The Olentangy Local School District in Ohio is big, meaning that a great many students are within its ambit to be provided their free and appropriate public education. In order to address its pluralistic student body, the school district has formulated policies for the putative purpose of making it an educational environment free from discriminatory harassment and bullying. What could possibly be wrong with that?

To that end, Policy 5517 prohibits students from engaging in discriminatory harassment or bullying based on the personal characteristics of other students, such as their race, national origin, sex, disability, religion, or ancestry. Similarly, Policy 5136 prohibits students from using their personal devices to send messages that threaten, humiliate, harass, embarrass, or intimidate other students. And lastly, the Code of Conduct prohibits speech that involves “discriminatory language,” including the intentional misgendering of transgender students—i.e., failing to address a student by their preferred pronouns.

A parent group challenged these policies as First Amendment violations, both for impairing their sincerely held religious belief, that male students cannot claim to be female and their children cannot be compelled by the school to pretend otherwise, and for violating their right to free speech by compelling students to use word choices dictated by the school district.

Southern District of Ohio Chief Judge Algenon Marbley held that while students do not shed their constitutional rights at the schoolhouse gates, these policies fell within the exception that schools maintain the right to proscribe disruption.

[E]ducators nevertheless retain “comprehensive authority . . . consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Thus, public schools are permitted to proscribe student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

If all this seems insufferably vague, it is, but no more vague than the well-intended policies put in place to theoretically prevent harassment and bullying, words with no objective meaning, of students for whom the judge feels quite empathetic.

The challenged speech policies fit squarely within this carve-out to schoolchildren’s First Amendment rights: they prohibit only speech that gives rise to fears of physical or psychological harm, materially affect student performance, substantially disrupt the operation of the school, or create a hostile educational environment. Ultimately, transgender youth are far too often subject to harassment and bullying in public schools. They are threatened or physically injured in schools at a rate four times higher than other students. They are harassed verbally at extraordinarily high rates. More than one in five attempt suicide. Allowing speech that creates a hostile environment for transgender students can have devastating consequences— reinforcing feelings of isolation and inferiority, imposing substantial psychological injuries that result in decreased school attendance and performance, and heightening the risk of serious physical harm.

While all this may be generically true, its relevance to the schools at hand remains something of a mystery. Given that only 0.02% of the population are transgender (not identify as, or are non-binary, but gender dysphoric), it’s unclear how many students are affected and whether there is a harassment and bullying problem at district schools at all, no less serious enough to mandate policies proscribing speech.

But the kicker comes at the end of the paragraph.

School policies intended to reduce the pervasive harassment of transgender students, in other words, advance public schools’ mission of ensuring that all students have an opportunity to learn and grow in an environment “most conducive to speculation, experiment and creation.”

Prohibitions on speech create an environment “most conducive to speculation, experiment and creation” is a very curious assertion, almost Huxleyan in its inherent contradiction. But at the end of the opinion, Chief Judge Marbley lets the cat out of the bag.

It is important, then, to consider the ways in which allowing for discriminatory or harassing speech in the name of vindicating First Amendment rights too often causes a new set of First Amendment injuries, by silencing the voices of already-marginalized listeners, by “den[ying] [them] the humanizing experience of self-expression.” Lawrence III, supra, at 803; see Arroyo Gonzalez v. Rossello Nevarse, 305 F. Supp. 3d 327, 333 (D.P.R. 2018) (noting that policies that “expose[] transgender students to a substantial risk of stigma, discrimination, intimidation, and danger . . . hurt[] society as a whole by depriving all from the voices of the transgender community”). Giving full effect to the right to free speech in a pluralistic democratic society requires acknowledging and addressing the ways in which those who are members of “discrete and insular minorities,” United States v. Carolene Prods Co., 304 U.S. 144, 152 n.4 (1938), are systematically silenced by discrimination. Their right to speak must also be acknowledged and defended.

If this sounds remotely familiar, this is the reimagination of free speech promoted by the Cyber Civil Rights Initiative, whose president is none other than Mary Anne Franks. The contention is that the voices of the many should be silenced so as not to hurt the feeling of the few and cause them not to speak to avoid challenge or criticism. While this case isn’t part of the male/female gender war, Judge Marbley has adopted it for the new gender war, picking the side of the marginalized and telling the majority they must forfeit their free speech in order to facilitate the free speech of the minority without risk of challenge, disagreement or disapproval.

And that, the court held, gives full effect to free speech in a pluralistic democratic society by silencing the majority so the marginalized are given voice without question.