First Circuit Upholds Dress Code Prohibiting “There are Only Two Genders” Shirt

Yesterday, the First Circuit issued its decision in L.M. v. Middleborough et al., a case we discussed previously on this blog. The case concerned whether a public middle school could prohibit a student from wearing a t-shirt that said “There are only two genders.” The district court had held that the school could, relying on the seminal case of Tinker v. DeMoines Independent Community School District. Tinker had established that schools could restrict student speech where that speech either created a material disruption to the school environment or invaded the rights of other students. In L.M., the District Court held that the Middleborough school could prohibit the t-shirt because it invaded the rights of trans and nonbinary students who had a right to attend school without their identities being attacked.

In reviewing the case on appeal, the First Circuit held that under Tinker, public schools can regulate passive, expressive messages that do not target a specific student if: (1) the expression demeans a characteristic of personal identity, and (2) the message is reasonably forecasted to “poison the educational atmosphere” due to its psychological impacts on the students with the demeaned characteristics and thereby lead to symptoms of substantial disruption. The court made clear that it was relying on Tinker’s material disruption prong, rather than the “invasion of rights” prong, as had most other federal circuit courts that had addressed this issue.

In holding that passive messages that do not target individuals can be regulated, the First Circuit noted that Tinker could not be used to suppress any expression that might cause hurt feelings or offense. For expression to be regulated, the court held a school must have more justification than simply trying to avoid “discomfort and unpleasantness.” But the court emphasized the unique environment of public schools, and the fact that the law allows more regulation of speech in schools than it does in other contexts.

The court then applied the framework it had derived from Tinker and federal circuit court cases to L.M.’s claims. The court found that the t-shirt’s message (“there are only two genders”) could be understood to demean a characteristic of personal identity—gender. The court emphasized that it is the role of educators, not the court, to determine how the message should be interpreted. It therefore looked at the school’s decision to see if was reasonable for the school to decide the shirt demeaned the identities of transgender and gender non-conforming students. In deciding the second prong—whether the shirt would cause a material disruption to the school environment—the court similarly deferred to the administrators’ judgments and assessed whether their prediction that the shirt would cause disruption was reasonable. The court noted that the specific context the case was relevant to making that determination. The court was careful to note that the question here was only whether the school could prohibit L.M.’s message through its dress code; it did not address whether L.M. could express the same sentiment during a class discussion or in conversation with other students. The court also emphasized that the school’s forecast of a material disruption was based on particularized information about the school’s population and past issues related to bullying of LGBTQ students. Finally, the court noted that because LGBTQ rights were an issue that was frequently raised as a concern at the school, the school reasonably forecast that allowing L.M. to wear the shirt could spark a back and forth between students with differing views that would devolve into a disruptive situation.

The court disposed of L.M.’s various other arguments, including an argument facially attacking the dress code, and an argument challenging the school’s community standards provision of its policies, with little or no discussion. With respect to L.M.’s challenge to the school’s hate speech provision of its policies, the court found that the provision was not unconstitutionally vague, noting that school policies do not have to be as detailed as criminal laws. The court explicitly held that schools need to have the flexibility to discipline students for “unanticipated conduct,” which allows school codes to be less precise than the First Amendment might require of laws. The court found L.M.’s overbreadth challenge unpersuasive for similar reasons.

The court’s conclusion highlighted its conclusion that the law requires deference to the judgment of school administrators on these issues: “The question here is not whether the t-shirts should have been barred. The question is who should decide whether to bar them – educators or federal judges.” Whether the case will be appealed to the Supreme Court, and whether and how other courts will apply this deference to educators in different circumstances remains to be seen. But for now, the First Circuit has provided a framework for assessing free speech claims in public schools that relies on the specific facts and circumstances of each case, and defers to educators’ judgment about how the speech in question will impact their communities.

If you or your child has experienced a civil rights violation in school, contact our students’ rights attorneys.