There is a major ruling out of the United States Court of Appeals for the Sixth Circuit on both free speech and student rights. The court, sitting en banc, ruled 10-7 that “the mere use of biological pronouns does not entail ‘aggressive, disruptive action.’” In the lengthy opinion, the court split along political lines with every Republican appointee voting with the students and every Democratic appointee voting with the school district.

The case originated in the Olentangy Local School District Board of Education, located in the northern suburbs of Columbus. A parent objected to the district’s anti-harassment policy that included sanctions for any student who refused to use the preferred pronouns of transgender classmates. Such violations were deemed “contrary to the other student’s identity.”

The Olentangy district argued that the use of unwanted pronouns to “Hispanic students being told by classmates to ‘go back to Mexico!’”

An earlier panel on the Sixth Circuit upheld the ruling of District Court Judge Algenon Marbley, a Clinton appointee, in denying relief.

In an opinion by Circuit Judge Eric Murphy, a Trump appointee, the court ruled that there was no evidence that the use of traditional pronouns produced the “substantial interference” that the Supreme Court set as the test in Tinker v. Des Moines (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.”

Judge Murphy added: “Unlike, say, a political diatribe about transgender rights in math class, the mere use of biological pronouns does not entail ‘aggressive, disruptive action.’ Nor does the school district suggest that such speech has ever disrupted any school activity in the past.”

In dissent, Circuit Judge Jane Stranch, an Obama appointee, insisted that the policy met the standard in combating bullying and harassment of transgender students. She asked, “What, then, must a school district show to demonstrate that particular speech is sufficiently bullying or harassing to render it regulable under the First Amendment?” She argued that officials are allowed to anticipate such disruptions and need not wait for students to be actually harassed:

“Tinker…does not require school authorities to wait for a disturbance before regulating speech, nor does it “require certainty that disruption will occur.” Lowery, 497 F.3d at 591–92 (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 767 n.17 (9th Cir. 2006)). To do so would place school officials “between the proverbial rock and hard place: either they allow disruption to occur, or they are guilty of a constitutional violation.” Barr v. Lafon, 538 F.3d 554, 565 (6th Cir. 2008) (quoting Lowery, 497 F.3d at 596). “Such a rule is not required by Tinker, and would be disastrous public policy” because it would strip officials of the ability to carry out the “affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place.” Lowery, 497 F.3d at 596. School officials must merely demonstrate that the school reasonably forecast that disruption would occur based on the speech at issue. Id. Given administrators’ need to affirmatively protect the learning environment, moreover, officials will sometimes be unable “to offer any ‘proof’ [of disruption] beyond common-sense conclusions based on human experience.” Id. at 594. Such “common-sense conclusions,” we noted, “do not require substantial evidentiary support.” Id.”

It is not clear whether the district will appeal. An en banc decision will often get closer scrutiny from clerks in petitions for certiorari. The question is whether the district wants to risk doubling down on a losing hand if the Supreme Court affirms the judgment. Some advocates may be leery of rolling the dice on a further appeal given the implications of an adverse decision on pronouns that applies nationwide.