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Legal Updates from KLO

Federal Courts Continue to Address Free Speech in Schools

Posted on September 16, 2024

Important Takeaways: The 1st Circuit Court of Appeals established a rule for the regulation of messaging on student clothing.

Facts: John T. Nichols Middle School (the School) is a public middle school in Massachusetts. The School knew that several students identified as part of the LGBTQ+ community and many identified as transgender or gender nonconforming. Administration was also aware of a number of students who had attempted to commit suicide or had suicidal ideations, including some students who are members of the LBGTQ+ community.

The School’s dress code, provided in the Student and Family Handbook, stated that clothing that causes distractions inhibits learning is not allowed. It also stated that the dress code is governed by health, safety, and appropriateness. The relevant portion of the dress code provides “Any other apparel that the administration determines to be unacceptable to our community standards will not be allowed.” The dress code also provided that if it was broken, parents would be asked to bring different clothes for their child, but repeated violations will result in disciplinary action.

In Spring of 2023, L.M. was a 7th grader at the School. He believed there are only two biological sexes and therefore only two genders. In March of 2023, L.M. wore a black t-shirt to school that said “There Are Only Two Genders.” After L.M. went to first period, his teacher contacted the assistant principal and expressed concerns about the physical safety of L.M. and the safety of students who are part of the LGBTQ+ community. The teacher expressed concerns that the message on the shirt could potentially disrupt class.

The principal was contacted and told L.M. that he could not wear the shirt to school. She offered for L.M. to either remove the shirt or discuss it further. L.M. indicated that he would like to discuss it further. During the discussion, the principal told L.M. other students had complained about his shirt and if he did not remove it, he could not return to class. L.M. would not remove the shirt and his father was called. L.M.’s father supported L.M.’s decision not to remove the shirt and picked him up from school. No further action was taken. L.M. did not notice any disruption from his shirt on that day and continued to wear shirts that expressed his views with messages like “Don’t Tread on Me” and “First Amendment Rights.” He was not asked to remove any of these shirts.

On April 1, 2023, L.M.’s father sent the superintendent of the school district an email asking for an explanation of the problem with L.M.’s “There Are Only Two Genders” shirt. The father said the shirt was not directed at anyone in particular and only expressed L.M.’s views on the topic. A few days later, the superintendent responded to the father’s email and said that L.M. would not be punished for wearing the shirt but the school was only enforcing their dress code. The superintendent explained that the shirt had been understood to target students of a protected class, namely in the area of gender identity. On April 27, 2023, L.M.’s attorney sent the school a letter saying they had violated L.M.’s free speech rights under the Supreme Court case Tinker and the hate speech provision of their dress code was unconstitutional. The letter said L.M. would be wearing the shirt again on May 5 and if the school did not let him he may take legal action.

On May 4, 2023, the School’s legal counsel responded with a letter explaining the School’s actions were justified under the law because the state law provides protection against discrimination, harassment, and bullying on the basis of gender identity. The letter further explained that the School would continue to prohibit the wearing of clothing likely to be considered discriminatory, harassing, and/or bullying by suggesting a sexual orientation, gender identity or expressional does not exist or is invalid.

This incident became national news and protesters on both sides gathered at bus stops and near the school. These protesters caused complaints from community members. The School staff also received numerous threatening and hateful calls and emails. Someone also posted a directory of the School’s staff members on twitter with the caption “if you see these people in public, you know what to do.” The Middleborough Police Department provided police detail to the School between April 24 and April 28.

On May 5, 2023, L.M. wore the shirt again, this time with “Only Two” covered with a piece of tape that said “CENSORED”. The principal, superintendent, and counselor told L.M. he could not wear the shirt and he took it off. L.M. was not punished for wearing the shirt. On May 9, 2023, two more students wore shirts that said “There Are Only Two Genders.” The principal told the students they could not wear the shirts. One removed the shirt and the other’s parents were called when he refused to remove it. Neither of the students were disciplined for wearing the shirt.

L.M., through his parents, filed a lawsuit in federal court alleging that the School violated his First and Fourteenth Amendment Rights when they did not let him wear the taped shirt. The complaint also alleged the dress code’s prohibition on hate speech that targets a group and on clothing unacceptable to community standards are unconstitutional because they are impermissible prior restraints, void for vagueness, and overbroad. L.M. sought an injunction that prevented the School from not letting him wear his shirt and other similar shirts. L.M. also wanted the dress code to be found unconstitutional and nominal damages.

The School responded that Massachusetts law required the School to develop anti-bullying plans and prevent bullying or harassment based on gender identity. The School claimed that based on their knowledge of the students in their school, the message on the shirt would violate other student’s right to feel safe in school and be free from harassment and bullying while at school. They also claimed it was reasonable to conclude the shirt would materially disrupt classwork or involve substantial disorder in the school’s LGBTQ+ community. They also argued that a preliminary injunction was not proper because L.M. likely would not succeed in his claims that preventing him from wearing the shirt violated his constitutional rights.

The Court held that school official can bar passive and silently expressed messages by students that do not target a specific student if (1) the expressional is reasonably interpreted to demean of  those characteristics of personal identity, given the common understanding that such characteristics are unalterable or otherwise deeply rooted and that demeaning them would strike a person at the core of their being; and (2) the demeaning message is reasonable 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. The Court held that the School showed the L.M.’s shirts met both of the criteria above. The School’s actions were upheld because the shirt’s caused a material disruption to the school environment.

What this means: Free speech is a hot topic of conversation in schools, including silent expressions like messaging on clothing. The First Circuit Court of Appeals has established the test outlined above for determining whether expression can be regulated. In the 9th Circuit, where Montana is located, courts have continually upheld the right of schools to regulate speech that is likely to cause a material disruption to the learning environment.

This case is called L.M v. Town of Middleborough, 1st Circuit Court of Appeals, June 9, 2024. Read it here. Please reach out to Bea, Megan, Kevin, Beth, or Kali with any questions.

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