United States Court of Appeals
For the First Circuit
No. 25-1442
KYLE FELLERS; ANTHONY FOOTE; NICOLE FOOTE; ELDON RASH,
Plaintiffs, Appellants,
v.
MARCY KELLEY, Superintendent of Schools, State Administrative
Unit 67, in the official and individual capacities; MICHAEL
DESILETS, Athletic Director, Bow High School, in the official
and individual capacities; MATT FISK, Principal, Bow High
School, in the official and individual capacities; BOW SCHOOL
DISTRICT,
Defendants, Appellees,
PHILIP LAMY, Lieutenant, Bow Police Department, in the
individual capacity; STEVE ROSSETTI, soccer referee, New
Hampshire Interscholastic Athletic Association, in the
individual capacity,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Rikelman, Lynch, and Howard,
Circuit Judges.
Endel Kolde, with whom Brett R. Nolan, Nathan Ristuccia,
Institute for Free Speech, Richard J. Lehmann, and Lehmann Major
List, PLLC were on brief, for appellants.
Ronald G. London, Arleigh Helfer, Foundation for Individual
Rights and Expression, Marc Randazza, and Randazza Legal Group, on brief for Foundation for Individual Rights and Expression as amicus curiae in support of appellants.
Theodore M. Cooperstein and Theodore Cooperstein PLLC, on
brief for William P. Hamlen and Robert Charles as amici curiae in support of appellants.
Jonathan M. Shirley, with whom Brian J.S. Cullen and Cullen
Collimore Shirley PLLC were on brief, for appellees.
August 26, 2026
- 2 -LYNCH, Circuit Judge. This appeal arises from the denial
of a preliminary injunction sought by parents and a grandparent of
two female high school students against the Bow School District in
New Hampshire and several of its officials. See Fellers v. Kelley,
No. 24-cv-311-SM-AJ, 2025 WL 1098271 (D.N.H. Apr. 14, 2025). On
September 17, 2024, appellants Kyle Fellers, Anthony Foote, and
Eldon Rash were instructed by Bow High School officials to remove
pink "XX" wristbands they wore in protest while watching their
daughters (in Rash's case, granddaughter) play in a girls' soccer
game against a team with one transgender athlete. Further
sanctions followed.
The First Amendment claim brought by the appellant
plaintiffs is that Bow School District and its officials (the
"school district") engaged in impermissible viewpoint
discrimination by sanctioning their passive protest. The
plaintiffs sought a preliminary injunction restraining the school
district from "[p]reventing [p]laintiffs from attending
upcoming . . . girls' varsity soccer games"; from "[e]nforcing the
No Trespass Order issued against Kyle Fellers"; from enforcing the
Bow School Board Policy governing "Public Conduct on School
Property" (the "Policy") or the Bow High School Athletics Handbook
in a way that would "prevent attendees at an extracurricular event
from non-disruptively expressing disfavored viewpoints on
political or social issues"; and from enforcing the Policy or the
- 3 -Athletics Handbook "in such a way as to suppress non-disruptive
expression of political or social views based on audience reaction
or a heckler’s veto." For the following reasons, we conclude that
appellants have established a likelihood of success as to their
viewpoint discrimination claim arising from the sanctions imposed
on them for their passive speech in wearing these wristbands. We
remand to the district court for further consideration.
I.
We explain the context in which the appellants' protest
occurred. In July 2024, the New Hampshire legislature enacted
House Bill 1205, which barred transgender girls from participating
in girls' sports in public schools. See N.H. Rev. Stat. Ann.
§ 193:41 (2024). Two transgender students, Parker Tirrell and
Iris Turmelle, challenged the statute, asserting it violated their
rights under the Equal Protection Clause of the Fourteenth
Amendment and Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681. See Tirrell v. Edelblut, 748 F. Supp. 3d 19, 29
(D.N.H. 2024). On September 10, 2024, a federal district court
entered a preliminary injunction permitting Tirrell to continue
playing on, and Turmelle to try out for, their schools' girls'
sports teams while the litigation proceeded. See id. at 30, 47-48.
Tirrell's team, Plymouth Regional High School, played against Bow
High School at the September 17, 2024, game that gave rise to the
present dispute.
- 4 -On June 30, 2026, the Supreme Court upheld West Virginia
and Idaho laws prohibiting transgender females from competing on
female sports teams, finding the statutes consistent with Title IX
and the Equal Protection Clause of the Fourteenth Amendment. West
Virginia v. B.P.J. by Jackson, Nos. 24-43 and 24–38, 2026 WL
1868739, at *4 (U.S. June 30, 2026). On July 8, 2026, Tirrell and
Turmelle voluntarily dismissed their lawsuit challenging the New
Hampshire state law. At the time of the events in this case, the
preliminary injunction was in place, leading to the events
recounted in this opinion.
Before the September 17, 2024, game, appellant parents,
driven in part by concerns about risks to their daughters from
playing against transgender athletes, expressed their opposition
to these athletes participating in female high school sports. On
August 1, 2024, Fellers sent an email to Superintendent Marcy
Kelley and other school administrators, criticizing those who
support transgender participation in female sports as "a mentally
ill cult." As an example of those concerns, Fellers described a
transgender competitor in an Olympic boxing match as a "mentally
ill man" and "maniac," and asserted that the female opposing boxer
left the match "crying in pain and in shame" and stating that she
had "never been hit as hard."
On or about September 13, 2024, Nicole Foote met with
Bow High School Athletic Director Mike Desilets to express her
- 5 -concerns about the scheduled game against Plymouth because of
Tirrell's participation.1 During the meeting, Desilets responded
that Bow was required to comply with the district court's
injunction and could not forfeit the game.
The day before the game, on September 16, Nicole's
husband Anthony Foote posted on Facebook, urging others to "come
out to support [the] XX Lady Falcons" as they "face a team that
includes a biological male on the roster." The post emphasized
Foote's view that the participation of transgender athletes in
female sports could pose safety risks and leave the non-transgender
players "vulnerable." Foote also posted to social media a picture
of approximately 30 pink wristbands, some of which bore the "XX"
symbol and some of which bore the female gender symbol or the term
"NAD," which is shorthand for "gonad."
About a week before the game, Desilets was also contacted
by different parents of Bow soccer players who told him they knew
of "several Bow parents discuss[ing] wearing dresses to the game,
1Anthony Foote's wife, Nicole Foote, is also an appellant
and the mother of a Bow High School player. While she attended
the September 17 game, the record states that, although Anthony
Foote distributed a wristband to her, she "did not put it on."
She has alleged that, if permitted, she would silently protest at future athletic or extracurricular events by openly wearing a pink "XX" wristband, but that she believes doing so would cause the
school district to sanction her as they did her husband. When discussing the September 17 wristband protest, references to "the appellants" mean only Fellers, Anthony Foote, and Rash unless
otherwise indicated.
- 6 -buying anti-trans warm-up shirts for the Bow players, making signs
in protest of trans athletes, and generally planning on how they
can heckle and intimidate [Tirrell]." The appellants, including
Fellers, do not appear to have been informed of these discussions
with the school district.
The evening before the game, Desilets emailed the Bow
team parents an excerpt from the Bow High School Athletics
Handbook. The email stated that, while Desilets "under[stood]
that there [were] some differing opinions regarding tomorrow's
game, and that [was] perfectly fine," the game would be a "contest
between high school student-athletes and should be treated as
such." Foote responded by email to Desilets the next morning,
copying the other parents, and stated "I'm a leader, and a real
leader doesn't stand by while their players are thrown into harm's
way. . . . And you don't sit around waiting for someone to get
hurt before you take action."
Bow High School administrators, including Kelley,
Desilets, and Principal Matt Fisk, discussed what they had been
told and conferred on "how to protect the visiting student from
harassment." Kelley advised the Bow Police Department of the
administrators' concerns of harassment and arranged for Lieutenant
Philip Lamy to attend the September 17 game, which Lamy did.
During the first half of the game, Anthony Foote quietly
distributed pink "XX" wristbands to the other appellants and to
- 7 -approximately half a dozen other spectators whom he understood to
be in support of his views. The parties here agree that the "XX"
symbol represents opposition to transgender girls participating in
girls' sports. Foote instructed the group not to wear the
wristbands until halftime. Once halftime arrived, Foote walked to
the Bow High School parking lot and placed a poster with a picture
of an activist opposed to transgender participation in female
sports on the windshield of his car. Foote and Anthony Fellers
then quietly donned the "XX" wristbands. Appellants chose not to
conduct their passive protest until halfway through the game
because, based on their prior exchanges with school officials,
they anticipated their protest might well prompt a response or
result in their removal from the game.
About ten minutes after halftime, Desilets approached
Foote and instructed him to remove his wristband. Foote initially
refused and responded that he had the right to express his support
for women's sports, but ultimately complied. Desilets then looked
through the crowd for others wearing wristbands.
Desilets next asked Fellers to remove his wristband.
Fellers refused. Desilets walked about ten feet away to consult
with Fisk and Lieutenant Lamy. Fisk approached Fellers and again
asked him to remove the wristband; Fellers heatedly refused. Lamy
then stated that Fellers must remove the wristband or leave the
game. At this point, Fellers removed the band.
- 8 -Fellers's father-in-law, Eldon Rash, placed Fellers's
wristband on his own wrist after learning what had occurred. Fisk
and Desilets likewise directed Rash to remove it. Shortly
thereafter, the game's head referee, Steve Rosetti, stopped play
and directed both teams to their benches. The referee informed
Rash that play would not resume unless he removed the wristband.
After about fifteen minutes, Rash complied and the game resumed.
There is no evidence in the record that any player was aware of
the reasons for the stoppage.
Immediately following the game, Fellers stood next to
his car holding a poster, which read "Protect Women's Sports for
Female Athletes." Fellers was asked to leave by Lamy. After
briefly objecting, Fellers left.
The school district soon issued no-trespass orders
prohibiting Fellers and Anthony Foote from attending Bow School
District athletic or extracurricular events, along with other
sanctions described in the footnote below.2 In response,
2 The appellants were sanctioned as follows by school
authorities for wearing the pink "XX" wristbands. After halftime, Fellers, Anthony Foote, and Rash were told on the sidelines that
they could not protest and were instructed to remove the bands or leave the game; school officials then asked the local police
officer to remove Fellers, leading the officer to tell Fellers he was being removed from the game, after which Fellers left the
sidelines; the officer later instructed Fellers in the parking lot to leave school grounds. Fellers and Anthony Foote were sent
no-trespass orders from school officials prohibiting them for a
time "from entering the buildings, grounds, and property of the
Bow School District," including "parking lots[] and athletic
- 9 -appellants brought a lawsuit challenging the school district's
actions under the First Amendment.
II.
The district court analyzed the school playing fields
and adjacent parking lot, as appellants requested, under the mode
of First Amendment law applicable to limited public fora as to
impermissible viewpoint discrimination. See Fellers, 2025 WL
1098271, at *15. The district court cited to Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 106-07 (2001) in support of its
limited public forum analysis. Further citing to Christian Legal
Society Chapter of the University of California, Hastings College
of the Law v. Martinez, 561 U.S. 661, 685(2010), it also noted the
"educational context," in which the dispute occurred.3 The
fields" and "from attending any Bow School District athletic or
extracurricular-events, on or off school grounds." Anthony Foote
obeyed his no-trespass order through its expiration on September 23, 2024, missing both his high school daughter's and
middle school daughter's soccer games. Fellers's no-trespass order was twice amended by school officials, and the district court entered a limited order allowing Fellers to attend his daughter's soccer games while his request for preliminary injunctive relief
was under advisement.
3 Good News Club held that a school that had created a limited
public forum and opened it to a variety of services could not
exclude a Christian children's club from meeting after hours based on the religious nature of the club. 533 U.S. at 108-09. This was held to be impermissible viewpoint discrimination. Id. at 110.
By contrast, in Christian Legal Society Chapter, a sharply divided Supreme Court held that a law school's program that had created a limited public forum in recognizing Registered Student Organizations, and used an "all-comers policy" as a criterion for recognition, was both content and viewpoint-neutral. 561 U.S. at
669, 694-96.
- 10 -district court also referred to a non-limited public forum case,
this court's student-speech decision in L.M. v. Town of
Middleborough, 103 F.4th 854 (1st Cir. 2024), cert. denied, 145 S.
Ct. 1489 (2025).
The school district concedes that some courts at times
have found school grounds in other circumstances to be subject to
a limited public forum analysis. See e.g., Johnson v. Perry, 859
F.3d 156, 175 (2d Cir. 2017). For a recent example of a school
district creating a limited public forum, see Cajune v. Independent
School District 194, 105 F.4th 1070, 1082-83 (8th Cir. 2024)
(finding that school district created limited public forum when it
permitted display of "Black Lives Matter" posters on school walls
but did not permit "Blue Lives Matter" or "All Lives Matter"
posters and shirts). But the appellee school district argues that
this case must be analyzed more in the mode of Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969);
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); Morse
v. Frederick, 551 U.S. 393 (2007); and L.M., 103 F.4th 854. These
cases, on which the school district relies, recognize the
particular interests inherent in the public elementary and high
school settings, and the necessary discretion given to public
school administrators in the difficult job of running public
schools. The school district argues that its actions at all times
- 11 -were permissible under these cases and so cannot amount to improper
viewpoint discrimination.
Neither of those two different classic modes of First
Amendment analysis, urged on by these opposing parties, is a
perfect fit for this public high school speech case, and we note
that the Supreme Court has not addressed this precise question.
We need not and do not reach the complex question of which (or
whether) either of these alternate modes is the appropriate First
Amendment type of analytical model for the facts of record here.4
We conclude that on these facts the differences in analysis would
not affect the outcome here.
III.
First, we narrow what is at issue in this appeal.
Although appellants at various points seem to ask for preliminary
injunctive relief to allow them to wear their passive protest
symbol opposing transgender girls' participation in girls'
athletics as to all areas of school property, we hold that only
the claims arising from the September 17, 2024, events at the
sidelines of the soccer field and the adjacent parking lot are at
issue and that there is no ripe controversy as to any other area
of school property. See Trump v. New York, 592 U.S. 125, 131
4 In our view, the parties have not adequately briefed these
issues and, as we need not reach them, we are constrained under
Article III not to issue advisory opinions. See Pietrangelo v.
Sununu, 15 F.4th 103, 105 (1st Cir. 2021).
- 12 -(2020). Appellants' additional claims as to other areas relate to
"contingent future events that may not occur as anticipated, or
indeed may not occur at all." Reddy v. Foster, 845 F.3d 493, 500
(1st Cir. 2017) (quoting Texas v. United States, 523 U.S. 296, 300
(1998)).
We turn to the more serious issue. The question at the
center of this appeal is not the facial validity of the Policy but
rather the school administrators' interpretation of the Policy so
as to sanction appellants for wearing pink "XX" wristbands as a
protest against transgender girls' participation in public high
school girls' sports.5 The parties agree that appellants wore the
wristbands to express their views that transgender athletes should
not participate in high school female sports. During the
preliminary injunction hearing, Superintendent Kelley testified
that she viewed the "XX" symbol as "anti-trans" and "exclusionary."
Consistent with that view, Kelley stated publicly that the protest
violated the Policy and issued no-trespass orders to Fellers and
Anthony Foote that characterized the protest as "intimidating,
threatening, harassing, and discouraging" a student on the
5 Appellants have abandoned any facial challenge to the
Policy on appeal. In their reply brief, appellants represent that they "have not brought a facial challenge to invalidate [the
Policy] in all instances," but have instead "brought an as-applied challenge to enjoin enforcement of the [Policy] against their
proposed display of the "XX" wristbands and 'Protect Women's
Sports' signs."
- 13 -opposing team from playing. At that hearing, Kelley also expressed
concern that disputes arising from the protest could disrupt the
school environment. Similarly, Bow High School Principal Fisk
considered the "XX" symbol to be "hateful," "anti-trans," and
concerning given "the challenges that trans kids go through." The
district court concluded that Superintendent Kelley and Principal
Fisk's interpretations and enforcement of the Policy did not
constitute viewpoint discrimination. Fellers, 2025 WL 1098271, at
*15. We disagree.
We begin by asking whether the school district was acting
within the scope of the authority traditionally afforded public
schools to regulate speech. The Supreme Court has long recognized
that administrators of public K-12 schools possess unique
authority in the First Amendment context "in light of the special
characteristics of the school environment." Hazelwood, 484 U.S.
at 266 (quoting Tinker, 393 U.S. at 506). In Tinker, the Supreme
Court held that school authorities may regulate student speech if
it "materially disrupts classwork or involves substantial disorder
or invasion of the rights of others." 393 U.S. at 513. For
example, school administrators have banned displaying Confederate
flags where the school reasonably anticipated that the symbols
would cause substantial disruption.6 Schools may also intervene
See, e.g., Barr v. Lafon, 538 F.3d 554, 566-67 (6th Cir.
6
2008) (holding that school officials "could reasonably forecast
- 14 -when speech is bullying or harassing,7 or to prevent "lewd,
indecent, or offensive speech and conduct," Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 683 (1986). And as a general
principle, school administrators are entitled to deference in the
difficult decisions they make regarding speech occurring on school
grounds or at school events. Norris ex rel. A.M. v. Cape Elizabeth
Sch. Dist., 969 F.3d 12, 30 (1st Cir. 2020); see also Davis ex
rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646
(1999) ("On more than one occasion, [the Supreme] Court has
recognized the importance of school officials' 'comprehensive
that permitting students to wear clothing depicting the
Confederate flag would cause disruptions to the school environment," given record evidence of racial violence, threats,
and tensions); Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 335-36 (6th Cir. 2010) (affirming where school officials "reasonably
forecast that permitting displays of the Confederate flag would
substantially disrupt or materially interfere with the school
environment"); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th Cir. 2000) (upholding suspension of middle school student for drawing a Confederate flag where school officials "had reason to believe that a student's display of the Confederate flag might cause disruption and interfere with the rights of other
students to be secure and let alone").
7 See Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 188
(2021) (noting that schools may regulate student speech to prevent "serious or severe bullying or harassment targeting particular
individuals" and "threats aimed at teachers or other students");
Doe v. Hopkinton Pub. Schs., 19 F.4th 493, 509 (1st Cir. 2021)
("Speech or conduct that actively and pervasively encourages
bullying by others or fosters an environment in which bullying is acceptable and actually occurs . . . is not protected under the
First Amendment."). While schools may not bar messages merely
because they are offensive to some students, school officials "are generally permitted to step in and protect students from abuse."
L.M., 103 F.4th at 872 (quoting Sypniewski v. Warren Hills Reg'l
Bd. of Educ., 307 F.3d 243, 264 (3d Cir. 2002)).
- 15 -authority . . ., consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools.'"
(omission in original) (quoting Tinker, 393 U.S. at 507)).
The appellants argue that these school-speech precedents
are distinguishable because the speakers here were adults rather
than students, although neither party has suggested that school
officials would have applied materially different standards had
the same "XX" wristbands been worn by students attending the game.8
Nor has the Supreme Court expressly limited the Tinker or Hazelwood
principles to student speech alone when evaluating conduct on
school grounds and at school-sponsored events. We need not resolve
that issue to resolve this appeal.
The school's legitimate interest in regulating certain
kinds of speech on the playing field sidelines, however, is not
demonstrated by the evidence in this record. There is no evidence
that appellants' protest caused a material disruption. There was
no disruption until school officials chose to intervene, after
which the referee suspended the game for approximately fifteen
minutes and the school officials chose to impose restrictions on
appellants' speech and impose sanctions. The appellants did not
8 The record shows that the appellants distributed the
wristbands to "half a dozen . . . spectators who[m] [they] knew to be in support of [their] position." The record does not reveal
whether these spectators included any students or whether any
students actually put on the wristbands.
- 16 -stage any pregame demonstrations; did not march, shout, chant, or
otherwise disrupt the game; and did not confront Tirrell or any
other player. Instead, they waited until halftime before donning
the "XX" wristbands in a passive, silent gesture of protest. There
is also no evidence of harassment, given there is no evidence in
the record that any player actually saw the wristbands.
The lack of any evidence demonstrating harassment also
defeats the school district's argument that it had an affirmative
duty under Title IX to protect students from the speech in which
appellants engaged. The Supreme Court's recent decision in B.P.J.
further supports this conclusion. See 2026 WL 1868739, at *4. In
B.P.J., the Court held that the text of Title IX, the Javits
Amendment, and Title IX's implementing regulations do not require
schools to allow transgender females "to participate in women's
and girls' sports." Id. at *8. While the regulations require
schools to adopt "reasonable provisions considering the nature of
particular sports," id. (emphasis omitted) (quoting Education
Amendments of 1974, Pub. L. No. 93-380, § 844, 88 Stat. 612
(1974)), the Court concluded that separating sports teams based on
biological sex is reasonable to "reduce the risk of physical injury
and ensure fair competition," id. The Supreme Court's reasoning
undermines the school district's argument that its sanctions for
appellants' passive speech were justified because it was
- 17 -"obligated under Title IX to ensure that students participating in
school events did not suffer sex discrimination."
The school district acknowledges that an actionable
harassment claim under Title IX against recipients of federal funds
generally requires a showing of conduct that was "sufficiently
severe or pervasive" to create an abusive educational environment,
and that the environment was both subjectively and objectively
hostile or abusive. Wadsworth v. Nguyen, 129 F.4th 38, 54-55 (1st
Cir. 2025). While it is true that appellants chose to protest at
the September 17 game because of Tirrell being a player, the record
does not contain evidence of appellants engaging in harassment
before or during the game. To the contrary, appellants did not
shout, chant, make threats, or aggressively gesture at Tirrell to
communicate their views against her participation. Nor is there
evidence that Tirrell or any other player even saw the wristbands
or "subjectively perceived the environment to be hostile or
abusive." Id. at 55 (quoting Roe v. St. John's Univ., 91 F.4th
643, 661 (2d Cir. 2024)). Principal Fisk did note the challenges
that transgender students face generally. But Fisk did not ever
explain how appellants' display of the "XX" symbol constituted
sufficiently severe or pervasive conduct to qualify as harassment
under Title IX. And to the extent the district court concluded
that the silent wearing of "XX" wristbands on the sidelines of a
- 18 -school soccer field, without more, always amounts to harassing
speech, we disagree.
The school district responds that it may make
"predictive judgment[s]" to proactively prohibit conduct that it
believes will eventually lead to an actionable Title IX claim. As
support, the school district cites our decision in Wadsworth. We
agree with the general proposition. But the argument fails on the
facts of this record. The record in Wadsworth contained extensive
evidence of a principal's sexual harassment of a student for over
a year. See Id. at 44-48. The record here is notably different
and contains no such evidence.
As appellants concede, actions by school administrators
to intervene to prevent actual harassment would be permissible
under the First Amendment. We need not decide in this appeal
whether and under what circumstances passive speech, on other
facts, consisting of displaying the "XX" symbol on school property
during school events could be reasonably thought to be harassing.
But appellants' silent display of the "XX" symbol at the
September 17 game fell short of harassment and disruption, and we
conclude that the district court erred in holding that the school's
interest in prevention of harassment justified the prohibition.
While it is a closer issue, we conclude that the school
district likely was not justified in sanctioning the appellants
for their passive speech based on its concerns derived from the
- 19 -earlier exchanges with the appellants and other parents. None of
appellants' reported discussions, including their possible
different methods of protest reported to Bow High School officials
by other parents, led to any attempt to "heckle and intimidate"
Tirrell. And that was evident both before and throughout the game.
It is true that Fellers initially attempted to convince
his daughter to get the Bow High School players to wear the
wristbands, but his daughter informed him that "she could not get
full support from the team and was afraid that it would divide
them." Fellers's Facebook post made the night before the game
encouraged spectators "to protect the integrity and safety of
female athletics" and "come out to support our XX Lady Falcons and
show your solidarity with our girls' team." But the record shows
only that the appellants and perhaps others of similar views
engaged in a passive protest and only started the protest at
halftime. While the school district may make predictive judgments
about whether disruption may occur and "need not be certain of its
forecast," L.M., 103 F.4th at 874, it cannot use those projections
to immediately suppress a passive, silent protest, that did not
impair any of the legitimate school administration interests
recognized by the Supreme Court.
This brings us to the school officials' other stated
reasons for sanctioning appellants. Superintendent Kelley stated
that the "XX" symbol conveyed an "exclusionary" message about
- 20 -gender. Principal Fisk, who ordered appellants to remove the
wristbands, described the symbol both as "hateful" and as
"anti-trans." As to these justifications for the sanctions
imposed, the record evidence demonstrates the likelihood that the
school district imposed sanctions on the appellants' wearing of
the wristbands because it disagreed with the protest message
conveyed. This went beyond mere content neutrality.
Although the leading Supreme Court case on viewpoint
discrimination in academic limited public fora, Rosenberger v.
Rector and Visitors of the University of Virginia, 515 U.S. 819
(1995), involved colleges and not high schools, and involved a
limited public forum, both significant differences, Rosenberger's
language about viewpoint discrimination is pertinent. "The
government must abstain from regulating speech when the specific
motivating ideology or the opinion or perspective of the speaker
is the rationale for the restriction." Id. at 829; see also Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("The principal
inquiry in determining content neutrality . . . is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys."); Perry Educ. Ass'n v.
Perry Loc. Educators' Ass'n, 460 U.S. 37, 46 (1983) (holding that
a regulation on speech on public property must be "reasonable and
not an effort to suppress expression merely because public
officials oppose the speaker's view").
- 21 -The characteristics of the school as a place of learning
reinforce that administrators cannot favor one side of a debate
involving parental speech on an issue of prominent public concern,
and which, in those parents' views, concerned the safety of their
children. As the Supreme Court stated in a case involving a high
school football game, "learning how to tolerate diverse expressive
activities has always been 'part of learning how to live in a
pluralistic society.'" See Kennedy v. Bremerton Sch. Dist., 597
U.S. 507, 541 (2022) (quoting Lee v. Weisman, 505 U.S. 577, 590
(1992)).
IV.
Appellants have shown a reasonable likelihood of success
as to the merits of their viewpoint discrimination claim. Even
so, as to the preliminary injunction, likelihood of success is one
prong, albeit the most important, of a four-prong analysis. "To
secure a preliminary injunction, the moving party must establish
'that [it] is likely to succeed on the merits, that [it] is likely
to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in [its] favor, and that an
injunction is in the public interest.'" New York v. Trump, 171
F.4th 1, 15 (1st Cir. 2026) (alterations in original) (quoting
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
While appellants have sought preliminary injunctive
relief, an adequate remedy of lesser interim relief, such as a
- 22 -declaratory judgment, may suffice. Cf. Scaer v. City of Nashua,
162 F.4th 256, 258, 266-67 (1st Cir. 2025) (on appeal from denial
of preliminary injunctive relief, remanding for entry only of an
interim declaratory judgment after concluding that the city had
engaged in viewpoint discrimination in its flag-flying program).
"A declaratory judgment may have much the same practical effect as
[an injunction] but is a milder remedy that does not, in itself,
coerce any party or enjoin any future action." Id. (citation
modified). It is a different legal question, requiring further
inquiry by the district court on remand, whether appellants have
made the showing necessary for some form of relief. We note that
in light of the Supreme Court's B.P.J. decision, the New Hampshire
statute is in effect.
We remand to the district court for further proceedings
consistent with this opinion. No costs are awarded. So ordered.
-Concurring Opinion Follows- 23 -RIKELMAN, Circuit Judge, concurring in the judgment. I
agree that the district court erred in its viewpoint discrimination
analysis. I write separately because the majority opinion
implicitly resolves difficult questions under First Amendment law
in reaching its holding, without explaining why its conclusions
are consistent with existing precedent.
I share the majority's view that neither the limited
public forum framework nor the standard set out in Tinker v. Des
Moines Independent Community School District, 393 U.S. 503 (1969),
is a perfect fit for this case. I also agree that deciding which
First Amendment standard to apply here is a complex legal question.
But the majority opinion never fully explains the basis
for its critical conclusion that "the differences in analysis"
between the limited public forum framework and the Tinker standard
do "not affect the outcome" of the plaintiffs' viewpoint
discrimination claim. And it is not obvious how that would be so,
especially because the Supreme Court and our court have never held
that viewpoint neutrality is always a requirement under the Tinker
line of cases.
The limited public forum framework is triggered when the
government opens its facilities to members of the public and
permits expressive speech on certain topics. See Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995).
The government can impose content-based speech restrictions in a
- 24 -limited public forum, see id., but any restrictions must be
viewpoint neutral and "reasonable in light of the purpose served
by the forum," Good News Club v. Milford Cent. Sch., 533 U.S. 98,
107 (2001) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 806 (1985)). Thus, viewpoint neutrality is a
critical component of this framework.
By contrast, Tinker provides that school officials may
prohibit student speech that "materially disrupts classwork or
involves substantial disorder or invasion of the rights of others."
393 U.S. at 513; see also L.M. v. Town of Middleborough, 103 F.4th
854, 868 (1st Cir. 2024) (discussing the "invasion of the rights
of others" prong and explaining that "we have held that the
rights-of-others limitation applies in the case of bullying, even
when there is no physical invasion of any kind" and the speech is
not tortious). Schools may also prohibit sexually "lewd and
indecent" student speech, even absent material disruption, if
school officials determine that the speech "would undermine the
school's basic educational mission." Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675, 685 (1986). And schools may prohibit student
speech that promotes "illegal drug use" given the "special
characteristics of the school environment" and "governmental
interest in stopping student drug abuse." Morse v. Frederick, 551
U.S. 393, 408 (2007) (quoting Tinker, 393 U.S. at 506).
- 25 -I understand the majority opinion to determine that the
plaintiffs would be likely to succeed on their viewpoint
discrimination claim even if the speech restriction here were
analyzed under the Tinker line of cases (assuming that the test
laid out in Tinker could apply to adult speech). But as the
opinion acknowledges, putting aside any concerns about material
disruption, the school district viewed the XX symbol as
communicating a demeaning and hateful message targeted at
transgender athletes and restricted the plaintiffs' speech in an
effort to protect those students. Thus, the majority opinion rests
on one of two implicit premises: either that the school district's
actions at the soccer game could not be justified under Tinker's
"invasion of the rights of others" prong, 393 U.S. at 513, or that
Tinker imposes a viewpoint neutrality requirement that trumps a
school's interest in preventing invasion of the rights of others.
As the plaintiffs point out, however, given Tinker's
specific purpose and underlying justification, we have "not
necessarily require[d] viewpoint neutrality" when evaluating
student-speech restrictions under Tinker. See L.M., 103 F.4th at
886 n.11; see also Frederick, 551 U.S. at 409 (noting the dissent's
view that the Court's decision "authoriz[ed] viewpoint
discrimination" and not disputing the proposition that "some
targeted viewpoint discrimination" "might well be appropriate to
tolerate . . . in th[e] unique [school] setting" (citation
- 26 -modified)). So, I assume that the majority opinion rests on the
premise that the school district's actions could not be justified
under Tinker's "invasion of the rights of others" prong. But it
does so without supporting analysis.
In my view, based on the arguments presented to us, there
was a more straightforward path for deciding this appeal. The
school district accepted that the limited public forum framework
applied to the facts here and conceded repeatedly, both in its
brief and at oral argument, that it could restrict speech at the
September 17 soccer game only for viewpoint neutral reasons.9 At
no point on appeal did the school district argue otherwise.
Although it did urge us to conduct our First Amendment analysis
with the principles of Tinker in mind, it did so only in arguing
that its actions were reasonable and thus satisfied the second
prong of the limited public forum test (the reasonableness prong).
Of course, we are not obligated to accept the parties'
positions on the correct legal test, especially when there is a
well-established, on-point legal framework that we can apply. See,
e.g., Foote v. Ludlow Sch. Comm., 128 F.4th 336, 346-47 (1st Cir.
2025) (declining to apply the parties' agreed-upon
"shock-the-conscience test" because it "was not the appropriate
9 For example, at oral argument, we asked the school
district: "You of course agree that the test that we are applying here requires your policy to be viewpoint neutral?" It responded: "Correct."
- 27 -legal standard" under our case law, which required applying a
different framework). But as the majority opinion observes, there
is no such on-point legal framework available here. And the
parties did not provide briefing on this issue because they agreed
that the limited public forum standard should apply. As a result,
I would have accepted the school district's concession, given the
open and difficult question about how to analyze adult speech on
the sidelines of public high school athletic events.10
With the school district's concession in mind, I agree
that the record lacks evidence of actionable harassment or material
disruption from the plaintiffs' speech at the September 17 soccer
game. The record also demonstrates that school officials likely
restricted the XX symbol because they viewed it as "exclusionary"
and demeaning to transgender students. That amounts to viewpoint
discrimination under relevant precedent. See Rosenberger, 515
U.S. at 829.11
10 Indeed, in Good News Club, the Supreme Court accepted the
parties' agreement that the First Amendment test for a limited
public forum (as opposed to a traditional public forum) should
apply on the facts there. See 533 U.S. at 106 ("Because the
parties have agreed that [the school] created a limited public
forum when it opened its facilities in 1992, we need not resolve
the issue here. Instead, we simply will assume that [the school]
operates a limited public forum." (citation modified)).
11 I would reserve for another day -- with the benefit of
dedicated briefing -- the question of whether the limited public
forum analysis is indeed the correct framework to assess
restrictions of adult speech on the sidelines of public school
athletic events.
- 28 -Thus, I respectfully concur only in the judgment.
- 29 -