Morrison, Middleborough, and the Missed Opportunity

It's well-established in this country that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” [1]. Indeed, the First Amendment protects every citizen’s right to free speech, and that right extends, albeit in narrower fashion, to students in public schools. Still, schools often struggle to balance that freedom with the need to maintain an orderly and appropriate learning environment. The First Circuit recently took on this challenge in L. M. v. Town of Middleborough (2024), where it considered whether a school administration acted lawfully when it censored a student’s t-shirt proclaiming “There Are Only Two Genders” while simultaneously endorsing pro-LGBTQ+ messages during Pride Spirit Week. In this article, I argue that the First Circuit incorrectly introduced a two-prong test that diluted the standard set by Tinker v. Des Moines Independent Community School District (1969). Further, by denying certiorari in this case, the Supreme Court missed an opportunity to clarify the boundaries of student expression that Tinker stands for, with two major consequences. First, the First Circuit’s decision substantially misapplied Tinker by adopting a new two-prong test that weakens the “material and substantial disruption” standard. Second, the decision entrenches the circuit split over how Tinker applies to student speech involving contested political topics.

Precedent is clear: In Tinker v. Des Moines (1969), the Supreme Court held that schools may restrict student expression only when it would “materially and substantially disrupt” the school’s regular operations or infringe on the rights of others. Tinker involved high school students at Des Moines who were suspended for wearing black armbands at school in protest of the Vietnam War, a punishment the court deemed unconstitutional. Notably, the decision emphasized that political or controversial symbolic speech is protected even when it causes discomfort, and that officials must have concrete evidence of likely disruption. In the case of L.M., those facts were absent. The school acted instead on the mere prediction of potential “serious negative psychological impact,” which is not directly supported by Tinker. Moreover, the administration simultaneously endorsed pro-LGBTQ+ messages during Pride Spirit Week, effectively suppressing only one side of the political issue.

Unfortunately, the First Circuit’s misapplication is only the latest addition to the regrettable trend of courts narrowing the scope of student speech protection in schools. In Bethel School District No.403 v. Fraser (1986), the Supreme Court upheld disciplinary action against a student for “obscene” speech, establishing that the First Amendment does not protect “offensively lewd and indecent speech” in schools [2]. Furthermore, in Hazelwood School District v. Kuhlmeier (1988), the Court permitted school censorship of school-sponsored student newspapers [3]. And, in Morse v. Frederick (2007), the Court blessed school suppression of messages perceived as promoting illegal drug use [4]. Yet critically, even these cases, as offensive as they are to student speech rights, respected the core holding in Tinker: non-disruptive, private student speech on social or political issues remains protected.

Such suppression is often called viewpoint discrimination, which courts have noted is a noxious form of suppression. The First Amendment prohibits the government from suppressing speech based on viewpoint discrimination. As the Court declared in Rosenberger v. Rector and Visitors of the University of Virginia (1995), “Viewpoint discrimination is [...] an egregious form of content discrimination” [6]. As applied to L.M., when a public school encourages expression of one side of a social or political issue while forbidding another, it prima facie engages in viewpoint discrimination. Indeed, in Board of Education v. Pico (1982), the Court made it clear that the “State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons” [7]. Similar logic applies to L.M.; suppressing speech regarding LGBTQ+ rights contradicts the First Amendment. And that contradiction is not suddenly permissible simply because school administrators believe that the discourse might offend listeners. As Justice Kennedy noted in Matal v. Tam (2017), the “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers” [8]. So too in L.M.: The speculative “demeaning” or “psychological harm” justifications for banning the t-shirt proposes precisely what Matal rejects. The First Amendment does not protect citizens from encountering disagreeable ideas, but rather protects the expression of those potentially offensive ideas to promote public discourse.

The First Circuit’s ad hoc two-prong test for banning speech in schools—if it “demeans” a personal identity and if administrators predict a “serious negative psychological impact”—flies in the face of the standard Tinker established as necessary for censorship of student speech, which permits censorship only if speech can be shown to “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” [9]. The First Circuit’s sister circuits have gotten it right: In Saxe v. State College Area School District (2001), the Third Circuit struck down a school policy banning “offensive” expression, holding that “the mere desire to avoid that discomfort and unpleasantness that always accompany an unpopular viewpoint” is not enough to justify restricting student speech [10]. In stark contrast, the First Circuit’s two-prong test grants school administrators the power to suppress any statement which they believe might harm students’ feelings, effectively creating a “psychological safety” exception to the First Amendment, making it more likely for schools to default toward censorship and suppression. Never mind Tinker’s express declaration that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” (emphasis added). By declining to grant certiorari, the Supreme Court missed a crucial opportunity to clarify that student speech cannot be restricted merely based on a school administration’s speculations or ruminations of vague psychological harm. The Court also passed on a chance to more precisely define Tinker’s “material and substantial disruption” test.

To be sure, there are cases when speech crosses the line into harassment and abuse, which schools should protect their students from. In Davis v. Monroe County Board of Education (1999), the Court held schools liable for deliberate indifference to “severe, pervasive, and objectively offensive” harassment [12]. However, Davis concerned targeted and repeated conduct, not a single instance of nonverbal ideological expression. To analogize an opinion on gender with harassment stretches Davis too far. Indeed, Fraser, Hazelwood, and Morse each dealt with specific categories—lewd speech, school-sponsored speech, or speech promoting illegal activity—completely unlike political speech, which is the bedrock expression protected by the First Amendment. Furthermore, none of those decisions endorsed restricting speech simply because it could be perceived as emotionally harmful. If schools regulate expression based on perceived potential offense, they risk transforming spaces meant for education into echo chambers of uniform opinion.

The Supreme Court often denies certiorari to give the lower courts time to determine legal intricacies or reach harmonious holdings on issues, but that’s not the case here. L.M. didn’t merely run contrary to established precedent—it entrenched an existing circuit split over the scope of Tinker. Whereas the Third Circuit has maintained the rigorous disruption standard in Saxe, the First Circuit has now embraced a more elastic approach [12]. In Saxe, the Third Circuit required specific evidence of disruption and explicitly forbade suppression merely on the basis of discomfort spawned by an unpopular viewpoint. Contrast that with the First Circuit, which blesses suppression without clear proof of classroom disruption. These principles are fundamentally incompatible, because a school could satisfy the First Circuit’s test without ever meeting the Third Circuit’s (correct) requirement of evidence of material and substantial disruption. Additionally, this significant fragmentation creates uncertainty for students, teachers, and administrators alike. As Justice Alito warned in his dissent, “Thousands of students will attend school without the full panoply of First Amendment rights” [13]. In the absence of clarification, administrators will likely feel emboldened by the First Circuit’s decision and more likely to default to curbing speech when it is controversial to avoid the perceived risk of potential dispute. Such chilling undermines not only constitutional rights but also one of the fundamental purposes of education: cultivating critical thinking through exposure to different viewpoints.

Ultimately, the Supreme Court’s denial of certiorari in L.M. v. Middleborough represents a missed opportunity to clearly define and safeguard the First Amendment for public school students. The Court should have intervened to restore consistency to student speech jurisprudence and to reaffirm that public schools are, as Justice Fortas wrote in Tinker, “nurseries of democracy” [14]. Until such clarification arrives, L.M. threatens to transform those nurseries into echo chambers.

Footnotes

[1] Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).

[2] Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).

[3] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

[4] Morse v. Frederick, 551 U.S. 393 (2007).

[5] L. M. v. Town of Middleborough, 93 F.4th 45 (1st Cir. 2024).

[6] Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 829 (1995).

[7] Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 872 (1982).

[8] Matal v. Tam, 582 U.S. 218, 223 (2017).

[9] L. M., 93 F.4th at 60.

[10] Saxe v. State College Area School District, 240 F.3d 200, 204 (3d Cir. 2001).

[11] Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999).

[12] L. M., 93 F.4th at 60.

[13] L. M. v. Town of Middleborough, cert. denied, No. 24-45 (U.S. Oct. 2024) (Alito, J., dissenting).

[14] Tinker, 393 U.S. at 511.