Amicus Curiae Brief — 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.

NO. 24-410

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

Brief of National Religious Broadcasters

as AMICUS CURIAE in support of Petitioner

MICHAEL P. FARRIS

Counsel of Record

NATIONAL RELIGIOUS

BROADCASTERS

20 F. Street, Seventh Floor

Washington D.C. 20001

(202) 341-4783

mfarris@nrb.org

Counsel for Amicus Curiae

i

Table of Contents

Table of Contents ........................................................ i

Table of Authorities ................................................... ii

Interest of Amicus ...................................................... 1

Summary of the Argument ........................................ 2

Facts and Introduction .............................................. 4

Argument.................................................................... 7

I. The Constitutional Promise of Neutrality.......... 7

Conclusion ................................................................ 15

ii

Table of Authorities

Cases

Comm. For Pub. Ed. & Religious Liberty v. Nyquist,

413 U.S. (1973) ........................................................ 9

Edwards v. Aguillard, 482 U.S. (1987). .................. 10

Engel v. Vitale, 370 U.S. .......................................... 12

Everson v. Bd. Of Ed. Of Ewing Twp., 330 U.S. ....... 7

Illinois ex rel. McCollum v. Board of Education, 333

U.S. ........................................................................ 12

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,

Council 31, 585 U.S. ............................................... 7

Keller v. State Bar of California, 496 U.S. ................ 7

Kennedy v. Bremerton School District, 597 U.S.

(2022) ....................................................................... 8

Lee v. Weisman, 505 U.S. (1992).............................. 11

Lemon v. Kurtzman, 403 U.S. (1971) .................. 8, 12

Lynch v. Donnelly, 465 U.S. (1984). .......................... 9

Morse v. Frederick, 551 U.S. (2007)......................... 11

Sch. Dist. Of Abington Twp., Pa. v. Schempp, 374

U.S. (1963)............................................................... 9

Town of Greece v. Galloway, 572 U.S. (2014) ............ 8

W. Virginia State Bd. Of Educ. V. Barnette, 319 U.S.

............................................................................. 3, 8

Wallace v. Jaffree, 472 U.S. (1985). ............... 9, 11, 12

Statutes

Mass. Gen. Law c. 76 ................................................. 5

Other Authorities

Petition for Cert. .............................................. 5, 6, 11

1

Interest of Amicus

National Religious Broadcasters (NRB) is a

non-partisan association of Christian broadcasters

united by their shared purpose of proclaiming

Christian teaching and promoting biblical truths.

NRB’s 1,487 members reach a weekly audience of

approximately 141 million American listeners,

viewers, and readers through radio, television, the

Internet, and other media.

Since its founding in 1944, NRB has worked to

foster excellence, integrity, and accountability in its

membership. NRB also works to promote its

members’ use of all forms of communication to ensure

that they may broadcast their messages of hope

through First Amendment guarantees. NRB believes

that religious liberty and freedom of speech together

form the cornerstone of a free society.

NRB believes that freedom of speech must be

preserved for students in public schools if we are to

have a society that values freedom of speech for the

generations yet to come. If students are taught that

freedom of speech is expendable in school, it will

become expendable in society at large in the years

ahead. 1

1 Pursuant to Supreme Court Rule 37.6, counsel for your amicus

certifies that no counsel for any party authored this brief in

whole or in part. No person or entity other than NRB furnished

any monetary contribution for the preparation of this brief.

Counsel additionally certifies that he gave written notice more

than ten days prior to the due date to counsel for both parties

that he intended to file this brief in support of granting the writ.

2

Summary of the Argument

This case differs from most cases involving

messages on shirts or armbands in public schools.

Typically, students have sought to speak out on

general issues of the day. In this case, however, L.M.,

a middle school student, wore a shirt to school with a

message that was clearly in response to a major

campaign by the school officials to promote a point of

view supportive of transgenderism and similar

causes.

This case is about the right of the student to

reply to the opinions expressed by school officials.

L.M.’s viewpoint and desired message arise

from his sincerely held beliefs. The school officials

have made it abundantly clear that his views are

wrong and unwelcome. The lower courts only

considered the impact of his message on transgender

students while ignoring two other important factors.

First, the overwhelming support for the

viewpoint that students have the right to change their

gender has been repeatedly delivered by the school

itself and has been reinforced by many students who

agree with the school’s viewpoint. The lower courts

evaluated this case as if the only message that

transgendered students received in their school was

from L.M.’s shirt. The balance of equities in suits for

an injunction should consider the entire context, not

simply one factor.

3

Second, and more importantly, the lower courts

have failed to consider the impact on L.M. by the

school subjecting him to a year-round campaign

promoting views he rejects and then censoring his

mild, polite effort to disagree.

This Court has repeatedly promised America’s

school children and their parents that the public

schools must adhere to a policy of neutrality when it

comes to matters of belief or opinion. This Court has

been extremely diligent when it comes to removing

any hint of religious coercion in public schools, even a

legislature’s suggestion that a moment of silence

could be used, if the student wished, for silent prayer.

The First Amendment was construed to protect the

conscience of the dissenting student even in that

extremely mild form of “coercion.”

In W. Virginia State Bd. Of Educ. V. Barnette,

319 U.S. 624, 642 (1943) this Court boldly declared

that any form of ideological coercion on any matter of

opinion was foreclosed by the First Amendment. This

Court has never said anything that should lead to the

conclusion that the rule against coercion varies based

on the ideology being advanced. The protections

offered by the First Amendment should not vary.

Protection against coercion of the mind and spirit—at

a minimum—requires the strongest possible

protection for the right of a student to dissent from a

viewpoint incessantly advanced by school officials.

Telling L.M. that his views are unwelcome in

school and that he must take them elsewhere renders

the idea of ideological neutrality into a one-way

street. Protecting some objecting students from a

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mere suggestion that they might want to pray while

silencing a dissenting student subjected to an

ideological campaign, is not ideological neutrality and

must not be allowed to masquerade as such.

Facts and Introduction

The Middleborough School Committee has

established its own official viewpoint on a highly

contentious matter of opinion. It has determined that

gender is not defined by biological sex but is fluid and

may be decided by individuals according to their own

wishes.

The School Committee’s viewpoint is openly,

regularly, and forcefully communicated on multiple

occasions throughout the school year in a manner that

is impossible to escape or ignore. A whole month is

devoted to the special promotion of this viewpoint.

L.M. is a middle school student who has a

different point of view on this disputed matter of

opinion. He believes, as do millions of Americans, that

gender is determined by God through biological sex.

L.M. sought to communicate his disagreement

with the viewpoint of the school district in a common

manner—he wore a t-shirt with a simple slogan:

“There are only two genders.” It is self-evident that

L.M. was not aiming to bully or harass any other

student. Rather, he gave voice to his disagreement

with the campaign operated by the School Committee.

There is utterly no doubt that the School Committee

deems L.M.’s viewpoint to be false and unwelcome.

5

This all occurs in a school funded by coercive

taxation, and L.M.’s attendance is not fully voluntary.

He must attend the public school or “some other day

school approved by the school committee.” Mass. Gen.

Law c. 76 §1. He must be educated in a manner

approved by the School Committee.

L.M. has not sought to silence the school’s

communication of its preferred viewpoint. Indeed, the

District Court quoted L.M.’s public testimony at a

School Committee meeting that clearly establishes

his acknowledgement of the right of others to

communicate their views.

What did my shirt say? Five simple words:

“There are only two genders.” Nothing

harmful. Nothing threatening. Just a

statement I believe to be a fact. I have been told

that my shirt was targeting a protected class.

Who is this protected class? Are their feelings

more important than my rights? I don’t

complain when I see “pride flags” and

“diversity posters” hung throughout the school.

Do you know why? Because others have a right

to their beliefs just as I do. Not one person,

staff, or student told me that they were

bothered by what I was wearing. Actually, just

the opposite. Several kids told me that they

supported my actions and that they wanted one

too.

Petition for Cert. 69a-70a.

The School Committee is not satisfied with

monopolizing all official means of communication to

6

ensure the dominance of its own viewpoint on this

matter of belief. It seeks to silence any opposition.

The student is told, by both the School

Committee and the federal district court, that he

“remains free to convey his message elsewhere.”

Petition for Cert. 82a.

Nothing in the record suggests that there

would be any difference in outcome if, rather than

wearing a shirt with his message, L.M. raised his

hand during a class discussion and offered his belief

that there are only two genders. It’s fair to infer that

the school officials may have warned him the first

time not to make such statements, but if he persisted

in communicating the offending message whenever

the subject was raised by school officials, there is little

doubt that he would have been silenced in some

fashion.

Your amicus urges this Court to grant the writ

to review this case to confront a problem that

threatens to unravel a critically important

constitutional rule that is supposed to control public

education—ideological neutrality. This Court has

repeatedly declared that the Constitution requires

public schools to be neutral on matters of worldview

and opinion.

Your amicus asks this Court to accept this case

to review the viability of this promise of neutrality,

and to enforce it by protecting the right of a single

middle school student to courageously offer a

viewpoint contrary to the school’s proclamation of

orthodoxy on a matter of public opinion.

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Argument

I. The Constitutional Promise of Neutrality

This Court has often quoted the preamble of

the Virginia Bill for Religious Liberty, which was a

precursor to the First Amendment. “[T]o compel a

man to furnish contributions of money for the

propagation of opinions which he disbelieves, is sinful

and tyrannical.” Everson v. Bd. Of Ed. Of Ewing Twp.,

330 U.S. 1, 13 (1947). See also, Keller v. State Bar of

California, 496 U.S. 1, 10 (1990); Janus v. Am. Fed’n

of State, Cnty., & Mun. Emps., Council 31, 585 U.S.

878, 893 (2018).

The First Amendment’s promise of neutrality

on matters of opinion was most thoroughly and

elegantly stated by this Court in response to the

efforts of a state legislature to mandate participation

in the pledge of allegiance.

If there is any fixed star in our constitutional

constellation, it is that no official, high or petty,

can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of

opinion or force citizens to confess by word or

act their faith therein. If there are any

circumstances which permit an exception, they

do not now occur to us.

W. Virginia State Bd. Of Educ. V. Barnette, 319

U.S. 624, 642 (1943).

It is important to emphasize at the outset that

the promise of neutrality is not merely a shield

8

against the use of government institutions to

propagate religious doctrine. It is a broad promise

encompassing “politics, nationalism, religion, or other

matters of opinion.” While the government certainly

may speak on topics of opinion, even in public schools,

it moves from speaking to indoctrinating when its

views are accompanied by either coercion or

suppression of dissent.

Indeed, Barnette serves as the chief example of

the relevant application of the First Amendment

sought here. The advancement of preferred opinions

on civic topics cannot be achieved via the means of

coercing the consciences of dissenting students in

public schools.

While this case does not appear to involve a

religious student, the lessons from this Court’s many

cases involving the coercion of conscience on matters

of opinion are nonetheless instructive. 2 Conscience is

conscience regardless of its perceived foundation.

2 Your amicus recognizes that these cases discussing the

protections offered by the Establishment Clause were decided

under the framework of Lemon v. Kurtzman, 403 U.S. 602 (1971)

and that Lemon’s famous three-part test was abandoned by this

Court in cases like Town of Greece v. Galloway, 572 U.S. 565

(2014). That abrogation was, of course, made explicit in Kennedy

v. Bremerton School District, 597 U.S. 507 (2022). Nonetheless,

even though this Court may well review future cases of this

nature using history rather than Lemon as its guide, the

holdings of these cases have not been reversed, nor should there

be any doubt that the generalized principle that public schools

cannot be used to coerce or silence the beliefs of students would

not be sustained under proper historical analysis. To be sure,

there may be some differences in applications on specific facts,

but the broad principle prohibiting ideological coercion and

9

In cases involving public education, this Court

has repeatedly said that government may neither

“advance nor inhibit religion.” See, e.g., Wallace v.

Jaffree, 472 U.S. 38, 55 (1985). Rather the Court has

recognized “an established principle that the

government must pursue a course of complete

neutrality toward religion.” Id. at 60. See also, Comm.

For Pub. Ed. & Religious Liberty v. Nyquist, 413 U.S.

756, 792–93 (1973) (“A proper respect for both the

Free Exercise and the Establishment Clauses

compels the State to pursue a course of ‘neutrality’

toward religion.”) Neutrality is not a one-way street.

The Constitution “forbids hostility toward any”

religion. Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

See also, Sch. Dist. Of Abington Twp., Pa. v. Schempp,

374 U.S. 203, 225 (1963) (“We agree of course that the

State may not establish a ‘religion of secularism’ in

the sense of affirmatively opposing or showing

hostility to religion, thus ‘preferring those who believe

in no religion over those who do believe.’”)

Students who object to any form of religious

activity in public schools have been shown great

solicitude by this Court. The “Court has been

particularly vigilant in monitoring compliance with

the Establishment Clause in elementary and

secondary schools.” Edwards v. Aguillard, 482 U.S.

578, 583–84 (1987). This extra diligence flows from

this Court’s view that any effort to coerce the beliefs

of the child is constitutionally inappropriate.

requiring neutrality seems to be a principle that would not be

abandoned under a new framework.

10

Families entrust public schools with the

education of their children but condition their

trust on the understanding that the classroom

will not purposely be used to advance religious

views that may conflict with the private beliefs

of the student and his or her family. Students

in such institutions are impressionable and

their attendance is involuntary. The State

exerts great authority and coercive power

through mandatory attendance requirements,

and because of the students’ emulation of

teachers as role models and the children’s

susceptibility to peer pressure.

Id. at 583–85. (Internal citations omitted.)

This same point was made in a case involving

entirely secular matters (a student-held poster

promoting drug use).

When public school authorities regulate

student speech, they act as agents of the State;

they do not stand in the shoes of the students’

parents. It is a dangerous fiction to pretend

that parents simply delegate their authority—

including their authority to determine what

their children may say and hear—to public

school authorities.

Morse v. Frederick, 551 U.S. 393, 424 (2007) (Alito,

with Kennedy, concurring.)

This Court forbade public schools from

arranging for a brief prayer at a graduation

ceremony, reasoning that the impact on the student

who did not wish to participate was constitutionally

intolerable.

11

[W]hat might begin as a tolerant expression of

religious views may end in a policy to

indoctrinate and coerce. A state-created

orthodoxy puts at grave risk that freedom of

belief and conscience which are the sole

assurance that religious faith is real, not

imposed.

Lee v. Weisman, 505 U.S. 577, 591–92 (1992).

Such prayers “places public pressure, as well as

peer pressure, on attending students.” Id. at 593. The

dissenting student had the right to avoid any

suggestion that “the group exercise signified her own

participation or approval of it.” Id. Indeed, L.M.

experienced “censure” from both school officials and

other students for dissenting from the official views.

Other students who agreed with his views were afraid

to speak out because of the official coercion and peer

pressure. Petition for Cert. 99a-100a.

Perhaps the most rigorous application of this

principle of neutrality comes from Wallace v. Jaffree,

where this Court invalidated a Louisiana law that

combined a required moment of silence with the mere

suggestion that students could, if they wished, use

that moment to pray. Such coercion of a student’s

conscience was held to be constitutionally

intolerable.

Moreover, this Court has noted that “[w]hen

the power, prestige and financial support of

government is placed behind a particular religious

belief, the indirect coercive pressure upon religious

minorities to conform to the prevailing officially

12

approved religion is plain.” [Engel v. Vitale, 370 U.S.

421], 431. This comment has special force in the

public-school context where attendance is mandatory.

Justice Frankfurter acknowledged this reality in

Illinois ex rel. McCollum v. Board of Education, 333

U.S., at 227 (concurring opinion):

That a child is offered an alternative may

reduce the constraint; it does not eliminate the

operation of influence by the school in matters sacred

to conscience and outside the school’s domain. The

law of imitation operates, and non-conformity is not

an outstanding characteristic of children.

Wallace v. Jaffree, 472 U.S. 38, 61 (fn. 51)

(1985). 3

In this case, L.M. is not asking this Court to

shield him from exposure to a steady barrage of

messages from the school officials that he disbelieves.

Rather, he seeks to have his right as a dissenter

protected by a far less drastic remedy. He seeks to

express his dissent from the school committee’s

opinions through his right to say, “I disagree.”

If this Court’s promise of neutrality bars

government from creating an orthodoxy on matters of

opinion, the protection of the right to dissent should

Even though the viability of Jaffree may be reasonably

questioned after the abrogation of Lemon, the principle that

children should not be coerced would appear to be unquestioned.

If Jaffree was wrongly decided, its official reversal would likely

be on the basis that the mere suggestion of prayer does not

constitute coercion. Censoring those who disagree would still be

forbidden by the general principles that should endure.

3

13

be at the pinnacle of constitutional remedies afforded

to dissenters.

The notion that silencing L.M. to protect the

sense of identity of transgender students requires a

reexamination considering this Court’s statements

concerning coercion of conscience.

School officials affirm transgender students

through multiple lines of communication. Not only

are these students told that they are welcome, but

they are also told that their views about gender and

sexuality are right and those with different beliefs

and opinions are wrong. The net effect of the

overwhelming affirmation transgender students

receive from school officials and supportive students

compared to a single student wearing a shirt that says

“There are only two genders” skews dramatically in

favor of the transgender students.

L.M. also has an identity and a system of

beliefs. His sense of identity and self-esteem are

equally on the line. Constantly telling him he is wrong

and then telling him to take his views elsewhere must

have a serious implication for a middle school student.

Voicing his dissent allows him some hope of defending

his own sense of self-worth.

L.M. is being told day in and day out that his

beliefs are not only bigoted, but that he is wrong to

believe them. It is beyond question that the school

desires L.M. to modify his beliefs—either to change

them to the opposite viewpoint, or at least to conclude

that his beliefs aren’t all that important. He is told

that his beliefs belong elsewhere, and that they

14

cannot be a part of his life at school. His system of

beliefs is not something he can shed at the

schoolhouse door, nor can the school officials demand

that he do so.

Schools don’t have to conduct these kinds of

campaigns on matters of opinion. They could enact

anti-bullying rules and strictly enforce them. A

student speaking in opposition to transgender

philosophy in that context would raise a very different

set of issues.

But this is far from that case. This is a case of

a lone student standing in opposition to constant

indoctrination on a matter of opinion.

If the doctrine of neutrality protects objecting

students from a once-a-year graduation prayer but

fails to protect a student like L.M. in securing his

right to dissent in the face of a constant campaign, the

doctrine of neutrality is a one-way street and little

more than a hoax.

15

Conclusion

For the foregoing reasons, your amicus urges

this Court to grant the petition for certiorari and,

upon full consideration, reverse the decision below.

Respectfully submitted,

MICHAEL P. FARRIS

Counsel of Record

NATIONAL RELIGIOUS

BROADCASTERS

20 F. Street, Seventh Floor

Washington D.C. 20001

(202) 341-4783

mfarris@nrb.org

Counsel for Amicus Curiae