Petition for Writ of Certiorari — L. M., a Minor, By and Through His Father and Stepmother and Natural Guardians, Christopher and Susan Morrison, Petitioner v. Town of Middleborough, Massachusetts, et al.
Supreme Court briefOct 9, 2024
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NO. __________
IN THE
Supreme Court of the United States
L.M. a minor by and through his father and
stepmother and natural guardians, Christopher and
Susan Morrison,
Petitioner,
v.
TOWN OF MIDDLEBOROUGH, MASSACHUSETTS;
MIDDLEBOROUGH SCHOOL COMMITTEE; CAROLYN J.
LYONS, Superintendent, Middleborough Public
Schools, in her official capacity; HEATHER TUCKER,
Acting Principal, Nichols Middle School, in her
official capacity,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the First Circuit
PETITION FOR A WRIT OF CERTIORARI
DAVID A. CORTMAN
JOHN J. BURSCH
RORY T. GRAY
Counsel of Record
ALLIANCE DEFENDING
CHLOE K. JONES
ALLIANCE DEFENDING
FREEDOM
440 First Street NW
FREEDOM
1000 Hurricane Shoals Rd. Suite 600
Washington, DC 20001
NE, Suite D-1100
Lawrenceville, GA 30043 (616) 450-4235
jbursch@ADFlegal.org
(770) 339-0774
Counsel for Petitioner
[additional counsel listed on inside cover]
JAMES A. CAMPBELL
TYSON C. LANGHOFER
P. LOGAN SPENA
ALLIANCE DEFENDING
FREEDOM
44180 Riverside Pkwy
Lansdowne, VA 20176
(571) 707-4655
SAMUEL J. WHITING
MASSACHUSETTS FAMILY
INSTITUTE
401 Edgewater Pl.
Suite 580
Wakefield, MA 01880
(781) 569-0400
i
QUESTION PRESENTED
L.M. is a student whose public school promoted the
viewpoint that sex and gender are limitless, based on
personal identity, and have no biological foundation.
The school invited students to voice their support for
this view. But L.M. disagreed and responded by
wearing a t-shirt to class that said “There are only two
genders.” After the school censored him, he wore a
protest t-shirt that said “There are [censored] genders.” Despite no past or present disruption, the
school district prohibited both t-shirts.
The district court upheld this censorship based on
the rights-of-others prong in Tinker v. Des Moines
Independent Community School District, 393 U.S. 503
(1969). The First Circuit affirmed based on Tinker’s
substantial-disruption prong, though it said L.M.’s tshirts likely failed the rights-of-others prong too,
applying a novel test for ideological speech alleged to
demean characteristics of personal identity.
The First Circuit’s novel legal standard and
analysis conflicts with this Court’s decisions and
those of ten other circuits in a multitude of ways. The
question presented is:
Whether school officials may presume substantial
disruption or a violation of the rights of others from a
student’s silent, passive, and untargeted ideological
speech simply because that speech relates to matters
of personal identity, even when the speech responds
to the school’s opposing views, actions, or policies.
ii
PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE STATEMENT
Petitioner is L.M., a minor by and through his
father and stepmother, Christopher and Susan
Morrison—natural
persons
with
no
parent
corporations or stockholders.
Respondents are Town of Middleborough,
Massachusetts; Middleborough School Committee,
Carolyn J. Lyons, Superintendent, Middleborough
Public Schools, in her official capacity; and Heather
Tucker, Acting Principal, Nichols Middle School, in
her official capacity—government entities or officials.
LIST OF ALL PROCEEDINGS
U.S. Court of Appeals for the First Circuit, Nos.
23-1535, 23-1645, L.M. v. Town of Middleborough,
judgment entered June 9, 2024.
U.S. District Court for the District of
Massachusetts, No. 1:23-cv-11111, preliminary
injunction denied June 16, 2023, summary judgment
granted and final judgment entered July 19, 2023.
iii
TABLE OF CONTENTS
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE STATEMENT ...... ii
LIST OF ALL PROCEEDINGS ................................. ii
APPENDIX TABLE OF CONTENTS ...................... vi
TABLE OF AUTHORITIES ................................... viii
DECISIONS BELOW................................................. 1
STATEMENT OF JURISDICTION .......................... 1
PERTINENT CONSTITUTIONAL PROVISIONS
AND STATUTES .................................................. 1
INTRODUCTION ...................................................... 2
STATEMENT OF THE CASE ................................... 4
I. Factual background .............................................. 4
A. Middleborough Public Schools speaks on
the topic of gender identity. ............................ 4
B. L.M. wears his only-two-genders t-shirt,
and Middleborough censors his speech. ......... 6
C. Middleborough rebuffs L.M.’s schoolcommittee appeal and counsel’s letter............ 8
D. L.M. wears his protest t-shirt, and
Middleborough suppresses that too. ............... 9
II. Procedural history .............................................. 10
A. District-court proceedings ............................. 10
B. Appellate proceedings ................................... 11
C. The First Circuit’s decision ........................... 12
iv
ARGUMENT ............................................................ 15
I. The First Circuit’s new substantial-disruption
test for passive ideological speech in schools
contradicts this Court’s precedent and creates
a split with other circuits. .................................. 15
A. The First Circuit’s novel standard conflicts
with Tinker and its progeny. ......................... 15
B. The First Circuit’s new test conflicts with
rulings by nine other circuits. ....................... 18
C. The First Circuit’s new test fails on its own
terms, since no case supports labeling
L.M.’s speech “demeaning.”........................... 21
II. The First Circuit’s application of Tinker’s
substantial-disruption prong conflicts with
this Court’s precedent and creates or deepens
multiple circuit splits.......................................... 23
A. The First Circuit’s near-total deference to
schools contradicts this Court’s precedent
and creates a split with six other circuits. ... 23
B. The First Circuit’s approval of censorship
grounded on personal-characteristic-based
offense flouts this Court’s precedent and
widens a 2-1-2 circuit split. ........................... 25
C. The First Circuit’s refusal to require
particular evidence supporting a forecast of
substantial disruption defies Tinker and
exacerbates a 9-2 circuit split. ...................... 27
D. The First Circuit’s endorsement of
viewpoint discrimination disregards this
Court’s precedent, deepens a 3-3 circuit
conflict, and creates a new 6-1 split.............. 30
v
E. The First Circuit’s embrace of a heckler’s
veto misconstrues Tinker and deepens a 31-2 circuit split............................................... 32
F. The First Circuit’s approval of censoring
the protest t-shirt further conflicts with
Mahanoy and decisions by three circuits. .... 34
III.The First Circuit’s misapprehension of the
rights-of-others prong conflicts with Tinker
and Mahanoy, plus rulings by six circuits. ........ 35
IV. This case is an ideal vehicle to resolve the
important question presented. ........................... 37
CONCLUSION ......................................................... 38
vi
APPENDIX TABLE OF CONTENTS
U.S. Court of Appeals for the First Circuit
Opinion in Nos. 23-1535, 23-1645
Issued June 9, 2024 ................................................. 1a
Memorandum & Order
U.S. District Court
District of Massachusetts in No. 1:23-cv-11111
Issued June 16, 2023.............................................. 64a
Final Judgment
U.S. District Court
District of Massachusetts in No. 1:23-cv-11111
Entered July 19, 2023 ............................................ 85a
U.S. District Court
District of Massachusetts in No. 1:23-cv-11111
Text Only Docket Entry No. 38
Dated June 1, 2023 ................................................ 87a
Verified Complaint
U.S. District Court for
District of Massachusetts
Filed May 19, 2023 ................................................. 88a
Exhibit D to Complaint - Tiger Times
Nichols Middle School Newsletter....................... 118a
Exhibit E to Complaint – Emails Between
L.M.’s Father and School Superintendent .......... 120a
Declaration of L.M. .............................................. 125a
Excerpts from John T. Nichols Jr.
Middle School Student & Family
Handbook 2022-2023 ........................................... 130a
vii
Letter from L.M.’s Attorney to Middleborough
Public School Superintendent
dated April 27, 2023 ............................................. 135a
Letter from School’s Attorney to
L.M.’s Attorney dated May 4, 2023 ..................... 143a
viii
TABLE OF AUTHORITIES
Cases
303 Creative LLC v. Elenis,
600 U.S. 570 (2023)............................................ 26
A.M. ex rel. McAllum v. Cash,
585 F.3d 214 (5th Cir. 2009) ....................... 19, 29
B.H. ex rel. Hawk v. Easton Area School District,
725 F.3d 293 (3d Cir. 2013) ............................... 19
B.W.A. v. Farmington R-7 School District,
554 F.3d 734 (8th Cir. 2009) ................. 20, 29–30
Barr v. Lafon,
538 F.3d 554 (6th Cir. 2008) ................. 20–21, 30
Bethel School District No. 403 v. Fraser,
478 U.S. 675 (1986)...................................... 17–18
Blackwell v. Issaquena County Board of
Education,
363 F.2d 74 (5th Cir. 1966) ............................... 36
Board of Airport Commissioners of the City of
Los Angeles v. Jews for Jesus, Inc.,
482 U.S. 569 (1987)............................................ 28
Brown v. Louisiana,
383 U.S. 131 (1966)............................................ 33
Butts v. Dallas Independent School District,
436 F.2d 728 (5th Cir. 1971) ............................. 28
Bystrom ex rel. Bystrom v. Fridley High School,
Independent School District No. 14,
822 F.2d 747 (8th Cir. 1987) ....................... 32, 36
ix
C1.G ex rel. C.G. v. Siegfried,
38 F.4th 1270 (10th Cir. 2022) .......................... 29
Chandler v. McMinnville School District,
978 F.2d 524 (9th Cir. 1992) ....................... 28, 34
Chen ex rel. Chen v. Albany Unified School
District,
56 F.4th 708 (9th Cir. 2022) ........................ 32, 36
Dariano v. Morgan Hill Unified School District,
767 F.3d 764 (9th Cir. 2014) ................. 20, 29, 33
DeJohn v. Temple University,
537 F.3d 301 (3d Cir. 2008) ............................... 27
Doe v. Valencia College,
903 F.3d 1220 (11th Cir. 2018).......................... 36
Doninger v. Niehoff,
642 F.3d 334 (2d Cir. 2011) ............................... 19
Esfeller v. O’Keefe,
391 F. App’x 337 (5th Cir. 2010) ....................... 27
Hardwick ex rel. Hardwick v. Heyward,
711 F.3d 426 (4th Cir. 2013) ............................. 19
Harper ex rel. Harper v. Poway Unified School
District,
445 F.3d 1166 (9th Cir. 2006) ..................... 15, 20
Harper ex rel. Harper v. Poway Unified School
District,
549 U.S. 1262 (2007).................................... 15, 20
Hazelwood School District v. Kuhlmeier,
484 U.S. 260 (1988)...................................... 17–18
x
Holloman ex rel. Holloman v. Harland,
370 F.3d 1252 (11th Cir. 2004).........20, 25, 29, 33
Iancu v. Brunetti,
588 U.S. 388 (2019)............................................ 31
J.S. ex rel. Snyder v. Blue Mountain School
District,
650 F.3d 915 (3d Cir. 2011) ............................... 37
James v. Board of Education of Central District
No. 1 v. James,
461 F.2d 566 (2d Cir. 1972) ......................... 25, 29
Janus v. American Federation of State County, &
Municipal Employees, Council 31,
585 U.S. 878 (2018)............................................ 16
Kennedy v. Bremerton School District,
597 U.S. 507 (2022)...................................... 18, 33
Kowalski v. Berkeley County Schools,
652 F.3d 565 (4th Cir. 2011) ............................. 21
Kristoffersson v. Port Jefferson Union Free
School District,
2024 WL 3385137 (2d Cir. July 12, 2024) ........ 30
Lowery v. Euverard,
497 F.3d 584 (6th Cir. 2007) ............................. 29
Lowry ex rel. Crow v. Watson Chapel School
District,
540 F.3d 752 (8th Cir. 2008) ....................... 28, 34
Mahanoy Area School District v. B.L. ex rel. Levy,
594 U.S. 180 (2021)........................... 3, 15–18, 28,
33–34, 36–37
xi
Masterpiece Cakeshop v. Colorado Civil Rights
Commission,
584 U.S. 617 (2018)............................................ 25
Matal v. Tam,
582 U.S. 218 (2017)................................ 21, 25, 30
Memphis Light, Gas, & Water Division v. Craft,
436 U.S. 1 (1978).................................................. 4
Meriwether v. Hartop,
992 F.3d 492 (6th Cir. 2021) ............................. 31
Minnesota Voters Alliance v. Mansky,
585 U.S. 1 (2018)................................................ 28
Morgan v. Swanson,
659 F.3d 359 (5th Cir. 2011) ............................. 30
Morse v. Frederick,
551 U.S. 393 (2007)........... 2, 15–18, 23–24, 30, 38
N.J. ex rel. Jacob v. Sonnabend,
37 F.4th 412 (7th Cir. 2022) ........................ 19, 29
Newsom ex rel. Newsom v. Albemarle County
School Board,
354 F.3d 249 (4th Cir. 2003) ....................... 28–29
Nuxoll ex rel. Nuxoll v. Indian Prairie School
District,
523 F.3d 668 (7th Cir. 2008) ......13, 19, 22, 24, 26
Parents Defending Education v. Olentangy Local
School District Board of Education,
109 F.4th 453 (6th Cir. 2024) ...................... 26, 29
xii
Parents Defending Education v. Linn Mar
Community School District,
83 F.4th 658 (8th Cir. 2023) .............................. 36
Saxe v. State College Area School,
240 F.3d 200 (3d Cir. 2001) ..............21, 27, 29, 36
Shanley v. Northeast Independent School
District,
462 F.2d 960 (5th Cir. 1972) ............25, 33–34, 36
Speech First, Inc. v. Cartwright,
32 F.4th 1110 (11th Cir. 2022) .................... 30, 32
Students for Fair Admissions, Inc. v. President &
Fellows of Harvard College,
600 U.S. 181 (2023)............................................ 24
Sypniewski v. Warren Hills Regional Board of
Education,
307 F.3d 243 (3d Cir. 2002) ............................... 31
Taylor v. Roswell Independent School District,
713 F.3d 25 (10th Cir. 2013) ....................... 28, 33
Tinker v. Des Moines Independent Community
School District,
393 U.S. 503 (1969).................. i, 3, 16–18, 24–25,
28–31, 33, 35
Uzuegbunam v. Preczewski,
141 S. Ct. 792 (2021)............................................ 4
Verizon Communications, Inc. v. FCC,
535 U.S. 467 (2002)............................................ 35
xiii
West Virginia State Board of Education v.
Barnette,
319 U.S. 624 (1943)........................................ 3, 23
Wynar v. Douglas County School District,
728 F.3d 1062 (9th Cir. 2013) ........................... 36
Zamecnik v. Indian Prairie School
District No. 204,
636 F.3d 874 (7th Cir. 2011) ...........19, 22, 24, 26,
32–33, 36, 38
Statutes
28 U.S.C. 1254 ............................................................ 1
28 U.S.C. 1291 ............................................................ 1
28 U.S.C. 1331 ............................................................ 1
Constitutional Provisions
U.S. Const. amend. I .................................................. 1
U.S. Const. amend. XIV ............................................. 1
Other Authorities
There Are Only Two Genders, YouTube
(May 3, 2023) ....................................................... 8
1
DECISIONS BELOW
The district court’s unpublished order denying
Petitioner’s motion for a temporary restraining order
is reprinted at App.87a. Its order denying Petitioner’s
motion for a preliminary injunction is reported at 677
F. Supp. 3d 29 (D. Mass. 2023), and reprinted at
App.64a–84a. And its unpublished order converting
the preliminary-injunction decision into a summaryjudgment ruling for Respondents is reprinted at
App.85a–86a.
The First Circuit’s decision affirming summary
judgment is reported at 103 F.4th 854 (1st Cir. 2024),
and reprinted at App.1a–63a.
STATEMENT OF JURISDICTION
The First Circuit entered judgment on June 9,
2024. Lower courts had jurisdiction under 28 U.S.C.
1331 and 28 U.S.C. 1291. On August 13, 2024, Justice
Jackson extended the time to file this petition until
October 9, 2024. This Court has jurisdiction under 28
U.S.C. 1254(1).
PERTINENT CONSTITUTIONAL
PROVISIONS AND STATUTES
The First Amendment to the United States
Constitution provides, in relevant part: “Congress
shall make no law … abridging the freedom of
speech.” U.S. Const. amend. I.
The Fourteenth Amendment to the United States
Constitution provides, in relevant part: “[N]or shall
any State deprive any person of life, liberty, or
property, without due process of law.” U.S. Const.
amend. XIV.
2
INTRODUCTION
The First Circuit takes the remarkable position
that a school may flood its halls with its views on a
matter of public concern—here, gender identity—and
encourage students to join in, then bar students from
responding with different views. Its ruling “give[s]
public school authorities a license to suppress speech
on political and social issues based on disagreement
with the viewpoint expressed” and “strikes at the very
heart of the First Amendment.” Morse v. Frederick,
551 U.S. 393, 423 (2007) (Alito, J., concurring).
Middleborough bombarded L.M., a middle-school
student, with messages promoting its view that sex
and gender are self-defined, limitless, and unmoored
from biology. Seeing these ideas as false and harmful,
L.M. responded by donning a “There are only two
genders” t-shirt expressing his differing view and,
after Middleborough suppressed that shirt, wearing a
“There are [censored] genders” t-shirt protesting censorship, which Middleborough banned too.
The First Circuit agreed that L.M. expressed his
ideological views “passively, silently, and without
mentioning any specific students.” App.4a. It also
conceded that L.M.’s t-shirts caused no actual
disruption, App.35a–36a, and that “Middleborough
was not aware of any prior incidents or problems
caused by [his] specific message” or comparable
speech. App.52a. That should have spelled the end of
Middleborough’s censorship under the First
Amendment and Tinker. Instead, the First Circuit
sidelined Tinker and adopted a novel test for speech
that “assertedly demeans characteristics of personal
identity.” App.4a.
3
The court of appeals gave near-total deference to
the school’s determination of what speech demeans
protected characteristics and substantially disrupts
its operations. And the court deepened longstanding
circuit splits by allowing viewpoint discrimination
and a heckler’s veto. What’s more, the court contravened basic free-speech principles by endorsing other
students’ (but not L.M.’s) right to be free “from
psychological attacks,” App.24a (quotation omitted),
and opining that L.M.’s passive, untargeted, and
purely ideological message likely violated Tinker’s
rights-of-others prong too.
The lower court’s ruling is irreconcilable with this
Court’s decisions and students’ First Amendment
right “to freedom of expression of their views” “on
controversial subjects like” gender identity. Tinker v.
Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511,
513 (1969). And the sheer number of circuit conflicts
the decision creates shows what an outlier it is.
L.M. sought to participate in his school’s marketplace of ideas and address sociopolitical matters in a
passive, silent, and untargeted way. This Court’s
review is urgently needed to reaffirm that Tinker
protects “unpopular ideas,” Mahanoy Area Sch. Dist.
v. B.L. ex rel. Levy, 594 U.S. 180, 190 (2021), public
schools can’t establish what is “orthodox in … matters
of opinion,” W. Va. State Bd. of Educ. v. Barnette, 319
U.S. 624, 642 (1943), and students aren’t “confined to
the expression of … sentiments that are officially
approved,” Tinker, 393 U.S. at 511.
4
STATEMENT OF THE CASE
I. Factual background
A. Middleborough Public Schools speaks on
the topic of gender identity.
Petitioner L.M. was an honors student at Nichols
Middle School in Middleborough, Massachusetts. 1
App.92a–93a, 97a, 125a. Respondent Middleborough
Public Schools has strong views that sex and gender
have no biological foundation, are limitless, and are
based on personal identity. App.98a, 125a–26a. The
school promotes this view in curriculum, events, and
speech, including GLSEN-sponsored posters stating,
“Rise Up to Protect Trans and GNC [gender nonconforming] Students,” App.101a; rainbow flags and
signs declaring “Proud friend/ally of LGBTQ+,”
App.102a; and school-sponsored celebrations of “Pride
Spirit Week” to foster an “outlook that bolsters …
LGBT rights movements,” App.119a.
Middleborough invites students to adopt and support its views by donning rainbow colors and “[w]ear[ing] … Pride gear to celebrate Pride Month.”
App.118a–19a. Students often wear t-shirts and other
apparel with messages the district approves.
App.100a–01a.
1 Due in part to Middleborough’s adverse treatment of L.M., he
now attends school in a neighboring county. This Court has
jurisdiction because L.M.’s complaint states a free-speech claim
for actual and nominal damages. App.110a–13a, 115a; Memphis
Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 8 (1978) (actual
damages); Uzuegbunam v. Preczewski, 141 S. Ct. 792, 800–02
(2021) (nominal damages).
5
Middleborough Students with a differing view of
human identity, sex, and gender normally remain
silent due to school officials’ influence, popular
culture, and peer pressure. App.99a–100a, 126a.
L.M., then a seventh-grade student, was the
exception. He decided to share his view that gender
and sex are identical, and there are only two sexes—
male and female. App.99a, 126a. L.M. hoped to start
a meaningful conversation on gender ideology, a
matter of public concern; protect other students
against ideas that L.M. considers false and harmful;
and show them compassionate people can believe that
sex is binary. App.99a–100a, 126a–27a.
L.M. decided to further these goals by wearing a
black t-shirt to school that said in black and white
letters “There are only two genders.” App.91a, 100a,
127a.
6
B. L.M. wears his only-two-genders t-shirt,
and Middleborough censors his speech.
In March 2023, L.M. wore his t-shirt to his first
class, Physical Education. App.100a, 102a, 127a. This
ideological statement summarized L.M.’s views on sex
and gender in general terms without criticizing
opposing views or those who hold them. L.M. didn’t
engage individual students in discourse, chant, or
distribute literature. He participated in class as
usual. App.102a, 127a.
No student became visibly upset or objected to
L.M.’s message, and the t-shirt caused no disruption.
App.103a, 127a. But L.M.’s teacher reported the tshirt to administrators out of concern for L.M.’s and
other students’ “physical safety” and “potential[ ] disrupt[ion]” by “members of the LGBTQ+ population.”
CA1JointApp.85–86. The acting principal, Respondent Heather Tucker, pulled L.M. from class, citing
complaints, and gave him the choice of removing the
shirt or more dialogue. L.M. opted for discussion,
which took place in a room with a school counselor.
App.102a–03a, 127a.
Tucker said that some students complained the tshirt made them upset, and she demanded that L.M.
could return to class only if he removed it. But L.M.
couldn’t change the shirt in good conscience, a
decision his father supported, so he was forced to go
home and miss classes that day. App.103a, 127a–28a.
7
L.M.’s father emailed Middleborough’s superintendent, Respondent Carolyn Lyons, asking what rule
L.M. broke, since the t-shirt’s message wasn’t
“directed to any particular person” and addressed “a
political hot topic … being discussed in social media,
schools, and churches all across our country.”
App.121a. Acknowledging L.M. “was articulate in his
position and respectful in his statements to [Tucker],”
Lyons said his t-shirt violated “the [school] dress
code” because its “content … targeted students of a
protected class; namely in the area of gender
identity,” and “students and staff … complained about
this shirt.” App.122a. Lyons primarily based her
“support” for Tucker’s censorship, App.122a, on a
dress-code provision that says “[c]lothing 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,” App.132a–33a.
Middleborough never explained how L.M.’s
ideological statement “targeted” a group based on
gender identity. The school’s own handbook—where
the dress code resides—contains similar sex-binary
language, referring to education being “fully open and
available to members of both sexes,” App.130a
(emphasis added), and sexual harassment involving
“written materials or pictures derogatory to either
gender,” App.133a–34a (emphasis added). If L.M.’s
message is “hate speech,” so is Middleborough’s
handbook.
8
C. Middleborough rebuffs L.M.’s schoolcommittee appeal and counsel’s letter.
L.M.’s last recourse was appealing to the school
committee, which he did in person at a public
meeting. “There are only two genders,” L.M. said, is
a statement of his beliefs that is neither “harmful” nor
“threatening.” App.104a–05a (quoting There Are Only
Two
Genders,
YouTube
(May
3,
2023),
https://perma.cc/V74R-EBAR). L.M. recounted that
“[n]ot one person, staff, or student, told [him] that
they were bothered by what [he] was wearing,”
“stormed out of class,” or had an emotional outburst;
quite the opposite, “[s]everal kids told [L.M.] that they
supported [his] actions.” There Are Only Two Genders
at 1:13–1:31. L.M. urged the committee to reject a
double standard under which he is barraged with
“‘pride flags’ and ‘diversity posters’” that conflict with
his opinions while he is silenced from expressing an
“opposing view.” App.105a (quoting There Are Only
Two Genders at 1:01–1:12).
The committee did nothing, endorsing officials’
censorship by default. So L.M.’s father contacted a
nonprofit attorney who sent Middleborough a letter
explaining the lack of any basis for suppressing L.M.’s
t-shirt under Tinker. App.135a–42a. “[N]o one,” the
attorney said, can “simply shut down speech that
makes them upset,” and he asked for confirmation
that Middleborough would allow L.M. “to wear the
shirt.” App.140a, 142a.
9
Middleborough’s response mentioned Tinker but
focused on Massachusetts law, which prohibits “apparel[ ] that may reasonably be considered intimidating, hostile, offensive or unwelcome based on …
gender identity.” App.144a. Middleborough would
ban L.M.’s shirt—and any other apparel—it deems to
“suggest[ ]” other students’ “sexual orientation,
gender identity[,] or expression does not exist or is
invalid,” though it encourages affirming speech on
these topics at school. App.144a.
D. L.M. wears his protest t-shirt, and Middleborough suppresses that too.
In May 2023, L.M. protested the school’s
censorship by wearing his t-shirt to school with a
white piece of tape over the “only two” on which he
wrote “censored.” App.106a–07a, 128a.
As soon as L.M. arrived at his first class, an official
told him to go to the principal’s office, even though no
student became visibly upset or objected, and there
10
was no disruption. App.107a–08a, 128a. L.M. took the
censorship shirt off on the way because he understood
he had been removed because of his t-shirt, and he
didn’t want to miss another day of school. App.107a,
128a. When L.M. arrived, Tucker asked if she could
trust him not to put the shirt back on, and L.M.
agreed. 2 App.107a, 128a.
II. Procedural history
A. District-court proceedings
L.M. filed suit in the U.S. District Court for the
District of Massachusetts, alleging Middleborough’s
censorship violated his free-speech rights. He requested injunctive and declaratory relief and actual
and nominal damages. App.110a–16a. The next day
L.M. requested a TRO, which the court denied on nonsubstantive grounds. Dist.Ct.Docs.5, 12; App.87a.
Five days later, the district court denied L.M.’s
motion for preliminary injunction based on Tinker’s
rights-of-others language and deference to Middleborough’s view of what created “an unhealthy and
potentially unsafe learning environment.” App.79a.
L.M.’s “There are only two genders” t-shirt, the court
said, violated some students’ right “to a safe and
secure educational environment” because it “may
communicate that only two gender identities—male
and female—are valid[ ] and any others are invalid or
nonexistent.” App.177a.
2 Middleborough allowed L.M. to wear t-shirts that expressed
other sociopolitical views, such as “Don’t tread on me” and “First
Amendment rights.” CA1JointApp.86.
11
The district court recognized that “a message
protesting censorship would not invade the rights of
others.” App.80a. But it upheld suppressing L.M.’s
protest t-shirt because “administrators could
reasonably conclude that [it] did not merely protest
censorship but conveyed the ‘censored’ message and
thus invaded the rights of the other students.”
App.80a.
L.M. filed a notice of interlocutory appeal.
Dist.Ct.Doc.53.
The district court wasn’t inclined to stay the case
in light of L.M.’s appeal. Dist.Ct.Doc.58. So the
parties filed a joint motion asking the court to convert
its preliminary-injunction ruling into a final judgment based on the preliminary-injunction record,
without prejudice to L.M.’s right to appeal.
Dist.Ct.Docs.60–61. The court granted that request
and entered a final judgment in Middleborough’s
favor. App.85a–86a.
L.M. filed a notice of appeal. Dist.Ct.Doc.64.
B. Appellate proceedings
The parties jointly moved the First Circuit to
consolidate L.M.’s preliminary-injunction and finaljudgment appeals. The court granted that request.
Under Tinker, L.M. argued there was no actual
disruption and no evidence supported a reasonable
forecast of material disruption as to either t-shirt, and
he insisted that Middleborough couldn’t suppress his
speech for viewpoint-based reasons or implement a
heckler’s veto. Appellant’sOpeningBr.20–51.
12
Middleborough responded that L.M.’s shirts “derogat[ed] [other] students[’] gender identity” and “those
students” would likely “respon[d] by” causing “a substantial disruption.” AppelleesBr.34. It also claimed
that L.M.’s speech violated other students’ right to
“feel, safe, fully supported[,] and fully included at
school,” branding his passive ideological statements
as “bullying,” “discrimination,” and “harassment.”
AppelleesBr.16, 24, 26, 29.
At oral argument, one judge went further, persuading Middleborough’s counsel to denigrate L.M.’s
views on sex and gender—shared by millions of
Americans—as “vile.” Oral Argument at 29:06–29:35,
L.M. v. Town of Middleborough, No. 23-1535 (1st Cir.
Feb. 8, 2024), https://bit.ly/3MYlZ8h.
C. The First Circuit’s decision
The First Circuit affirmed on “different grounds.”
App.5a. The legal standard, it said, was a matter of
first impression because this Court hadn’t “addressed
the vexing question of when (if ever) public school
students’ First Amendment rights must give way to
school administrators’ authority to regulate speech
that (though expressed passively, silently, and
without mentioning any specific students) assertedly
demeans characteristics of personal identity, such as
race, sex, religion, or sexual orientation.” App.4a.
The court adopted a new test based on dicta from
Judge Posner, holding that schools may censor
passive ideological speech if:
(1) the expression is reasonably interpreted to
demean one of those characteristics of personal
identity, given the common understanding that
13
such characteristics are “unalterable or otherwise deeply rooted” and that demeaning them
“strike[s] a person at the core of his being[ ]” …;
and (2) the demeaning message is reasonably
forecasted to “poison the educational atmosphere” due to its serious negative psychological
impact on students with the demeaned
characteristic and thereby lead to “symptoms
of a sick school—symptoms therefore of substantial disruption.” [App.34a–35a (quoting
Nuxoll ex rel. Nuxoll v. Indian Prairie Sch.
Dist., 523 F.3d 668, 671, 674, 676 (7th Cir.
2008)).]
Under the novel test’s first prong, the lower court
deferred to Middleborough’s claim that L.M.’s onlytwo-genders t-shirt was more than “‘tepidly negative’”
because he suggested “that students with different
beliefs about the nature of their existence are wrong.”
App.47a–48a (cleaned up). The court then “agree[d]”
with Middleborough that L.M.’s message was
“reasonably understood” as implying that those “who
do not identify as either male or female have no
gender with which they may identify.” App.48a.
As to the second prong, the court deferred to the
school’s mere “forecast of material disruption” and
speculated that L.M.’s only-two-genders t-shirt might
have “negative psychological impact on transgender
and gender non-conforming students,” “impact [their]
ability to concentrate on their classroom work,” and
“poison the educational atmosphere.” App.49a–50a,
53a–54a. The court regarded t-shirt messages as
disruptive because they “confront any student
proximate … throughout the school day.” App.52a.
14
Notably, the court required no concrete evidence
supporting Middleborough’s forecast of substantial
disruption, saying it was enough for the school to
reference a general awareness of “serious …
struggles, including suicidal ideation, that some …
students had experienced related to their … gender
identities,” “the effect those struggles could have on
[their] ability to learn,” and Respondent Tucker’s
experience “recommending out-of-district placements” based on gender identity when she worked
elsewhere. App.52a–53a.
The court fretted that L.M.’s message might “so
negatively affect the psychology of young students”
that their “academic performance” would “decline[ ]”
and their “absences from school” would “increase[ ].”
App.54a. In the court’s view, these fears weren’t
“abstract” because (1) “there was the potential for the
back-and-forth of negative comments and slogans”
between students, (2) L.M.’s teacher worried that
LGBTQ+ students would be offended and “potentially
disrupt classes,” and (3) some of L.M.’s peers mentioned in a past survey their generic “concerns about
how the LGBTQ+ population was treated.” App.53a
(cleaned up; emphasis added). Plus, the court said
that schools may discriminate based on viewpoint,
App.54a–55a & n.9, 61a n.11, and Tinker’s right-ofothers prong likely justified barring L.M.’s views,
App.46a, 55a.
Turning to L.M.’s protest shirt, the court’s
“analysis [was] largely the same.” App.56a. It said
Middleborough “reasonably concluded that, given the
attention [the original shirt] garnered, other students
would know the words written” (i.e., “only two”), even
though they “were covered up.” App.56a.
15
ARGUMENT
I.
The First Circuit’s new substantial-disruption test for passive ideological speech in
schools contradicts this Court’s precedent
and creates a split with other circuits.
The First Circuit’s new substantial-disruption test
for students’ passive ideological expression sidelines
Tinker and conflicts with the approach of nine other
circuits. It’s tailor-made “to suppress speech on
political and social issues based on disagreement with
the viewpoint expressed.” Morse, 551 U.S. at 423
(Alito, J., concurring). This Court’s review is needed
to resolve these conflicts and “protect the ‘marketplace of ideas’” in public schools necessary for “[o]ur
representative democracy” to “work[ ].” Mahanoy, 594
U.S. at 190.
A. The First Circuit’s novel standard conflicts with Tinker and its progeny.
“[T]he parties agree[d] Tinker governs this
dispute[.]” App.19a. Yet the First Circuit went its own
way and invented a new variant for ideological
student expression that, though passive, silent, and
not targeted at individuals, “assertedly demeans
characteristics of personal identity.” App.4a.
That novel test reads like version 2.0 of Harper ex
rel. Harper v. Poway Unified School District, 445 F.3d
1166 (9th Cir. 2006), in which the Ninth Circuit
upheld a school’s ban of a t-shirt stating “Homosexuality is shameful.” Accord App.24a–25a, 35a n.7, 38a,
45a, 55a. This Court vacated Harper to “clear the path
for future relitigation of the issues” involved. 549 U.S.
1262 (2007) (cleaned up). Like the defunct Harper
16
test, the First Circuit’s approach here rests solely on
the allegedly “negative psychological impact” of otherwise protected speech and substitutes nonexistent
“symptoms of a sick school” for substantial disruption.
App.35a.
In contrast, this Court holds that speech on
sociopolitical issues falls under Tinker—regardless of
its content, viewpoint, or psychological effect. E.g.,
Mahanoy, 594 U.S. at 187–88; Morse, 551 U.S. at 422–
23 (Alito, J., concurring). That includes L.M.’s speech
on “gender identity,” a matter of public concern that
“occupies the highest rung … of First Amendment
values” and “merits special protection.” Janus v. Am.
Fed’n of State Cnty., & Mun. Emps., Council 31, 585
U.S. 878, 913–14 (2018) (cleaned up).
Tinker involved students wearing black armbands
(symbols of mourning) to protest the Vietnam War, a
“highly emotional subject,” 393 U.S. at 518 (Black, J.,
dissenting), made more jarring by the ongoing draft
and combat death of “[a] former student” who had
“friends … still in school,” id. at 509–10 nn.3–4
(majority opinion). This Court held that “an urgent
wish to avoid the controversy which might result from
the expression” didn’t justify censoring the students’
armbands, even if their “unpopular viewpoint”
resulted in “fear” or psychological “discomfort and
unpleasantness” for other students. Id. at 508–10.
17
Instead, this Court upheld students’ right to
“express [their] opinions, even on controversial
subjects like the conflict in Vietnam, if [they] do[ ] so
without materially and substantially interfering with
the requirements of appropriate discipline … and
without colliding with the rights of others,” id. at 513
(cleaned up); particularly, “the rights of other
students to be secure and to be let alone[,]” id. at 508.
Ever since, Tinker has been this Court’s default
rule for “whether the First Amendment requires a
school to tolerate particular student speech,” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270
(1988); accord Mahanoy, 594 U.S. at 188, though it
has carved out exceptions for “vulgar and lewd
speech” at school, Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 685 (1986), “school-sponsored
expressive activities[,]” Hazelwood, 484 U.S. at 273,
and speech “promoting illegal drug use” at school
events, Morse, 551 U.S. at 409. None of those
exceptions apply here. But all this Court’s post-Tinker
student-speech cases agree with Tinker in four critical
respects.
First, students have “undoubted freedom to advocate unpopular and controversial views in schools[,]”
Bethel, 478 U.S. at 681, especially those related “to
any political … or religious viewpoint,” Mahanoy, 594
U.S. at 215 (Thomas, J., dissenting) (quoting Bethel,
478 U.S. at 685).
Second, students’ “political and religious speech”
is protected even if “perceived as offensive to some[,]”
so ideological “offens[e]” is not a valid reason for
censorship. Morse, 551 U.S. at 409.
18
Third, public schools must protect “unpopular
ideas” and teach students to “disapprove of what
[others] say,” while “defend[ing] … [their] right to say
it.” Mahanoy, 594 U.S. at 190 (quotations omitted);
accord Kennedy v. Bremerton Sch. Dist., 597 U.S. 507,
538, 541 (2022) (students must learn to live in a
“pluralistic society” (quotation omitted)). Schools
cannot suppress speech “just because it expresses
thoughts or sentiments that others find upsetting[.]”
Mahanoy, 594 U.S. at 210 (Alito, J., concurring).
Finally, this Court considers the time, place, and
manner of student expression, as well as the type of
speech. Hazelwood, 484 U.S. at 270–71 & n.3; Bethel,
478 U.S. at 683; Tinker, 393 U.S. at 513. But the
substance of students’ “political or religious message”
doesn’t reduce First Amendment protection. Morse,
551 U.S. at 403.
The First Circuit’s new standard violates all four
principles. It gives schools a blank check to suppress
unpopular political or religious views, allows censorship based on “negative psychological impact” or ideological offense, rejects a public school’s duty to
inculcate tolerance, and lowers free-speech protection
for expression that schools say implicates “characteristics of personal identity” in an “assertedly demeaning” way. App.34a–35a, 37a. This flouts Tinker
and turns the First Amendment on its head.
B. The First Circuit’s new test conflicts with
rulings by nine other circuits.
The First Circuit’s standard for students’ passive,
ideological speech creates a split with nine other
circuits.
19
Start with the Seventh Circuit, which employed
Tinker and protected—twice—a student’s right to
wear a t-shirt saying, “Be Happy, Not Gay.” Zamecnik
v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 882
(7th Cir. 2011); Nuxoll, 523 F.3d at 676. Judge
Posner’s “convoluted” dicta in Nuxoll about personal
identity and psychological harm may have “fold[ed] in
on itself like a Möbius strip.” 523 F.3d at 676 (Rovner,
J., concurring in the judgment). But that didn’t alter
the Seventh Circuit’s holding that (1) schools lack “a
generalized ‘hurt feelings’ defense[,]” (2) student
“anger engendered by” the message “did not give rise
to substantial disruption[,]” and (3) students lack “a
legal right to prevent criticism of their beliefs or even
their way of life.” Zamecnik, 636 F.3d at 876–77, 880;
accord N.J. ex rel. Jacob v. Sonnabend, 37 F.4th 412,
416 (7th Cir. 2022) (“Tinker provides the legal
standard” for firearm t-shirts). These holdings are
irreconcilable with the First Circuit’s ruling here.
Eight more circuits agree that Tinker’s familiar
test does not change simply because a school subjectively considers student speech to have a potential
“negative psychological impact” or that the speech
may cause ideological offense. Doninger v. Niehoff,
642 F.3d 334, 351 (2d Cir. 2011) (“[a]pplying Tinker”
to student-election shirts); B.H. ex rel. Hawk v.
Easton Area Sch. Dist., 725 F.3d 293, 320–21 (3d Cir.
2013) (en banc) (applying “Tinker’s general rule” to
bracelets addressing “a social or political issue”);
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426,
437 (4th Cir. 2013) (Confederate-flag shirts “governed
by Tinker”); A.M. ex rel. McAllum v. Cash, 585 F.3d
214, 222–24 (5th Cir. 2009) (assessing Confederateflag purses under Tinker); Barr v. Lafon, 538 F.3d
20
554, 564 (6th Cir. 2008) (“Tinker governs”
Confederate-flag shirts); B.W.A. v. Farmington R-7
Sch. Dist., 554 F.3d 734, 741 (8th Cir. 2009)
(“apply[ing] Tinker” to Confederate-flag shirts);
Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d
764, 776 (9th Cir. 2014) (“Tinker guides … analysis”
of American-flag shirts); Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1273 (11th Cir. 2004)
(applying “Tinker-Burnside” to a silent raised fist).
The First Circuit here relied on the Ninth Circuit’s
defunct holding in Harper and Seventh Circuit dicta
from Nuxoll. App.24a–29a, 34a–35a & n.7. As just
noted, the Ninth Circuit’s analysis of the “Homosexuality Is Shameful” t-shirt is no longer good law,
445 F.3d at 1171, since this Court granted certiorari,
vacated the judgment, and ordered that case
dismissed as moot, 549 U.S. at 1262. And the Seventh
Circuit’s holding in Nuxoll squarely conflicts with the
First Circuit’s here in every way possible.
The First Circuit’s novel test for student speech
alleged “to demean … characteristics of personal
identity” stands alone. App.34a. This Court’s review
is warranted to resolve the 9-1 conflict between the
circuits and ensure that students in Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto
Rico have the same right to speak on political and
religious topics as students who happen to live outside
the First Circuit.
21
C. The First Circuit’s new test fails on its
own terms, since no case supports labeling L.M.’s speech “demeaning.”
The First Circuit devised a test for passive, silent,
and untargeted student speech that “assertedly
demeans characteristics of personal identity.” App.4a.
But no precedent supports classifying L.M.’s onlytwo-genders t-shirt as “demeaning.” So the court’s
variant test fails on its own terms.
According to this Court, “[s]peech that demeans
on” protected grounds is expression that is “hateful[,]”
Matal v. Tam, 582 U.S. 218, 246 (2017) (plurality
opinion), “critic[al],” or “condemn[ing],” id. at 249
(Kennedy, J., concurring in part and concurring in the
judgment). And the circuits consider demeaning
speech to include “racial slurs,” Barr, 538 F.3d at 566,
or “particularly mean-spirited and hateful”
expression used to “harass[ ] and bully[ ],” Kowalski
v. Berkeley Cnty. Schs., 652 F.3d 565, 576 (4th Cir.
2011); accord Saxe v. State Coll. Area Sch., 240 F.3d
200, 203, 218 (3d Cir. 2001) (Alito, J.) (considering
“demeaning comments” in harassment context).
L.M.’s t-shirt is none of these things. It states
L.M.’s ideological position without criticizing other
views or attacking those who hold them. In fact, the
First Circuit effectively conceded that L.M.’s message
wasn’t bullying or harassing, App.21a–22a, nor could
it be legally classified as either, Saxe, 240 F.3d at
206–17.
22
The closest analogy is the “Be Happy, Not Gay” tshirt that the Seventh Circuit said—twice—was “only
tepidly negative” and not “‘demeaning,’” a “characterization” the court deemed unwarranted and “too
strong[.]” Zamecnik, 636 F.3d at 876–77 (quotations
omitted); Nuxoll, 523 F.3d at 676. If telling other
students “not to be gay” isn’t demeaning, neither is
saying “only two genders” exist. This is especially true
given that the school’s own handbook speaks in terms
of “both sexes” and “either gender,” App.130a, 134a,
messages very similar to that of L.M.’s t-shirt that
there are only two genders.
The First Circuit’s contrary ruling defies logic.
Many transgender students identify as male or
female, so L.M.’s message doesn’t contradict their
beliefs. And while gender-nonconforming students
may disagree with L.M.’s view that there are only two
genders, that view isn’t hateful, mean-spirited, or
condemning—certainly not more so than Middleborough’s speech condemning L.M.’s opinions as vile. So
there’s no “demeaning speech” predicate, and the
First Circuit’s test falters out of the gate.
23
II. The First Circuit’s application of Tinker’s
substantial-disruption prong conflicts with
this Court’s precedent and creates or
deepens multiple circuit splits.
From beginning to end, the lower court’s
substantial-disruption analysis conflicts with this
Court’s decisions and creates or deepens circuit splits
that are almost too numerous to list. The Court
should grant review and reject the lower court’s
rewrite of Tinker. The First Circuit gives public
schools a blank check to silence dissenting political
and religious views on matters of public concern.
A. The First Circuit’s near-total deference to
schools contradicts this Court’s precedent
and creates a split with six other circuits.
The First Circuit viewed “[t]he question”
presented by this case as “not whether [L.M.’s] tshirts should have been barred” but “who should
decide whether to bar them—educators or federal
judges.” App.62a. It bequeathed that power to
educators, giving school districts near-total deference
on key free-speech questions, including whether
L.M.’s message demeaned other students’ characteristics and whether Middleborough’s mere forecast
of material and substantial disruption was
reasonable. App.47a–49a, 50a, 54a.
In stark contrast, this Court says that “[t]he Fourteenth Amendment … protects the citizen against the
State itself and all of its creatures—Boards of
Education not excepted.” Barnette, 319 U.S. at 637.
Schools are firmly “within the limits of the Bill of
Rights.” Ibid.; accord Morse, 551 U.S. at 424 (Alito, J.,
24
concurring). Hence, Tinker requires courts to
“independent[ly] examin[e] … the record” to
“vigilant[ly] protect[ ]” free speech. 393 U.S. at 509,
512 (cleaned up, emphasis added).
Morse is no exception, as this Court carefully
studied the banner’s words and surrounding
context—including that the student ascribed no
meaning to his message—before deciding that the
principal reasonably viewed the banner as promoting
illegal drug use. 551 U.S. at 402–03. So Morse’s
deference to an educator wasn’t “abandonment or
abdication of judicial review,” Students for Fair
Admissions, Inc. v. President & Fellows of Harvard
Coll., 600 U.S. 181, 217 (2023) (quotation omitted),
which is exactly what the First Circuit did.
Lower courts agree that Tinker forbids near-total
deference to public schools. Once more, the First
Circuit cited Nuxoll. App.47a–49a. But Judge
Posner’s dicta promoting “[a] judicial policy of hands
off (within reason)” of student speech regulation was
qualified and distinct from what the Seventh Circuit
did, which was to order “a preliminary injunction”
allowing the “Be Happy, Not Gay” t-shirt because
“[t]he school … failed to justify the ban.” Nuxoll, 523
F.3d at 671, 676. Similarly, in Zamecnik, the Seventh
Circuit said schools have “discretion” in setting “the
line between hurt feelings and substantial disruption[,]” 636 F.3d at 877–78, but rejected the school’s
judgment based on the lack of relevant evidence, id.
at 879–82. The Seventh Circuit did not defer to
educators’ assumptions or predictions but searched
the record for something more than ipse dixit and
found the evidence lacking.
25
Three other circuits agree that Tinker rejects
deference to public schools that censor speech based
on mere speculation. James v. Bd. of Educ. of Cent.
Dist. No. 1 v. James, 461 F.2d 566, 575 (2d Cir. 1972)
(courts must thoroughly search[ ] the record” for a
sound constitutional basis for” a school’s decision);
Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 960, 970
(5th Cir. 1972) (“the board cannot rely on ipse dixit”
to suppress speech); Holloman, 370 F.3d at 1271 (“we
cannot simply defer to the specter of disruption or the
mere possibility of discord”) (emphasis added).
The Court should grant review to resolve the 4-1
split over whether Tinker allows near-total deference
to public schools.
B. The First Circuit’s approval of censorship
grounded on personal-characteristicbased offense flouts this Court’s precedent and widens a 2-1-2 circuit split.
The First Circuit’s analysis turned on the
supposedly “negative psychological impact” of ideological speech touching on “characteristics of personal
identity,” despite the lack of relevant evidence.
App.45a. But this Court rejects censorship based on
ideological offense—no matter the cause. Tinker, 393
U.S. at 509 (no censorship based on “discomfort and
unpleasantness” caused by “unpopular view[s]”). It is
“a bedrock First Amendment principle” that “[s]peech
may not be banned” because “it expresses ideas that
offend.” Matal, 582 U.S. at 223 (plurality opinion).
So public officials cannot “prescribe what shall be
offensive.” Masterpiece Cakeshop v. Colo. C.R.
Comm’n, 584 U.S. 617, 638 (2018). Instead, freedom
26
of speech includes “the right to tell people what they
do not want to hear.” 303 Creative LLC v. Elenis, 600
U.S. 570, 602 (2023) (quotation omitted). There’s no
exception for speech that purportedly “strike[s]
[others] at the core of [their] being.” App.45a (cleaned
up).
Lower courts generally agree that Tinker’s
substantial-disruption prong requires more than
“mere offense.” App.31a. Yet they disagree on
whether personal-characteristic-based offense is
“something more.” App.38a. The First Circuit said it
is and assumed a “serious negative psychological
impact.” App.35a, 41a. This dovetails with the Sixth
Circuit’s recent ruling that schools may punish
student speech based on the supposedly “dehumanizing and humiliating effects of non-preferred
pronouns” possibly “creat[ing] a substantial
disruption.” Parents Defending Educ. v. Olentangy
Loc. Sch. Dist. Bd. of Educ., 109 F.4th 453, 464 (6th
Cir. 2024) (cleaned up), pet. for reh’g en banc filed No.
23-3630 (6th Cir. Aug. 26, 2024).
The Seventh Circuit straddles the fence, expressing concern about “kids’ sensitivity” and “wrenching
debates over issues of personal identity,” Nuxoll, 523
F.3d at 675–76, while rejecting “a generalized ‘hurt
feelings’ defense to a high school’s violation of the
First Amendment rights of its students,” Zamecnik,
636 F.3d at 877, and rebuffing offense-based evidence
of disruption, id. at 879–80.
27
In contrast, the Third Circuit holds that schools
cannot “constitutionally ban any unwelcome verbal
conduct [i.e., speech] which offends an individual
because of some enumerated personal characteristics.” Saxe, 240 F.3d at 215 (right to speak about
sexual orientation); accord DeJohn v. Temple Univ.,
537 F.3d 301, 320 (3d Cir. 2008) (women in combat).
The Fifth Circuit agrees, holding that speech touching
on “personal characteristics,” “even if highly offensive, may very well be at the core of protected speech.”
Esfeller v. O’Keefe, 391 F. App’x 337, 341 (5th Cir.
2010) (per curiam).
The Third and Fifth Circuits must be right.
Otherwise, a school could ban a t-shirt stating, “Black
Lives Matter” because the shirt might cause racebased offense. This Court should resolve the 2-1-2
split and confirm that personal-characteristic-based
offense doesn’t justify censoring students’ ideological
views.
C. The First Circuit’s refusal to require
particular evidence supporting a forecast
of substantial disruption defies Tinker
and exacerbates a 9-2 circuit split.
Eschewing the need for any evidence of substantial disruption, the First Circuit said it sufficed that
Middleborough pointed to transgender students’
generic struggles, Respondent Tucker’s experience in
other school districts, one teacher’s foreboding about
LGBTQ+ students’ reaction, and past survey results
expressing concern about those students’ treatment
at school. App.52a–53a. The court also relied on the
inherently disruptive nature of expressive t-shirts.
App.51a–52a.
28
That ruling violates this Court’s admonition that
“expressive apparel” is “‘nondisruptive.’” Minn. Voters
All. v. Mansky, 585 U.S. 1, 15 (2018); accord Bd. of
Airport Comm’rs of the City of L.A. v. Jews for Jesus,
Inc., 482 U.S. 569, 576 (1987) (“wearing of a T-shirt or
button that contains a political message” is
“nondisruptive”). Indeed, five other circuits agree that
expressive apparel is a nondisruptive manner of
expression. Newsom ex rel. Newsom v. Albemarle
Cnty. Sch. Bd., 354 F.3d 249, 259 (4th Cir. 2003)
(same); Butts v. Dallas Indep. Sch. Dist., 436 F.2d
728, 731 (5th Cir. 1971); Lowry ex rel. Crow v. Watson
Chapel Sch. Dist., 540 F.3d 752, 760 (8th Cir. 2008);
Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 531
(9th Cir. 1992); Taylor v. Roswell Indep. Sch. Dist.,
713 F.3d 25, 38 (10th Cir. 2013).
Schools will always have weak and generalized—
or even counterproductive—evidence of this sort.
Accepting it as dispositive turns “Tinker’s demanding
standard” for censorship into an empty shell.
Mahanoy, 594 U.S. at 193. That’s incompatible with
Tinker, which requires schools to make “a specific
showing of constitutionally valid reasons to regulate
[student] speech” and “demonstrate … facts which
[could] reasonably have led school authorities to
forecast substantial disruption” when no actual
disruption occurred. 393 U.S. at 511, 514 (emphasis
added).
Tinker didn’t deter the First Circuit from accepting “Middleborough’s assessment that there was the
requisite basis for the forecast of material disruption
here.” App.50a. It did so despite the lack of actual
disruption when L.M. wore his t-shirts to school and
the dearth of evidence supporting a forecast of
29
material and substantial disruption. Likewise, the
Sixth Circuit “do[es] not require substantial evidentiary support” for censorship when schools make
“common-sense conclusions based on human experience.” Olentangy, 109 F.4th at 464 (quoting Lowery v.
Euverard, 497 F.3d 584, 594 (6th Cir. 2007)).
But nine other circuits require specific evidence
justifying a forecast of material and substantial
disruption. James, 461 F.2d at 571 (requiring “reasonable inferences flowing from concrete facts and not
abstractions”); Saxe, 240 F.3d at 211–12 (“Tinker
requires a specific and significant” or “well-founded
expectation of disruption”); Newsom, 354 F.3d at 255
(same); A.M., 585 F.3d at 221–22 (“[o]fficials must
base their decisions on fact, not intuition” (quotation
omitted)); N.J., 37 F.4th at 426 (“mere speculation
won’t do”); B.W.A., 554 F.3d at 739 (relying on
“substantial race-related events” to ban the
Confederate flag); Dariano, 767 F.3d at 779 (“specific
events” and “pattern of … events … made it
reasonable for school officials to [forecast] violent
disturbance”); C1.G ex rel. C.G. v. Siegfried, 38 F.4th
1270, 1278 (10th Cir. 2022) (requiring “facts” that
“support a reasonable forecast of substantial
disruption”); Holloman, 370 F.3d at 1273
(“demonstrable factors” must “give rise to any
reasonable forecast … of substantial and material
disruption” (quotation omitted)).
Only this Court can resolve the 9-2 split and limit
schools’ suppression of student speech to “carefully
restricted circumstances.” Tinker, 393 U.S. at 513.
30
D. The First Circuit’s endorsement of viewpoint discrimination disregards this
Court’s precedent, deepens a 3-3 circuit
conflict, and creates a new 6-1 split.
Tinker said that schools cannot “prohibit[ ] … a
particular expression of opinion … to avoid the discomfort and unpleasantness that always accompany
an unpopular viewpoint.” 393 U.S. at 509 (emphasis
added); accord Morse, 551 U.S. at 423 (Alito, J.,
concurring). But it also said that “the prohibition of
expression of one particular opinion, at least without
evidence that it is necessary to avoid material and
substantial interference with schoolwork or discipline,
is not constitutionally permissible.” Tinker, 393 U.S.
at 511 (emphasis added).
These statements have split lower courts over
whether Tinker categorically forbids viewpoint discrimination. Compare Kristoffersson v. Port Jefferson
Union Free Sch. Dist., No. 23-7232, 2024 WL 3385137,
at *3 (2d Cir. July 12, 2024) (Tinker forbids viewpoint
discrimination); Barr, 538 F.3d at 571 (same); Speech
First, Inc. v. Cartwright, 32 F.4th 1110, 1127 n.6
(11th Cir. 2022) (same); with Morgan v. Swanson, 659
F.3d 359, 379 (5th Cir. 2011) (en banc) (holding the
opposite); B.W.A., 554 F.3d at 740 (same).
This Court offered clarity in Matal. The plurality
and concurrence agreed that, under Tinker, government officials can’t prohibit the expression of ideological viewpoints because others deem them offensive.
Matal, 582 U.S. at 244 (plurality opinion) (citing
Tinker, 393 U.S. at 509–14); id. at 250 (Kennedy, J.,
concurring) (citing “ante, at 1763–1764,” including
the plurality’s reliance on Tinker).
31
The First Circuit rejected that guidance and Iancu
v. Brunetti, 588 U.S. 388 (2019), saying the decisions
“did not contemplate the special characteristics of the
public-school setting.” App.55a n.9. The court of
appeals sided with the pro-viewpoint-discrimination
camp, allowing schools to “discriminate[ ] in
viewpoint between ‘negative’ and ‘positive’ messages”
if they assert that the expression “materially disrupts
or invades others’ rights.” App.61a n.11; accord
App.55a.
More particularly, the First Circuit said viewpoint
discrimination is allowed even when students’
expression “respond[s] to [their school’s] asserted
views on gender,” completely silencing one side of an
ideological debate at school. App.55a. And it did so
despite Middleborough’s universal prohibition on tshirt messages suggesting anything remotely critical
of LGBTQ+ ideology, regardless of any particularized
showing of likely material and substantial disruption.
App.114a. That violates Tinker’s ban on schools
making “authoritative selection[s]” regarding “truth,”
confining students to “sentiments that are officially
approved,” and rendering students “closed-circuit
recipients of” the state’s views. 393 U.S. at 511–12
(quotation omitted).
It also conflicts with the six circuits that prohibit
schools from allowing only one side of an issue to be
discussed. Sypniewski v. Warren Hills Reg’l Bd. of
Educ., 307 F.3d 243, 265 (3d Cir. 2002) (“genuine
political, social or academic discussions … on matters
like affirmative action” are protected); Meriwether v.
Hartop, 992 F.3d 492, 507 (6th Cir. 2021) (citing
Barnette for the proposition that “the state cannot …
categorically silence dissenting viewpoints”); Zam-
32
ecnik, 636 F.3d at 876 (“a school that permits
advocacy of the rights of homosexual students cannot
be allowed to stifle criticism of homosexuality”);
Bystrom ex rel. Bystrom v. Fridley High Sch., Indep.
Sch. Dist. No. 14, 822 F.2d 747, 755 (8th Cir. 1987)
(schools can’t “suppress … speech simply because
they disagree with it, or because it takes a political or
social viewpoint different from theirs, or different
from that subscribed to by the majority”); Chen ex rel.
Chen v. Albany Unified Sch. Dist., 56 F.4th 708, 717,
722 (9th Cir. 2022) (schools can’t “limit[ ] any political
viewpoint or other protected content” and students
“remain free to express offensive and other unpopular
viewpoints” (quotation omitted)); Speech First, 32
F.4th at 1127 (“prohibiting only one perspective …
targets particular views … and thereby chooses
winners and losers in the marketplace of ideas—
which [schools] may not do”) (cleaned up).
This Court should grant review, resolve whether
Tinker forbids viewpoint discrimination, and clarify
that schools cannot suppress one side of a political
and religious debate.
E. The First Circuit’s embrace of a heckler’s
veto misconstrues Tinker and deepens a
3-1-2 circuit split.
The First Circuit endorsed a substantial disruption forecast based, in part, on a teacher’s “concern[ ]
that members of the LGBTQ+ population … would be
impacted by the t-shirt’s message and potentially
disrupt classes.” App.53a (cleaned up). That is a heckler’s veto—where speakers engaged in “orderly”
expression are silenced because “critics might react
33
with disorder.” Brown v. Louisiana, 383 U.S. 131, 133
n.1 (1966).
Yet Tinker says that “hecklers don’t get the veto.”
Mahanoy, 594 U.S. at 206 (Alito, J., concurring)
(cleaned up); accord Kennedy, 597 U.S. at 543 n.8. The
Court in Tinker focused on the armband wearers’
orderly conduct in going “about their ordained rounds
in school” and their lack of “interrupt[ion] [of] school
activities.” Tinker, 393 U.S. at 514. And it said that
even though the armband wearers’ opinion “may
inspire fear” in other students—who “may start an
argument or cause a disturbance”—the “Constitution
says we must take this risk.” Id. at 508.
So the First Circuit’s embrace of a heckler’s veto
conflicts with Tinker. What’s more, it exacerbates a 31-2 circuit split. Compare Shanley, 462 F.2d at 974
(Tinker forbids a heckler’s veto); Zamecnik, 636 F.3d
at 879 (same); Holloman, 370 F.3d at 1274–76 (same);
with Taylor, 713 F.3d at 38 n.11 (“the blameworthiness of the speaker” is irrelevant under Tinker unless
“problematic student disruptions were aimed at
stopping plaintiffs’ expression”); and with Dariano,
767 F.3d at 778 (Tinker allows a heckler’s veto).
The Court should grant review to settle this
established conflict and reject schools’ reliance on a
potential heckler’s veto under Tinker.
34
F. The First Circuit’s approval of censoring
the protest t-shirt further conflicts with
Mahanoy and decisions by three circuits.
The First Circuit approved the “There are
[censored] genders” t-shirt’s suppression on the same
grounds as the censorship of the only-two-genders tshirt. App.56a. So that decision is incorrect for the
same reasons, plus the fact that the protest shirt said
nothing about gender ideology. Further, the court’s
protest-shirt ruling conflicts with Mahanoy, which
generally protects students’ “criticism of the rules of
a community of which [they] form[ ] a part,” 594 U.S.
at 190, the only thing the second shirt did.
Three other circuits agree that when students
peacefully protest their schools’ actions or policies,
their speech is typically protected. Shanley, 462 F.2d
at 972 n.10 (“those governed and regulated should
have the right … of commenting upon the actions of
their appointed or elected governors and regulators”);
Lowry, 540 F.3d at 758, 760 (“wearing armbands that
protested the school’s dress code” protected as “nondisruptive protest of a government policy”); Chandler,
978 F.2d at 531 (schools “do not have limitless
discretion” to suppress “arguably political speech …
directed against the very individuals who seek to
suppress” it).
This Court should address the 3-1 conflict and
confirm that Tinker and Mahanoy protect students’
peaceful and non-disruptive protest of their schools’
actions or rules.
35
III. The First Circuit’s misapprehension of the
rights-of-others prong conflicts with Tinker
and Mahanoy, plus rulings by six circuits.
The First Circuit rested its holding on Tinker’s
substantial-disruption prong but said—repeatedly—
that the rights-of-others prong would likely warrant
the same result. App.46a, 55a; accord App.35a n.7.
This Court’s consideration of the rights-of-others
prong is appropriate given the district court’s ruling,
the First Circuit’s intention to affirm on those
grounds if its substantial-disruption holding is
reversed, the lower court’s labeling of the
“distinction[ ] between” Tinker’s two prongs as “more
semantic than real,” App.34a, and L.M.’s comprehensive arguments below regarding both aspects of
Tinker, Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467,
530 (2002).
Because Tinker didn’t “elaborate on the contents
of the rights of other students to be secure and to be
let alone,” the First Circuit expressed confusion about
Tinker’s second prong. App.21a (quotation omitted). It
resolved that ambiguity by turning to the “vacatedas-moot Ninth Circuit decision in Harper,” which said
that “being secure” includes “freedom from …
psychological attacks” and that schools should ban
“shirt[ ] message[s] … injurious to gay and lesbian
students” because such expression “interfere[s] with
their right to learn.” App.24a–25a (cleaned up).
Yet Harper was vacated and conflicts with Tinker,
which rejects psychological “fear” resulting from
“[a]ny variation … [of] opinion,” 393 U.S. at 508, looking instead for physical “harass[ment] [of] students,”
36
id. at 505 n.1 (discussing Blackwell v. Issaquena Cnty.
Bd. of Educ., 363 F.2d 74 (5th Cir. 1966)).
Similarly, Mahanoy said that schools can regulate
“serious or severe bullying or harassment targeting
particular individuals” and “threats aimed at … other
students.” 594 U.S. at 188. But there is no
harassment or bullying here, and neither Tinker nor
Mahanoy supports censoring students’ speech “simply
because it expresses ideas that are offensive or
disagreeable.” Id. at 205 (Alito, J., concurring)
(quotation omitted).
Many circuits say the rights-of-others prong covers
coercion, harassment, or otherwise unlawful expression, including “forc[ing] papers on” others or
“block[ing] ingress or egress to a building,” Shanley,
462 F.2d at 971 n.8; “speech which could result in tort
liability,” Bystrom, 822 F.2d at 752 (quotation
omitted); “severe targeted harassment,” Chen, 56
F.4th at 718; “threat of a school shooting,” Wynar v.
Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1072 (9th
Cir. 2013); and “persistent unwanted advances and
related insults,” Doe v. Valencia Coll., 903 F.3d 1220,
1230 (11th Cir. 2018).
Nothing like that occurred here. And other circuits
protect student “speech [that] is merely offensive to
some listener,” Saxe, 240 F.3d at 217, deny “a legal
right to prevent criticism of [peers’] beliefs or even
their way of life,” Zamecnik, 636 F.3d at 876, and bar
schools from “avoid[ing] the strictures of the First
Amendment simply by defining certain [disfavored]
speech as ‘bullying’ or ‘harassment,’” Parents
Defending Educ. v. Linn Mar Cmty. Sch. Dist., 83
F.4th 658, 667 (8th Cir. 2023).
37
The First Circuit’s incorporation of a subjective,
psychological harm standard in Tinker’s rights-ofothers prong conflicts with these decisions by six
circuits. What’s more, it allows the “assertion of
virtually any ‘rights’ … [to] eviscerate [free speech]
protection[ ],” J.S. ex rel. Snyder v. Blue Mountain
Sch. Dist., 650 F.3d 915, 931 n.9 (3d Cir. 2011), and
presents an intolerable threat to the marketplace of
ideas in America’s schools. This Court’s review is
needed to demystify Tinker’s rights-of-others prong
after 55 years of doubt.
IV. This case is an ideal vehicle to resolve the
important question presented.
The Court should take this opportunity to answer
the question presented, clarify Tinker, and halt public
schools from exiling disfavored “political … or
religious viewpoint[s].” Mahanoy, 594 U.S. at 215
(Thomas, J., dissenting) (quotation omitted).
To begin, the undisputed facts cleanly present the
question presented. The First Circuit admitted that
L.M. expressed ideological messages “passively,
silently, and without mentioning any specific
students.” App.4a. It’s also undisputed that Middleborough promoted a specific viewpoint on gender
identity and encouraged students to voice their
agreement, while preventing L.M. from respectfully
and passively speaking an opposing view at school.
AppelleesBr.31 (school targeted “his view [of] gender
identity” but permitted it “outside of NMS”).
38
Further, this case is an opportunity to resolve
longstanding lower court confusion about whether
Tinker forbids viewpoint discrimination and a heckler’s veto. It also would enable this Court to clarify
something that has long vexed the circuits: what
Tinker meant when mentioning “the rights of others.”
What’s more, even though the sheer number of
circuit splits the First Circuits’ ruling created shows
that it is an outlier, the opinion establishes a
blueprint for other schools to censor minority
“political and social views.” Morse, 551 U.S. at 423
(Alito, J., concurring).
Finally, free-speech rights should not depend on
geography. Yet students who live in the First Circuit
are trapped “in an intellectual bubble” that would be
unthinkable elsewhere. Zamecnik, 636 F.3d at 876
(quotation omitted). This Court’s review is warranted.
CONCLUSION
The petition for a writ of certiorari should be
granted.
39
Respectfully submitted,
DAVID A. CORTMAN
RORY T. GRAY
CHLOE K. JONES
ALLIANCE DEFENDING
FREEDOM
1000 Hurricane Shoals Rd.
NE, Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
JOHN J. BURSCH
Counsel of Record
ALLIANCE DEFENDING
FREEDOM
440 First Street NW
Suite 600
Washington, DC 20001
(616) 450-4235
jbursch@ADFlegal.org
JAMES A. CAMPBELL
TYSON C. LANGHOFER
P. LOGAN SPENA
ALLIANCE DEFENDING
FREEDOM
44180 Riverside Pkwy
Lansdowne, VA 20176
(571) 707-4655
SAMUEL J. WHITING
MASSACHUSETTS FAMILY
INSTITUTE
401 Edgewater Pl., Suite
580
Wakefield, MA 01880
(781) 569-0400
OCTOBER 2024
APPENDIX
ia
APPENDIX TABLE OF CONTENTS
U.S. Court of Appeals for the First Circuit
Opinion in Nos. 23-1535, 23-1645
Issued June 9, 2024 ................................................. 1a
Memorandum & Order
U.S. District Court
District of Massachusetts in No. 1:23-cv-11111
Issued June 16, 2023.............................................. 64a
Final Judgment
U.S. District Court
District of Massachusetts in No. 1:23-cv-11111
Entered July 19, 2023 ............................................ 85a
U.S. District Court
District of Massachusetts in No. 1:23-cv-11111
Text Only Docket Entry No. 38
Dated June 1, 2023 ................................................ 87a
Verified Complaint
U.S. District Court for
District of Massachusetts
Filed May 19, 2023 ................................................. 88a
Exhibit D to Complaint - Tiger Times
Nichols Middle School Newsletter....................... 118a
Exhibit E to Complaint – Emails Between
L.M.’s Father and School Superintendent .......... 120a
Declaration of L.M. .............................................. 125a
Excerpts from John T. Nichols Jr.
Middle School Student & Family
Handbook 2022-2023 ........................................... 130a
iia
Letter from L.M.’s Attorney to Middleborough
Public School Superintendent
dated April 27, 2023 ............................................. 135a
Letter from School’s Attorney to
L.M.’s Attorney dated May 4, 2023 ..................... 143a
1a
United States Court of Appeals
For the First Circuit
___________________________
Nos. 23-1535, 23-1645
L.M., a minor by and through his father and
stepmother and natural guardians, Christopher and
Susan Morrison,
Plaintiff, Appellant,
v.
TOWN OF MIDDLEBOROUGH,
MASSACHUSETTS; MIDDLEBOROUGH SCHOOL
COMMITTEE; CAROLYN J. LYONS,
Superintendent, Middleborough Public Schools, in
her official capacity; HEATHER TUCKER, Acting
Principal, Nichols Middle School, in her official
capacity,
Defendants, Appellees.
___________________________
APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
___________________________
Before
Barron, Chief Judge,
Thompson and Montecalvo, Circuit Judges.
___________________________
2a
David A. Cortman, with whom Rory T. Gray,
Tyson C. Langhofer, P. Logan Spena, John J. Bursch,
Andrew D. Beckwith, Samuel J. Whiting, Alliance
Defending Freedom, and Massachusetts Family
Institute were on brief, for appellant.
J. Michael Connolly, Thomas S. Vaseliou, Rachel
L. Daley, and Consovoy McCarthy PLLC on brief for
Parents Defending Education, amicus curiae.
Joseph D. Spate, Assistant Deputy Solicitor
General of South Carolina, Alan Wilson, Attorney
General, Robert Cook, Solicitor General, J. Emory
Smith, Jr., Deputy Solicitor General, Thomas T.
Hydrick, Assistant Deputy Solicitor General, Steve
Marshall, Attorney General of Alabama, Tim Griffin,
Attorney General of Arkansas, Christopher M. Carr,
Attorney General of Georgia, Raúl Labrador,
Attorney General of Idaho, Brenna Bird, Attorney
General of Iowa, Daniel Cameron, Attorney General
of Kentucky, Jeff Landry, Attorney General of
Louisiana, Lynn Fitch, Attorney General of
Mississippi, Andrew Bailey, Attorney General of
Missouri, Austin Knudsen, Attorney General of
Montana, Michael T. Hilgers, Attorney General of
Nebraska, Drew Wrigley, Attorney General of North
Dakota, Ken Paxton, Attorney General of Texas, Sean
Reyes, Attorney General of Utah, and Jason Miyares,
Attorney General of Virginia, on brief for South
Carolina, Alabama, Arkansas, Georgia, Idaho, Iowa,
Kentucky,
Louisiana,
Mississippi,
Missouri,
Montana, Nebraska, North Dakota, Texas, Utah, and
Virginia, amici curiae.
Robert Corn-Revere and Abigail E. Smith on brief
for Foundation for Individual Rights and Expression,
amicus curiae.
3a
Gary M. Lawkowski and Dhillon Law Group, Inc.
on brief for Center for American Liberty, amicus
curiae.
James L. Kerwin, William E. Trachman, and Ilya
Shapiro on brief for Mountain States Legal
Foundation and Manhattan Institute, amici curiae.
Catherine W. Short and Sheila A. Green on brief
for Life Legal Defense Foundation and Young
America’s Foundation, amici curiae.
Gene C. Shaerr, Jennifer C. Braceras, and
Schaerr Jaffe LLP on brief for Independent Women’s
Law Center, amicus curiae.
Deborah J. Dewart on brief for the Institute for
Faith and Family, amicus curiae.
Deborah I. Ecker, with whom Gregg J. Corbo and
KP Law, P.C. were on brief, for appellees.
Ruth A. Bourquin, Kirsten V. Mayer, and Rachel
E. Davidson on brief for the American Civil Liberties
Union of Massachusetts, Inc., amicus curiae.
Chris Erchull, Mary L. Bonauto, Gary D. Buseck,
Michael J. Long, Kelly T. Gonzalez, and Long,
Dipietro, and Gonzalez, LLP on brief for GLBTQ
Legal Advocates & Defenders and Massachusetts
Association of School Superintendents, amici curiae.
Charles McLaurin, Jin Hee Lee, Avatara SmithCarrington, Janai S. Nelson, Samuel Spital, Alexsis
Johnson, and Colin Burke on brief for NAACP Legal
Defense & Educational Fund, Inc., amicus curiae.
Before Barron, Chief Judge, Thompson and
Montecalvo, Circuit Judges.
___________________________
June 9, 2024
___________________________
4a
BARRON, Chief Judge. Tinker v. Des Moines
Independent Community School District, 393 U.S.
503 (1969), famously upheld the First Amendment
right of public-school students to wear black
armbands at school in protest of the country’s
involvement in the Vietnam War. The Supreme Court
was sensitive, however, to the “special characteristics
of the school environment” and so took care to explain
that there was “no evidence whatever of . . .
interference, actual or nascent, with the schools’ work
or of collision with the rights of other students to be
secure and to be let alone.” Id. at 506, 508. It also
affirmed more generally that “of course” school
authorities may restrict student speech that
“materially disrupts classwork or involves substantial
disorder or invasion of the rights of others” or,
otherwise put, “ ‘materially and substantially
interfere[s] with the requirements of appropriate
discipline in the operation of the school’ [or] . . .
collid[es] with the rights of others.” Id. at 513 (citation
omitted).
In the more-than-half century since Tinker, the
Court has addressed variations of the First
Amendment question presented in that landmark
case. But it has not addressed the vexing question of
when (if ever) public-school students’ First
Amendment rights must give way to school
administrators’ authority to regulate speech that
(though expressed passively, silently, and without
mentioning any specific students) assertedly demeans
characteristics of personal identity, such as race, sex,
religion, or sexual orientation.
In these consolidated appeals, we confront a
dispute that raises that question for the first time in
5a
our Circuit, although other federal courts have
confronted it before. The underlying suit, filed in the
District of Massachusetts, concerns the “hate speech”
provision of a public middle school dress code, which
the defendants applied to prohibit a twelve-year-old
student first from wearing a t-shirt that read “There
Are Only Two Genders” and then from wearing that
same t-shirt with the words “Only Two” covered by a
piece of tape on which was written “CENSORED.”
Relying solely on Tinker’s “invasion of the rights
of others” limitation, and thus not Tinker’s “material
disruption” limitation, the District Court denied the
student's motion for a preliminary injunction. On that
same basis, the District Court granted the defendants
final judgment on all the student’s claims, which
challenged both the dress code’s specific applications
and two portions of the dress code on their face. We
affirm the District Court’s rulings, albeit on
somewhat different grounds.
I.
A.
1.
John T. Nichols Middle School (“NMS”) is a public
middle school in Middleborough, Massachusetts.
NMS’s students are in the sixth through eighth
grades and are between ten and fourteen years old.
NMS and the Middleborough Public School
System (“MPSS”) administrators knew that several
NMS students identified as part of the “LGBTQ+
community.” In addition, Heather Tucker, the theninterim principal of NMS, who had just started at the
6a
school, was aware that several NMS students
identified as “transgender or gender nonconforming.”
Prior to coming to NMS, Tucker had educated
young students for two decades. During that time, she
met with students who had been bullied based on
their gender identities and worked closely with
students who had self-harmed, contemplated suicide,
or attempted to commit suicide “because of their
gender identity.” Tucker also worked on teams that
had recommended out-of-district placements for
students “because of [those students’] gender identity
and suicidal ideation.”
Carolyn Lyons, the superintendent of the MPSS,
also knew that several NMS students had “attempted
to commit suicide or have had suicidal ideations in the
past few years, including members of the LGBTQ+
community.” Lyons further stated in an affidavit that
“[t]hese situations have frequently cited LQBTQ+
status and treatment as a major factor.” Lyons
attested that “[s]tudent survey data collected in June
2022, through NMS's platform Panorama, show over
20 individual student[s’] comments about perceived
bullying at school, feeling unwelcome at school, and
expressing specific concerns about how the LGBTQ+
population is treated at school.”
NMS had a student-run organization called the
Gay Straight Alliance Club (“GSA”), which was
“intended as a space for students who fit under the
LGBTQ+ umbrella or are their allies” (cleaned up).
The GSA was open to all NMS students, and at any
given time “approximately ten to twenty students . . .
attend[ed] the GSA[’s] [monthly] meetings.”
7a
2.
NMS’s code of conduct included a dress code
(“Dress Code”) that was set forth in the “Student &
Family Handbook,” which was provided to NMS’s
students and their families. The Dress Code’s preface
states that the Dress Code is “governed by health,
safety[,] and appropriateness” and that, because “an
environment conducive to learning is necessary,”
clothing that “causes distractions and inhibits
learning is not allowed.” The preface further states
that students are “encourage[d] . . . to dress in a neat
and presentable manner that reflects pride in
themselves and their school.”
The Dress Code provides:
• Clothing must be neat and clean.
• Clothing that is excessively revealing . . . will
not be allowed.
• Tank tops or basketball shirts must have a tshirt underneath.
• Chains, chain belts, spikes, studs, and gangrelated attire is not allowed.
• Clothing with alcohol, tobacco, vulgar writing,
sexual references or controlled substance
reference[s] will not be allowed.
• Outer coats, hats, caps, bandanas, sweatshirt
hoods, and sunglasses will not be worn in the
building without permission of an administrator.
• Wheeled shoes and platform shoes are
dangerous on our floors and not allowed. Blankets
or other clothing that drapes down or is
considered a tripping hazard will not be allowed.
• Clothing must not state, imply, or depict hate
speech or imagery that target[s] groups based on
8a
race, ethnicity, gender, sexual orientation, gender
identity, religious affiliation, or any other
classification.
• Any other apparel that the administration
determines to be unacceptable to our community
standards will not be allowed.
(Emphases added). The Dress Code concludes by
stating that should a student “wear something
inappropriate to school, [the student] will be asked to
call their parent/guardian to request that more
appropriate attire be brought to school” and that
“[r]epeated violations of the dress code will result in
disciplinary action.”
3.
In the Spring of 2023, L.M. was a seventh grader
at NMS. He held the belief that there are only two
biological sexes (male and female), that the word
“gender” is synonymous with “sex[,]” and that because
there are only two biological sexes there are only two
genders.
On March 21, 2023, L.M. wore a black t-shirt to
school that displayed, in black capitalized letters with
thick white outlines, the words “There Are Only Two
Genders” (the “Shirt”). L.M. wore the Shirt both to
express his own views, which he understood to be
contrary to those NMS espouses on the subject, and to
convey his belief that his views are not “inherently
hateful.”
After L.M. arrived at his first-period class, a
teacher contacted Jason Carroll, the assistant
principal of NMS, about the Shirt. The teacher
expressed concerns about the “physical safety” of L.M.
9a
“as well as other students’ safety, citing to multiple
members of the LGBTQ+ population at NMS as
current students in the building who would be
impacted by the t-shirt[’s] message and potentially
disrupt classes.” Carroll then contacted Tucker, who
went to L.M.’s class and asked him to meet with her.
Tucker explained that L.M. could not wear the
Shirt at school and could either remove it while at
school or discuss the matter further. L.M. requested
to discuss the matter further, so Tucker asked him to
come with her to another room to continue the
discussion.
In the separate room, with the school counselor
also present, Tucker explained that some students
had “complained” and that L.M. could not return to
class if he did not remove the Shirt. When L.M.
declined to do so, Tucker called L.M.’s father to
explain that L.M. would need to remove the Shirt to
return to class.
L.M.’s father stood by L.M.’s decision not to
remove the Shirt and thereafter picked L.M. up from
school and took him home. School administrators took
no other action at that point.
L.M. did not personally witness any noticeable
disruption on March 21 or thereafter that resulted
from his wearing of the Shirt. L.M. has since worn
shirts expressing his views on a range of other topics,
which included messages like “Don't Tread on Me”
and “First Amendment Rights,” none of which he was
asked to remove. L.M. has not been disciplined by
NMS administrators for wearing the Shirt or any of
those shirts or for any views he has expressed while
off school grounds.
10a
4.
On April 1, 2023, L.M.’s father sent Lyons an
email in which he asked for an explanation of the
problem with the Shirt, given that “nothing about
[the] shirt . . . was directed to any particular person”
and that “[i]t simply stated [L.M.’s] view on a subject
that has become a political hot topic . . . that is being
discussed . . . all across our country.” Lyons responded
in an email on April 4, 2023, that stated that L.M. had
not been, nor would be, disciplined for having worn
the Shirt. Lyons explained that Tucker had been
enforcing the Dress Code because the Shirt’s contents
had been understood to “target[ ] students of a
protected class; namely in the area of gender
identity.”
On April 27, 2023, L.M.’s counsel sent Lyons a
letter that asserted NMS had violated L.M.’s freespeech rights under Tinker by prohibiting him from
wearing the Shirt and that “the ‘hate speech’
provision” of the Dress Code was facially
unconstitutional. The letter further stated that L.M.
intended to wear the Shirt on May 5 and that, if NMS
“interfere[d] with [L.M.] doing so again,” it “may be
necessary” for L.M. to initiate legal action.
MPSS’s counsel responded on May 4 with a letter
that stated NMS’s actions had been justified under
applicable legal authorities. The letter stated that
state law “provides [students] protection against
discrimination, harassment and bullying on the basis
of . . . gender identity” and that those protections were
against “communications, whether oral, written, . . .
or through the wearing of apparel, that may
reasonably be considered intimidating, hostile,
11a
offensive or unwelcome based on . . . gender identity
. . . and/or may otherwise be reasonably likely to lead
to a disruption of [school] operations.” The letter
further stated that MPSS administrators would
prohibit the wearing of t-shirts “likely to be
considered discriminatory, harassing and/or bullying
. . . by suggesting that [others’] sexual orientation,
gender identity or expression does not exist or is
invalid.”
NMS’s actions attracted local and national media
coverage. L.M. participated in several interviews with
news media about the March 21 incident and became
the subject of local and national news coverage.
On April 13, two individuals stood near NMS’s
bus drop-off area, but off school property, and held
signs that read, “there are only two genders” and
“keep woke politics out our schools.” The next day,
counter-protesters standing off school property held
signs that read, “trans people belong,” “everyone is
welcome here,” and “we support trans rights.” Lyons
received complaints from community members about
both groups of individuals.
In late April and early May, Lyons, Tucker, NMS,
and Middleborough High School received a slew of
messages, emails, and phone calls related to the
controversy involving the Shirt. Lyons described some
of the calls as being “threatening in nature,” and
Tucker attested that she and other NMS staff
received “hateful messages” in emails from
individuals both within and without Massachusetts.
On May 1, 2023, NMS received over fifty
telephone messages Tucker described as “hateful and
12a
lewd.” The calls continued for about two weeks,
tapered off, and started up again around May 31.
Lyons found out about a post on the social-media
platform “X,” formerly known as “Twitter,” that listed
the NMS staff directory and stated, “if you see these
people in public, you know what to do.” In response to
some of these messages, the Middleborough Police
Department provided a police detail to NMS between
April 24 and April 28.
5.
L.M. wore the Shirt to school again on May 5. This
time he covered the words “Only Two” with a piece of
tape on which was written in marker “CENSORED”
(the “Taped Shirt”). L.M. wore the Taped Shirt to
“speak up about” and protest NMS barring him from
wearing the Shirt even though other students,
according to L.M., were permitted to express other
views on gender.
Soon after arriving at school on May 5, L.M. was
brought to Tucker’s office. While L.M. was alone in
the office, Lyons, Tucker, and school counsel
conferred and decided not to allow L.M. to wear the
Taped Shirt. L.M. ultimately took the Taped Shirt off
and returned to class. He was not disciplined for
having worn the Taped Shirt.
On May 9, two other NMS students wore t-shirts
to school that read “There Are Only Two Genders.”
Tucker met with those students and told them they
could not wear those shirts. One of the students
removed the shirt and returned to class. The other
student declined to comply, and their parents were
called. Neither student faced discipline.
13a
B.
L.M., by and through his natural guardians, filed
suit in the United States District Court for the
District of Massachusetts pursuant to 42 U.S.C. §
1983. The complaint alleged violations of L.M.’s rights
under the First and Fourteenth Amendments to the
U.S. Constitution. The complaint named as
defendants the Town of Middleborough, the
Middleborough School Committee, superintendent
Lyons, and then-interim now-acting principal Tucker
(collectively “Middleborough”).
L.M.’s complaint alleged that, by barring him
from wearing the Shirt and Taped Shirt,
Middleborough violated the First Amendment as
incorporated against the states through the Due
Process Clause of the Fourteenth Amendment. The
complaint further alleged that the Dress Code’s
prohibitions on “hate speech” that “target[s]” groups
and on clothing “unacceptable to . . . community
standards” are facially unconstitutional because they
are impermissible prior restraints, void for
vagueness, and overbroad. The complaint sought an
injunction prohibiting Middleborough from barring
L.M.’s wearing of the Shirt, Taped Shirt, and similar
t-shirts; a declaratory judgment that the challenged
portions of the Dress Code are unconstitutional, both
facially and as applied to L.M.’s t-shirts; and actual
and nominal damages.
Soon thereafter, L.M. moved for a temporary
restraining order and a preliminary injunction.
Middleborough opposed both motions.
Middleborough first noted that Massachusetts
law required schools to “develop anti-bullying plans
14a
that recognize the vulnerability of certain students”
and prevent bullying or harassment based on gender
identity and that Middleborough’s actions must be
understood in the context of guidance provided by the
Massachusetts Board of Elementary and Secondary
Education directing schools to “create a culture in
which transgender and gender nonconforming
students feel safe, supported, and fully included.”
Middleborough also reviewed the evidence of the
school administrators’ “specific knowledge of the
vulnerability of students who are members of the
LGBTQ+ community.” Middleborough then invoked
out-of-circuit decisions applying Tinker’s rights-ofothers and material-disruption limitations in
assertedly similar contexts. See Harper v. Poway
Unified Sch. Dist., 445 F.3d 1166, 1171-72, 1177–83
(9th Cir. 2006) (addressing a t-shirt in the high-school
context that displayed “Be ashamed, our school
embraced what God has condemned” on the front and
“Homosexuality is shameful” on the back), vacated as
moot by Harper ex rel. Harper v. Poway Unified Sch.
Dist., 549 U.S. 1262 (2007); Scott v. Sch. Bd. of
Alachua Cnty., 324 F.3d 1246, 1247–49 (11th Cir.
2003) (addressing high-school students’ display of a
confederate flag on school premises); Sapp v. Sch. Bd.
of Alachua Cnty., Fla., No. 09cv242, 2011 WL
5084647, at *1, *4–*5 (N.D. Fla. Sept. 30, 2011)
(addressing a t-shirt that displayed “Islam is of the
Devil” in the middle- and high-school contexts).
Based on the record and the rulings,
Middleborough argued that “it is clear that [its]
decision that [L.M.’s] message on the [Shirt] would
invade the rights of others, the rights of particularly
vulnerable students who are members of the
15a
[LGBTQ+] community (a protected class) to feel safe
in school and to be free from harassment and bullying
while in school, was reasonable.” Middleborough also
argued that “[i]t was, likewise, reasonable for [it] to
conclude that [L.M.’s] shirt would materially disrupt
classwork or involve substantial disorder in the
school.” Noting the young age of NMS’s students and
the
school’s
“active
LGBTQ+
community,”
Middleborough further argued that “[t]he level of selfadvocacy expressed by this group of students strongly
suggests that they would not sit idly by and allow
someone to deny their very existence” and that “[i]t
was . . . reasonable for the [NMS administrators] to
take proactive measure to ensure the integrity of the
learning environment in NMS.”
Middleborough separately argued that L.M. was
not likely to succeed on the merits of his as-applied
claim concerning the Taped Shirt. Middleborough
contended that, “[a]s with the message on [the Shirt],
[administrators] reasonably forecasted that the
message on [the Taped Shirt], that merely replaced
the [words ‘only two’] with the word ‘censored,’ would
not only make the LGBTQ+ students feel unsafe and
excluded in the educational environment but would
also cause a substantial disruption in the school and
was inconsistent with NMS [sic] basic educational
mission of inclusivity and creating a safe welcoming
environment for all students to learn.”
Middleborough emphasized that its decision to
bar L.M. from wearing the Taped Shirt on May 5 did
not occur “in a vacuum” and followed “the history of
disruption caused by [L.M.] wearing the [Shirt]” as
well as L.M.’s attorney having “linked the two shirts
by making [Middleborough] aware that [L.M.] was
16a
going to wear the same shirt to school on May 5.”
Middleborough thus argued that it “could reasonably
forecast that [the Taped Shirt] would cause
disruption and would interfere in the rights of other
students under the circumstances.”
As to L.M.’s First Amendment-based facial
claims, Middleborough first contended that he did not
have Article III standing to challenge the Dress Code.
Middleborough also contended, in the alternative,
that the prohibition on clothing depicting “hate
speech that target[s] groups based [on,] among other
protected categories, sexual orientation or gender
identity,” was not overbroad because it “comport[ed]
with the laws and regulations that protect[ ] students
from discrimination, harassment and bullying.”
Middleborough separately contended that L.M. was
unlikely to succeed on his Due Process-based facial
claims because L.M. was never disciplined and did not
“articulate . . . what process he claims he is or was
due” given that the handbook containing the Dress
Code
“provides
disciplinary
guidelines
and
procedures.”
The District Court denied the temporaryrestraining-order motion on June 1 and the
preliminary-injunction motion on June 16. In denying
the latter motion, the District Court reviewed the
evidence of what Middleborough knew about students
at NMS and those students’ vulnerability before
turning to the merits.
With respect to the March 21 incident involving
the Shirt, the District Court concluded that the
“school administrators were well within their
discretion to conclude” that the message displayed on
17a
the Shirt “may communicate that only two gender
identities -- male and female -- are valid, and any
others are invalid or nonexistent.” The District Court
reasoned Tinker’s rights-of-others limitation applied,
because “students who identify differently . . . have a
right to attend school without being confronted by
messages attacking their identities.” The District
Court thus concluded that L.M. had failed to establish
a likelihood of success on the merits because he could
not “counter [Middleborough’s] showing” that it had
enforced the Dress Code on March 21 “to protect
[against] the invasion of the rights of other students
to a safe and secure educational environment.”
With respect to the May 5 incident involving the
Taped Shirt, the District Court concluded that the
analysis was no different. The District Court
concluded that L.M. could not show a likelihood of
success, because Middleborough could “reasonably
conclude that the Taped Shirt did not merely protest
censorship but conveyed the ‘censored’ message and
thus invaded the rights of other students.” In a
footnote, the District Court explained that, in light of
its rulings, it did not need to determine if Tinker’s
material-disruption limitation would also be
applicable to any of L.M.’s claims. The District Court
thus did not address the possible relevance of any of
the evidence concerning what had occurred at NMS
between March 21 and May 5 or thereafter.
Finally, the District Court ruled L.M. had no
likelihood of success with respect to his facial
challenges. It reasoned that was so because the Dress
Code both “does not threaten discipline for a violation
. . . that has not been specifically identified by the
school as improper” and “provides that if students
18a
wear something inappropriate to school, they will be
asked to call their parent/guardian to request that
more appropriate attire be brought to school” (cleaned
up).
L.M. filed a notice of interlocutory appeal of the
District Court’s ruling on June 23, 2023. On July 17,
the parties filed a joint motion for final judgment
pursuant to Federal Rules of Civil Procedure 54(a),
56, and 65(a)(2). The parties “agreed that, based on
the factual record as established through the
preliminary injunction proceedings, judgment as a
matter of law [was] appropriate” and asked the
District Court to convert its ruling into a final
judgment because the “interests of the Parties . . . will
be better served by an appeal from a final judgment.”
The parties clearly expressed that they “continue to
dispute the proper legal outcome of [L.M.’s]
constitutional claims.”
Two days later, the District Court entered final
judgment for Middleborough as to all L.M.’s claims,
incorporating the reasoning from the preliminaryinjunction ruling. L.M. timely appealed, and on
August 15, 2023, this Court granted the parties’ joint
motion to consolidate the appeals.
II.
The parties agree that the factual record needs no
further development, and neither party contends that
any material facts are in dispute. Our review is de
novo. See García-Rubiera v. Calderón, 570 F.3d 443,
455-56 (1st Cir. 2009).
We recognize that “where First Amendment
interests are implicated, our review must be more
19a
searching,” Mullin v. Town of Fairhaven, 284 F.3d 31,
37 (1st Cir. 2002), as we have an obligation “to
independently review the factual record to ensure
that the [lower] court’s judgment does not unlawfully
intrude on free expression,” Boy Scouts of America v.
Dale, 530 U.S. 640, 648-49 (2000). We note, too, that
the parties agree Tinker governs this dispute and
“places the burden on the school to justify student
speech restrictions.” Norris ex rel. A.M. v. Cape
Elizabeth Sch. Dist., 969 F.3d 12, 25 (1st Cir. 2020).
The parties do not dispute that school administrators
“may rely only on the justification originally provided
to” L.M. for restricting his speech. Id. at 28.
III.
L.M. contends that the District Court’s First
Amendment-related rulings on his claims -- both
facial and as-applied -- for monetary, declaratory, and
injunctive relief conflict with Tinker. But, as we will
explain, regardless of whether Tinker’s rights-ofothers limitation applies here, we conclude that
Tinker’s material-disruption limitation does. 1 We
thus affirm the District Court’s Tinker-based rulings
on that ground -- save for one of the First
Amendment-related facial claims, for which we
conclude that L.M. lacks Article III standing. See
United States v. George, 886 F.3d 31, 39 (1st Cir.
2018) (“We are at liberty to affirm a district court’s
1 One of the amici argues that Middleborough could not rely
on Tinker’s rights-of-others limitation as a matter of state law,
but “we need not address” that contention “[b]ecause the parties
did not raise the issue,” Norris, 969 F.3d at 33 n.22, and because
we affirm under Tinker’s material-disruption limitation.
20a
judgment on any ground made manifest by the
record.”).
We dive into the details of L.M.’s challenges to the
District Court’s Tinker-based rulings in Parts IV and
V. First, however, we need to set forth the legal
framework that, under Tinker, we understand to
apply in this context. We thus now explain what that
framework is and our reasons for embracing it. 2
A.
As we noted above, the District Court relied solely
on Tinker’s rights-of-others limitation in upholding
Middleborough’s actions. Specifically, the District
Court held that “students who identify differently . . .
have a right to attend school without being confronted
by messages attacking their identities” and that L.M.
could not “counter [Middleborough’s] showing” that
Middleborough had enforced the Dress Code on both
days “to protect [against] the invasion of the rights of
other students to a safe and secure educational
environment.”
There is some uncertainty, however, as to when,
if ever, the rights-of-others limitation applies to
passive and silent expression that does not target any
specific student or students but assertedly demeans a
2 Our analysis does not address Tinker’s application in a
post-secondary school setting. Cf. Sypniewski v. Warren Hills
Reg’l Bd. of Educ., 307 F.3d 243, 267 (3d Cir. 2002) (“[T]he public
school setting is fundamentally different from other contexts,
including the university setting.”); Hardwick ex rel. Hardwick v.
Heyward, 711 F.3d 426, 443 (4th Cir. 2013) (“Elementary and
secondary schools are undoubtedly different than colleges . . .
and this distinction results in different legal standards in some
instances.”).
21a
personal characteristic like race, sex, religion, or
sexual orientation that other students at the school
share. Tinker itself had no reason to address how, or
whether, such speech implicates that limitation, as
the armbands at issue there were not asserted to
espouse any message other than opposition to the
Vietnam War and did not -- unlike the t-shirts here -refer to any such personal characteristic. See 393 U.S.
at 510-11.
Tinker also did not elaborate on the contents of
“the rights of other students to be secure and to be let
alone.” Id. at 508. The Court did cite approvingly, id.
at 513, to a Fifth Circuit decision that upheld school
officials’ authority to forbid the wearing of “freedom
buttons” at school based on evidence that “actions by
the students in distributing [the] buttons, pinning
[the buttons] on others, and throwing [the buttons]
through windows constituted a complete breakdown
in school discipline.” Blackwell v. Issaquena Cnty. Bd.
of Educ., 363 F.2d 749, 754 (5th Cir. 1966). But no
physically coercive conduct by the speaker is involved
here. And while the rights-of-others limitation
appears to encompass tortious speech more generally,
see Kuhlmeier v. Hazelwood Sch. Dist., 795 F.2d
1368, 1375-77 (8th Cir. 1986), rev’d on other grounds
by Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260
(1988), there is no developed contention that speech
of that sort is involved here either.
The Supreme Court has recently affirmed schools’
authority to regulate “severe bullying and
harassment,” but the Court did so without specifying
whether schools may do so pursuant to the rights-ofothers limitation. See Mahanoy Area Sch. Dist. v. B.L.
ex rel. Levy, 594 U.S. 180, 188 (2021). The Court
22a
merely emphasized that the “special characteristics”
of the public-school context afford schools “special
leeway when [they] regulate speech that occurs under
[their] supervision.” Id.
There has been discussion in post-Tinker caselaw
about whether the rights-of-others limitation applies
only to circumstances in which the speech in question
would be independently unlawful and there is no
developed contention that the speech involved here is.
But the Court has made clear that it has not decided
whether the limitation is so limited. See Kuhlmeier,
484 U.S. at 273 n.5.
For our part, we have held that the rights-ofothers limitation applies in the case of bullying, even
when there is no physical invasion of any kind -seemingly without regard to whether the state
separately makes such bullying a source of tort
liability. See Doe v. Hopkinton Pub. Schs., 19 F.4th
493, 507-09 (2021); cf. Norris, 969 F.3d at 29. Beyond
that, though, we have not addressed the scope of that
limitation. We note that the bullying speech in Doe
and Norris was asserted to target a specific student.
But there is no contention that L.M.’s speech
similarly was, notwithstanding that it addressed in
general terms a characteristic of personal identity
that other students at the school shared.
At the same time, it is not obvious how passive,
silently expressed student speech that targets no
specific students but demeans characteristics like
those described above relates to the materialdisruption limitation. Given the nature of the
expression involved in Tinker, the Court there had no
occasion to address such a question directly. The
23a
evidence of disruption the Court concluded was
missing appeared to relate to “aggressive, disruptive
action,” “group demonstrations,” or “threats or acts of
violence on school premises” that would impede a
school from carrying out its educational mission and
not to the possible negative psychological effects of the
speech in question on a subset of students. 393 U.S.
at 508.
More recently the Court addressed a school’s
attempt to regulate off-campus speech under the
material-disruption limitation. See Mahanoy, 594
U.S. at 193. In doing so, the Court made clear that the
standard for showing the limitation applied was
“demanding.” Id.
We also have not had occasion to address how or
whether the material-disruption limitation is
implicated by expression that assertedly demeans a
characteristic of personal identity like race, sex,
religion, or sexual orientation. So, our precedent, too,
does not offer any direct guidance on that score.
There is, however, an extensive body of federal
court caselaw that applies Tinker in circumstances -akin to those present in this case -- involving passive
and silently expressed messages by students that do
not target specific students but that assertedly
demean other students’ personal characteristics, like
race, sex, religion, or sexual orientation. As we will
explain, those rulings address when school
authorities may regulate such expression and
whether they may do so to prevent a “material[ ]
disrupt[ion]” of the classroom, a “collision with the
rights of other students to be secure and to be let
alone,” or both. Tinker, 393 U.S. at 508, 513. We thus
24a
now review those rulings for the guidance that they
may offer here.
B.
Two circuit-level rulings in this line have relied
on the rights-of-others limitation. The first is the nowvacated-as-moot Ninth Circuit decision in Harper v.
Poway Unified School District, 445 F.3d 1166 (9th Cir.
2006), vacated as moot by Harper ex rel. Harper v.
Poway Unified School District, 549 U.S. 1262 (2007),
which affirmed the denial of a preliminary injunction
to prevent public high-school officials from barring a
student from wearing a t-shirt that read
“Homosexuality is Shameful.” Id. at 1178.
Harper reasoned that “[b]eing secure involves not
only freedom from physical assaults but from
psychological attacks that cause young people to
question their self-worth” and that “[t]he ‘right to be
let alone’ ” is a “ ‘recognizable privacy interest . . .’
[that is] perhaps most important 'when persons are
“powerless to avoid it.” ’ ” Id. (quoting Hill v. Colorado,
530 U.S. 703, 714-16 (2000)). The court explained that
speech that strikes at a “core characteristic” of a
minority group’s identity has a “detrimental” effect on
“[the students’] psychological health . . . [and]
educational development” and, in so explaining,
relied on social-science literature, of which it took
judicial notice, that concluded such denigration is
“harmful . . . to [those students’] educational
performance.” Id. at 1178-79.
Harper concluded that the school “had a valid and
lawful basis” for barring the t-shirt under the rightsof-others limitation, because the shirt’s message “was
injurious to gay and lesbian students and interfered
25a
with their right to learn.” Id. at 1180. In so holding,
Harper appeared to presume that t-shirts could be
restricted in a high school pursuant to the rights-ofothers limitation whenever their denigrating message
was “directed at students’ minority status such as
race, religion, and sexual orientation.” Id. at 1183.
The second rights-of-others ruling is West v.
Derby Unified School District No. 260, 206 F.3d 1358,
1362, 1365-68 (10th Cir. 2000), in which the Tenth
Circuit rejected a First Amendment challenge to the
suspension of a middle-school student for his violating
the school district’s racial-harassment policy by
drawing a confederate flag in class. Notably, however,
Derby concluded that the school district “had reason
to believe that a student’s display of the Confederate
flag” would not only “interfere with the rights of other
students to be secure and let alone” but also “cause
disruption.” Id. at 1366. The court did so, moreover,
without suggesting that different showings were
necessary to trigger each limitation. Id. at 1366.
Unlike Harper, however, Derby neither explained
why the rights of other students “to be secure and to
be let alone” were implicated nor relied on a
presumption about the negative psychological impact
on minority students of the expression. The court
instead relied on the factual predicate of racial
tensions in the school district, which included
students spray painting racist and threatening
graffiti in school bathrooms, a fight breaking out
because a student wore a confederate-flag headband,
and students responding to displays of the flag with tshirts bearing the letter “ ‘X,’ denoting support for the
teachings of Malcolm X.” Id. at 1362, 1366-67. Derby
made clear, though, that administrators had acted
26a
reasonably even with respect to the middle schooler’s
drawing of the flag, notwithstanding that the more
extreme incidents occurred at the high school and “the
[racial] tensions were not widespread and involved
relatively few students at the middle school.” Id. at
1362.
Several rulings in this line have relied on similar
logic in invoking the material-disruption limitation to
approve of a school’s authority to regulate seemingly
similar expression. But, in doing so, those rulings
have either expressly eschewed reliance on, or simply
not mentioned, the rights-of-others limitation.
Nuxoll ex rel. Nuxoll v. Indian Prairie School
District #204 is an example. There, the Seventh
Circuit addressed a school rule barring “ ‘derogatory
comments,’ oral or written, ‘that refer to race,
ethnicity, religion, gender, sexual orientation, or
disability’ ” as applied to a t-shirt bearing the message
“Be Happy, Not Gay.” 523 F.3d 668, 670 (7th Cir.
2008).
The court acknowledged as “prudent” the
student’s concession that the message “homosexuals
go to Hell” could be barred as “fighting words.” Id. at
671. But the court made clear that, the “fighting
words” category aside, Tinker also permitted school
officials to restrict some passive, silent expression of
derogatory
comments
that,
by
demeaning
characteristics of “personal identity” such as those
listed in the rule, “strike a person at the core of his
being” because of how “unalterable” or “otherwise
deeply rooted” those characteristics are. Id. at 671.
And that was so, Nuxoll made clear, even if the speech
27a
did not expressly target specific students. Id. at 672,
674.
Like Harper, Nuxoll noted evidence suggesting
“that adolescent students subjected to derogatory
comments about such characteristics may find it even
harder than usual to concentrate on their studies and
perform up to the school’s expectations.” Id. at 671
(collecting social-science literature). The court also
observed that it could “foresee” that other students
might respond with “negative comments on the Bible”
or the religious characteristic of the speaker and
thereby “poison the school atmosphere” and
“deterior[ate] the school’s ability to educate its
students.” Id. at 671. As the court put it, “[m]utual
respect and forbearance enforced by the school may
well be essential to the maintenance of a minimally
decorous atmosphere for learning.” Id.
Nuxoll rejected the school’s assertion, however,
that the school rule could be upheld against a facial
attack under Tinker because “all” it does is “protect
the ‘rights’ of the students against whom derogatory
comments are directed.” Id. at 672. Nuxoll instead
stated the school was “on stronger ground” in
contending that, because the rule “strikes a
reasonable balance between . . . free speech and
ordered learning,” the material-disruption limitation
justified the rule. Id. at 672-73.
Nuxoll pointed to the “psychological effects” of
such expression and reasoned that a “material
disruption” under Tinker need not involve violence
and could involve “a decline in students’ test scores,
an upsurge in truancy, or other symptoms of a sick
school -- symptoms therefore of substantial
28a
disruption.” Id. at 671, 674. Nuxoll then indicated
that speech demeaning the characteristics of personal
identity that the school’s rule covered could be
prohibited under Tinker’s material-disruption
limitation if school authorities could reasonably
forecast that the speech would have “psychological
effects” on students with those characteristics that
would yield such “symptoms.” Id. at 674. 3
The court held that, on its face, “Be Happy, Not
Gay” was only “tepidly negative” and so would not
have “even a slight tendency . . . to poison the
educational atmosphere,” thereby clarifying that it
might matter how “negative” the message was. Id. at
676. 4 Indeed, Nuxoll suggested that a case involving
a t-shirt “on which was written ‘blacks have lower IQs
than whites’ or ‘a woman’s place is in the home’ ”
would be different because of the “psychological
effects” on students with the demeaned characteristic
of that expression. Id. at 674. And, in reversing with
instructions to enter a preliminary injunction and
remanding for further proceedings, Nuxoll observed
that “[t]he district judge will be required to strike a
careful balance between the limited constitutional
right of a high-school student to campaign inside the
school against the sexual orientation of other
3 In context, we understand Nuxoll to have been referring
to absenteeism and declining academic performance among the
students with the demeaned characteristic suffering the
“psychological effects” of being exposed to, and demeaned by, the
expression. See id. at 674.
4 In reasoning that “Be Happy, Not Gay” was only “tepidly
negative” -- and not “derogatory” or “demeaning” -- the Seventh
Circuit noted that “ ‘gay’ used to be an approximate synonym for
‘happy’ ” and, thus, the message’s negative import would not be
clear on its face without cultural context. Id. at 675-76.
29a
students and the school’s interest in maintaining an
atmosphere in which students are not distracted from
their studies by wrenching debates over issues of
personal identity.” Id. at 676.
The Seventh Circuit revisited the same
expression and school in Zamecnik v. Indian Prairie
School District No. 204, 636 F.3d 874 (7th Cir. 2011).
Zamecnik acknowledged that “[s]chool authorities are
entitled to exercise discretion in determining when
student speech crosses the line between hurt feelings
and substantial disruption of the educational
mission” but still concluded that the high school had
failed to adduce sufficient evidence to ground a
forecast of future material disruption. Id. at 877-78.
Importantly, Zamecnik held, “the fact that
homosexual students and their sympathizers
harassed [the plaintiff] because of their disapproval of
her message [was] not a permissible ground for
banning it” because otherwise protected speech “met
by ... unprivileged retaliatory conduct” cannot be
suppressed because of that conduct. Id. at 879. But
Zamecnik did not question Nuxoll’s observation that
schools had a legitimate interest in regulating
expression that is especially demeaning out of a
concern that, if students “attack[ed] each other with
wounding words” about one another’s personal
characteristics, such a “First Amendment free-forall[ ]” could “poison the school atmosphere,” Nuxoll,
523 F.3d at 671-72, 675, or “cause serious disruption
of the decorum and peaceable atmosphere of an
institution dedicated to the education of the youth,”
Zamecnik, 636 F.3d at 877. “A school has legitimate
responsibilities, albeit paternalistic in character,
toward the immature captive audience that consists
30a
of its students,” the court explained, “including the
responsibility of protecting them from being seriously
distracted from their studies by offensive speech
during school hours.” Id. at 879-80. Thus, in holding
that “Be Happy, Not Gay” would not “have even a
slight tendency to . . . poison the educational
atmosphere,” the court did not suggest that the
outcome would be the same for a more overtly
demeaning message and, if anything, indicated the
opposite. See id. at 876–78. 5
The Third Circuit in Sypniewski v. Warren Hills
Regional Board of Education, 307 F.3d 243 (3d Cir.
2002), similarly relied on the material-disruption
limitation to assess the facial validity of a school
district's racial-harassment policy and its application
to bar a student from wearing a t-shirt displaying the
term “redneck.” 6 Sypniewski observed that “ ‘[t]he
5 This reasoning in Nuxoll and Zamecnik mirrored the
Seventh Circuit’s earlier analysis in Muller ex rel. Muller v.
Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996),
overruled on other grounds by N.J. by Jacob v. Sonnabend, 37
F.4th 412, 424-25 (7th Cir. 2022), with respect to younger
students. “[An adult] Christian can tell the Jew he is going to
hell, or the [adult] Jew can tell the Christian he is not one of
God’s chosen,” Muller opined without reference to either Tinker
limitation, but “it makes no sense to say that the overly zealous
Christian or Jewish child in an elementary school can say the
same thing to his classmate.” Id. at 1540. Muller also explained
that elementary-school officials could restrict “[r]acist and . . .
hateful views” that “could crush a child’s sense of self-worth.” Id.
(emphasis added).
6 Sypniewski followed the Third Circuit’s decision in Saxe v.
State College Area School District, which held that a school
district’s anti-harassment policy could not pass constitutional
muster under the material-disruption limitation insofar as the
policy barred speech “intended to [cause disruption]” and speech
31a
mere fact that expressive activity causes hurt
feelings, offense, or resentment does not render the
expression unprotected’ ” and that the prohibition on
written materials that create “ill will” was overbroad
under Tinker because it could not be reasonably
interpreted to refer to “something more than mere
offense.” Id. at 264-65 (quoting R.A.V. v. City of St.
Paul, 505 U.S. 377, 414 (1992) (White, J.,
concurring)).
At the same time, Sypniewski upheld the portion
of the policy prohibiting materials that “create[ ] . . .
hatred,” because the term “hatred” “implie[d] such
strong feelings that a serious possibility of disruption
might be inferred.” Id. (emphases added). Moreover,
Sypniewski upheld the prohibition on “name calling”
in part because “[a]lthough mere offense is not a
justification for suppression of speech, schools are
generally permitted to step in and protect students
from abuse.” Id. at 264. And, with respect to the asapplied claim, the court seemingly approved the
school’s authority to bar the confederate flag, given its
connection to a student gang known as “the Hicks”
and past incidents of racial tension involving its
members, but not the “redneck” t-shirt, because of the
lack of evidence indicating that students would react
to that word in light of the district’s past racial
disturbances. See id. at 254-57.
that creates a “hostile environment” without “any threshold
showing of severity or pervasiveness[,]” 240 F.3d 200, 216-17 (3d
Cir. 2001) (emphasis added). In so holding, Saxe noted that the
“precise scope of Tinker’s [rights-of-others limitation] is unclear”
but that “it is certainly not enough that the speech is merely
offensive to some listener.” Id. at 217.
32a
Thereafter, the Eleventh Circuit also relied on
Tinker’s material-disruption limitation in holding
that high-school students could be disciplined for
displaying confederate flags on school grounds. See
Scott, 324 F.3d at 1247-48. “Public school students’
First Amendment rights . . . should not interfere with
a school administrator’s professional observation that
certain expressions have led to, and therefore could
lead to, an unhealthy and potentially unsafe learning
environment for the children they serve.” Id. at 1247.
And, in accord with Nuxoll, Scott indicated a school
would not need evidence of past violence at the school
to deem the expression materially disruptive: “[O]ne
only needs to consult the evening news to understand
the concern school administrators had regarding the
disruption . . . emotional trauma and outright
violence which the display of the symbols involved in
this case could provoke.” Id. (emphasis added).
Indeed, the court noted that “[w]ords like ‘symbol’,
‘heritage’, ‘racism’, ‘power’, ‘slavery’, and ‘white
supremacy’ are highly emotionally charged” and that
it is “constitutionally allowable for school officials to
closely contour the range of expression children are
permitted regarding such volatile issues.” Id. at 1249.
Scott reasoned both that “[p]art of a public school’s
essential mission” is “teach[ing] students of differing
races, creeds and colors to engage each other in civil
terms rather than in ‘terms of debate highly offensive
or highly threatening to others’ ” and that the school
had not “attempted to suppress civil debate on racial
matters” but only those symbols “[so] associated with
racial prejudice [and] so likely to provoke feelings of
hatred and ill will in others that they are
inappropriate in the school context.” Id. (quoting
33a
Denno v. Sch. Bd. of Volusia Cnty., Fla., 218 F.3d
1267, 1273 (11th Cir. 2000)).
The Sixth Circuit reached a similar conclusion in
Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008), which also
upheld a school district’s ban on displays of the
confederate flag. The court first rejected the students’
argument that the school board’s forecast of future
disruption was unreasonable because there was no
evidence that the confederate flag itself had caused
past disruption on the ground that “Tinker . . . does
not require that the banned form of expression itself
actually have been the source of past disruptions.” Id.
at 565. Barr then concluded that the record “belie[d]”
the students’ arguments that racial tensions at the
school were not as high as the board claimed, there
was “minimal evidence of prior disruption,” and thus
there was little basis for anticipating future
disruption. Id. at 556-66. To those points, the court
observed that “[t]here is no requirement that
disruption under Tinker be violent” and that “an
increase in absenteeism” is “the epitome of disruption
in the educational process.” Id. at 566.
More recently, in Sapp v. School Board of Alachua
County, Florida, No. 09-cv-242, 2011 WL 5084647
(N.D. Fla. Sept. 30, 2011), a district court in the
Eleventh Circuit drew on Scott to uphold a school
district’s ban on wearing t-shirts at school that read
“Islam is of the Devil.” The court first pointed to past
incidents of disturbance, such as a high-school
football game where attendees wearing the t-shirts
had been asked to leave after a student became deeply
upset and the principal of the elementary school
“received disturbing and threatening emails.” Id. at
*4-5. Sapp then upheld the administrators’ actions
34a
under Tinker’s material-disruption limitation
because administrators had forecasted that, based on
their years of experience as educators, the t-shirts’
demeaning message would “lead to an unnecessary
distraction and a hostile environment.” Id. at *5. The
court credited determinations by administrators that
“the message was offensive and demeaning to [the
school’s twenty-five] Muslim students . . . and could
cause an unsafe environment due to the polarizing
effect of the anti-Islamic message,” id. at *5 & n.3;
that t-shirts that “single[ ] out a group of people and
call[ ] them evil” would lead to unnecessary
distraction, id. at *5; and that such a message being
displayed on a t-shirt would “foster a hostile and
intimidating atmosphere for students” and
“compromise[ ] the school’s ability to provide [an] . . .
effective educational setting,” id.
C.
The reasoning of these rulings suggests that
distinctions between the two Tinker limitations in the
context of student speech that assertedly demeans
personal characteristics -- like race, sex, religion, or
sexual orientation -- may be more semantic than real.
Doctrinal labels aside, these courts appear to have
converged on the shared understanding -- most fully
articulated in Nuxoll -- that school officials may bar
passive and silently expressed messages by students
at school that target no specific student if: (1) the
expression is reasonably interpreted to demean one of
those characteristics of personal identity, given the
common understanding that such characteristics are
“unalterable or otherwise deeply rooted” and that
demeaning them “strike[s] a person at the core of his
being,” Nuxoll, 523 F.3d at 671; cf. Saxe, 240 F.3d at
35a
206 (noting the especially incendiary nature of
“disparaging comment[s] directed at an individual’s
sex, race, or some other personal characteristic”
(emphasis added)); and (2) the demeaning message is
reasonably forecasted to “poison the educational
atmosphere” due to its serious negative psychological
impact on students with the demeaned characteristic
and thereby lead to “symptoms of a sick school -symptoms therefore of substantial disruption,”
Nuxoll, 523 F.3d at 674, 676. 7
Our review of these rulings persuades us that
Tinker permits public-school authorities to regulate
such expression when they can make the two
showings described above. We agree that those
showings suffice to ensure that speech is being barred
only for reasons Tinker permits and not merely
because it is “offensive” in the way that a
controversial opinion always may be. See 393 U.S. at
509.
Importantly, although the standard for showing a
material disruption is “demanding,” Mahanoy, 594
U.S. at 193, a school need not be certain of its forecast.
“[T]aking the case law as a whole we don’t think a
7 Harper is no exception despite holding that the rights-of-
others limitation permitted the restriction of such demeaning
speech only if it was “directed at students’ minority status.” 445
F.3d at 1183. Harper left little doubt that Tinker permits the
restriction of expression in such circumstances as described
above, as it explained that expression demeaning a
characteristic of a majority rather than minority group “is more
likely to fall under the ‘substantial disruption’ prong of Tinker”
and that its ruling left open “the possibility that some verbal
assaults on core characteristics of majority high school students
would merit application of [the rights-of-others limitation].” Id.
at 1183 n.28.
36a
school is required to prove that unless the speech at
issue is forbidden serious consequences will in fact
ensue. That could rarely be proved. . . . It is enough
for the school to present ‘facts which might reasonably
lead school officials to forecast substantial
disruption.’ ” Nuxoll, 523 F.3d at 673 (quoting
Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134
F.3d 821, 827-28 (7th Cir. 1998)) (collecting cases). As
the Sixth Circuit explained, “Tinker does not require
school officials to wait until the horse has left the barn
before closing the door.” Lowery v. Euverard, 497 F.3d
584, 591-92 (6th Cir. 2007).
There is also the question whether public schools
may regulate student expression based on these two
showings pursuant to only one of Tinker’s two
limitations and, if so, which one. As we earlier
explained, there is no clear answer in controlling
precedent to that question. Our review of the rulings
discussed above also reveals no obvious rationale for
concluding that one limitation applies to the exclusion
of the other.
Nonetheless, most federal courts in this line of
authority have identified the material-disruption
limitation as the better fit. And while it may be that - as Derby appears to have concluded -- the rights-ofothers limitation applies, we see no reason to break
with that consensus view. The material-disruption
limitation has served as a workable doctrinal means
of accounting for the concerns that arise in this
context and that Tinker requires us to assess. It
usefully permits the depth of the expression’s
disruptive impact on the learning environment to be
evaluated in relation to myriad school contexts and
37a
the myriad forms that assertedly demeaning speech
may take.
D.
All that said, L.M. does argue that Tinker bars
schools from regulating student speech based on the
its “subjective psychological intrusion[ ]” on listeners.
For that reason, he contends, we may not uphold
Middleborough’s actions here under Tinker based on
a forecast of disruption that is rooted in the
psychological effects on other students of expression
that is passive, silent, and targets no specific
students. But his reasons do not convince us to reject
the framework drawn from the long line of authority
described above.
L.M. is right that we must be sensitive to Tinker’s
overarching concern about “punish[ing]” students for
“silent, passive expressions of opinion, unaccompanied by any disorder or disturbance on the part of”
the speakers themselves. 393 U.S. at 508. Tinker
stressed that “in our system, undifferentiated fear or
apprehension of disturbance is not enough to
overcome the right to freedom of expression” because
the reality is that “[a]ny departure from absolute
regimentation may cause trouble.” Id. Tinker
observed that “[a]ny variation from the majority’s
opinion may inspire fear. Any word spoken, in class,
in the lunchroom, or on the campus, that deviates
from the views of another person may start an
argument or cause a disturbance.” Id. But, because
“our Constitution says that we must take this risk,”
the Court explained that, for a school “to justify
prohibition of a particular expression of opinion, it
must be able to show that its action was caused by
38a
something more than a mere desire to avoid the
discomfort and unpleasantness that always
accompany an unpopular viewpoint.” Id. at 508-09
(emphases added).
In short, L.M. is right that Tinker establishes that
public schools cannot “confine[ ]” students “to the
expression of those sentiments that are officially
approved,” as “school officials cannot suppress
‘expressions of feelings with which they do not wish to
contend.’ ” Id. at 511 (quoting Burnside v. Byars, 363
F.2d 744, 749 (5th Cir. 1966)). Thus, it does not permit
a “hurt feelings” exception that any opinion that could
cause “offense” may trigger. Zamecnik, 636 F.3d at
877. Otherwise, school authorities could do what
Tinker clearly forbids: protect other students “from
the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” 393 U.S. at 509
(emphasis added).
None of the decisions in the line of authority just
reviewed, Harper included, however, purported to
permit reliance on an “undifferentiated fear or
apprehension of disturbance” or a desire to avoid the
“trouble” that accompanies “[a]ny departure from
absolute regimentation.” Id. at 508 (emphases added).
Each found that there was “something more” than the
“mere desire to avoid . . . discomfort and unpleasantness” involved. Id. at 509 (emphasis added).
We recognize that L.M. contrasts regulable
speech that causes a negative psychological impact on
others, such as bullying or harassing speech, see Doe,
19 F.4th at 508-09; Chen ex rel. Chen v. Albany
Unified Sch. Dist., 56 F.4th 708, 718 (9th Cir. 2022);
C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1146-47,
39a
1152 (9th Cir. 2016), with passive, silent expression
that is not similarly targeted at specific students.
L.M. does so on the ground that the former species of
speech is “coercive” because it pervasively and
repeatedly targets specific students, while the latter
species results in what he contends is merely a
“subjective psychological intrusion[,]” such that, in
his view, the speech may not be regulated under
Tinker.
But L.M. himself acknowledged at oral argument
that schools could bar silent, passive expression that
described persons who identify as transgender in
obviously highly demeaning terms but targeted no
specific individual. 8 And while L.M. concedes only
that such expression would constitute “fighting
words,” see R.A.V., 505 U.S. at 383-84, 386, much as
the plaintiff argued in Nuxoll about a similarly highly
demeaning message (“homosexuals go to hell”), 523
F.3d at 670-71, we do not see how the fighting-words
rubric is more illuminating than, and thus preferable
to, the material-disruption rubric.
To that point, by invoking the “fighting words”
doctrine, L.M. is embracing, necessarily, the notion
that words that otherwise would not constitute
8 Specifically, L.M. conceded that a school could bar a shirt
displaying the message “All Trans Kids Are Retarded.” We do
not use that language lightly, but the example clarifies that all
parties agree that there are messages so overtly and highly
demeaning of a personal characteristic that, if displayed on a
shirt, can be restricted by a school based solely on its words, even
if no specific students are targeted. From this example it would
appear the parties also would agree that known religious, racial,
and sex- and sexual-orientation-related slurs also fall within this
category of overtly and highly demeaning speech.
40a
“fighting words” may be so deemed in the publicschool setting because of the heightened psychological
sensitivities of school children. After all, even such
highly demeaning expression as L.M. thinks
regulable would not constitute “fighting words”
outside a school. See Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942) (“[Fighting words are] words
. . . which by their very utterance . . . tend to incite an
immediate breach of the peace.”); United States v.
Bartow, 997 F.3d 203, 207-09 (4th Cir. 2021)
(recognizing that speaking “even the most egregious
racial slur,” without more, “is not a fighting word per
se” and that “fighting words” are limited to “direct
personal insults” that are “directed to the person of
the hearer” (internal citations omitted)). Yet, we find
it strange that school authorities could respond to
demeaning speech when its “psychological effects,”
Nuxoll, 523 F.3d at 674, are strong enough to provoke
“violent resentment” by other students, cf. Gooding v.
Wilson, 405 U.S. 518, 528 (1972) (describing fighting
words as language that “when used to or of another
person, and in his presence, naturally tend to provoke
violent resentment”), but not when those effects are
strong enough to “crush a child’s sense of self-worth,”
Muller, 98 F.3d at 1540, and so impede that child’s
ability to learn, see Trachtman v. Anker, 563 F.2d
512, 520 (2d Cir. 1977) (Gurfein, J., concurring)
(observing in applying Tinker in a high-school setting
that “a blow to the psyche may do more permanent
damage than a blow to the chin”), or otherwise “poison
the educational atmosphere,” Nuxoll, 523 F.3d at 676,
and so lead to “symptoms of a sick school,” id. at 674.
Relatedly, L.M. does not suggest that Derby (on
which the District Court here relied) was wrong to
41a
uphold the restriction on the passive, silent display of
the confederate flag. He argues only that the
confederate flag is distinguishable from his speech
because, on his account, his “messages about gender
. . . aren’t remotely comparable to the Confederate
flag, which flew over a breakaway polity dedicated to
the slavery of African Americans.” Thus, in this way,
too, L.M.’s real challenge appears to turn on a
question of degree and not kind about the nature of
the message -- a question to which we will turn our
attention shortly. Cf. Morse v. Frederick, 551 U.S.
393, 409-10 (2007) (“Stripped of rhetorical flourishes,
then, the debate [with the dissent] . . . is less about
constitutional first principles than about whether
[the student’s] banner constitutes promotion of illegal
drug use. . . . [A] contrary view on that relatively
narrow question hardly justifies sounding the First
Amendment bugle.”).
We should add that, consistent with the line of
authority that we find persuasive, the Supreme Court
post-Tinker has itself credited school authorities’
concerns about the serious negative psychological
impact of student expression on other students. It did
so in holding that a student could be disciplined for a
lewd speech at a school assembly in part because the
speech “was acutely insulting to teenage girl
students” and “could well be seriously damaging to its
less mature audience.” Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675, 683-85 (1986) (emphasis added).
To be sure, L.M. does point to three circuit rulings
that he contends support his position: Saxe, 240 F.3d
200 (3d Cir. 2001); Sypniewski, 307 F.3d 243 (3d Cir.
2002); and Zamecnik, 636 F.3d 874 (7th Cir. 2011).
But none undermines the Tinker framework that we
42a
distill from the large body of federal court rulings in
this area, and indeed, all three are in that line.
L.M. is right that Saxe held that a school district’s
anti-harassment policy was overbroad under Tinker.
But Saxe did not set forth a categorical rule protecting
such derogatory expression when passively and
silently expressed. It instead drew a distinction
between “speech about some enumerated personal
characteristic[ ]” that is “merely offensive to some
listener” and speech of that kind where there is some
“threshold showing of severity” in the educational
environment caused by the speech. Id. at 216-17
(emphasis added). Thus, Saxe concluded that, while
the school district had a “compelling interest in
promoting an educational environment that is safe
and conducive to learning,” the school district could
not prohibit “derogatory” speech about “such
contentious issues as ‘racial customs,’ ‘religious
tradition’ . . . [or] ‘sexual orientation’ ” without a
“particularized reason as to why it anticipates
substantial disruption.” Id. at 217.
Sypniewski, which followed Saxe, is no different.
As we have seen, it, too, deemed a school policy
restricting speech -- there, one barring racial
harassment -- overbroad in barring “written material
. . . [that] creates ill will.” 307 F.3d at 264-65. But it
also upheld the portion of the policy prohibiting
materials that “create[ ] . . . hatred” because that term
“implie[d] such strong feelings that a serious
possibility of disruption might be inferred.” Id. at 265
(emphasis added); but see Derby, 206 F.3d at 1367-68
(upholding policy that, as construed by the school
district, prohibited written material “that is racially
divisive or creates ill will or hatred”). And Sypniewski
43a
held that the school administrators there were
without authority to bar the t-shirt bearing the word
“redneck” because the evidence did not support the
conclusion that students at the school would react to
that word similar to how they reacted to terms like
“hick” or displays of the confederate flag. See 307 F.3d
at 255-57.
Finally, Zamecnik did affirm the injunction
against the high school barring the “Be Happy, Not
Gay” message because the evidence for forecasting a
material disruption was speculative, unpersuasive
given the heckler’s veto doctrine, and unreliable in
explaining why the phrase in question was
“particularly insidious.” 636 F.3d at 877-81. But
Zamecnik reasoned that “Be Happy, Not Gay” was
“only tepidly negative” and would not “have even a
slight tendency to . . . poison the educational
atmosphere.” Id. at 877-78. Thus, the court did not
suggest that the outcome would be the same for a
more overtly demeaning message and, if anything,
indicated the opposite. See id. at 876–78.
E.
In following the lead of other courts that have
grappled with similar cases, we emphasize that in
many realms of public life one must bear the risk of
being subjected to messages that are demeaning of
race, sex, religion, or sexual orientation, even when
those messages are highly disparaging of those
characteristics. But, like these other courts, we do not
understand Tinker, in holding that schools must
allow for robust discussion and debate over even the
most contentious and controversial topics, to have
44a
held that our public schools must be a similarly
unregulated place.
The Supreme Court has recognized, post-Tinker,
that “[it] does not follow . . . that simply because the
use of an offensive form of expression may not be
prohibited to adults making what the speaker
considers a political point, the same latitude must be
permitted to children in a public school.” Fraser, 478
U.S. at 682; see Thomas v. Bd. of Educ., Granville
Cent. Sch. Dist., 607 F.2d 1043, 1057 (2d Cir. 1979)
(Newman, J., concurring in the judgment) (“[T]he
First Amendment gives a high school student the
classroom right to wear Tinker’s armband, but not
Cohen's jacket.”). Indeed, the Court has observed that
“[even in] our Nation’s legislative halls, where some
of the most vigorous political debates in our society
are carried on, there are rules prohibiting the use of
expressions offensive to other participants in the
debate” and that “the role and purpose of the
American public school system is to inculcate the
habits and manners of civility as values in themselves
indispensable to the practice of self-government.”
Fraser, 478 U.S. at 681 (cleaned up).
Across the decades, the federal courts in the line
of authority we find persuasive have recognized that
the
“special
characteristics
of
the
school
environment,” Tinker, 393 U.S. at 506, warrant
affording school officials the ability to respond to the
way speech demeaning other students’ “unalterable
or otherwise deeply rooted personal characteristics”
can “poison the school atmosphere,” Nuxoll, 523 F.3d
at 671-72. That flexibility to “teach . . . [and]
demonstrate the appropriate form of civil discourse
and political expression,” Fraser, 478 U.S. at 683,
45a
however, has not been understood by these same
courts to entitle school authorities to regulate debate
on any topic just because it may be highly upsetting
to some students. As Judge Brown has explained,
“[p]art of a public school’s mission must be to teach
students of differing races, creeds and colors to
engage each other in civil terms rather than in ‘terms
of debate highly offensive or highly threatening to
others.’ ” West v. Derby Unified Sch. Dist. No. 260, 23
F. Supp. 2d 1223, 1233-34 (D. Kan. 1998) (emphasis
added) (quoting Fraser, 478 U.S. at 683), aff’d by
Derby, 206 F.3d 1358; see also Harper, 445 F.3d at
1182 (distinguishing demeaning comments about
political topics, like the war in Iraq, with such
comments “relating to a core characteristic of
particularly vulnerable students” based on the degree
of “damag[e] to the individual or the educational
process”). And so, with our framework for applying
Tinker to this sensitive context in place, we now turn
to L.M.’s specific challenges to the rulings below.
IV.
We begin with L.M.’s challenges to the rulings
rejecting his as-applied claims, which turn on what
this record shows about the reasonableness of both
Middleborough’s (1) interpretation of the messages at
issue in each claim as being demeaning of the kind of
characteristic of personal identity described above
and (2) forecast that each of those messages, due to its
negative psychological impact on students with the
demeaned characteristic, would “poison the
educational atmosphere” and thereby materially
disrupt the learning environment, Nuxoll, 523 F.3d at
676. Because we conclude that the record reveals that
Middleborough has made each showing, we conclude
46a
its actions must be upheld under Tinker’s materialdisruption limitation even if not also, based on those
same showings, under Tinker’s rights-of-others
limitation.
A.
As to the as-applied claim that concerns
Middleborough’s actions on March 21, L.M. asserts
that the Shirt was “on all fours” with Tinker’s
armbands or, at least, was like the “Be Happy, Not
Gay” t-shirt Nuxoll found “tepidly negative” on its
face and having not “even a slight tendency to . . .
poison the educational atmosphere.” 523 F.3d at 676.
L.M. separately contends that, in any event, the
record evidence is too sparse to support
Middleborough’s forecast of the expression’s
disruptive impact on student learning due to the
“vague” nature of the supporting affidavits from
school administrators. We are not convinced on either
score.
1.
Insofar as the Shirt does demean the gender
identities of students who are transgender or gender
nonconforming, we agree with Middleborough it is no
less likely to “strike a person at the core of his being”
than it would if it demeaned the religion, race, sex, or
sexual orientation of other students. Nuxoll, 523 F.3d
at 671; see Bostock v. Clayton Cnty., Ga., 590 U.S. 644
(2020); Mass. G.L. ch. 71, § 37O; Mass. G.L. ch. 76, §
5. Notably, on this specific point, L.M. contends only
that the message -- though concerning gender identity
-- is not demeaning of anyone's gender identity. So,
the threshold question is whether the message is
demeaning of gender identity at all.
47a
We see little sense in federal courts taking charge
of defining the precise words that do or do not convey
a
message
demeaning
of
such
personal
characteristics, so long as the words in question
reasonably may be understood to do so by school
administrators. See Morse, 551 U.S. at 401 (“The
message on [the student’s] banner is cryptic. . . . But
[the principal] thought the banner would be
interpreted by those viewing it as promoting illegal
drug use, and that interpretation is plainly a
reasonable one.”); Norris, 969 F.3d at 29 (explaining
that the Supreme Court “has repeatedly emphasized
the necessary discretion school officials must exercise
and the attendant deference owed to many of their
decisions”); see also Scott, 324 F.3d at 1249; Nuxoll,
523 F.3d at 671. Indeed, there are good reasons for
federal courts to be wary of making such an
assessment for those whose job it is to deliver public
education. Cf. Nuxoll, 523 F.3d at 675 (“[W]e are
concerned that if the rule is invalidated the school will
be placed on a razor’s edge, where if it bans offensive
comments it is sued for violating free speech and if it
fails to protect students . . . it is sued for violating
laws against harassment.”).
In some cases, the assessment may be easy -- the
words involved may not address such a characteristic
at all, do so in terms not plausibly thought negative,
or, alternatively, be the kind of denigrating speech
that even L.M. acknowledges schools may restrict.
But there is a spectrum of negativity, see Nuxoll, 523
F.3d at 676 (holding that “ ‘demeaning’ [was] too
strong a characterization” of the message, which on
its face was “only tepidly negative”); but see id. at 67879 (Rovner, J., concurring in the judgment), and
48a
because we must decide questions of degree and not
just kind, deference here cannot amount to rote
acceptance, see Norris, 969 F.3d at 30.
L.M. does assert that the Shirt’s message is
“purely ideological” and “summarized [his] beliefs at
a high level of generality without criticizing opposing
views.” Thus, L.M. contends, the Shirt’s message is
not “hateful or bigoted” and neither targets anyone
nor “criticiz[es] opposing views,” as it “doesn’t deny
any person’s existence of inherent value.” L.M. does
not dispute, however, that the message expresses the
view that students with different “beliefs about the
nature of [their] existence” are wrong.
Consistent with that acknowledgement, the
District Court determined the message is reasonably
understood to be an assertion, however sincerely
believed, that individuals who do not identify as
either male or female have no gender with which they
may identify, as male and female are their only
options. As the District Court put it, the message
“may communicate that only two gender identities -male and female -- are valid, and any others are
invalid or nonexistent.”
We agree with the District Court and so cannot
say the message, on its face, shows Middleborough
acted unreasonably in concluding that the Shirt
would be understood -- in this middle-school setting
in which the children range from ten-to-fourteen
years old -- to demean the identity of transgender and
gender-nonconforming NMS students. Cf. Nuxoll, 523
F.3d at 671 (“[F]or most people these are major
components of their personal identity -- none more so
than a sexual orientation that deviates from the
49a
norm. Such comments can strike a person at the core
of his being.”); Trachtman, 563 F.2d at 518 (“The
defendants have consistently treated the topic of
sexuality as an important part of students’ lives,
which requires special treatment because of its
sensitive nature.”). We also note that Middleborough
interpreted the message in applying a dress code and
thus in the context of assessing a particular means of
expression that is neither fleeting nor admits of
nuance. As a result, Middleborough’s assessment of
the message’s demeaning character does not
necessarily reflect a categorical judgment that,
whenever uttered, the message has such a character.
So understood, we see no basis for substituting our
judgment for Middleborough’s as to whether the Shirt
demeaned the gender identities of other students at
NMS.
2.
We turn, then, to the reasonableness of
Middleborough’s forecast that, by demeaning those
identities, the Shirt would be materially disruptive to
the learning environment because of its negative
psychological impact on transgender and gender
nonconforming students at NMS. In that regard,
Middleborough argues that, based off its specific
knowledge of the students at NMS, it “reasonably
forecast[ed]” that the Shirt’s message “alone” would
“materially disrupt transgender and gender nonconforming students’ ability to focus on learning while
in a classroom where the message is being displayed.”
Middleborough further contends that, given its
knowledge of “past incidents in which [students in the
LGBTQ+ community] expressed concern about not
being sufficiently protected,” it reasonably concluded
50a
that “if [L.M. was] permitted to wear the same shirt,
others would follow suit . . . . [and] that disruption
would . . . have ensued with a standoff between a
group of students wearing the message [of the Shirt]
. . . and those students who are members of the
LGBTQ+ community and their allies.”
L.M. responds that Middleborough’s concerns on
this score are supported only by “vague affidavits
referencing [those] concerns without addressing their
cause.” He thus contends that the evidence does not
demonstrate a “link between students’ troubles and
passive t-shirt messages,” as nothing in the record
shows that a message like this one had been used in
any prior bullying or caused any of the struggles by
transgender and gender nonconforming NMS
students of which school officials were keenly aware.
School officials, however, must have some margin
to make high-stakes assessments in conditions of
inevitable uncertainty. See Mahanoy, 594 U.S. at 201
(Alito, J., concurring) (“[T]he school has a duty to
protect students while in school because their parents
are unable to do that during those hours.”); id. at 189
(Maj. Op.); Zamecnik, 636 F.3d at 880 (“A school . . .
[has] the responsibility of protecting . . . its students
from being seriously distracted from their studies by
offensive speech during school hours.”). In
consequence of what the record here shows about
what Middleborough reasonably understood the
message to convey and what it knew about the NMS
student population, we do not understand Tinker, our
own precedents, or any other circuits’ decisions to
support our second-guessing Middleborough’s
assessment that there was the requisite basis for the
forecast of material disruption here.
51a
First, there is the demeaning nature of the
message. To be sure, there is a spectrum of messages
that are demeaning of characteristics such as race,
sex, religion, sexual orientation, and so gender
identity as well. It is hard to see how it would be
unreasonable to forecast the disruptive impact of
messages at the most demeaning end of that
spectrum, given their tendency to poison the
educational atmosphere. See Nuxoll, 523 F.3d at 674
(“Imagine the psychological effects if the plaintiff
wore a T-shirt on which was written ‘blacks have
lower IQs than whites’ or ‘a woman’s place is in the
home.’ ”); Saxe, 240 F.3d at 206, 217 (reasoning that
“disparaging comment[s]” about other students’
personal characteristics may “create an ‘hostile
environment’ ” and thus be restricted if there is a
“threshold showing of severity or pervasiveness”).
But, while oral argument indicated the Shirt’s
message is not at the farthest end of demeaning, see
n.8 supra, neither is it, on its face, only “tepidly
negative.” L.M. himself agrees that the message
directly denies the self-conceptions of certain middleschool students, and those denied self-conceptions are
no less deeply rooted than those based on religion,
race, sex, or sexual orientation. This is also a middleschool setting, with some kids as young as ten. See,
e.g., Walker-Serrano ex rel. Walker v. Leonard, 325
F.3d 412, 416–17 (3d Cir. 2003) (recognizing that the
age of students is a relevant consideration in
administrators’ decisions to regulate student speech);
Sonnabend, 37 F.4th at 426 (same); K.A. ex rel. Ayers
v. Pocono Mountain Sch. Dist., 710 F.3d 99, 108 (3d
Cir. 2013) (same). In addition, Middleborough was
enforcing a dress code, so it was making a forecast
52a
regarding the disruptive impact of a particular means
of expression and not of, say, a stray remark on a
playground, a point made during discussion or
debate, or a classroom inquiry. The forecast concerned
the predicted impact of a message that would confront
any student proximate to it throughout the school
day. See Tinker, 393 U.S. at 515 (Stewart, J.,
concurring) (stating that “in some precisely
delineated areas, a child -- like someone in a captive
audience -- is not possessed of that full capacity for
individual choice which is the presupposition of First
Amendment guarantees.” (emphasis added) (quoting
Ginsberg v. New York, 390 U.S. 629, 649-50 (1968)
(Stewart, J., concurring in the judgment))); Morse,
551 U.S. at 404 (“[S]chool boards have the authority
to determine ‘what manner of speech in the classroom
or in school assembly is inappropriate.’ ” (emphasis
added) (first quoting Fraser, 478 U.S. at 683, then
citing Fraser, 478 U.S. at 689 (Brennan, J.,
concurring in the judgment))).
Second, in making its assessment of how
disruptive the Shirt would be on the educational
atmosphere, Middleborough was not acting on
abstract concerns about the potential impact of
speech demeaning the gender identities of some
students at NMS. Middleborough was not aware of
any prior incidents or problems caused by this specific
message. But it knew the serious nature of the
struggles, including suicidal ideation, that some of
those students had experienced related to their
treatment based on their gender identities by other
students, and the effect those struggles could have on
those students’ ability to learn. Indeed, Tucker had
previously worked on recommending out-of-district
53a
placements for such students prior to her coming to
NMS. In such circumstances, we think it was
reasonable for Middleborough to forecast that a
message displayed throughout the school day denying
the existence of the gender identities of transgender
and gender non-conforming students would have a
serious negative impact on those students’ ability to
concentrate on their classroom work. See Zamecnik,
636 F.3d at 880 (“[Schools have] the responsibility of
protecting [students] from being seriously distracted
from their studies by offensive speech during school
hours.”); Sapp, 2011 WL 5084647, at *5.
Finally, precisely because the message was
reasonably understood to be so demeaning of some
other students’ gender identities, there was the
potential for the back-and-forth of negative comments
and slogans between factions of students that Nuxoll
could “foresee [leading to] a deterioration in the
school’s ability to educate its students.” 523 F.3d at
672. And that potentiality, too, was not rooted solely
in abstract concerns. In addition to Tucker having
been told by Carroll that L.M.’s teacher “was
concerned” that “members of the LGBTQ+ population
at NMS as current students . . . would be impacted by
the t-shirt[’s] message and potentially disrupt
classes,” administrators were aware from student
survey data that a number of students had “specific
concerns about how the LGBTQ+ population [was]
treated” at NMS. Given its specific knowledge of those
facts and the “vulnerability of gender non-conforming
and transgender youth . . . attending NMS,”
Middleborough had legitimate reason to be worried
about “uninhibited ... hallway debate over [gender
identity] -- whether carried out in the form of dueling
54a
T-shirts, dueling banners, dueling pamphlets,
annotated Bibles, or soapbox oratory” that would
“lead to . . . symptoms of a sick school.” Nuxoll, 523
F.3d at 671, 674.
Against this backdrop, we see no reason to
substitute our judgment for Middleborough’s with
respect to its application of its Dress Code here. We
conclude the record supports as reasonable an
assessment that the message in this school context
would so negatively affect the psychology of young
students with the demeaned gender identities that it
would “poison the educational atmosphere” and so
result in declines in those students’ academic
performance and increases in their absences from
school -- in other words, what Nuxoll described as
“symptoms of a sick school . . . [and] therefore of
substantial disruption.” Id. at 674, 676.
We recognize that L.M. claims Middleborough
was motivated by “a few subjective complaints” and
“simply
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