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

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,

TOWN OF MIDDLEBOROUGH, MASSACHUSETTS, ET AL.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the First Circuit

BRIEF FOR AMICUS CURIAE

INDEPENDENT WOMEN’S LAW CENTER IN

SUPPORT OF PETITIONER AND REVERSAL

MAY MAILMAN

INDEPENDENT WOMEN’S

LAW CENTER

1802 Vernon Street NW

Suite 1027

Washington, DC 20009

GENE C. SCHAERR

Counsel of Record

MEGAN SHOELL*

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

NOVEMBER 12, 2024

TABLE OF CONTENTS

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

INTRODUCTION AND INTEREST OF

AMICUS CURIAE ................................................... 1

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

ADDITIONAL REASONS FOR GRANTING

THE PETITION ....................................................... 3

II.

The First Circuit Departed from This

Court’s Precedent When It Permitted

Prohibition of Passive, Silent, and Nonaggressive Student Speech Solely

Because It Related to Issues of Gender

Identity. ........................................................... 3

This Court’s Precedent is Clear that

Schools Must Permit Expression of

Unpopular

and

Controversial

Viewpoints. .............................................. 4

Exposure to Diverse Viewpoints at

School Prepares Students to Civilly

and Actively Engage in a Pluralistic

Society...................................................... 6

These Principles Apply Even to

Issues of Sex, Gender, and Personal

Identity. ................................................... 8

The First Circuit’s Own Test Does Not

Justify the Prohibition of L.M.’s Speech. ..... 11

A Statement of Political Belief is Not

“Demeaning” to Students Just

Because It Disagrees with Them. ......... 12

Exclusion of L.M.’s Speech Is Not

Justified by the Fact that It Was

Communicated Via Clothing. ............... 14

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

Page(s)

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

478 U.S. 675 (1986) .......................................... 5, 6, 7

Burnside v. Byars,

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

Cohen v. California,

403 U.S. 15 (1971) .................................................. 11

Keyishian v. Board of Regents,

385 U.S. 589 (1967) .................................................. 3

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

594 U.S. 180 (2021) .............................................. 5, 6

Meyer v. Nebraska,

262 U.S. 390 (1923) ................................................ 16

Morse v. Frederick,

551 U.S. 393 (2007) .................................................. 5

Terminiello v. City of Chicago,

337 U.S. 1 (1949) ...................................................... 5

Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503 (1969) .................. 3-5, 10-16

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

319 U.S. 624 (1943) .......................................... 1, 3, 6

Other Authorities

Kathleen M. Goodman,

The Effects of Viewpoint Diversity and

Racial Diversity on Need for Cognition,

58 J. Coll. Student Dev. 853 (2017)......................... 7

Patricia Gurin et al.,

The Benefits of Diversity in Education

for Democratic Citizenship,

60 J. Soc. Issues 17 (2004) ....................................... 8

Patricia Gurin,

Selections from The Compelling Need for

Diversity in Higher Education, Expert

Reports in Defense of the University of

Michigan, Expert Report of Patricia Gurin,

32 Equity & Excellence in Educ. 36 (1999) ............. 7

Greg Lukianoff & Jonathan Haidt,

The Coddling of the American Mind,

The Atlantic (Sept. 2015) ......................................... 8

Kim Parker et al.,

Americans’ Complex Views on Gender

Identity and Transgender Issues,

Pew Rsch. Ctr. (2022) .............................................. 9

PRRI Staff,

The Politics of Gender, Pronouns, and

Public Education: Findings From the

2023 Gender and Politics Survey,

PRRI (2023) .............................................................. 9

INTRODUCTION AND

INTEREST OF AMICUS CURIAE 1

It was in the context of an elementary school

classroom that this Court said:

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.

West Virginia State Bd. of Educ. v. Barnette, 319 U.S.

624, 642 (1943). The sentence immediately following

that pronouncement is often forgotten: “If there are

any circumstances which permit an exception, they do

not now occur to us.” Ibid.

But the First Circuit believes it has found a new

exception to that fixed star for student speech that

risks “negative psychological impacts” on issues

relating to gender and “characteristics of personal

identity.” App. 34a-35a. But the potential for offense

alone is not enough to justify the exclusion of student

speech. A school district cannot punish a student who

expresses a sincere belief that sex is binary simply

because he may contradict the beliefs and selfconceptions of other students.

1 This brief was not authored in whole or in part by counsel for

any party and no person or entity other than amicus curiae or its

counsel has made a monetary contribution toward the brief’s

preparation or submission. Counsel of record for all parties

received timely notice of the intent of amicus curiae to file this

brief.

Amicus Independent Women’s Law Center

(IWLC) is a non-profit organization that fights for the

equal opportunity women are promised in law,

individual liberty, and the continued legal relevance of

biological sex. Amicus IWLC is committed to

preserving the freedom of men, women, and children

to express their belief that biological sex matters and

thus urges this Court to grant certiorari and reverse.

SUMMARY OF ARGUMENT

The petition ably explains several reasons this

case merits the Court’s review and, ultimately,

reversal. Amicus IWLC writes separately to

emphasize two additional reasons.

First, amicus emphasizes that protection for the

expression of unpopular viewpoints on school

campuses applies to issues of sex, gender identity, and

personal identity. While the First Circuit

acknowledged the clear directive in this Court’s

precedent to protect unpopular and controversial

student expression even when it may risk offending

other students, App. 38a, the First Circuit carved out

a special exception to this case law for issues relating

to personal identity due to the potential for “negative

psychological impact[s],” App. 35a. In so doing, the

First Circuit ignored this Court’s repeated admonition

that the potential for offense alone is not enough to

justify the exclusion of student speech, undermined

the role of schools in preparing students to engage in

civic discourse, and defied the facts and holding of

Tinker itself.

Second, amicus explains that even the First

Circuit’s novel material disruption test does not justify

the prohibition of L.M.’s shirt because it was not

“demeaning.” L.M.’s shirt silently and passively

conveyed a message of “pure ideology” without

targeting any individuals or criticizing those who held

opposing opinions. Such a message is not “demeaning”

just because it contradicts the beliefs and selfconceptions of other students. Nor does the decision to

express himself via a t-shirt render otherwise

protected speech regulable. Where, as here, a school

district encourages pro-LGBTQ+ messaging on

t-shirts but prohibits students from wearing t-shirts

that state “there are only two genders,” the school

district

commits

unconstitutional

viewpoint

discrimination.

ADDITIONAL REASONS FOR GRANTING

THE PETITION

The First Circuit Departed from This

Court’s Precedent When It Permitted

Prohibition of Passive, Silent, and Nonaggressive Student Speech Solely Because It

Related to Issues of Gender Identity.

As this Court said in its landmark school-speech

case, “[t]he classroom is peculiarly the ‘marketplace of

ideas.’” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503, 512 (1969) (quoting Keyishian v. Board

of Regents, 385 U.S. 589, 603 (1967)). As such, no

school official “can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of

opinion,” West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624, 642 (1943), nor can they “confine[]”

students “to the expression of those sentiments that

are officially approved,” Tinker, 393 U.S. at 511.

Rather, Tinker establishes that student speech

can be regulated by schools only if it “materially

disrupts” the operation of school functions or

“inva[des] * * * the rights of others.” 393 U.S. at 513.

This foundational principle is just as valid and

necessary today as it was 55 years ago. Nevertheless,

the First Circuit concluded that schools can prohibit

certain student speech, even when it is made

passively, silently, and non-aggressively, if the content

of that speech touches on “characteristics of personal

identity” and risks potential “negative psychological

impact[s].” App. 34a-35a. This Court should grant

certiorari and reverse the First Circuit’s holding to

clarify that the protections of Tinker apply to student

speech even when that speech addresses the sex

binary.

This Court’s Precedent is Clear that

Schools Must Permit Expression of

Unpopular

and

Controversial

Viewpoints.

Tinker itself involved students who wore black

armbands of mourning to school to protest the

Vietnam War. At the time, the validity of the United

States’ engagement in the war was a “highly emotional

subject.” Tinker, 393 U.S. at 518 (Black, J.,

dissenting). In this context, the Court noted that

“[a]ny variation from the majority’s opinion may

inspire fear” and that “[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.” Id. at 508. Nevertheless, the

Court concluded that “our Constitution says we must

take this risk.” Ibid. (citing Terminiello v. City of

Chicago, 337 U.S. 1 (1949)).

As a result, the Court emphasized that school

officials cannot “suppress ‘expressions of feelings with

which they do not wish to contend,’” Tinker, 393 U.S.

at 511 (quoting Burnside v. Byars, 363 F.2d 744, 749

(5th Cir. 1966)). Rather, “to justify prohibition of a

particular expression of opinion, [school officials] must

be able to show that [their] action was caused by

something more than a mere desire to avoid the

discomfort and unpleasantness that always

accompany an unpopular viewpoint.” Id. at 508-509.

In its subsequent school-speech cases, this Court

has continually reaffirmed that schools must not only

permit, but protect, the expression of unpopular and

controversial opinions. See Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 681 (1986) (Students have

“undoubted freedom to advocate unpopular and

controversial views in schools.”); Morse v. Frederick,

551 U.S. 393, 409 (2007) (Explaining that past cases

“should not be read” to allow prohibition of “any speech

that could fit under some definition of ‘offensive.’ After

all, much political and religious speech might be

perceived as offensive to some.”); Mahanoy Area Sch.

Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 190 (2021)

(“[T]he school itself has an interest in protecting a

student’s unpopular expression.”).

Thus, the foundational principle of this Court’s

precedent on school speech is that schools must protect

the non-disruptive expression of unpopular ideas so

that students learn to live in a pluralistic society and

civilly engage in political discourse.

Exposure to Diverse Viewpoints at

School Prepares Students to Civilly and

Actively Engage in a Pluralistic Society.

Protection for unpopular student expressions of

political or religious belief is necessary because

“America’s public schools are the nurseries of

democracy.” Mahanoy, 594 U.S. at 190. By not only

permitting, but protecting, the expression of

unpopular viewpoints on issues of political, social, and

religious importance, public schools play an important

role in preparing students to subsequently participate

in and contribute to our diverse government and

society.

First, exposure to unpopular viewpoints at school

teaches students to value free speech, a bedrock

principle of our Constitution. The more schools punish

student expression, the more they “strangle the free

mind at its source and teach youth to discount

important principles of our government as mere

platitudes.” West Virginia State Bd. of Educ., 319 U.S.

at 637. For this reason, schools have a “strong interest”

in protecting student speech and thereby “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.’” Mahanoy, 594 U.S. at 190.

Second, exposure to unpopular viewpoints

teaches students how to civilly engage in political

discourse. Indeed, it is “[t]he role and purpose of the

American public school system * * * 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). These “‘habits

and manners of civility’ essential to a democratic

society must, of course, include tolerance of divergent

political and religious views, even when the views

expressed may be unpopular.” Ibid. By permitting

advocacy for “unpopular and controversial views” in a

controlled environment, schools teach students to

express and engage with these views within the

“boundaries of socially appropriate * * * political

discourse.” Ibid.

Third, exposure to diverse and unpopular

viewpoints at school increases students’ mental

engagement and motivation. Much research has been

conducted on the benefits of diversity in educational

environments. Importantly, that research notes that

“[s]tructural diversity is * * * by itself, usually not

sufficient to produce substantial benefits.” 2 Instead,

students need to “learn about each other * * * in

informal interaction[s] outside of the classroom.” 3 This

exposure to people “who hold different religious or

political viewpoints or personal values appears to

contribute to learning. Even engaging in conversations

about differences may lead to gains in learning.” 4

2 Patricia

Gurin, Selections from The Compelling Need for

Diversity in Higher Education, Expert Reports in Defense of the

University of Michigan, Expert Report of Patricia Gurin, 32

Equity & Excellence in Educ. 36, 41 (1999), https://tinyurl.

com/yfsu6r9k.

3 Ibid.

4 Kathleen

M. Goodman, The Effects of Viewpoint Diversity

and Racial Diversity on Need for Cognition, 58 J. Coll. Student

Dev. 853, 855 (2017) (citations omitted), https://tinyurl.com/

4b3dpe43; see also Gurin, supra note 2, at 45 (“Students who had

experienced the most diversity in classroom settings and in

informal interactions with peers showed the greatest engagement

Fourth, exposure to unpopular viewpoints at

school can promote better long-lasting mental health

in students. One argument in favor of restrictions on

student speech is that schools should shield students

from ideas that may be psychologically damaging for

them. However, censoring a student’s speech to

protect a classmate’s emotional safety ultimately

harms their personal emotional and psychological

development. Rather than teaching students critical

thinking skills and tools to cope with distressing

comments or viewpoints, “[a] campus culture devoted

to policing speech and punishing speakers is likely to

engender patterns of thought that are surprisingly

similar to those long identified by cognitive behavioral

therapists as causes of depression and anxiety.” 5

Ultimately, the research shows that those

students who are exposed to a diversity of viewpoints

“in classrooms and in the broad campus environment

will be more motivated and better able to participate

in a heterogeneous and complex society.” 6

These Principles Apply Even to Issues of

Sex, Gender, and Personal Identity.

Questions of gender identity have been at the

forefront of political and social debate in recent years.

in active thinking processes, growth in intellectual engagement

and motivation, and growth in intellectual and academic skills.”).

5 Greg

Lukianoff & Jonathan Haidt, The Coddling of the

American Mind, The Atlantic (Sept. 2015), https://tinyurl.

com/bdh9zv3m.

6 Patricia Gurin et al., The Benefits of Diversity in Education

for Democratic Citizenship, 60 J. Soc. Issues 17, 19 (2004),

https://tinyurl.com/3jk26h48.

See PRRI Staff, The Politics of Gender, Pronouns, and

Public Education: Findings From the 2023 Gender and

Politics Survey, PRRI (2023), https://tinyurl.com/

3y7wffek; Kim Parker et al., Americans’ Complex

Views on Gender Identity and Transgender Issues, Pew

Rsch. Ctr. (2022), https://tinyurl.com/y5xv8fw2.

Within this debate, the belief that sex is binary is

not unusual. That belief is often expressed as the

statement that “gender” is binary, given that many

people use “gender” interchangeably with “sex” to

avoid awkwardly using the intercourse synonym.

IWLC opposes this linguistic switch, which gives rise

to confusion about the binary nature of sex.

Regardless, the switch is prevalent, and recent polling

indicates that American adults have become more

likely to say that there are only two “genders” in recent

years—rising from 59% in 2021 to 65% in 2023. See

PRRI Staff, supra, at 3. The increase is even sharper

among younger generations, rising by fourteen

percentage points for Generation Z and nine

percentage points for Millennials between 2021 and

2023. Id. at 4 fig. 1.

Despite the prevalence of a belief in the sex

binary,

the

Middleborough

School

District

nevertheless concluded that L.M.’s passive, silent, and

non-aggressive expression of this belief could not be

permitted on school grounds due to the possibility of a

“negative psychological impact on students.” App. 35a.

And the First Circuit upheld this prohibition,

concluding that an exception should be made to

Tinker’s general rule of protecting unpopular and

controversial student expressions for issues relating to

“characteristics of personal identity.” App. 34a.

But reading Tinker to exclude student

expressions that might have a “negative psychological

impact” on students defies the facts of Tinker itself. In

the 1960s, the topic of the Vietnam War was not only

politically charged, but also “highly emotional.”

Tinker, 393 U.S. at 518 (Black, J., dissenting). Indeed,

the dissent argued that the school’s prohibition on

black armbands protesting the Vietnam War should

have been upheld because “disputes over the wisdom

of the Vietnam war have disrupted and divided this

country as few other issues [e]ver have. Of course

students * * * cannot concentrate on [school] when

black armbands are being ostentatiously displayed in

their presence to call attention to the wounded and

dead of the war, some of the wounded and the dead

being their friends and neighbors.” Id. at 524 (Black,

J., dissenting). It is hard to imagine a more negative

psychological impact on a student than to be regularly

and consistently reminded, throughout the school day,

of a wounded or dead friend or family member.

Thus, Tinker addressed head on student

expressions that might have “negative psychological

impact[s]” and “strike[] a person at the core of his

being,” App. 34a-35a (cleaned up), and concluded that

even those expressions cannot be prohibited by school

officials without evidence of a material disruption of

school activities or an invasion of the rights of others,

Tinker, 393 U.S. at 513. So, too, should the court have

protected L.M.’s expression here.

II. The First Circuit’s Own Test Does Not

Justify the Prohibition of L.M.’s Speech.

Tinker establishes that student speech can be

regulated by schools only if it “materially disrupts” the

operation of school functions or “inva[des] * * * the

rights of others.” 393 U.S. at 513. In its opinion, the

First Circuit adopted a novel interpretation of the

“materially disrupts” prong and concluded that schools

“may bar passive and silently expressed messages

* * * that target no specific student if: (1) the

expression is reasonably interpreted to demean [a]

* * * characteristic[] of personal identity * * * and

(2) the demeaning message is reasonably forecasted”

to have a “serious negative psychological impact on

students with the demeaned characteristic[.]” App.

34a-35a (citations omitted).

While petitioner L.M. ably explains why the

court’s adopted test is incorrect and spawns multiple

circuit splits, amicus IWLC writes separately to

emphasize that even under the First Circuit’s own

test, L.M.’s speech was not demeaning.

Throughout its opinion, the First Circuit

repeatedly describes L.M.’s speech as a “passive and

silent expression that does not target any specific

student or students.” App. 20a; see also App. 4a, 22a,

23a, 34a, 37a. L.M.’s speech is thus distinguishable

from “bullying speech.” App. 22a; see also Cohen v.

California, 403 U.S. 15, 20 (1971) (“No individual

actually or likely to be present could reasonably have

regarded the words * * * as a direct personal insult.”).

Nor did L.M.’s shirt use words or images that were

intentionally “hateful or bigoted.” App. 48a. Finally,

the parties do not dispute that L.M.’s expression of

opinion was “unaccompanied by any disorder or

disturbance on the part of” L.M. himself. App. 37a

(quoting Tinker, 393 U.S. at 508). Instead, L.M.

described his shirt’s message as a “purely ideological”

message that “summarized [his] beliefs at a high level

of generality without criticizing opposing views.”

App. 48a.

In spite of all this, the school district still

concluded that L.M.’s shirt was “demeaning.” The

First Circuit deferred to this determination, stating

that it need not “tak[e] charge of defining the precise

words that do or do not” render a message

“demeaning” as long as the school district’s

determination

was

“reasonabl[e].”

App. 47a.

Ultimately, the court defers to two reasons given by

the school district for why L.M.’s shirt was

“demeaning”: First, because “the message expresses

the view that students with different beliefs * * * are

wrong,” App. 48a (cleaned up), and second, because the

statement was made on a t-shirt and was thus lasting

rather than “fleeting” or “nuance[d].” App. 49a.

Neither reason justifies prohibiting L.M.’s statement

of pure political ideology.

A Statement of Political Belief is Not

“Demeaning” to Students Just Because

It Disagrees with Them.

The court’s first reason for upholding the

prohibition on L.M.’s shirt is the most problematic:

The court concluded that L.M.’s shirt was

“demean[ing]” because it “expresses the view that

students with different ‘beliefs about the nature of

[their] existence’ are wrong,” App. 48a.

But the standard for regulation of student speech

under Tinker has never been that the school district

can regulate student speech just because it implies

that students with different beliefs are wrong. Indeed,

Tinker states the exact opposite, repeatedly

emphasizing that schools cannot regulate speech just

because it conveys an “unpopular viewpoint” that may

cause “discomfort and unpleasantness” to others. 393

U.S. at 509. Rather, schools must show “something

more” to “justify [the] prohibition of a particular

expression of opinion.” Ibid.

Here, however, there was no “something more.”

L.M.’s shirt included no intentionally derogatory

terms or symbols. His shirt included no statement

criticizing those who believed differently. Indeed, his

shirt contained no statement directed at any people

whatsoever. It was, as L.M. described it, a “purely

ideological” statement of political and social belief.

App. 48a.

This begs the question: Is there any shirt L.M.

could have worn expressing a belief that gender is

binary that the school would have permitted? Is there

any way he could have expressed his beliefs more

politely and thus rendered his shirt acceptable to the

school district?

The inevitable conclusion is that no, there is no

shirt expressing a belief in the sex binary that the

school would have likely permitted. Both the school

district and the First Circuit concluded that L.M.’s

shirt was “demeaning” and therefore worthy of

regulation solely because it contradicted the beliefs

and self-conceptions of other students. Indeed, it was

the belief itself, and nothing concerning L.M.’s

particular expression thereof, that the school found

problematic.

Exclusion of L.M.’s Speech Is Not

Justified by the Fact that It Was

Communicated Via Clothing.

The First Circuit attempts to avoid the inevitable

conclusion that L.M.’s speech was suppressed solely

because the school district disagreed with its message

by emphasizing 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.” App.

49a. The court thus concludes that “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.” Ibid. Instead, the court hypothesizes that

Middleborough may still allow expressions of belief in

the sex binary orally through “a stray remark on a

playground” or a “point made during discussion.” App.

51a-52a. But this heavy emphasis on the fact that the

school was regulating apparel is misplaced for two

reasons.

First, the First Circuit’s conclusion that L.M.’s

choice to express his beliefs on a shirt rendered his

expression especially demeaning is at direct odds with

this Court’s conclusions in Tinker. There, the Court

acknowledged that had “school officials forbidd[en]

discussion of the Vietnam conflict * * * it would be

obvious that the regulation would violate the

constitutional rights of students.” Tinker, 393 U.S. at

513. This Court went on to consider the implications

of the students’ choice to express themselves via

armbands and ultimately concluded that the school’s

regulation of the “silent, passive” witness of apparel

“is no less offensive to the constitution’s guarantees.”

Id. at 514. The Court concluded that where, as here,

the form of expression caused “no interference with

work and no disorder,” the Constitution protects not

only the substance of the student’s expression but

“their form of expression” as well. Ibid. Thus, this

Court has already considered, and rejected, the

conclusion that student speech which would be

permitted verbally is otherwise regulable just because

it is made via apparel.

Second, the First Circuit’s conclusion that L.M.’s

expression was especially demeaning because it was

made via apparel blatantly ignores the fact that the

school not only allowed, but encouraged, students to

express the opposing viewpoint via their clothing. As

explained in the petition, students in the

Middleborough School District “often wear t-shirts

and other apparel” with pro-trans and LGBTQ+

messaging. Pet. 4 (citing App. 100a-101a). In fact,

during Pride Month, the school district “invites”

students to show their support for transgender and

gender nonconforming students “by donning rainbow

colors and wearing Pride gear.” Ibid. (cleaned up).

Where, as here, a school district encourages proLGBTQ+ messaging on t-shirts but prohibits students

from wearing t-shirts that state “there are only two

genders,” the school district commits textbook

viewpoint discrimination. This discrimination cannot

be justified solely on the grounds that the regulated

message contradicts the beliefs and self-conceptions of

other students in a way that may make them feel

“discomfort and unpleasantness.” Tinker, 393 U.S. at

509. In circumstances such as this—where a student

adopts a passive, silent, and non-targeted means of

communicating a message of pure ideology—“the

prohibition of expression of one particular opinion

* * * is not constitutionally permissible.” Id. at 511.

CONCLUSION

Our nation has long “repudiate[ed] * * * the

principle that a State might so conduct its schools as

to ‘foster a homogenous people.’” Tinker, 393 U.S. at

511 (quoting Meyer v. Nebraska, 262 U.S. 390, 402

(1923)). Instead, schools must tolerate the appropriate

expression of unpopular and controversial opinions.

Id. at 513. These principles apply when a student

passively, silently, and non-aggressively expresses an

opinion on matters of sex, gender, and personal

identity—even if that opinion contradicts the beliefs

and self-conceptions of others.

For that and the other reasons explained above,

amicus respectfully submit that the petition for

certiorari should be granted and the decision of the

First Circuit reversed.

Respectfully submitted,