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School District May Ban Students' Disruptive Clothing

A middle school student wore a t-shirt that read “there are only two genders.” The principal informed the student that he could not wear the shirt while at school. The School District dress code prohibited clothing that states, implies, or depicts hate speech or is targeted against groups protected from discriminatory animus, in this case, members of the LGBTQ+ community. Local and national media reported the school’s action and protesters in opposition to and in support of the school held signs outside the school property and sent a slew of messages to the school, some of which were hateful and threatening. Weeks later, the student wore the same shirt but taped over “only two” and wrote “censored.” Again, he was told to remove the shirt. The student was never disciplined.  

 

The student sued, claiming that his First Amendment rights were violated, and sought injunctive relief. The District Court of Massachusetts denied the request for an injunction and ruled in favor of the School District. The student appealed to the First Circuit.  

 

In its decision in L.M. v. Town of Middleborough, Massachusetts, C.A. Nos. 23-1535, 23-1645 (1st Cir. June 9, 2024), the First Circuit affirmed the decision of the District Court, albeit on different grounds. All agreed that a U.S. Supreme Court case from 1969, in which the Court held that students had the right to wear black armbands at school to protest the Vietnam War, governed the First Circuit’s analysis. In ruling against the student, unlike the ruling in the 1969 case, the First Circuit held that school officials may bar passive, silent messages that do not target a specific individual if: (1) the message is reasonably interpreted to demean characteristics of personal identity that are unalterable or otherwise deeply rooted and that strike at the core of the person’s being; and (2) it is reasonably forecastable that the message will substantially disrupt the school by poisoning the educational atmosphere due to its serious negative impact on students against whom the message is aimed. 

 

The Court noted that a message that is hurtful or that may cause offense cannot be prohibited; there must be something more. Nonetheless, the special characteristics of the school environment warrant granting school districts some discretion to prohibit demeaning messages that could not be regulated outside of that environment.  

 

The Court closed by recognizing that the school district’s judgment need not be infallible and that the school officials are in a better position than judges to make that judgment. Nonetheless, the decision leaves school officials in the position of distinguishing between offensive speech that cannot be prohibited and demeaning speech that strikes at the core of a vulnerable, identifiable group and can be prohibited. Whatever decision the officials make, there is likely to be an angry response. 

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