PDE Files Supreme Court Amicus Brief in L.M. v. Town of Middleborough

Public schools in the United States are supposed to be “the nurseries of democracy” and to “protect the
‘marketplace of ideas.’” Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 190 (2021). And students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker, 393 U.S. at 506. Public schools thus must “ensur[e] 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. Especially for issues of public concern, like gender identity.

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. Speech on this matter “lies at the heart of the First Amendment’s protection.” Mahanoy, 594 U.S. at 205 (Alito, J., concurring); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001) (Alito, J.). But not in the First Circuit. When Middleborough’s Nichols Middle School punished student speech expressed by one side of the gender-identity debate—namely, that “there are only two genders” (male and female)—the First Circuit upheld the school’s censorship as consistent with the First Amendment.

The First Circuit is wrong, turns Tinker on its head, and creates a circuit split. 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). The First Circuit, however, doesn’t think viewpoint discrimination— normally the greatest First Amendment sin—matters at all for K-12 students, and it turned Tinker’s demanding standard into an easy-to-meet deferential one. Under the right standard, Middleborough falls short of both requirements.

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 error alone warrants this Court’s review (and 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 close to meeting. Mahanoy, 594 U.S. at 193. 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., Saxe, 240 F.3d at 210-17. Nor did Middleborough show that L.M.’s speech targeted a specific individual, even though this Court’s precedent require as much. See Mahanoy, 594 U.S. at 188 (“serious or severe bullying or harassment targeting particular individuals”). Yet the First Circuit upheld punishing L.M.’s speech by adopting a watered- down Tinker standard and reflexively deferring to school administrators.

This Court should grant certiorari and restore public schoolchildren’s free-speech rights.