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Appeals court rules that school officials had a right to ban anti-trans T-shirts

Liam Morrison. Handout photo via Nemasket Week.

Not surprisingly, a federal appeals court has ruled against a Middleborough student who sued the school system after he was banned from wearing two T-shirts with anti-transgender messages.

According to an article by Sawyer Smoot-Pollitt in Nemasket Week, Chief Judge David Barron, writing for the First Circuit Court of Appeals, ruled that school officials did not act “unreasonably in concluding that the shirt would be understood … in this middle school setting … to demean the identity of transgender and gender nonconforming students.” John R. Ellement covered the story for The Boston Globe as well.

Earlier, Morrison lost in U.S. District Court. At this point, his only recourse would be an appeal to the U.S. Supreme Court. Given the high court’s lurch to the right, maybe his high-profile backers at the Massachusetts Family Institute, a religious-right organization, will give it a try.

As I’ve written previously, Liam Morrison, then a seventh-grader, was sent home from the Nichols Middle School twice in the spring of 2023 — the first time for wearing a T-shirt that read “There Are Only Two Genders” and, the second time, for amending that to “There Are (Censored) Genders.”

This was not an easy call. At root, the First Amendment exists to protect unpopular speech, and Morrison’s T-shirts were surely unpopular among his LGBTQ classmates and their allies. On balance, though, I think school officials and the courts have gotten it right.

As Judge Barron observes, the T-shirts’ message was demeaning to trans students and dismissive of their very identity. By contrast, if a student wore a pro-transgender T-shirt, that would not represent any sort of threat or insult to non-trans students. In addition, the courts have ruled repeatedly that public school students’ First Amendment rights are limited when they are on school property. The school handbook in Middleborough bans clothing that targets “groups based on race, ethnicity, gender identity, religious affiliation or any other classification.”

For all these reasons, I’ve refrained from giving a New England Muzzle Award to Middleborough school officials, even though Morrison and his family no doubt believe they’ve been muzzled.

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AG Campbell boosts free speech for electeds, while an anti-trans shirt goes to court

Attorney General Andrea Campbell. Photo (cc) 2022 by Dan Kennedy.

A past winner of a New England Muzzle Award is in the news, while a more ambiguous case is making its way through the federal courts.

First, Massachusetts Attorney General Andrea Campbell recently issued guidance stating that local elected officials have no fear of violating the state’s open meeting law if they take part in re-election activities such as debates or candidate forums where they discuss pending municipal business. Campbell’s decision follows a ruling by our Muzzle winner, Waltham City Solicitor John Cervone, that such activities would be “potentially problematic,” raising the specter that officials running for re-election would be barred from any substantive discussion of local issues.

Campbell’s guidance was hailed in a Boston Globe editorial, which noted that a similar situation had arisen in Newton. The editorial observed that Campbell gave her blessing even to situations at which a quorum of officials are present (for instance, three members of a five-member selectboard) “as long as they address their answers to the public, not to each other.” Campbell’s guidance reads in part:

The Open Meeting Law does not restrict an individual’s right to make comments to the general public, particularly as a candidate for office. Rather, it restricts communication between or among a quorum of a public body outside of a meeting; thus, the intent of the public official is an important consideration.

The Waltham and Newton restrictions were absurd, and Campbell was right to set them aside.

Second, Liam Morrison of Middleborough, Massachusetts, who as a seventh-grade student last year was banned from wearing an anti-transgender T-shirt to school, has taken his case to the U.S. Court of Appeals for the First Circuit after losing his bid to overturn the ban in federal district court. Morrison wore a shirt that said “There Are Only Two Genders.” And when that didn’t pass muster, he returned to school with a T-shirt that said “There Are [Censored] Genders.” That earned him a trip back home as well.

According to a report by Reuters, the appeals court seemed unimpressed with Morrison’s free speech argument at a recent hearing. Here’s part of the Reuters article:

U.S. Circuit Judge Lara Montecalvo contrasted the shirt with a brochure handed out by students expressing a particular message, saying unlike those pieces of paper, a student could not throw away the shirt that Morrison was wearing.

“A T-shirt that is worn all day is worn all day,” she said. “You have to look at it, you have to read it.”

Deborah Ecker, a lawyer for the Middleborough School Committee, said the school officials’ actions were motivated by concern for the mental health of LGBTQ students, “who are captive in this classroom looking at it.”

Boston Globe columnist Jeff Jacoby sides firmly with Morrison, writing:

In court filings, Middleborough’s lawyers argue that the school was entitled to suppress Morrison’s message out of concern that it could have led to “disruption.” Yet contrary messages are permitted. No discipline was imposed when a student came to class in a “He she they, it’s all okay” T-shirt. School administrators cannot have it both ways, allowing students to express the popular side of a debatable issue but silencing those who disagree because their opinion might provoke an angry reaction. The First Amendment does not bow to the heckler’s veto.

My own opinion is that this is not as simple as Jacoby makes it seem. As Jacoby himself notes, public school students have limited free speech rights when they are on school grounds. And though there’s a certain logic to the either/or choice Jacoby presents, it doesn’t hold up to closer scrutiny. An anti-LGBTQ message expresses animosity toward specific people, including fellow students whose orientation is something other than he or she. A pro-LGBTQ message affirms everyone’s humanity without — and this is the key — expressing any animosity toward people like Morrison who hold a different viewpoint.

Given that difference, it seems to me that Middleborough school officials got it right. Based on the Reuters report, it sounds like the appeals court is likely to agree when it issues its ruling.

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A tale of two school systems and how they responded to transphobic incidents

In Amherst, student journalists have reported that three middle school counselors engaged in anti-transphobic behavior, leading to suspensions while school officials investigate. In Middleborough, a seventh-grader who was sent home from school for wearing anti-trans T-shirts is claiming that his First Amendments rights have been violated.

Fortunately, the struggle for transgender dignity and respect is playing out differently in Massachusetts than it is in places like Florida and other red states, where the very existence of trans folks is under attack. Still, transphobia is everywhere, and all of us are faced with the challenge of protecting the LGBTQ community in a way that acknowledges everyone’s right to be heard.

I want take a look at the situation in Amherst first because it was brought to light by an intrepid group of students at Amherst Regional High School — 16 of them, who helped report a 4,800-word story for The Graphic, a 109-year-old student publication produced by the school’s journalism classes.

According to their story, published on May 9, three middle school counselors have “routinely misgendered and deadnamed transgender students and staff, invoked anti-LGBTQ prayer at school, allowed religion to overflow into conversations with students and staff, and failed to provide support to students who were facing gender-based bullying or intimidation at school.”

The article is deeply reported and well-documented, although I should add that the three counselors, Hector Santos, Delinda Dykes and Tania Cabrera, have denied the allegations. Cabrera is Santos’ daughter and is a new hire, though her actions reportedly are in a similar vein.

Astonishingly, The Graphic also reports that students, parents and school staff members have expressed concerns to top administrators, yet no action was taken until after their story was published. On May 11, Scott Merzbach of The Daily Hampshire Gazette reported that three counselors have been placed on administrative leave pending an investigation. School Supt. Michael Morris declined to identify the three or to confirm if they were the trio named by The Graphic.

The Graphic’s story is filled with disturbing details, but I want to focus on one anecdote that I found particularly telling. A secretary identified pseudonymously as John said he was once invited to take part in a private prayer circle held on school property by Santos and Dykes. According to The Graphic:

At first, he didn’t see the harm. He said he identifies as both a Christian and an LGBTQ supporter.

“I was exploring my spiritual side at that time,” he said, noting that the circle did not involve students or teachers. “I thought we were just going to pray for strength to get us through the day. Who doesn’t need that?” But things shifted quickly. He alleges that after some introductory prayers, Dykes changed lanes, saying, “‘In the name of Jesus, we bind that LGBTQ gay demon that wants to confuse our children.”

John said he felt an immediate “tightness in my chest. I looked to the door, wanting to run.” He left shortly afterward, told a trusted colleague he felt they “were crazy to be saying that,” never joined their prayer circle again, and tried to avoid the two at work, making polite talk but keeping his distance.

According to the article, John reported the incident to Marta Guevara, the school’s director of student and family engagement, who in turn reported it to Supt. Morris — one of several disturbing incidents she brought to Morris’ attention. Yet there is no evidence that Morris did anything about it before he announced last week’s suspensions.

I also want to highlight The Graphic’s explanation of the care that it took in reporting the story, which appears at the bottom of the article:

All sources who are referred to by a first-name-only pseudonym wished to remain anonymous. Parents and children sought anonymity on the basis of privacy and an ongoing legal investigation. Some staff members sought anonymity due to fear of retaliation. Some staff members who are named did not speak to The Graphic but were copied on email correspondences that were shared with us by parents or hold district titles related to this report. Nothing in this article was reported secondhand; all stories and facts were provided by firsthand sources in person or via Zoom, phone, or email interviews. We reached out to everyone who was described as engaging in behaviors by others — rather than by their own account — and offered them the right of reply to each allegation. The children interviewed consented to the publication of their stories, as did their parents. The students and their journalism adviser consulted with a lawyer from the Student Press Law Center before publishing this report.

The adviser, by the way, is Sara Barber-Just, an English teacher at Amherst Regional High School who in 2014 was honored by Williams College with the George Olmsted Jr. Class of 1924 Prize for Excellence in Secondary School Teaching. It sounds like the student journalists at her school are being extraordinarily well served.

***

If school officials in Amherst were slow to investigate incidents of anti-trans hate, officials in Middleborough might have been a little too quick. Liam Morrison, a seventh-grader at the Nichols Middle School, has been sent home from school twice, according to Christopher Butler of The Enterprise — the first time for wearing a T-shirt that read “There Are Only Two Genders” and, the second time, for amending that to “There Are (Censored) Genders.”

Now, there’s no doubt that Liam is learning some hateful lessons at home. The question, though, is whether he has a First Amendment right to express those views in a school setting. Sandy Quadros Bowles of Nemasket Week reports that his choice of attire has been the subject of a school committee meeting as well as a demonstration by anti-trans activists and counterprotesters.

Liam is being represented by the American Family Institute, a religious-right organization that says that it’s planning to take legal action against the school system. Samuel Whiting, lawyer with the institute, claims that Middleborough educators are “doubling down on its violation of Liam’s free speech rights.”

School officials, by contrast, argue that the T-shirts violate state law because they “may be reasonably considered intimidating, hostile, offensive or other unwelcome.’’ In addition, the school system’s dress code states: “Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”

So, are Liam’s free speech rights being violated or not? I think it’s a close call. State law presumably has more to do with how teachers, administrators and other employees behave than with students. School dress codes, on the other hand, may be enforced as long as they are reasonable. This ACLU guide to dress codes suggests that the Middleborough code might go too far, though, noting, “All students, whether transgender or cisgender, must be allowed to wear clothing consistent with their gender identity and expression,” and “Schools can’t discriminate based on the viewpoint expressed by your clothing.”

Given all that, it seems likely that Liam Morrison may be correct in claiming that his free speech rights are being violated. His choice of wardrobe is unfortunate, to say the least, and he and his parents really ought to think about why they find it necessary to express hatred toward his transgender classmates. But he has a right to do it.

Let’s hope that he’s soon confronted with a sea of pro-LGBTQ T-shirts.

Life after Gannett: Nemasket Week debuts in Middleborough and Lakeville

Independent local news startups are breaking out everywhere, so forgive me if I pay a little extra attention to today’s debut of Nemasket Week, a free, advertiser-supported print newspaper and website. The paper covers my hometown of Middleborough as well as neighboring Lakeville, and is the first news outlet those communities have had since Gannett killed off the Middleboro Gazette last year.

The first issue of Nemasket Week comprises 12 pages and has several local ads. It also has news — the naming of a new fire chief on page one, a feature on a performance by the High Flying Dogs, the select board’s evaluation of the town administrator, the adoption of body cams by the police departments in both communities, and (gasp) the closure of the Peaceful Meadows ice cream stand. A number of community announcements and an obituary round things out.

And get this — they actually sent a reporter to Williamsport, Pennsylvania, to cover Middleborough’s appearance in the Little League World Series. The opening loss came too late to make it into the print edition, but there’s a detailed story online.

Sadly, the paper has embraced the “Middleboro” spelling instead of the correct and proper “Middleborough.” But that’s an ancient debate, and the Middleboro Gazette used the shorter name even back when it was an independently owned paper.

This is an impressive debut. Congratulations to publisher Anne Eisenmenger for adding to what was already an impressive regional presence comprising Wareham, Dartmouth and the Sippican communities of Rochester, Mattapoisett and Marion.

A free weekly paper will cover Middleborough and Lakeville

Oliver Mill Park, Middleborough. Photo (cc) 2022 by Dan Kennedy.

Local news outlets are popping up left and right following the decimation of our Eastern Massachusetts weekly newspapers at the hands of Gannett. But I want to give a special shoutout to Anne Eisenmenger, who’s going to launch a new weekly paper in mid-August to cover Middleborough, the town where I grew up, and neighboring Lakeville.

Nemasket Week, which will debut on Aug. 18, will be a free, advertiser-supported newspaper with a website. It’s part of Beaver Dam Partners, which currently publishes Wareham Week, Dartmouth Week and Sippican Week, serving Marion, Mattapoisett and Rochester. Eisenmenger, a Boston Globe and GateHouse Media alum who began Beaver Dam 12 years ago, has a proven track record, and I’m looking forward to seeing what she can offer in Middleborough.

Gannett shuttered The Middleboro Gazette last November as part of a wave of weekly closures — about a half-dozen in 2021, followed by 19 in 2022, along with nine others that were merged into four titles. Even worse, nearly all of Gannett’s weekly reporters were reassigned to regional beats, which means that the chain’s papers and websites have little or no local news.

So best of luck to Nemasket Week. And though it’s well outside Eisenmenger’s region, may I suggest that she take a close look at Medford while she’s at it?

The full announcement follows. And by the way, Anne, it’s Middleborough, not Middleboro. Both spellings are in use, but the town is literally the middle borough between Plymouth and Bridgewater.

Oliver Mill

Oliver Mill in Middleborough on Sunday. A correction to the bottom sign: Muttock was not “largely ignored” until the 1960s and ’70s. Crowds always went there during herring season, where you could see waves of fish migrating upstream. The restoration got mixed reviews at the time, as it involved the removal of a lot of trees.

It was legal to catch herring back then. One time I brought a few home and cleaned them. My grandmother baked them. The taste was pretty horrible, and they were filled with bones, so I didn’t try that again. And no one called it Oliver Mill. It was Muttock.

How a minority of voters killed a plan to extend the Minuteman Bikeway

A proposal to extend the Minuteman Bikeway from Bedford Depot to the Concord line was defeated earlier this week even though an overwhelming majority of residents voted in favor of it. And that’s a good excuse to rant a bit about how difficult it is to build anything these days.

Bedford, which has an open town meeting, voted by a margin of 350 to 258 to spend $1.5 million on the project — then voted 363 to 235 in favor of taking by eminent domain the easements needed to expand and pave the dirt trail that’s currently there. As Mike Rosenberg reports in The Bedford Citizen, that’s 60% — a substantial margin, but short of the necessary two-thirds.

Now, New England town meetings have been voting down needed spending plans for generations. When I was a kid growing up in Middleborough, town meeting delayed building a new high school for years, resulting double sessions. But the just-say-no mentality appears to have gotten worse.

New York Times columnist and podcast host Ezra Klein has explored on several occasions why we have given a veto to a minority of loud NIMBY types. We are dealing with a pretty horrendous housing shortage in this country and especially in this state, yet it’s proven nearly impossible to build more-dense developments near transportation hubs. Those who want to preserve their two-acre lots in the suburbs turn out to have a louder voice — and more power — than the rest of us.

As I understand it, the eminent domain takings in Bedford weren’t going to result in any houses being removed. I’ve ridden along the dirt path that’s there now — it’s called the Reformatory Branch Trail because it used to run all the way to the Concord prison — and it’s in the middle of the woods.

And I’m not saying that opponents didn’t have at least an argument to make. A lot of trees would be removed, and the dirt trail, currently underpopulated, would probably become as crowded as the rest of the Minuteman. Which is to say, very. Moreover, the improved Minuteman would end at the Concord line, as there are no plans to extend the Reformatory Branch through Concord to the center of that town. The presence of the Great Meadows National Wildlife Refuge would probably make it impossible in any case.

Yet I’m told that the Reformatory Branch becomes a mud bowl whenever it rains — something I haven’t experienced, since I’ve only ridden it on sunny days. Some residents have also pointed out that a paved path would be more accessible to people with disabilities. In the end, none of that mattered to the minority of voters who wanted to stop the project. And that’s where we are.

Rosenberg describes the proposal as being “on life support.” Ready for interment is more like it.

Gannett closes Middleboro Gazette but vows a commitment to digital

This one hurts. Gannett today announced that it is shutting down The Middleboro Gazette, and it did so with an insulting message that included every cliché you can imagine short of “in order to serve you better.” The company’s message suggests that it will not cut back on coverage, which will be available online at The Standard-Times website. I hope they’re right. We’ll see.

I grew up in Middleborough. (People spell it both ways, but “-borough” is correct, damn it.) I remember touring the weekly’s offices, which included its own hot-lead press, when I was in elementary school. Later, I wrote a column of high school news for the Gazette.

Here’s part of Gannett’s announcement:

This business decision reaffirms The Middleboro Gazette and Middleboro Gazette Extra’s commitment to the sustainable future of local news. The Middleboro Gazette, the Middleboro Gazette Extra and their parent company, Gannett, understand many readers value and depend upon the news and information they find weekly in their print products. The company’s focus on digital news presentation helps ensure continued delivery of valuable community journalism and effective platforms for advertisers.

Over the summer Gannett closed about a half-dozen weeklies in the Greater Boston area. I had hoped they were done. Not to repeat myself, but if the chain is truly committed to transitioning to digital while providing the same amount of local news coverage, then I think that’s fine. The company has done nothing to earn anyone’s trust, though. That will have to be earned.

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Fifty years later, a return trip to Middleborough for the town’s best pizza

When I was a kid growing up in Middleborough, we didn’t eat pizza for supper — it was a treat, not a meal. Every so often my parents would get hungry while we were watching TV. That’s when my father would order a pizza from the Central Cafe and pick it up. We’d each have a slice or two.

According to just about everyone, the Central had the best pizza in Middleborough. We would always order the linguica — a sweet Portuguese sausage, befitting the heavy Portuguese population in Southeast Massachusetts. It would be sliced into disks that curled up in the oven. Believe it or not, I don’t think I even tried pepperoni until I was a teenager. And I guess you’d say it was a bar pizza, which my friend Marc Hurwitz has explained is a pizza whose ingredients go right out to the edge, so there’s no waste. As I understand it, bar pizza is a South Shore thing; Middleborough is south of the South Shore.

By some miracle, the Central is still there. So last Saturday five of us met for their first Central experience, and my first Central pizza in probably 50 years. The menu was far more extensive than it was back in the ’60s, when I’m pretty sure that pizza was the only thing offered. These days, it goes on and on.

I ordered a Caesar salad; it was not a Caesar salad. There was no cheese — but there was a copious amount of bacon on top. Did I say bacon? It was a pretty damn good salad, even if they ought to come up with another name for it. I also got a Harper Lane IPA, which was excellent.

But we’d come for the pizza. My wife and I split a pizza with sliced linguica while my son and his girlfriend split one with ground linguica. (My daughter for some reason ordered spaghetti and meatballs.) It was not exactly as I remembered it, but that’s not to say it wasn’t great. It was. The crust was thicker than I recall, as were the linguica slices, so they stayed flat rather than curling up. I don’t know what kind of cheese they used, but it had a fuller taste than you get with most pizza — a bit like Modern Apizza in New Haven, which might actually have the best pizza in the world.

Anyway, mission accomplished. We hit the local Dairy Queen before heading back to Medford. And I was thrilled to learn that the Central still has fantastic pizza.

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Drive a stake through the corrupt heart of casino gambling

8161314100_89f6987d5a_oLongtime readers know that I don’t disclose who I’m voting for. Yes, I’m a liberal, and if you tried to guess I’m sure you’d be right most of the time. But I firmly believe that journalists — even opinion journalists — should keep their choices to themselves. It’s not a matter of objectivity; it’s a matter of independence.

But I feel no such compunction about ballot questions. After all, I analyze and express my opinion about issues. It seems silly to refuse to say how I’m going to vote on Question 3 after writing repeatedly that I’m staunchly opposed to casino gambling.

Tomorrow is Election Day. Here’s how I’m going to be voting on the four statewide ballot questions.

And yes, I will start with Question 3, which I think is by far the most important matter on the ballot. I have been fighting against casino gambling since 2007, when the Mashpee Wampanoag tribe tried to build a casino in Middleborough, the town where I grew up. The bid eventually fell apart amid a miasma of anger and corruption (what a surprise, eh?).

But Gov. Deval Patrick and the state legislature, to their everlasting discredit, kept the issue alive with a 2011 law allowing for the opening of three casinos and one slots parlor. It is an outrage. A “yes” vote on Question 3, which you can be sure I’ll be casting tomorrow, would once again outlaw casino gambling in Massachusetts.

Casino gambling has been tied to an ocean full of social and economic ills — increased rates of crime, divorce, even suicide, and hollowed-own business districts as the spending shifts to the local casino. The stench of corruption is inevitable. Look at Everett, the locus of federal indictments even before one shovelful of dirt has been turned over.

I am disappointed that both major-party gubernatorial candidates, Republican Charlie Baker and Democrat Martha Coakley, say they would be open to finding a way to build a casino in Springfield even if Question 3 is approved. One aspect they may not understand is this: If casino gambling is legal, then tribal casinos become inevitable. You can’t let Springfield have a casino without opening the door to one, two or more tribal casinos as well. (And never mind the condescending attitude Baker and Coakley have about Springfield’s economic prospects.)

My fear is that Question 3 will lose decisively, thus creating the impression that Massachusetts residents are pro-casino. Polls consistently show that people are in favor of casinos in the abstract and against them when someone proposes to build one in their neighborhood. If Question 3 does go down, we can still fight them one at a time. But a “yes” vote would put the matter to rest once and for all.

Question 1. I’m voting “no.” A “yes” vote would repeal a law that indexes the gasoline tax to the rate of inflation. Our gas taxes are still on the low side, as anyone who drives through Connecticut can attest. Our transportation system needs a huge amount of investment whether you’re talking about rail, subways or highways and bridges.

Question 2. A “yes” vote would expand the bottle-deposit law, and I’m all for it.

Question 4. This is a perfect example of why some issues should not be decided by referendum. Passage of Question 4 would make medical leave mandatory at most private companies in Massachusetts. It’s an enormously complex issue. I’m voting “yes” because I’m concerned about the message that it would send if it goes down to defeat.

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