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Free Speech

High School's Ordering Parents to Remove Pink "XX" Protest Wristbands at Girls' Soccer Game Likely Violated First Amendment

"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."

Eugene Volokh | 8.26.2026 6:33 PM

Photo of the wristband, from the district court record.

Some excerpts from the longish opinion today in Fellers v. Kelley, written by First Circuit Judge Sandra Lynch, joined by Judge Jeffrey and Howard:

On September 17, 2024, [plaintiffs] were instructed by Bow High School officials to remove pink "XX" wristbands they wore in protest while watching their daughters (in [one plaintiff's] case, granddaughter) play in a girls' soccer game against a team with one transgender athlete. Further sanctions followed…. [W]e 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….

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…. [The] appellee school district argues that this case must be analyzed more in the mode of Tinker v. Des Moines Independent Community School District (1969) … [and other cases that] 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….

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. We conclude that on these facts the differences in analysis would not affect the outcome here….

The........

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