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.

Supreme Court briefNov 12, 2024

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No. 24-410

L.M., A MINOR, BY AND THROUGH HIS FATHER AND

STEPMOTHER AND NATURAL GUARDIANS, CHRISTOPHER

AND SUSAN MORRISON,

Petitioner,

TOWN OF MIDDLEBOROUGH, MASSACHUSETTS, ET AL.

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS

AND EXPRESSION IN SUPPORT OF

PETITIONER

ARLEIGH P. HELFER

Counsel of Record

ROBERT CORN-REVERE

WILLIAM G. CREELEY

Foundation for Individual

Rights and Expression

510 Walnut Street, Ste. 900

Philadelphia, PA 19106

(215) 717-3473

arleigh.helfer@thefire.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ................................... iii

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT .................................. 2

ARGUMENT ............................................................. 6

I. Tinker Makes Protection for Student

Speech the Rule, Not the Exception ................... 6

A. Free Speech is Essential to Public

Education ....................................................... 6

B. Tinker’s “Substantial Disruption” Prong

is Narrow and Non-Speculative .................... 7

C. Tinker’s “Invasion of the Rights of

Others” Exception Requires Physical or

Coercive Conduct That Targets

Individuals ..................................................... 9

II. The First Circuit’s Novel Test Cannot be

Reconciled With Tinker .................................... 12

A. The First Circuit Reimagined Tinker’s

Exceptions .................................................... 12

B. The First Circuit’s Test Abandons this

Court’s Protection of Student Speech ......... 16

III. Censorship is Not Necessary to Prevent

Harassment Based on Protected Personal

Characteristics .................................................. 18

CONCLUSION ....................................................... 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001)................................................ 19

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986).................................................. 7

Blackwell v. Issaquena Cnty. Bd. of Educ.,

363 F.2d 749 (5th Cir. 1966) ............................. 9, 10

Boos v. Barry,

485 U.S. 312 (1988)................................................ 14

Burnside v. Byars,

363 F.2d 744 (5th Cir. 1966) ............................. 9, 10

C1.G ex rel. C.G. v. Siegfried,

38 F.4th 1270 (10th Cir. 2022) ................................ 1

Cohen v. California,

403 U.S. 15 (1971).................................................. 15

D.A. v. Tri Cnty. Area Schs.,

123-cv-00423, 2024WL 3924723 (W.D. Mich.

Aug. 23, 2024), appeal docketed, No. 24-1769

(6th Cir. Sept. 11, 2024) .......................................... 1

Davis v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629 (1999)............................................ 5, 19

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988).................................................. 7

I.P. ex rel. B.P. v. Tullahoma City Sch.,

4:23-cv-00026 (E.D. Tenn. filed July 29, 2023).......1

Jennings v. Univ. of N. Carolina,

482 F.3d 686 (4th Cir. 2007) ................................. 20

Kuhlmeier v. Hazelwood Sch. Dist.,

795 F.2d 1368 (8th Cir. 1988) ............................... 11

Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,

594 U.S. 180 (2021)................ 1, 2, 6, 7, 8, 14, 15, 16

Minnesota Voters All. v. Mansky,

585 U.S. 1 (2018).............................................. 16, 17

Morse v. Frederick,

551 U.S. 393 (2007).................................................. 7

Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist.,

969 F.3d 12 (1st Cir. 2020) .............................. 11, 12

Nuxoll ex rel. Nuxoll v. Indian Prarie Sch. Dist.,

523 F.3d 668 (7th Cir. 2008) ............... 13, 14, 15, 16

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992)................................................ 14

Saxe v. State Coll. Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) ......................... 5, 10, 11

Slotterback v. Interboro Sch. Dist.,

766 F. Supp. 280 (E.D. Pa. 1991) .......................... 11

Stafford v. George Washington Univ.,

18-cv-2789, 2019 WL 2373332 (D.D.C.

June 5, 2019) .......................................................... 20

Sypniewski v. Warren Hills Reg’l Bd. of Educ.,

307 F.3d 243 (3d Cir. 2002) ................................... 15

T.E. v. Pine Bush Cent. Sch. Dist.,

58 F. Supp. 3d 332 (S.D.N.Y. 2014) ...................... 20

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969)..................... 2, 3, 4, 5, 6, 7, 8, 9,

10, 12, 14, 16, 17, 18, 19, 20, 21

West v. Derby Unified Sch. Dist. No. 260,

206 F.3d 1358 (10th Cir. 2000).............................. 15

West Virginia St. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943).................................................. 7

Constitutional Provisions

U.S. Const. amend. I ............. 1, 2, 9, 11, 14, 15, 18, 20

Rules

Sup. Ct. R. 37.2 ............................................................1

Sup. Ct. R. 37.6 ............................................................1

INTEREST OF AMICUS CURIAE1

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the essential qualities of liberty. Because

public schools prepare the next generation of

Americans to live and participate in our pluralist

democracy, FIRE promotes and defends these rights

for students nationwide.

Since 1999, FIRE has successfully vindicated

students’ individual rights through public advocacy,

strategic litigation, and participation as amicus curiae

in cases that implicate expressive rights under the

First Amendment. See, e.g., Brief for FIRE as Amicus

Curiae, Mahanoy Area Sch. Dist. v. B.L. ex. rel. Levy,

594 U.S. 180 (2021); Brief for FIRE as Amicus Curiae,

C1.G ex rel. C.G. v. Siegfried, 38 F.4th 1270 (10th Cir.

2022). FIRE opposes attempts to censor students’

protected expression and litigates against schools that

wrongfully silence or discipline student speakers. See,

e.g., I.P. ex rel. B.P. v. Tullahoma City Sch., 4:23-cv00026 (E.D. Tenn. filed July 19, 2023); D.A. v. Tri

Cnty. Area Schs., 123-cv-00423, 2024 WL 3924723

(W.D. Mich. Aug. 23, 2024), appeal docketed, No. 241769 (6th Cir. Sept. 11, 2024).

1 Under Rule 37.6, amicus FIRE affirms that no counsel for

a party authored this brief in whole or in part, and that no person

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief. Amicus affirms that all

parties received timely notice of its intent to file this brief. Rule

37.2.

Here, instead of teaching students to discuss

controversial topics, the school censored Petitioner’s

passive non-disruptive expression, subjectively

fearing possible future psychological harm to other

students. To ensure our public grade schools educate

the next generation of Americans about the First

Amendment in both word and deed, FIRE files this

brief in support of Petitioner.

SUMMARY OF ARGUMENT

Just three years ago, the Supreme Court

reaffirmed the longstanding rule that that “students

do not ‘shed their constitutional rights to freedom of

speech or expression,’ even ‘at the schoolhouse gate.’”

Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 187

(2021) (“Mahanoy”). It has been the law for more than

half a century that student speech is presumptively

protected unless it falls into two narrow categories: it

either substantially disrupts the school environment

or it invades the rights of others on campus. Tinker v.

Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

513–14 (1969). The decision below, however, merges

these two categories, waters them down, and

empowers school administrators to restrict speech

based on vague and generalized forecasts of adverse

psychological reactions to speech.

In this case, L.M.’s school prohibited him from

wearing a non-obscene, non-vulgar shirt stating,

“There Are Only Two Genders,” because the message

“would cause students in the LGBTQ+ community to

feel unsafe.” App. 5a. The school even banned him

from wearing the same shirt on which he covered the

words “Only Two” with a piece of tape on which he

wrote “CENSORED” so that the message read, “There

Are [CENSORED] Genders.” Id.

The district court denied L.M.’s request for a

preliminary injunction and later entered final

judgment against him, reasoning that the shirt

constituted an impermissible “invasion of the rights of

others” under Tinker. App. 77a–79a. The First Circuit

affirmed on alternative grounds, adopting a novel test

that would allow schools to censor speech that neither

targets nor harasses a specific student.

The test the First Circuit articulated empowers

school administrators to censor passive, silently

expressed speech that targets no student in particular

if the student’s expression: (1) “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’”; 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. The “poisoned

atmosphere” and “sick school” concepts serve as

proxies for “substantial disruption.” App. 35a. The

First Circuit’s formulation thus conflates and waters

down the “substantial disruption” and “invasion of the

rights of others” prongs of Tinker and conflicts with

holdings of other circuits.2

The First Circuit’s approach cannot be reconciled

with Tinker, in which this Court protected student

expression as an essential part of the educational

enterprise, not as some luxury at odds with the

school’s purpose. Because of that commitment,

deviations from Tinker’s constitutional rule must be

narrowly conceived and non-speculative. The

exception for speech that “invades the rights of others”

was fashioned to address cases of extreme, targeted

conduct, such as direct physical interference with

another student’s person, and not—as here—speech

that provokes disagreement or personal discomfort.

And the “substantial disruption” exception was not

intended to permit censorship because of school

officials’ vague misgivings about potential future

negative effects on the school environment.

The First Circuit’s claim that it was applying the

Tinker standard could not be further from the truth.

Instead, it essentially merged the two exceptions

while at the same time diluting traditional protections

for student speech. And it did so by undervaluing the

importance of student speech and the reasons this

Court recognized students’ rights in the first place.

The First Circuit’s novel test is incapable of reasoned

application and a recipe for unthinking deference to

2 Petitioner has ably described the circuit splits that the First

Circuit’s decision created. Accordingly, to avoid repeating those

arguments, FIRE refers the Court to the Petition. Pet. 18–36.

school officials to save students from “sick schools,”

whatever that may mean.

The constitutional damage the First Circuit

wrought is ultimately unnecessary to address

reasonable concerns about student misconduct.

Tinker’s “invasion of the rights of others” prong

already protects students from targeted speech-based

tortious conduct. See Saxe v. State Coll. Area Sch.

Dist., 240 F.3d 200, 217 (3d Cir. 2001) (Alito, J.).

And Congress and this Court, through Title VI and

Title IX and their implied private rights of action,

have established antidiscrimination protections for

students, rendering schools liable for deliberate

indifference to student-on-student harassment known

to the school. See Davis v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629 (1999).

If the First Circuit’s broad expansion of Tinker’s

“invasion of the rights of others” exception is allowed

to stand, school administrators nationwide will wield

it to censor unpopular or dissenting viewpoints—

miseducating students about their expressive rights

in our pluralist society. This Court should grant

certiorari to reverse the First Circuit and reaffirm

Tinker’s limitations on schools’ ability to censor nondisruptive student speech.

ARGUMENT

Tinker Makes Protection for Student

Speech the Rule, Not the Exception.

Protection for students’ right to free speech is

embedded in an essential purpose of public education:

teaching young Americans what it means to live in our

pluralistic society in which people may freely disagree

on issues both large and small. For that reason,

exceptions to the constitutional norm must be limited,

narrowly framed, and justified by non-speculative

reasons.

A. Free Speech

Education.

Essential

Public

Under Tinker, a school may limit student speech

only when that speech will “materially disrupt[]

classwork or involve[] substantial disorder or invasion

of the rights of others.” 393 U.S. at 513.

Mahanoy reaffirmed Tinker in concluding that our

schools must protect even “a student’s unpopular

expression.” 594 U.S. at 190. Because “America’s

public schools are the nurseries of democracy,” they

necessarily have a “strong interest in ensuring that

future generations understand the workings in

practice of the well-known aphorism, ‘I disapprove of

what you say, but I will defend to the death your right

to say it.’” Id.

America’s public schools must prepare students to

“live in this relatively permissive, often disputatious,

society.” Tinker, 393 U.S. at 509. And the fact that

schools “are educating the young for citizenship is

reason for scrupulous protection of Constitutional

freedoms of the individual, if we are not to strangle

the free mind at its source and teach youth to discount

important principles of our government as mere

platitudes.” West Virginia St. Bd. of Educ. v. Barnette,

319 U.S. 624, 637 (1943).

This protection does not wane because someone

deems expression “controversial” or “offensive.” See,

e.g., Mahanoy, 594 U.S. at 189–91 (reaffirming that

public schools may not regulate students’ off-campus

speech merely because it is offensive). While “[a]ny

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,” this Court made clear more than a halfcentury ago “our Constitution says we must take this

risk.” Tinker, 393 U.S. at 508.

Not all student speech is protected, to be sure.3

This Court has steadfastly maintained that the limits

are the exception, not the rule.

B. Tinker’s “Substantial Disruption” Prong is

Narrow and Non-Speculative.

This Court carefully circumscribed Tinker’s

exceptions to free speech protections in our schools. In

that regard, the “substantial disruption” prong does

not extend to school authorities’ vague misgivings

about potential future negative effects on the school

environment. Rather, the Court focused on the need

3 See Morse v. Frederick, 551 U.S. 393 (2007); Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403

v. Fraser, 478 U.S. 675 (1986); Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503 (1969).

to avoid materially disruptive conduct that would

impede schools’ ability to function.

The “undifferentiated fear or apprehension of

disturbance is not enough to overcome the right to

freedom of expression.” Tinker, 393 U.S. at 508. There

must be evidence that the school authorities had

reason to anticipate substantial material interference

with the work of the school or invasion of the rights of

others. Id. at 509. The “mere desire to avoid the

discomfort and unpleasantness that always

accompany an unpopular viewpoint,” no matter how

urgent, cannot justify censorship of student speech.

Id.

Nothing in Tinker or this Court’s subsequent

decisions suggests that a school may suppress

unpopular or offensive student speech in light of

vague speculation that unwanted speech will

sometime in the future cause attendance or test scores

to deteriorate. To the contrary, Mahanoy reaffirmed

that Tinker sets forth a “demanding standard,” that

requires a showing of “substantial disruption” of a

specific school activity. 594 U.S. at 193. The focus, as

Tinker and Mahanoy show, is not on distant harms

that might result from others’ reactions to the

student’s speech but on whether that speech will

presently cause material disruption that would

interfere “with the requirements of appropriate

discipline in the operation of the school.” Tinker, 393

U.S. at 513.

This Court has always focused on whether the

student’s speech, given its time or place, would

materially disrupt “classwork or involve[] substantial

disorder or invasion of the rights of others.” Id. Thus,

given the need for discipline to permit the school to do

its work, a student could not “interrupt[] school

activities nor [seek] to intrude in the school affairs or

lives of others,” 393 U.S. at 514. But the Court was

clear that students who engage in passive displays of

pure speech while otherwise going around their

“ordained rounds in school,” who merely express an

unpopular or controversial message through their

garb without actively disrupting the affairs of the

school, cannot be censored. Id.

C. Tinker’s “Invasion of the Rights of Others”

Exception Requires Physical or Coercive

Conduct That Targets Individuals.

Tinker’s “invasion of the rights of others” exception

is limited to cases of extreme, targeted conduct—

direct physical interference with another student’s

person, for example, or compelling or coercing another

student to speak. It does not properly apply to speech

that provokes disagreement or discomfort.

Tinker’s discussion of this exception was informed

by actions in other cases decided at the time and is

intentionally narrow. The Court looked to two Fifth

Circuit cases decided on the same day by a panel that

reached opposite conclusions based on differing facts:

Blackwell v. Issaquena County Board of Education,

363 F.2d 749 (5th Cir. 1966), and Burnside v. Byars,

363 F.2d 744 (5th Cir. 1966). See Tinker, 393 U.S. at

505 & n.1.

In Burnside, the panel held the First Amendment

protected student speech and enjoined school

authorities at a Mississippi school from enforcing a

ban on “freedom buttons” that read “One Man One

Vote.” The students wearing them neither caused a

commotion nor disrupted classes, and the Fifth

Circuit found “the presence of ‘freedom buttons’ did

not hamper the school in carrying on its regular

schedule of activities.” 363 F.2d at 748, 749.

In Blackwell, however, more than 150 students at a

segregated school in Mississippi wore “freedom

buttons” to classes, but did not confine their actions to

a passive display of their message. They distributed

the buttons in school hallways and “accosted other

students by pinning the buttons on them even though

they did not ask for one.” Blackwell, 363 F.2d at 751.

That caused a younger student to begin crying and

created a “state of confusion, disrupted class

instruction, and resulted in a general breakdown of

orderly discipline” in the school. Id. The same panel of

judges for the two cases found that the ban on buttons

in Blackwell was appropriate, in part because the

students “disturbed other students who did not wish

to participate in the wearing of the buttons,” which

showed a “complete disregard for the rights of their

fellow students.” Id. at 753.

Tinker’s “invasion of the rights of others” prong

draws on this distinction, Tinker, 393 U.S. at 505 &

n.1, and does not address generally offensive or

controversial speech. Instead, it focuses on active

conduct interfering with another student’s right not to

be targeted with harassing conduct or coercion

compelling them to speak.

Other decisions addressing this exception similarly

require something far beyond speech that is “merely

offensive to some listener” to trigger the invasion of

the rights of others exception. Saxe v. State Coll. Area

Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001) (Alito, J.).

Saxe held a school’s anti-harassment policy violated a

student’s right to free expression because the school

authorities invoked it to prohibit him from expressing

his view that “homosexuality is a sin.” Id. at 203. The

Third Circuit explained that such policies could not

survive First Amendment scrutiny if they barred

speech without requiring a “threshold showing of

severity or pervasiveness.” Id. at 217. Otherwise, the

court explained, such policies “could conceivably be

applied to cover any speech about some enumerated

personal characteristics the content of which offends

someone.” Id.4

The First Circuit itself earlier endorsed a

requirement that the speech must be targeted at

another student before school authorities may invoke

the “invasion of the rights of others” exception. See

Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969

F.3d 12, 29 & n.18 (1st Cir. 2020). Norris involved a

sticky note stating “THERE'S A RAPIST IN OUR

SCHOOL AND YOU KNOW WHO IT IS” that a

female student posted in a restroom without targeting

a specific student. Id. at 14. Instead, the school

authorities punished the student only because they

concluded the note contributed to the bullying of

another student and therefore invaded that other

student’s rights. Id. at 28–29. The court explained

that there “must be a reasonable basis for the

administration to have determined both that the

student speech targeted a specific student and that it

4 In Saxe, then-Judge Alito further noted that some courts

have expressly held the invasion of the rights of others prong is

so narrow that it covers “only independently tortious speech” like

defamation or intentional infliction of emotional distress. 240

F.3d at 217 (citing Slotterback v. Interboro Sch. Dist., 766 F.

Supp. 280, 289 n.8 (E.D. Pa. 1991); Kuhlmeier v. Hazelwood Sch.

Dist., 795 F.2d 1368, 1375 (8th Cir. 1988)).

invaded that student’s rights.” Id. at 29. This narrow

construction is true to Tinker. But the First Circuit

abandoned it here, instead reconceptualizing Tinker’s

broad protection of student speech in ways the Tinker

Court would not recognize.

II.

The First Circuit’s Novel Test Cannot be

Reconciled With Tinker.

The First Circuit purported to apply Tinker in

approving restrictions on student speech, but it did no

such thing. It instead reformulated the Tinker

exceptions to create a new test for limiting speech that

greatly expands administrators’ discretion to restrict

non-disruptive expression. The impressionistic

approach the First Circuit approved is incapable of

reasoned application.

A. The First Circuit Reimagined Tinker’s

Exceptions.

Although the First Circuit purported to apply

Tinker to this case, doing so required a great deal of

interpretation. The district court had ruled that

L.M.’s generalized message to no one in particular

violated the rights-of-others. App. 19a; App. 77a–78a.

The First Circuit, however, was not so sure, and

expressed uncertainty “as to when, if ever, the rightsof-others limitation applies to passive and silent

expression that does not target any specific student or

students.” App. 20a–21a. The court instead

determined that the passive display of “There Are

Only Two Genders” violated Tinker’s substantial

disruption exception. App. 54a. Perhaps not entirely

convinced of its own reasoning, the First Circuit

hedged its bet by suggesting that perhaps both

exceptions might apply, and that the difference

between them “may be more semantic than real.” App.

36a.

To reach this conclusion, the First Circuit looked

almost exclusively to a suspect split-panel decision of

the Seventh Circuit, Nuxoll ex rel. Nuxoll v. Indian

Prairie School District, 523 F.3d 668 (7th Cir. 2008).

App. 26a–29a. Relying on dicta in Nuxoll, the First

Circuit formulated a test permitting school

authorities to punish passive displays of student

speech that they find demeaning as materially

disrupting the activities of the school without having

to satisfy any objective standard. App. 34a–35a.

Nuxoll addressed a student’s desire to wear a “Be

Happy, Not Gay” T-shirt for a “straight pride” event

to be held on the first school day after his school held

a homosexual tolerance event. 523 F.3d at 670. The

school maintained an anti-harassment policy

forbidding derogatory comments that referred to race,

ethnicity, religion, gender, sexual orientation, or

disability. Id. The district court had denied injunctive

relief, and the Seventh Circuit reversed on the facts

before it, reasoning that the shirt’s slogan did not

constitute harassment. At the same time, in dicta, the

court articulated the basis for the broader rule the

First Circuit eventually adopted here. Id. at 676.

Although there was no evidence the plaintiff’s

shirt in Nuxoll would lead to any threatened material

disruption of school activities, the panel majority

suggested that even passive derogatory comments

about deeply rooted personal characteristics can

“strike a person at the core of his being” and “poison

the school atmosphere.” Id. at 671. The majority

speculated that plaintiff might cause a “deterioration

in the school’s ability to educate its students” if his

anti-gay message, based on his interpretation of the

Bible, prompted others to make negative statements

about the Bible, thereby affecting the atmosphere of

the school so that it was not conducive for learning.

Id. at 672.

Although it correctly rejected the school’s

argument that its policy was justified under Tinker’s

invasion of the rights of others exception—noting

people “do not have a legal right to prevent criticism

of their beliefs or for that matter their way of life” 5—

the Seventh Circuit majority nevertheless accepted

that schools may forecast substantial disruption that

does not actually disturb the school’s activities. It

explained that school authorities may do so when they

fear speech or expression could have potential

psychological effects on other students that might

“poison the educational atmosphere” and thereby

cause substantial disruption.

To elevate such vague concerns to outweigh

constitutional protections, the majority belittled the

value of student debate on issues of public importance.

Nuxoll, 523 F.3d at 674 (“[A]dult debates on social

issues are more valuable than debates among

children.”). But as this Court more recently clarified

in Mahanoy, student speech cannot be so easily

trivialized as being “unworthy of … robust First

Amendment protections.” 594 U.S. at 193. For “‘what

otherwise might seem a trifling and annoying

instance of individual distasteful abuse of a privilege,

these fundamental societal values are truly

5 523 F.3d at 672 (citing R.A.V. v. City of St. Paul, 505 U.S.

377, 394 (1992), and Boos v. Barry, 485 U.S. 312, 321 (1988)).

implicated.’” Id. (quoting Cohen v. California, 403

U. S. 15, 25 (1971)). Without the benefit of this later

Supreme Court guidance, the Nuxoll majority

undervalued the First Amendment guarantees at

issue and abdicated its role as a protector of student

free expression. Instead, it adopted a “judicial policy

of hands off (within reason) school regulation of

student speech.” Nuxoll, 523 F.3d at 671.

From the deeply flawed majority opinion in Nuxoll,

the First Circuit divined the novel test it applied in

this case, allowing school authorities to censor

student expression if they forecast it might have

subjectively harmful psychological effects on other

students.6

Under the First Circuit’s test, schools can censor

passive, silently expressed pure speech that does not

target any student if the student’s expression

demeans a deeply rooted personal characteristic of

personal identity and that message is “reasonably

forecasted to ‘poison the educational atmosphere’” of

the school. App. 34a–35a. This test fundamentally

redefines the concept of substantial disruption.

The court also looked to other circuits’ decisions about

passive displays of controversial messaging, mainly ones that

concerned display of highly inflammatory symbols—such as the

Confederate Battle Flag—in districts that had experienced

disruption based on racial tensions. App. 25a–26a (discussing

West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th

Cir. 2000)); App. 30a–31a (discussing Sypniewski v. Warren Hills

Reg’l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002)). Such cases have

no bearing on this case where there was no similar history of

tension or fights among students over gender issues.

To whatever extent this amorphous standard can

be understood and applied, it is far afield from Tinker.

B. The First Circuit’s Test Abandons this

Court’s Protection of Student Speech.

The First Circuit’s test ignores this Court’s

holdings in Tinker, Mahanoy, and other decisions

touching on the importance of protecting students’

speech that does not threaten substantial, material

disruption of school activities. It is subjective,

amenable to manipulation, and impervious to

reasoned application. Minnesota Voters All. v.

Mansky, 585 U.S. 1, 23 (2018) (government must

support its “good intentions with a law capable of

reasoned application”).

The First Circuit’s test improperly prioritizes

school authorities’ desires to avoid injured feelings

above the need for Courts to protect unpopular and

controversial student expression. Worse, it does so by

deferring to school authorities’ subjective fears of

undefined psychological harms, throwing off the

constitutional guardrails established by Tinker and

Mahanoy.

Comparing the facts in Nuxoll to those in this case

illustrates the impracticability of the First Circuit’s

test. Both circuits have now embraced the same rule.

But in Nuxoll, the Seventh Circuit found that the

slogan “Be Happy, Not Gay” on a T-shirt is “tepidly

negative,” does not demean gay students, and is

unlikely to cause psychological harm. 523 F.3d at 676.

Here, however, the First Circuit concluded that

“There Are Only Two Genders” (and even worse,

“There Are [CENSORED] Genders”) is demeaning

and likely to cause serious psychological harm to

transgender or nonbinary students. App. 48a, 54a.

This is no test at all. How can any school

administrator objectively determine what speech will

“poison the educational atmosphere” or lead to a “sick

school”? And how can any court review such

amorphous, subjective determinations? As this Court

has held, “the State must draw a reasonable line” and

“articulate some sensible basis for distinguishing

what may come in from what must stay out.” Mansky,

585 U.S. at 16.

These two decisions provide no guidance to

identify “tepid” criticism from demeaning comments

that strike a person at the core of their being. Which

comments will cause psychological harm, and which

will not? Which will lead to “symptoms of a sick

school,” and thus justify censorship and punishment?

How are school authorities to navigate such waters

other than by censoring a vast amount of student

expression? The Seventh Circuit’s answer, after

dismissing the importance of student speech, was

generally to defer to school administrators—except,

oddly, in the case before it—and the First Circuit has

now adopted this dangerously deferential approach.

Such deference to authority cannot be squared

with Tinker, where this Court made clear that public

schools are not “enclaves of totalitarianism” and

students “may not be confined to the expression of

those sentiments that are officially approved.” 393

U.S. at 511. Rather, “[i]n the absence of a specific

showing of constitutionally valid reasons to regulate

their speech, students are entitled to freedom of

expression of their views.” Id. The decision below

swaps out the “specific showing of constitutionally

valid reasons” that Tinker required for impressionistic

mush that provides no standard of review.

In the current polarized environment, and subject

to the push and pull of the culture wars in our society,

schools are likely to censor broad swaths of

controversial matters of public debate and

disagreement. But this Court’s precedents teach that

because schools are the nurseries of democracy, they

cannot simply shield students from the realities of our

diverse and disputatious society. Instead, schools

must prepare students to learn the values of tolerance

and civil debate. Curtailing debate for fear of

upsetting students runs contrary to the promise of the

First Amendment. Instead, it runs dangerously close

to institutionalizing the heckler’s veto.

By censoring passive displays of subjectively

offensive speech touching on personal characteristics,

schools will potentially render entire areas of

discussion off-limits based on nebulous fears that

some students may suffer some negative consequence

at some future time, even without actual disruption or

interference with school activities.

III. Censorship is Not Necessary to Prevent

Harassment

Based

Protected

Personal Characteristics.

Censorship of student speech is not the answer to

the First Circuit’s concerns about student-on-student

harassment. Existing laws and pedagogical strategies

provide a superior—and constitutional—alternative.

There is no need to expand Tinker’s substantial

disruption exception to reach speech that does not

threaten immediate and substantial disruption of

educational activities. To the extent that student

conduct targeting a protected personal characteristic

actually affects another student’s access to an

educational opportunity or benefit, this Court has

found an implied cause of action based on objective

anti-harassment standards. See Davis v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629 (1999) (implied right

of action exists under Title IX); Alexander v.

Sandoval, 532 U.S. 275 (2001) (implied right of action

exists under Title VI).

The Davis Court held that a student may hold a

school liable for deliberate indifference to harassing

conduct “so severe, pervasive, and objectively

offensive, and that so undermines and detracts from

the victims’ educational experience, that the victimstudents are effectively denied equal access to an

institution’s resources and opportunities.” Id. at 651.

This Court in Davis observed that school students

“often engage in insults, banter, teasing, shoving,

pushing, and gender-specific conduct that is upsetting

to the students subjected to it. Damages are not

available for simple acts of teasing and name-calling

among school children, however, even where these

comments target differences in gender.” Id. at 651–52.

Unlike the First Circuit’s subjective test, Davis

requires that the behavior “have the systemic effect of

denying the victim equal access to an educational

program or activity,” not simply that a school

authority fears some subjective psychological harm

that will one day potentially lead to declining test

scores or absenteeism. Id. at 652.

Courts and schools have been applying Davis and

its objective standard for decades without difficulty.

See, e.g., Jennings v. Univ. of N. Carolina, 482 F.3d

686 (4th Cir. 2007); Stafford v. George Washington

Univ., 18-cv-2789, 2019 WL 2373332 (D.D.C. June 5,

2019); T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp.

3d 332 (S.D.N.Y. 2014). There is no good reason to

expand Tinker as the First Circuit has, which will

create considerable uncertainty and lead to

censorship of much student freedom of expression

otherwise protected by the First Amendment.

As courts have recognized, student expression that

targets another student, rises to a sufficient level of

pervasiveness and severity, and adversely affects that

student’s learning, such as harassment or bullying,

may be banned or punished under Tinker’s invasion of

the rights of others exception.

Such verbal abuse is not protected under Tinker

when it crosses the line into tortious conduct, such as

defamation or intentional infliction of emotional

distress. Thus, school authorities are already

equipped to stop students from engaging in the kinds

of targeted speech or expressive conduct that other

students cannot ignore. And they can do so without

the need to engage in speculation about subjective

psychological harms and attenuated projections of a

toxic educational environment.

CONCLUSION

For the foregoing reasons, this Court should grant

certiorari to reject the First Circuit’s attempt to

expand Tinker’s exceptions to authorize censorship

based on amorphous and subjective fears of adverse

future effects.

November 12, 2024

Respectfully Submitted,