by Chris Gilbert, Thompson & Horton LLP

Quick Update:  The Supreme Court denied certiorari last week in L.M. v. Town of Middleborough, Mass., 103 F.4th 854 (1st Cir. 2024), the “There Are Only Two Genders” t-shirt case.  This means that the First Circuit’s decision stands, and is now the law – but only in the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island).  I’m a little surprised, because the First Circuit set out a rule for cases involving student speech that did not target a specific student (i.e. non-bullying, non-harassing speech) that moved pretty far afield from the Supreme Court’s Mahanoy decision.  I did a full recap of the First Circuit’s decision last June, which can be found here, but here is the test:

[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.

It will be very interesting to see if any other circuits adopt this admittedly-complicated test now that the Supreme Court has taken a pass on it.