The District has abandoned the district court’s opinion. The district court recognized that the Policies compel speech, but found the compulsion constitutional because forcing students to “use preferred gender pronouns” is “‘reasonably related to legitimate pedagogical concerns.’” Op., R.28, PageID#839. The District doesn’t rely on this rationale, arguing instead that the Policies don’t compel speech at all. Dist.-Br.9-10. The district court held that the Policies did not restrict speech based on viewpoint because they “prohibit all derogatory speech that targets individuals on the basis of gender identity.” Op., R.28, PageID#842. The District doesn’t dispute that the Policies restrict speech based on viewpoint; it instead argues that viewpoint-based restrictions are permissible under Tinker. Dist.-Br.18-20. The district court relied on extra-record sources to conclude that the Policies were necessary to prevent “substantial disruption” under Tinker. Op., R.28, PageID#836. The District doesn’t defend its Policies under this standard or rely on any of the district court’s law-review and newspaper articles; it instead conjures a new “invasion of the rights of others” argument that it raises for the first time on appeal. Dist.-Br.10-17.
The District walked away from the opinion below because the district court’s reasoning is indefensible. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Whatever its motivations, the District cannot force students to use classmates’ “preferred pronouns” and punish students who use pronouns that correspond with biological sex.
The District’s new arguments fare no better. The Policies compel speech because they “compel the speaker[s] to alter [their] message by [making it] more acceptable to others.” Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 581 (1995). Schools cannot restrict speech based on viewpoint, regardless of whether any Tinker exception applies. Barr v. Lafon, 538 F.3d 554, 571 (6th Cir. 2008). The District has forfeited its new argument that the Policies protect against the “invasion of the
rights of others,” Tinker, 393 U.S. at 513, and, even if it hadn’t, a student’s speech doesn’t interfere with others’ rights merely because it “offen[ds] [the] listener,” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001) (Alito, J.). And the Policies are wildly overbroad because they prohibit a broad swath of protected speech, including speech that occurs off schoolgrounds.
PDE is likely to prevail on the merits of its claims and the remaining preliminary injunction factors can be resolved only in PDE’s favor. This Court thus should reverse the decision below and enter an injunction itself or remand with instructions for the district court to do so.