is not the law, and therefore I cannot agree. “In our system,

students may not be regarded as closed-circuit recipients of only that which the State chooses to

communicate. They may not be confined to the expression of those sentiments that are officially

approved. . . . [And] school officials cannot suppress expressions of feelings with which they do

not wish to contend.” Tinker, 393 U.S. at 511 (quotation marks and citation omitted); cf. Mahmoud

v. Taylor, 606 U.S. --, 145 S.Ct. 2332, 2386 (2025) (Sotomayor, J., dissenting) (insisting that, even

in the elementary school setting, “no robust democracy insulates its citizens from views that they

might find novel or even inflammatory” (quotation marks and citation omitted)).

Simply put, Tinker creates a narrow exception to the First Amendment’s guarantee of free

speech, allowing some limited suppression of certain types of inflammatory speech under specific

conditions. But Tinker does not create an exception to the Free Speech Clause’s heightened—or

more emphatic—prohibitions against viewpoint discrimination and compelled speech. Tinker has

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 37

Sch. Dist. Bd. of Educ., et al.

no role in a viewpoint-discrimination or compelled-speech analysis. Justices Alito and Thomas

recently raised this same point. See L.M. ex rel. Morrison v. Town of Middleborough, 145 S. Ct.

1489, 1492-94 (2025) (Alito, J., dissenting from the denial of certiorari).

The majority reads the Court’s cases as having permitted public schools to engage in some

type of viewpoint discrimination. But, taking the Court at its word (and going no further), the

Court has merely held that schools can proscribe speech in four specific and limited contexts:

This Court has previously outlined three specific categories of student speech that

schools may regulate in certain circumstances: (1) ‘indecent,’ ‘lewd,’ or ‘vulgar’

speech uttered during a school assembly on school grounds; (2) speech, uttered

during a class trip, that promotes ‘illegal drug use’; and (3) speech that others may

reasonably perceive as bearing the imprimatur of the school, such as that appearing

in a school-sponsored newspaper.

Finally, in Tinker, we said schools have a special interest in regulating speech that

materially disrupts classwork or involves substantial disorder or invasion of the

rights of others. These special characteristics call for special leeway when schools

regulate speech that occurs under its supervision.

Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 594 U.S. 180, 187-88 (2021) (editorial marks,

certain quotation marks, and citations omitted). As I see it, this short list of exceptions comprises

little more than time, place, and manner restrictions targeting the promotion of unlawful activity,

lewd or indecent behavior, disruption of the school’s ordinary operation, or violating the legal

rights of others. It does not matter that the speech being suppressed expresses a viewpoint. This

free-speech exception is not based on viewpoint; it is based on content (or conduct) so

inflammatory that it directly—not through a heckler’s veto—disrupts the school’s ordinary

operations. Even under the most liberal reading of the Court’s cases, it goes too far to read these

exceptions as a broad endorsement of viewpoint discrimination in the school setting.

Rather, the “bedrock principle” is “that a school may not engage in viewpoint

discrimination when it regulates student speech.” L.M., 145 S. Ct. at 1492 (Alito, J., dissenting

from the denial of certiorari). Nothing in the Tinker case line holds otherwise. See id. at 1493-94

(Alito, J., dissenting from the denial of certiorari). Nor does Tinker allow public schools to compel

student speech. See 303 Creative LLC v. Elenis, 600 U.S. 570, 586 (2023) (citing Tinker while

explaining that “the government may not compel a person to speak its own preferred messages”).

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 38

Sch. Dist. Bd. of Educ., et al.

Surely, the Supreme Court’s “fixed star” of constitutional certainty, see Barnette, 319 U.S. at 642,

does not give way just because school administrators see a need to compel their students to

conform to and recite their preferred viewpoint on matters of public concern.

The majority opinion states that it is not deciding the compelled-speech or viewpoint-

discrimination issues, so its holding is that the School District’s policies are unconstitutional bans

on student speech because the School District cannot satisfy its reliance on Tinker (to save the

policies) in that it produced no evidence to satisfy Tinker’s test. But the opinion also treads into

the topics of compelled speech and viewpoint discrimination, eventually opining that the School

District has not produced sufficient evidence pursuant to Tinker that would justify compelled

speech or viewpoint discrimination on matters of public concern. This excess language, while

apparently dicta, suggests that the School District could have produced sufficient Tinker evidence

(i.e., of material disruption, substantial disorder, or infringement on the legal rights of others) to

justify compelled speech or viewpoint discrimination on matters of public concern.

Should a school in a future case produce evidence that satisfies Tinker, it might point to

this language as meaning that Tinker allows it to engage in compelled speech and viewpoint

discrimination on matters of public concern. And the purpose of this separate writing is to say that

such an argument must fail. Under the Supreme Court’s cases, there is no amount of Tinker

evidence that would permit a school to compel student speech or to ban student speech on a matter

of public concern based solely on its viewpoint. Therefore, as this case returns to the district court

on remand, even if the School District were to produce overwhelming evidence of disruption, that

evidence would still not justify the compelled-speech or viewpoint-discrimination aspects of its

preferred-pronoun policies.

With this understanding, I concur in the majority opinion.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 39

Sch. Dist. Bd. of Educ., et al.

__________________

CONCURRENCE

__________________

KETHLEDGE, Circuit Judge, concurring. I join the majority opinion, which carefully

applies the Supreme Court’s caselaw concerning school speech and viewpoint discrimination. But

I am not at all convinced that contemporary free-speech doctrine affords us a clear basis to decide

cases like this one by the application of legal rules. Nor do I think that current free-speech doctrine

even attempts to discern whether speech falls within “the freedom of speech” as that phrase was

originally understood. I thus write separately to explain those defects and to suggest how the

historic common law might help to remedy them.

The First Amendment prohibits Congress (or the states) from making any law “abridging

the freedom of speech, or of the press.” Like the Second Amendment, that phrase employs the

definite article—“the freedom of speech”—indicating that it refers to a right already existing.

Thus, as with the Second Amendment, whether certain speech falls within the scope of that original

right would seem to be central to the question whether the First Amendment protects it. See New

York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24 (2022); National Republican Senatorial

Committee v. Federal Election Commission, 117 F.4th 389, 398 (6th Cir. 2024) (en banc) (Thapar,

J., concurring); cf. Hall v. Meisner, 51 F.4th 185, 189-90 (6th Cir. 2022).

Yet First Amendment doctrine, since the early 20th century at least, has not asked that

question. Instead, for the most part, that doctrine (as to speech) is founded on judicial

proclamations. From Justice Holmes’s dissenting opinion in Abrams v. United States, for example,

came the idea that the First Amendment protects a “marketplace of ideas.” 250 U.S. 616, 624

(1919) (dissenting opinion); see also, e.g., Citizens United v. Federal Election Commission, 558

U.S. 310, 335 (2010). Eight years later, Justice Brandeis wrote that the “freedom to think as you

will and to speak as you think are means indispensable to the discovery and spread of political

truth.” Whitney v. California, 274 U.S. 357, 375 (1927) (concurring opinion); see also, e.g., 303

Creative LLC v. Elenis, 600 U.S. 570, 584 (2023). And in Cohen v. California, the Court held that

a war protester’s vulgar jacket was entitled to constitutional protection, based on the maxim that

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 40

Sch. Dist. Bd. of Educ., et al.

“one man’s vulgarity is another’s lyric”—thereby ranking unfiltered self-expression among the

First Amendment’s highest ideals. 403 U.S. 15, 25-26 (1971).

The Holmes and Brandeis statements, especially, provide strong rhetorical support for the

freedom of speech. What modern free-speech doctrine seems to lack, however, is a coherent body

of legal rules. Rules are statements of legal cause and effect: when certain circumstances are

present, a prescribed result follows. And legal rules bind courts and citizens alike. Speech that

amounts to a willful misrepresentation of some material fact, for example, is sanctionable as fraud.

See, e.g., Illinois, ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 620 (2003).

The citizen knows that rule in advance; and the court’s duty is simply to apply it to the facts at

hand. A determination whether one interest outweighs another, by contrast, is a legislative

judgment. Those judgments are hard for citizens to predict in advance; and in making them the

courts have a relatively free hand.

Some other areas of doctrine do have a coherent body of rules. For example, the Supreme

Court’s caselaw governing standing, ripeness, and mootness—however much one might disagree

with the decision in one or another case, e.g., United States Parole Commission v. Geraghty, 455

U.S. 388 (1980)—comprises a coherent body of rules that enables federal courts to decide cases

on grounds legal rather than legislative. Among those peaks, the Court’s decision in Lucas v.

South Carolina Coastal Council, 505 U.S. 1003 (1992), is a notable summit; and a lower court

armed with that opinion and Marbury can navigate nearly any justiciability question presented.

In free-speech cases, however, courts often find themselves on marshier ground. True, the

doctrine does comprise some legal rules: viewpoint discrimination is generally prohibited, for

example, as are certain content-based restrictions on speech. But other parts of the doctrine—for

example, cases concerning government-employee speech—expressly direct courts to balance

competing interests rather than to apply legal rules. See Pickering v. Board of Education, 391 U.S.

563 (1968). And an appreciable swath of free-speech doctrine, respectfully, seems to be ad hoc:

the Court simply makes a decision that the speech at issue is (or is not) more important than the

reasons to restrict it in a particular instance. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478

U.S. 675, 684-85 (1986). In many cases, those decisions appear to make good practical sense.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 41

Sch. Dist. Bd. of Educ., et al.

But the nature of balancing tests and ad hoc decisions alike is that they are not based on articulated

rules. Instead, they are essentially conclusory: they present the reader with various circumstances

and an outcome, but lack any rule that recites the more abstract qualities (like imminence or

concreteness in standing cases) that make those circumstances dispositive. The precedential scope

of these decisions is therefore unclear. Thus, when a later case is a hybrid—when it resembles in

some ways a case where speech was protected, but in others a case where speech was not—the

caselaw can point in opposite directions. And without a body of rules making clear which case

governs, the lower courts are sometimes faced with the task, as distasteful as it might be, of making

legislative judgments themselves.

This is shaping up as such a case. One line of free-speech cases affords schools more

latitude than other state actors to limit speech. See, e.g., id.; Tinker v. Des Moines Independent

Community Sch. Dist., 393 U.S. 503, 514 (1969). But another line of cases says that viewpoint

discrimination is all but categorically prohibited. See Rosenberger v. Rector and Visitors of

University of Virginia, 515 U.S. 819 (1995). This case shares features of both: the state actor is a

school, which has rather plainly discriminated based on viewpoint as to the pronouns it allows

students to use. Hence this case might require us to decide whether a school may engage in

viewpoint discrimination to prevent a “substantial disruption” in “the work and discipline of the

school.” Tinker, 393 U.S. at 513-14. The Supreme Court seems to have left that door open: that

a student’s speech advocated drug use, for example, was reason enough for a principal to forbid it.

Morse v. Frederick, 551 U.S. 393, 401-02 (2007). But our (pre-Morse) circuit precedent says the

contrary, holding that a school may not prohibit speech based on the viewpoint it expresses—even

when the speech causes substantial disruption. See Castorina ex rel. Rewt v. Madison Cnty. Sch.

Bd., 246 F.3d 536, 544 (6th Cir. 2001). Several courts of appeals have since disagreed with us.

See Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 443 (4th Cir. 2013) (collecting cases);

L.M. v. Town of Middleborough, 103 F.4th 854, 883-84 & n.11 (1st Cir. 2024). Meanwhile, a

related circuit split has broken out as to whether schools may discriminate based on viewpoint

when students engage in speech that is arguably sponsored by the school—as in school newspapers

and theater productions. See Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 108 (3d Cir. 2009)

(Hardiman, J., dissenting in part) (collecting cases). That the circuits disagree on doctrinal issues,

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 42

Sch. Dist. Bd. of Educ., et al.

of course, is not necessarily the doctrine’s fault. But I do suggest, respectfully, that the reason for

the opacity of free-speech doctrine is its unusually legislative character.

A methodology like the one the Supreme Court prescribed for the Second Amendment in

Bruen, by contrast, would make free-speech doctrine more firmly grounded in law. As discussed

above, the Speech Clause by its terms points toward a preexisting right. Professor Jud Campbell

has made a strong historical case that this preexisting right included, as its core, an inviolable right

to express one’s opinions in good faith. Jud Campbell, Natural Rights and the First Amendment,

127 Yale L.J. 246, 280-87 (2017). But in a more concrete sense, “the freedom of speech” as it

existed in 1791 (or 1868, as the case may be) also included every form of speech or expression for

which there was no liability at common law. For citizens then were in fact free to engage in all

that speech without penalty; and the First Amendment provides that Congress (and the states, after

1868) shall thereafter “make no law . . . abridging the freedom of speech[.]” A determination that

certain speech was permissible under the common law, therefore, should go a long way toward

answering the question whether it fell within “the freedom of speech” as originally understood.

See Richard Epstein, A Common Law for the First Amendment, 41 Harv. J.L. & Pub. Pol’y 1, 14

(2018).

An inquiry more focused on the historic common law would also ground free-speech

doctrine in rules; for the common law was itself a body of rules, indeed rules incrementally “fined

and refined,” as Edward Coke put it, across centuries of human experience. Calvin’s Case, 7 Co.

Rep. 1a, 3b (1608). Thus, as Richard Epstein observed: the common law “should not be

understood as some arbitrary assemblage of rules, but as a comprehensive world-view that seeks,

however haltingly, to understand the proper spheres for cooperation and coercion in diverse

settings.” Epstein, supra, at 8.

To some extent, “[w]hat history suggests,” the Court’s “contemporary doctrine confirms.”

Houston Community College System v. Wilson, 595 U.S. 468, 477 (2022). One example, as noted

above, is that (as a matter of public law binding upon the government itself) honest expression of

opinion was protected. That protection, by implication at least, would bar viewpoint

discrimination. Another example is that, under the common law, mere offense—at speech or

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 43

Sch. Dist. Bd. of Educ., et al.

anything else—was not a cognizable legal harm. Epstein, supra, at 25. Likewise unactionable

were truthful statements of fact. Id. at 27. By contrast, speech amounting to coercion—“your

money or your life,” for example—most certainly was a basis for punishment. See United States

v. Taylor, 596 U.S. 845, 852 (2022). So was speech amounting to misrepresentation or fraud.

Reference to the historic common law thus would not effect a wholesale change in the substance

of free-speech doctrine. But it would bolster the doctrine’s more infirm structures with sturdier

beams of actual law—meaning legal rules.

Thus, to determine whether the plaintiffs here should prevail on their First Amendment

claim, we should begin with the right question: namely, whether the historic common law would

have subjected a student to punishment (as a matter of public law or private) for referring to a

classmate with biological pronouns that the classmate had insisted the student not use. Considering

the speech alone, the answer is likely no. For one thing, as noted above, offense or dignitary harm

was not cognizable at law. Epstein, supra, at 35. And the right to express one’s opinions in good

faith would almost certainly protect the speech at issue here. Jud Campbell connects this right to

an antecedent right of conscience, which John Locke described as “for the most part, only passive”

because what the mind “perceives, it cannot avoid perceiving.” Campbell, supra, at 281 (citation

omitted). In this case no one disputes that the plaintiffs’ proposed speech—the use of biological

pronouns—would express their honest opinion about the immutability of gender. Indeed, as a

matter of customary practice (which was itself the “great Substratum” of the common law, as

Matthew Hale wrote) biological pronouns until recently were the only pronouns that anyone used.

Sir Matthew Hale, The History of the Common Law of England, at 46 (Gray, ed., 1971). True,

that answer might change if the speech at issue amounted to what we now call bullying. For in

that event it might cross the line into coercion—meaning the use of force or a threat to use it—

which the common law as a general matter strictly forbade (save exceptions like self-defense).

See, e.g., Scheidler v. National Organization for Women, 537 U.S. 393, 405-06 (2003). But the

record here lacks any evidence of bullying.

That said, as Richard Epstein observed, the common law took into account the “diverse

settings” in which human action takes place. Epstein, supra, at 8. The setting here is a school;

and in schools, under the common law (as under current doctrine), the rules were sometimes

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 44

Sch. Dist. Bd. of Educ., et al.

different. Justice Thomas has argued that—during the ratification era and for some time

afterward—students had no speech rights at all while in school. Rather, “in the earliest public

schools, teachers taught, and students listened. Teachers commanded, and students obeyed.

Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain

order.” Morse, 551 U.S. at 412 (Thomas, J., concurring). Under that view, the school here would

have authority to command students to use whatever pronouns the school wanted them to use.

But this point nicely illustrates how, under the common law, outcomes are directed by rules

rather than by facts alone. For in the olden days, the schoolmaster’s authority was itself governed

by rules—namely those of the doctrine called in loco parentis. See generally, e.g., Mahanoy Area

Sch. Dist. v. B.L., by and through Levy, 594 U.S. 180, 187 (2021). Under that doctrine, the

schoolmaster would possess only the authority that the students’ parents, by word or deed, had

delegated to him. And in those days—before compulsory education, for one thing—that authority

was likely far greater than the authority that parents delegate today when they send their children

to public schools. Parents in the early 19th century likely knew the schoolmaster, shared his

values, and thus granted him broad authority not only to discipline their children, but also to

instruct them morally. But today very few parents—least of all the parents here—can be deemed

to grant that broad authority. See Mahanoy Area Sch. Dist., 594 U.S. at 198-201 (Alito, J.,

concurring). So the rules (of in loco parentis) are the same as they were then; but the facts have

changed. I think that Justice Alito is almost certainly correct, therefore, when he says that public

schools today lack the command-and-control authority possessed by schoolmasters in Puritan New

England. And if so the students here retain their right, under the historic common law, to use the

pronouns they honestly think they should use.

* * *

A final point is hortatory rather than legal. That the law permits certain action does not

mean that an individual should necessarily engage in it. In a free society, law regulates conduct

only at the extremes. And within those broad confines there exists constantly a potential for

conflict among individuals with different beliefs and competing interests. To minimize those

conflicts, we habitually comply with what Hayek called moral rules—being a set of voluntary

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 45

Sch. Dist. Bd. of Educ., et al.

rules, most of them traditional, that suppress egotism and reconcile everyday conflicts of interest.

These include rules relating to civility, decency, and certain kinds of self-regulation. These rules

demand a certain forbearance; and without it, to maintain order, the alternative is eventually

coercion. In that sense, Hayek wrote, “it is probably true that a successful free society will always

in a large measure be a tradition-bound society.” F.A. Hayek, The Constitution of Liberty 122

(Chicago 2011).

Recent history in our own circuit shows how customary rules of civility can head off the

need for coercion in a situation very much like the one here. Specifically, at Shawnee State

University, Professor Nicholas Meriwether, a devout Christian believer, proposed a compromise

in which he would address a nonbinary student by the student’s last name alone—without a gender-

specific honorific that the student had asked him not to use. See Meriwether v. Hartop, 992 F.3d

492, 499 (6th Cir. 2021). At least initially, his student agreed, thus enabling Meriwether to honor

his conscience without speaking in a way his student found demeaning. The First Amendment

might not have compelled that compromise, but—if the law is to avoid becoming a clash of

absolutes where peace comes only through coercion—voluntary accommodation is often

necessary.

Here, during oral argument, counsel for the school told us that, under its rules, students

“can wear a t-shirt that says there are only two genders . . . . You can say, ‘I have a strong belief

that marriage is between a man and a woman, that gender is immutable.’” Oral Arg. 1:02:10-

1:02:35. True, some forms of expression are more vivid or powerful than others. But the students

here are free to wear such t-shirts and otherwise to express themselves however they like on the

topic of gender. So within those broad confines, perhaps they too can do what Professor

Meriwether did, and forbear from making an example of the eighth grader sitting next to them—

if not as a matter of law, then of grace.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 46

Sch. Dist. Bd. of Educ., et al.

__________________

CONCURRENCE

__________________

THAPAR and NALBANDIAN, Circuit Judges, concurring. We join the majority’s

excellent and thoughtful opinion. But we would go further and rule that the School District’s

policies are invalid because they discriminate based on viewpoint against one side of an ongoing

political debate.

If there’s one thing that everyone agrees on here, it’s that pronouns matter. “Pronouns can

and do convey a powerful message implicating a sensitive topic of public concern.” Meriwether

v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021); see also Janus v. AFSCME, 585 U.S. 878, 913–14

(2018) (“[S]exual orientation and gender identity . . . are sensitive political topics, and they are

undoubtedly matters of profound value and concern to the public.” (cleaned up)).

The battle of the pronouns is a matter of serious political and social concern. Such speech

is “at the heart of the First Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443, 451–52

(2011) (citation omitted). So, in nearly any other setting, this would be an open-and-shut case.

The government “has no power to restrict expression because of its message, its ideas, its subject

matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972).

But schools get extra leeway to regulate speech “in light of the special characteristics of

the school environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (citation

omitted). After all, it’s hard to imagine how a school could function without teachers being able

to tell students to be quiet or answer questions. While students don’t “shed their constitutional

rights to freedom of speech or expression at the schoolhouse gate,” First Amendment doctrine

operates differently in the public-school setting. Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503, 506 (1969).

Supreme Court precedent shows that the School District discriminated against the

viewpoint that sex and gender are immutable characteristics. How so? The policies permit some

pronouns (those that “affirm” gender transition) to be used for transgender students, but not other

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 47

Sch. Dist. Bd. of Educ., et al.

pronouns (those reflecting the view that sex and gender are immutable). The School District didn’t

ban the use of all pronouns. It just prohibited using ones that reflect a viewpoint it didn’t like.

But even the “special characteristics” of public schools can’t justify viewpoint

discrimination on a matter of public concern. A consistent theme in the Supreme Court’s student-

speech jurisprudence (and, indeed, all First Amendment jurisprudence) is that speech on a matter

of public concern is privileged. Of course, schools have plenty of leeway to punish students for

all sorts of inappropriate speech. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 678 (1986)

(sexually explicit speech); Morse v. Frederick, 551 U.S. 393, 396 (2007) (apparent drug-promoting

speech). But when schools get in the business of regulating politically charged speech, they

approach the outer bounds of what the First Amendment allows. See Tinker, 393 U.S. at 504–05

(protesting the Vietnam War); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626 (1943)

(requiring flag salutes). Viewpoint discrimination on an issue of political and cultural salience

like pronouns falls outside those bounds.

The First Amendment permits schools to educate—not indoctrinate and censor.

I.

Education has always been a priority in America. Several early state constitutions placed

a duty on the government to provide for public schooling. See Steven G. Calabresi, Sarah E.

Agudo & Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are

Really Deeply Rooted in American History and Tradition?, 85 S. Cal. L. Rev. 1451, 1540 (2012).

Why? As John Adams put it in the Massachusetts Constitution of 1780, it was necessary to spread

“[w]isdom and knowledge” throughout the body politic so that Americans could

“preserv[e] . . . their rights and liberties” as citizens. Mass. Const. of 1780 pt. II, ch. V, § II. To

that end, the Massachusetts Constitution made it “the duty of the legislators and magistrates” to

“cherish . . . public schools.” Id.

Even the fledgling federal government got into the public-education game. The Northwest

Ordinance, enacted by the Confederation Congress and reaffirmed by the First Congress in 1789,

provided that “schools and the means of education shall forever be encouraged” in the territories,

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 48

Sch. Dist. Bd. of Educ., et al.

since the “[r]eligion, morality, and knowledge” that schools impart are “necessary to good

government and the happiness of mankind.” Nw. Ord. § 14, art. 3.

As public schools proliferated in the nineteenth century thanks to the “common school”

movement, so did the number of students. See Ingraham v. Wright, 430 U.S. 651, 660 n.14 (1977);

Michael S. Katz, A History of Compulsory Education Laws 14–16 (1976). And where there are

schoolchildren, there will be mischief.

To manage that mischief, the common-law doctrine of in loco parentis permitted

schoolmasters, “in the place of the parents,” to discipline students for misbehavior. As Blackstone

explained, a parent “may . . . delegate part of his parental authority, during his life, to the tutor or

schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the

parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer

the purposes for which he is employed.” 1 William Blackstone, Commentaries *441.

But with the advent of compulsory-education laws in the late nineteenth century, the scope

of in loco parentis became unmoored from its justification. In loco parentis was thought of as a

form of voluntary delegation.1 Parents delegated authority to private tutors, and later,

schoolteachers, to educate their children. Those teachers often reflected the viewpoints of the

parents. See Kethledge Conc. Op. at 44. As leading nineteenth-century educators put it, “teachers

are confidential agents; employed, by parents, to discharge a duty.” Alonzo Potter & George B.

Emerson, The School and Schoolmaster: A Manual 256 (Boston, Wm. B. Fowle & N. Capen 1843)

(emphasis added). But the extensive scope of this delegated parental power rested, at least in part,

on a family’s consent.

Widespread education is, of course, an excellent thing. But as education has transitioned

from an optional to a mandatory part of life, and as the hours in an academic day and the days in

an academic year have crept up, the assumption of consent underlying in loco parentis has lost its

1

See Blackstone, supra; James Wilson, Of the Natural Rights of Individuals, in 2 Collected Works of James

Wilson 1053, 1076 (Kermit L. Hall & Mark D. Hall eds., Liberty Fund 2007) (1790); 2 James Kent, Commentaries

on American Law 170 (1827); Finley Burke, A Treatise on the Law of Public Schools 90 (New York, A. S. Barnes &

Co. 1880).

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 49

Sch. Dist. Bd. of Educ., et al.

force. After all, parents face criminal sanctions for failing to send their children to school or to

otherwise properly educate their children (in the eyes of the state). See Mahmoud v. Taylor, 145

S. Ct. 2332, 2342, 2359 (2025); New Jersey v. T.L.O., 469 U.S. 325, 336 (1985) (recognizing that

“‘the concept of parental delegation’ as a source of school authority is not entirely ‘consonant with

compulsory education laws’” (quoting Ingraham, 430 U.S. at 662)).

Some parents can pay for private schools or devote the time it takes to educate their children

at home. But most can’t. See Mahmoud, 145 S. Ct. at 2359. Ultimately, “many parents have no

choice but to send their children to a public school.” Id. at 2351 (cleaned up).

In such a system of compulsory education, schools don’t have a blank check to suppress

disagreement on matters of public import. That’s especially true with young students who are

“more impressionable and thus more susceptible to indoctrination.” L.M. ex rel. Morrison v. Town

of Middleborough, 145 S. Ct. 1489, 1496 (2025) (mem.) (Alito, J., dissenting from the denial of

certiorari). The greater the state’s control, the greater the need to protect students’ and parents’

rights—especially when the state is claiming a right not just to step into the parents’ shoes, but to

inculcate values that directly contradict the parents’ views. Cf. Mahmoud, 145 S. Ct. at 2352,

2357–58.

* * *

In short, public schools have long been tasked with the awesome responsibility of teaching

students to read, write, and be productive members of society. But education is about more than

just preparing for success in the real world. It “is the very foundation of good citizenship.” Brown

v. Bd. of Educ., 347 U.S. 483, 493 (1954). And good citizenship entails being able to disagree

respectfully with one’s fellow Americans.

With this backdrop in mind, we turn to the Supreme Court’s school-speech precedent.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 50

Sch. Dist. Bd. of Educ., et al.

II.

A.

The First Amendment’s normal rules of the road change in public schools. Take content

and viewpoint discrimination. Content discrimination, or content-based regulations, “target

speech based on its communicative content.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

In general, content-based regulations survive only if they can clear the demanding hurdle of strict

scrutiny. Id. at 165.

Viewpoint-based regulations are even more suspect. They’re “an egregious form of

content discrimination.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829

(1995). When the “perspective of the speaker is the rationale for the restriction,” the government

has discriminated on the basis of viewpoint. Id. The First Amendment forbids the government

from regulating speech based on “hostility” or “favoritism towards the underlying message

expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).

But public schools can engage in lawful content-based discrimination. For instance, in

Fraser, the school punished a student for using an “elaborate, graphic, and explicit sexual

metaphor” at a school assembly. 478 U.S. at 678. As the Supreme Court put it, schools may

punish student speech that “would undermine the school’s basic educational mission” or be

“inconsistent with the ‘fundamental values’ of public school education.” Id. at 685–86. That

included sexual jokes. The school’s rule unquestionably applied because of the speech’s

communicative content.

And public schools can arguably engage in viewpoint discrimination as well. In Morse, a

student unfurled a banner that read “BONG HiTS 4 JESUS.” 551 U.S. at 397. The school

disciplined the student based on the apparent drug-promoting message. Id. at 398, 402. Still, there

was no First Amendment problem. Id. at 403. In both Fraser and Morse, the schools reasonably

concluded that vulgar sexual language and the promotion of illegal drug use weren’t appropriate

things for students to be saying.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 51

Sch. Dist. Bd. of Educ., et al.

For adults, “[g]iving offense” is a viewpoint that the First Amendment protects. Matal v.

Tam, 582 U.S. 218, 243 (2017) (plurality opinion of Alito, J.). But that’s not necessarily so for

students in public schools. Schools need not tolerate lewd, indecent, obscene, or profane speech.2

Nor must they tolerate speech that promotes illegal drug use or illegal activity more generally.

While students don’t shed their constitutional rights at the schoolhouse gates, the First Amendment

still gives schools room to do what they do best—teach, instruct, and discipline.

Finally, schools receive even more leeway over student speech that’s part of the

curriculum, like a student newspaper written for a journalism course. Kuhlmeier, 484 U.S. at 263,

270–71. When the public “might reasonably perceive [the speech] to bear the imprimatur of the

school,” the school can regulate the speech so long as its regulation is “reasonably related to

legitimate pedagogical concerns.” Id. at 271, 273. But our case doesn’t touch on school curricula.

It deals exclusively with student speech that just so happens to take place at school.

B.

So what are the limits on schools’ authority to discipline students for their speech?

Start with Tinker. There, a school disciplined students for wearing black armbands

protesting the Vietnam War. Tinker, 393 U.S. at 504. The Supreme Court held the school’s policy

was unconstitutional. To lawfully punish the students, the school needed to show that the

armbands would “materially disrupt[] classwork or involve[] substantial disorder or invasion of

the rights of others.” Id. at 513. A “mere desire to avoid the discomfort and unpleasantness that

always accompany an unpopular viewpoint” didn’t justify the restrictions. Id. at 509.

In doing so, the Tinker Court found it especially concerning that the school hadn’t banned

all controversial symbols—it permitted the Nazi Iron Cross, for example. Id. at 510. The school

singled out the anti-Vietnam War armbands. Against that backdrop, the Court explained that

2

Even this power has limits. There’s another constraint on schools’ authority that applies to even “low value”

speech: location. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 189–90 (2021). In Mahanoy, a student

named B.L. made expletive-ridden statements about the cheer team after school and off campus. Id. at 185. The

Court held that B.L.’s off-campus location, among other factors, meant the school couldn’t punish B.L. for her speech.

Id. at 189–91. That was true even though the school could’ve punished B.L. had she cursed out her team in the locker

room.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 52

Sch. Dist. Bd. of Educ., et al.

prohibiting the “expression of one particular opinion”—the essence of viewpoint discrimination—

wasn’t “constitutionally permissible.” Id. at 511.

Barnette, meanwhile, limited schools’ authority to compel speech. During World War II,

the West Virginia Board of Education required students to salute the flag or be disciplined.

Barnette, 319 U.S. at 626. Several students sued because their faith barred them from saluting the

flag. The Court concluded that “a ceremony so touching matters of opinion and political attitude”

couldn’t be “imposed upon” the students. Id. at 636. Mandatory flag salutes in school

“transcend[ed] constitutional limitations” on the school’s power and “invade[d] the sphere of

intellect and spirit” at the heart of the First Amendment. Id. at 642. And this compelled speech,

of course, was a form of viewpoint discrimination— demanding, rather than banning, a certain

view. See Ward v. Polite, 667 F.3d 727, 733 (6th Cir. 2012) (observing that Barnette “enforced

that prohibition [on viewpoint discrimination] in the public school setting”).

What do Tinker and Barnette have in common? The contested speech dealt with

controversial political subjects. Criticizing the Vietnam War is a quintessential “political

message.” Fraser, 478 U.S. at 680 (cleaned up); see also Morse, 551 U.S. at 403 (“The essential

facts of Tinker are quite stark, implicating concerns at the heart of the First Amendment. The

students sought to engage in political speech . . . .”). And saluting the flag likewise “convey[ed]

political ideas” because it “require[d] the individual to communicate by word and sign his

acceptance of the political ideas it thus bespeaks.” Barnette, 319 U.S. at 632–33. Whether a school

wants to punish students for making statements on a matter of public concern or compel them to

do so, its policies raise an eyebrow.

The Supreme Court has indicated that the viewpoint-neutrality rule has bite for student

speech on matters of public concern. Even while recognizing the need for public schools to receive

significant leeway to regulate student speech, the Court has taken pains to emphasize that the

student speech did not involve a serious matter of political or social concern. Neither Fraser’s

sexual innuendos nor Morse’s bong hits nor Mahanoy’s “f--- school” implicated matters of public

concern.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 53

Sch. Dist. Bd. of Educ., et al.

In Fraser, the Court noted that “the penalties imposed in this case were unrelated to any

political viewpoint.” 478 U.S. at 685. And in Morse, the Court likewise made clear that this was

“plainly not a case about political debate over the criminalization of drug use or possession.” 551

U.S. at 403. The student claimed that his drug banner was simply “meaningless and funny,” not

that it conveyed “any sort of political or religious message.” Id. at 402–03 (quotation omitted).3

Even still, two Justices in Morse concurred only with the “understanding that the opinion

does not endorse any further extension” of the leeway given to schools to regulate speech. Id. at

425 (Alito, J., concurring). The Morse Court even declined to adopt a rule that the school could

regulate the student’s speech because it was “plainly offensive.” Id. at 409 (majority opinion)

(cleaned up). That rule wouldn’t work, the Court explained, because “much political and religious

speech might be perceived as offensive to some.” Id.; see also id. at 423 (Alito, J., concurring)

(rejecting the proposition that schools may censor any student speech that interferes with the

school’s “educational mission” because “some public schools have defined their educational

missions as including the inculcation of whatever political and social views are held by the

members of” those in power).

The Court’s most recent foray into school rights accords with this understanding. In

Mahmoud, the Court struck down a school board’s policy of using “LGBTQ+-inclusive” books

without opt-out options as a free-exercise violation. 145 S. Ct. at 2363. In doing so, the Court

observed the “objective danger” when schools “exert upon children a psychological ‘pressure to

conform’ to their specific viewpoints.” Id. at 2355 (quoting Wisconsin v. Yoder, 406 U.S. 205,

211 (1972)); see also id. at 2353. That’s indoctrination outside any reasonable understanding of

in loco parentis.

Schools may, of course, punish students if they express political speech in a particularly

disruptive way: If a student shouts about his favored political party during a music recital, he can

be sent to the principal’s office. The same goes for a student who heckles a classmate for her

3

Nor was the banner simply an innocent joke. The student’s admitted purpose was one of bad faith, to

“embarrass the high school administration” on live TV because he didn’t like the principal. See Scott A. Moss, The

Story of Tinker v. Des Moines to Morse v. Frederick: Similar Stories of Different Student Speech with Different

Results, in First Amendment Stories 401, 417–18, 435 (Richard W. Garnett & Andrew Koppelman eds., 2012).

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 54

Sch. Dist. Bd. of Educ., et al.

transgender status whenever she contributes to a class discussion. But those are like “time, place,

and manner” or harassment restrictions—not viewpoint discrimination. Cf. Ward v. Rock Against

Racism, 491 U.S. 781, 797 (1989); Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). The student

would receive the same punishment for the way he spoke, no matter what viewpoint he was

expressing.

And under Tinker, a school can still enforce content-based restrictions on political speech

that aren’t viewpoint based—a math teacher can make a student walk through an algebra problem

instead of drumming up support for certain immigration laws. But a policy crosses the line into

impermissible indoctrination when it imposes viewpoint restrictions on political speech. That

teacher can’t allow students who want less immigration to advocate for their views, but force

students who disagree to focus on math.

This principle also aligns with the Court’s approach in the other context where traditional

First Amendment protections are relaxed based on the government’s special role—when the

government acts as an employer. There, as here, the critical inquiry is whether a given employee

has spoken on “matters of public concern.” Connick v. Myers, 461 U.S. 138, 143 (1983); Pickering

v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). This is because speech of

public concern “falls within the core of First Amendment protection.” Engquist v. Or. Dep’t of

Agric., 553 U.S. 591, 600 (2008); see also Lane v. Franks, 573 U.S. 228, 235 (2014) (“Speech by

citizens on matters of public concern lies at the heart of the First Amendment . . . .”).

And similarly, when a government employee’s speech is of public concern, the Court has

suggested that viewpoint discrimination is categorically barred. See Rankin v. McPherson, 483

U.S. 378, 384 (1987) (“Vigilance is necessary to ensure that public employers do not use authority

over employees to silence discourse . . . simply because superiors disagree with the content of

employees’ speech.”). So this “core First Amendment principle of viewpoint neutrality applies in

the Pickering-Garcetti context as elsewhere.” MacRae v. Mattos, 145 S. Ct. 2617, 2620 (2025)

(mem.) (statement of Thomas, J., respecting the denial of certiorari); see also Elrod v. Burns, 427

U.S. 347, 357 (1976) (plurality opinion).

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 55

Sch. Dist. Bd. of Educ., et al.

The Court has also articulated the contours of “public concern” in the context of

government-employee speech. Speech is on a matter of “public concern” when it relates “to any

matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146; see also

Meriwether, 992 F.3d at 508. In performing this inquiry, a court should consider the speech’s

“content, form, and context.” Connick, 461 U.S. at 143–48. So, for example, making

inflammatory statements about the President’s welfare policies is of public concern. Rankin, 483

U.S. at 381, 387. As is a teacher’s discussion of “race, gender, and power conflicts.” Hardy v.

Jefferson Cmty. Coll., 260 F.3d 671, 679 (6th Cir. 2001). And just because the government finds

speech “inappropriate or controversial,” that doesn’t stop it from being of public concern and

protected. Rankin, 483 U.S. at 387.

* * *

The Supreme Court’s caselaw reveals a few principles. First, schools have the authority in

the first instance to determine “what manner of speech in the classroom or in school assembly is

inappropriate.” Fraser, 478 U.S. at 683; see Kuhlmeier, 484 U.S. at 273; Tinker, 393 U.S. at

507. Second, schools have more leeway over their own curriculum. Kuhlmeier, 484 U.S. at 272–

73. Third, schools’ authority over off-campus speech is diminished. Mahanoy, 594 U.S. at 189–

90. And fourth, schools may not engage in viewpoint discrimination on matters of public concern

and so single out disfavored political views for opprobrium. See Tinker, 393 U.S. at 509–11.

C.

Yet the School District here targeted one side of a live political debate and concluded that

the desire to use biological pronouns—and biological pronouns only—is bullying.4 Cf. Hardy,

260 F.3d at 679. But there’s a difference between student speech that is sexually explicit, vulgar,

or otherwise inappropriate, and well-intentioned moral or political viewpoints.5 The Supreme

4

That’s not to say the School District can’t enforce its anti-harassment pronoun policies at all. If a bully calls

a boy “little princess” or “baby girl,” that isn’t protected speech. It’s not speech on a political or social matter. Rather,

it’s a taunt that schools are free to regulate.

5

As the plaintiffs point out in their briefing, they harbor no ill-will towards any transgender student. They

don’t seek a blanket license to harass, intimidate, degrade, humiliate, or bully transgender students. Rather, they want

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 56

Sch. Dist. Bd. of Educ., et al.

Court’s school-speech precedent hews to that line. And here, the students’ desire to use biological

pronouns and weigh in on the “culture war” falls on the Barnette-Tinker side of the line, not the

Fraser-Morse side.

The School District’s policies discriminate based on viewpoint, as the majority opinion

ably explains. That viewpoint is a sincerely held belief on an issue of undisputed importance—

that sex is immutable.

Indeed, the whole point of using this-versus-that pronoun is “to convey a message,” one

“concern[ing] a struggle over the social control of language in a crucial debate about the nature

and foundation, or indeed real existence, of the sexes.” Meriwether, 992 F.3d at 508 (quotation

omitted). Pronouns are a proxy for an entire worldview. When you use biological pronouns, rather

than so-called preferred ones, you express the belief “that sex is fixed in each person from the

moment of conception, and that it cannot be changed, regardless of an individual’s feelings or

desires.” Id. at 509 (quotation omitted); see also Dennis Baron, What’s Your Pronoun?: Beyond

He & She 2 (2020) (explaining that the question “‘[w]hat’s your pronoun?’ is an invitation to

declare, to honor, or to reject, not just a pronoun, but a gender identity”).

Nor does recasting the speech here as vulgar or indecent save the district’s policy. Cf.

Mahanoy, 594 U.S. at 187–88 (noting schools’ ability to restrict vulgar and indecent speech). Of

course, foul language, racial slurs, and other epithets have no place in school. But “lumping those

who hold traditional beliefs about [biological sex] together with racial bigots is insulting to those

who retain such beliefs.” Fulton v. City of Philadelphia, 593 U.S. 522, 616 (Alito, J., concurring

in the judgment). Until very recently, it was unheard of to think that men could become women

and vice versa. But according to the School District, the plaintiff’s viewpoint is so anathema to

contemporary sensibilities that it is per se bullying.

In short, courts may not inquire into whether political speech presents a “substantial

disruption” based on its viewpoint alone—like the district court did here. See Tinker, 393 U.S. at

514. As Justice Thomas has observed, “[i]t undermines core First Amendment values to allow a

to continue to respectfully refer to other students with biological pronouns, regardless of the other students’ preferred

pronouns.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 57

Sch. Dist. Bd. of Educ., et al.

government employer to adopt an institutional viewpoint on the issues of the day and then . . .

portray this disagreement as evidence of disruption.” MacRae, 145 S. Ct. at 2620 (statement of

Thomas, J., respecting the denial of certiorari). So too with schools. Just because a school argues

that other students will be offended by a particular viewpoint and disrupt the school environment

doesn’t mean it can restrict that speech. It must point to something more to justify the regulation—

like actual harassment or vulgarity.

Schools like the Olentangy School District have the awesome responsibility of preparing

tomorrow’s leaders. To do so, they must teach the students not only the basics of arithmetic,

grammar, and history, but also how to discuss hotly contested matters in a respectful way. Picking

a side in a debate and then trying to impose that viewpoint on students who see things differently

is not educating. It’s indoctrinating.

In the end, the School District’s policy “mandates orthodoxy, not anti-discrimination,” and

fails to recognize that “[t]olerance is a two-way street.” Polite, 667 F.3d at 735. The District

chose a side in a hotly contested debate and tried to squelch the opposing viewpoint by imposing

an ideological speech code. When it did so, it unlawfully discriminated based on viewpoint. And

while we appreciate the majority’s thoughtful Tinker approach, we worry that students’ rights to

speak freely on important matters of public interest should not hang in the balance while district

courts perform ad hoc inquiries into how “disrupt[ive]” they find the students’ viewpoint. In short,

we believe this case should have ended today.

We concur.

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 58

Sch. Dist. Bd. of Educ., et al.

__________________

CONCURRENCE

__________________

BUSH, Circuit Judge, concurring. This case is about a government attempt to alter

traditional grammar. If the issue seems odd, that’s because it is. Unlike languages in many

countries, American English develops through custom, not law. True, we have “rules” of

grammar. But they are rules only because we follow them until they change through voluntary,

widespread decisions of individuals and groups. This change occurs through persuasion, not

government mandate.

Our Nation’s historical tradition allows people to speak freely about their honest beliefs

and disallows compelling them to speak counter to those beliefs unless they remain silent. Some

people may not think pronouns worth fighting over. But we should respect the free speech rights

of the students represented by the plaintiff organization. Even if pronoun usage is not everyone’s

cause, we all care about some form of speech that reflects our core values—speech that the

government has no business regulating.1

“If there is any fixed star in our constitutional constellation, it is that no official, high or

petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of

opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624, 642 (1943). Because of constitutional protections, Americans work out

changes in word usage through dialogue, not diktat. Only the natural evolution of language, free

from government regulation, accords with freedom of speech. The First and Fourteenth

Amendments confirm that principle. And it holds true no matter who the government actor is, be

it Congress or a local school board.

1

As the Anti-Federalist writer Junius explained in 1788, the “least encroachment on the liberty of conscience,

ought to awaken the resentment of a free and enlightened people; as if they suffer a precedent in one instance, there

will be less room to guard against another on a similar occasion.” Junius, in Massachusetts Supplement to The

Documentary History of the Ratification of the Constitution 88 (John P. Kaminski et al., eds., 2nd ed. 1998).

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 59

Sch. Dist. Bd. of Educ., et al.

Absence of state control over language in America helps explain why we find George

Orwell’s novel 1984 so jarring. In 1984, government is a “Big Brother” that mandates English

usage in “Newspeak.”2 Big Brother enforces its language mandate through Thought Police, who

monitor the speech and thoughts of citizens to ferret out free thinkers and eliminate

nonconformity.3 In America, unlike in 1984, government can never be the thought police—or, in

the case before us, the pronoun police. Our Nation’s history of linguistic regulation—or lack

thereof—helps explain why.

First, though, I explain the need to write separately. The majority opinion ably addresses

relevant caselaw, including Tinker v. Des Moines Independent Community School District, 393

U.S. 503 (1969), and Barnette, 319 U.S. 624. But the rationales for our free speech doctrines are

often obscured by the doctrines themselves. Also, sometimes, our free speech jurisprudence strays

from the historical understanding of the First Amendment. To find the First Amendment’s original

meaning, we must examine older sources. And when past practice and present doctrine align, as

they do here, historical analysis serves a twofold purpose: it not only helps explain our decision to

the public, but also ensures that our ruling rests on longstanding and legitimate legal principles,

not merely on shifting policy preferences. In short, reliance on history and tradition makes a

judicial decision more understandable and neutral. For these reasons, I will address our Nation’s

shared experience that provides the foundation for the majority’s doctrinal analysis. See Hou.

Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022) (“What history suggests, we believe our

contemporary doctrine confirms.”).

Examining history and tradition also eliminates the need to weigh in on the scope of Tinker,

393 U.S. 503, addressed by the three other concurring opinions. Those concurrences express

different views on the scope of Tinker and whether it applies at all to speech on matters of public

concern. See Batchelder Concurring Op. at 37–38; Kethledge Concurring Op. at 41; Thapar and

Nalbandian Concurring Op. at 54–55. In my view, explained below, government simply cannot

2

See George Orwell, 1984 (Penguin Books 1977) (1949).

3

Jon Miltmore, The Origins of the Thought Police—And Why They Scare Us, Found. for Econ. Educ. (Nov.

15, 2019), https://fee.org/articles/the-origins-of-the-thought-police-and-why-they-scare-us/ [https://perma.cc/8QN9-

48T2].

No. 23-3630 Defending Educ. v. Olentangy Loc. Page 60

Sch. Dist. Bd. of Educ., et al.

regulate grammar—full stop. English language and grammar usage is completely beyond the

government’s regulatory authority. That is so no matter what legal standard we apply here, or how

narrowly or broadly we read Tinker.

Also, as discussed below, the censorship cannot be justified by the doctrine of in loco

parentis—a school administrator’s traditional role to educate a student in the place of the parents

with parental consent. Here, the parents want their children to use traditional grammar. Although

the educational mission of the school district may include instruction on new forms of grammar,

it cannot require that students

This text is long and has been trimmed here. Open the source document for the complete record.