PDE Files 1st Circuit Court of Appeals Amicus Brief in LM v. Middleborough


Gender identity is a “hot issue” that “has produced a passionate political and social debate” across the country. Meriwether v. Hartop, 992 F.3d 492, 508-09 (6th Cir. 2021). One side believes that gender is subjective; the other side believes that sex is immutable. Id. at 498. Like the general public, students have varying views on this important subject, and the Supreme Court has long recognized that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Yet Middleborough’s Nichols Middle School punished student speech expressed by one side of the debate—namely, that “there are only two genders” (male and female). The district court upheld the school’s censorship as consistent with the First Amendment.

The district court was wrong. To pass constitutional muster, Middleborough’s regulation of L.M.’s speech must, at a minimum, overcome two obstacles: (1) it must be viewpoint neutral; and (2) it must be consistent with the demanding Tinker standard. See, e.g., Barr v. Lafon, 538 F.3d 554, 571 (6th Cir. 2008). But contra the district court, Middleborough falls short of both.

First, Middleborough all but admits that it engaged in viewpoint discrimination. It permitted—indeed, encouraged—speech supporting the idea that there are more than two genders. At the same time, it prohibited L.M.’s speech expressing the opposite view. Thus, Middleborough discriminated against L.M.’s speech based on the viewpoint that the speech conveyed. That alone requires reversal.

Second, to satisfy Tinker, Middleborough must put forth “evidence that [the school’s censoring is] necessary to avoid material and substantial interference with schoolwork” or “invasion of the rights of others.” Tinker, 393 U.S. at 511, 513. That is a “demanding standard,” which Middleborough did not come even close to meeting. Mahanoy Area Sch. Dist. v. B.L. by & through Levy, 141 S. Ct. 2038, 2048 (2021). Middleborough provided no evidence that any student was harmed or would be reasonably expected to be injured beyond the mere discomfort from unpopular speech. But it is well-established that Tinker requires far more than hurt feelings or discomfort, even when the speech is deeply offensive or disparaging. See, e.g., Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 25 & 29 n.18 (1st Cir. 2020); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210-17 (3d Cir. 2001) (Alito, J.). Nor did Middleborough show that L.M.’s speech targeted a specific individual, even though First Circuit and Supreme Court precedent require as much. See Norris, 969 F.3d at 29; Doe v. Hopkinton Pub. Schs., 19 F.4th 493, 506 (1st Cir. 2021); Mahanoy, 141 S. Ct. at 2045.

For either reason, this Court should reverse the district court and hold that the First Amendment protects L.M.’s speech.