L.M. v. Town of Middleborough, Massachusetts et al.

Boston, Massachusetts civil litigation lawyers represented the parties in a First Amendment Constitutional law case.



Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), famously upheld the First Amendment right of public-school students to wear black armbands at school in protest of the country's involvement in the Vietnam War. The Supreme Court was sensitive, however, to the "special characteristics of the school environment" and so took care to explain that there was "no evidence whatever of . . . interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone." Id. at 506, 508. It also affirmed more generally that "of course" school authorities may restrict student speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others" or, otherwise put, "'materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school' [or] . . . collid[es] with the rights of others." Id. at 513 (citation omitted).



In the more-than-half century since Tinker, the Court has addressed variations of the First Amendment question presented

in that landmark case. But it has not addressed the vexing question of when (if ever) public-school students' First Amendment rights must give way to school administrators' authority to regulate speech that (though expressed passively, silently, and without mentioning any specific students) assertedly demeans characteristics of personal identity, such as race, sex, religion, or sexual orientation. In these consolidated appeals, we confront a dispute that raises that question for the first time in our Circuit, although other federal courts have confronted it before. The underlying suit, filed in the District of Massachusetts, concerns the "hate speech" provision of a public middle school dress code,

which the defendants applied to prohibit a twelve-year-old student first from wearing a t-shirt that read "There Are Only Two Genders" and then from wearing that same t-shirt with the words "Only Two" covered by a piece of tape on which was written "CENSORED." Relying solely on Tinker's "invasion of the rights of others" limitation, and thus not Tinker's "material disruption" limitation, the District Court denied the student's motion for a preliminary injunction. On that same basis, the District Court granted the defendants final judgment on all the student's claims, which challenged both the dress code's specific applications and two portions of the dress code on their face. We affirm the District Court's rulings, albeit on somewhat different grounds.



"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."



There is no "except" after "freedom of speech" in the First Amendment. Kent Morlan

Judgment in favor of the Defendants.

Affirmed on appeal by the First Circuit Court of Appeals.

Affirmed by the United States Supreme Court on May 28, 2015.