The First Amendment; Free speech in schools; Ban on “biological pronouns”; Preliminary injunction; Likelihood of success on the merits; Tinker v Des Moines Indep Cmty Sch Dist; Evidentiary burden; Personal speech; Viewpoint discrimination; Associational standing; Mootness

In an en banc opinion, the court reversed the district court’s denial of plaintiff-Defending Education’s motion to enjoin defendant-school board from enforcing a “ban on biological pronouns,” holding that plaintiff was entitled to “an appropriately tailored preliminary injunction barring the district from punishing students for the commonplace use of biological pronouns.” The school board required students to use a classmate’s “preferred pronoun.” Plaintiff sued under the First Amendment’s Free Speech Clause. The school district argued that it had a duty to protect all students from being harassed and bullied, justifying a restriction on speech. Considering the likelihood-of-success factor, the court rejected the district’s standing and mootness arguments, concluding plaintiff had associational standing. It held that, given the district’s “warning that its policies bar the speech, the lack of any enforcement history cannot eliminate the credible threat of enforcement.” The court also rejected defendants’ mootness argument based on the fact the policies had been amended, finding the “modest changes do not moot the threatened freedom-of-speech injury.” Turning to the merits of the likelihood-of-success question, the court focused on the Supreme Court’s ruling in Tinker, which 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.’” It held that the school district failed to meet “Tinker’s test for silencing personal (non-school-sponsored) speech on school grounds.” Tinker provides that school officials “may silence speech if the speech will either cause a ‘substantial disruption’ or infringe ‘the rights of others.’” Applying a “context-specific approach,” the court held that the district did not “satisfy either part of Tinker’s test.” It concluded that the “ban on the use of biological pronouns regulates speech on a public concern in a way that discriminates based on viewpoint.” Thus, the district bore “a heavy 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.” Defendants did not “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.” The court held that plaintiff was “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.” It also found that the other preliminary injunction factors weighed in plaintiff’s favor. Reversed and remanded.