To Disrupt or to Invade: Two New First Amendment Cases – Part 2 (T-shirts)

by Chris Gilbert, Thompson & Horton LLP

In a follow up to my recent post about book removals (see Butts, Farts and T-Shirts: Two New First Amendment Cases – Part 1 (books)), today we are discussing L.M. v. Town of Middleborough, Mass., — F.4th —- (1st Cir. 2024), a new case from the First Circuit (Massachusetts) involving a challenge to a t-shirt removal.  The plaintiff, a middle school student, wore a t-shirt to school that read “There Are Only Two Genders.”  He was told he could not wear the shirt under a provision of the dress code that prohibited clothing that “state[d], impl[ied] or depict[ed] speech or imagery that targets groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”  He then wore the same shirt with the words “Only Two” covered by a piece of tape that read “CENSORED”; he was told he could not wear that shirt either, but was not otherwise disciplined.

Of particular interest, it seemed generally accepted by the parties and court that although there were several students that identified as part of the LGBTQ+ community in the school, including several who identified as transgender or gender nonconforming, the plaintiff did not wear his shirt to target, harass or bully any specific student(s).  There was no evidence that his shirt caused any actual disruption at school among students, although it did lead to numerous calls to the school that were described as hateful, threatening and lewd, including 50 calls in a single day, and what sounded like a fairly minor protest/counter-protest between two groups of adults right off campus.

Both the district court and the First Circuit agreed that the governing case was Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court’s seminal student free speech case involving students who wore black armbands to protest the Vietnam War.  Tinker is of course best known for its “material and substantial disruption” test, but the Tinker Court actually proposed two tests, and it was the second test that the lower court relied on in finding that the school was justified in prohibiting the plaintiff’s shirt:  whether the speech constitutes an “invasion of the rights of others” to be secure and be left alone – specifically, “the rights of particularly vulnerable students who are members of the [LGBTQ+] community (a protected class) to feel safe from harassment and bullying while in school.”

While the First Circuit affirmed the right of the school to prohibit the shirt, it did so based on the other prong of the Tinker test, i.e. the material and substantial disruption prong.  The Court framed the test as whether and how Tinker would apply “to passive and silent expression that does not target any specific student or students but assertedly demeans a personal characteristic like race, sex, religion, or sexual orientation that other students at the school share.”  While I have read articles criticizing the First Circuit for abandoning the “invasion of the rights of others” test and instead relying on the “the material and substantial disruption” test in a case where there was no real disruption, I think those articles missed the point: after an extensive review of similar cases from other circuits, the First Circuit essentially held that which prong of Tinker was applicable did not matter:

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…. Our review of the rulings discussed above also reveals no obvious rationale for concluding that one limitation applies to the exclusion of the other.

The Court then proposed the following test regardless of which prong of Tinker applied:

[S]chool 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, … 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.

But, finally bowing to conformity, the Court decided that “most federal courts in this line of authority have identified the material-disruption limitation as the better fit…[and] we see no reason to break with that consensus view.”

Applying its new test, the Court concluded that it was reasonable for school officials to anticipate that the shirt would be understood by middle-school students ranging from ten-to-fourteen years old “to demean the identity of transgender and gender-nonconforming NMS students.”  The Court also found that it was for reasonable for the school “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.”  In reaching that decision, the Court relied on evidence that there were LGBTQ+ students in the school community, and that there had been bullying incidents involving those students in the past (although not involving the plaintiff or his specific t-shirt).

In a fairly short analysis, the Court also upheld the prohibition on the taped “CENSORED” version of the shirt, mainly because due to the extensive media coverage of the incident, students at the school would know what the shirt said (and what was covered up), and so the shirt would have the same effect as the uncensored version.

Although its only been a couple years since the Supreme Court last addressed student speech rights in Mahanoy, I have no doubt that the plaintiff will try to appeal this case to the Supreme Court – if for no other reason than that the First Circuit goes out of its way to repeatedly distinguish Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), a significant case striking down a hate speech code that just happened to be authored by Justice Samuel Alito when he was still a judge on the Third Circuit.  Justice Alito has been protective of his Saxe opinion in the past, and given the current Supreme Court’s extreme level of protection for individual speech rights, the lack of disruption and hate-speechy nature of the First Circuit’s opinion may be enough to catch their attention.