L.M. v. Town of Middleborough

103 F.4th 854

L.M., a minor by and through his father and stepmother and natural guardians,Christopher and Susan Morrison, Plaintiff, Appellant, v. TOWN OF MIDDLEBOROUGH, MASSACHUSETTS; Middleborough School Committee;Carolyn J. Lyons, Superintendent, Middleborough Public Schools, in her official capacity;Heather Tucker, Acting Principal, Nichols Middle School, in her official capacity, Defendants, Appellees.

No. 23-1535

No. 23-1645

United States Court of Appeals, First Circuit

June 9, 2024

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]

David A. Cortman, with whom Rory T. Gray, Tyson C. Langhofer, P. Logan Spena, John J. Bursch, Andrew D. Beckwith, Samuel J. Whiting, Alliance Defending Freedom, and Massachusetts Family Institute were on brief, for appellant.

J. Michael Connolly, Thomas S. Vaseliou, Rachel L. Daley, and Consovoy McCarthy PLLC on brief for Parents Defending Education, amicus curiae.

Joseph D. Spate, Assistant Deputy Solicitor General of South Carolina, Alan Wilson, Attorney General, Robert Cook, Solicitor General, J. Emory Smith, Jr., Deputy Solicitor General, Thomas T. Hydrick, Assistant Deputy Solicitor General, Steve

Marshall, Attorney General of Alabama, Tim Griffin, Attorney General of Arkansas, Christopher M. Carr, Attorney General of Georgia, Raúl Labrador, Attorney General of Idaho, Brenna Bird, Attorney General of Iowa, Daniel Cameron, Attorney General of Kentucky, Jeff Landry, Attorney General of Louisiana, Lynn Fitch, Attorney General of Mississippi, Andrew Bailey, Attorney General of Missouri, Austin Knudsen, Attorney General of Montana, Michael T. Hilgers, Attorney General of Nebraska, Drew Wrigley, Attorney General of North Dakota, Ken Paxton, Attorney General of Texas, Sean Reyes, Attorney General of Utah, and Jason Miyares, Attorney General of Virginia, on brief for South Carolina, Alabama, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Texas, Utah, and Virginia, amici curiae.

Robert Corn-Revere and Abigail E. Smith on brief for Foundation for Individual Rights and Expression, amicus curiae.

Gary M. Lawkowski and Dhillon Law Group, Inc. on brief for Center for American Liberty, amicus curiae.

James L. Kerwin, William E. Trachman, and Ilya Shapiro on brief for Mountain States Legal Foundation and Manhattan Institute, amici curiae.

Catherine W. Short and Sheila A. Green on brief for Life Legal Defense Foundation and Young America's Foundation, amici curiae.

Gene C. Shaerr, Jennifer C. Braceras, and Schaerr Jaffe LLP on brief for Independent Women's Law Center, amicus curiae.

Deborah J. Dewart on brief for the Institute for Faith and Family, amicus curiae.

Deborah I. Ecker, with whom Gregg J. Corbo and KP Law, P.C. were on brief, for appellees.

Ruth A. Bourquin, Kirsten V. Mayer, and Rachel E. Davidson on brief for the American Civil Liberties Union of Massachusetts, Inc., amicus curiae.

Chris Erchull, Mary L. Bonauto, Gary D. Buseck, Michael J. Long, Kelly T. Gonzalez, and Long, Dipietro, and Gonzalez, LLP on brief for GLBTQ Legal Advocates & Defenders and Massachusetts Association of School Superintendents, amici curiae.

Charles McLaurin, Jin Hee Lee, Avatara Smith-Carrington, Janai S. Nelson, Samuel Spital, Alexsis Johnson, and Colin Burke on brief for NAACP Legal Defense & Educational Fund, Inc., amicus curiae.

Before Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.

BARRON, Chief Judge.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (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, 89 S.Ct. 733. 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, 89 S.Ct. 733 (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.

I.

A.

1.

John T. Nichols Middle School ("NMS") is a public middle school in Middleborough, Massachusetts. NMS's students are in the sixth through eighth grades and are between ten and fourteen years old.

NMS and the Middleborough Public School System ("MPSS") administrators knew that several NMS students identified as part of the "LGBTQ+ community." In addition, Heather Tucker, the then-interim principal of NMS, who had just started at the school, was aware that several NMS students identified as "transgender or gender nonconforming."

Prior to coming to NMS, Tucker had educated young students for two decades. During that time, she met with students who had been bullied based on their gender identities and worked closely with students who had self-harmed, contemplated suicide, or attempted to commit suicide "because of their gender identity." Tucker also worked on teams that had recommended out-of-district placements for students "because of [those students'] gender identity and suicidal ideation."

Carolyn Lyons, the superintendent of the MPSS, also knew that several NMS students had "attempted to commit suicide or have had suicidal ideations in the past few years, including members of the LGBTQ+ community." Lyons further stated in an affidavit that "[t]hese situations have frequently cited LQBTQ+ status and treatment as a major factor." Lyons attested that "[s]tudent survey data collected in June 2022, through NMS's platform Panorama, show over 20 individual student[s'] comments about perceived bullying at school, feeling unwelcome at school, and expressing specific concerns about how the LGBTQ+ population is treated at school."

NMS had a student-run organization called the Gay Straight Alliance Club ("GSA"), which was "intended as a space for students who fit under the LGBTQ+ umbrella or are their allies" (cleaned up). The GSA was open to all NMS students, and at any given time "approximately ten to twenty students . . . attend[ed] the GSA['s] [monthly] meetings."

2.

NMS's code of conduct included a dress code ("Dress Code") that was set forth in the "Student & Family Handbook," which was provided to NMS's students and their families. The Dress Code's preface states that the Dress Code is "governed by health, safety[,] and appropriateness" and that, because "an environment conducive to learning is necessary," clothing that "causes distractions and inhibits learning is not allowed." The preface further states that students are "encourage[d] . . . to dress in a neat and presentable manner that reflects pride in themselves and their school."

The Dress Code provides:

• Clothing must be neat and clean.

• Clothing that is excessively revealing . . . will not be allowed.

• Tank tops or basketball shirts must have a t-shirt underneath.

• Chains, chain belts, spikes, studs, and gang related attire is not allowed.

• Clothing with alcohol, tobacco, vulgar writing, sexual references or controlled substance reference[s] will not be allowed.

• Outer coats, hats, caps, bandanas, sweatshirt hoods, and sunglasses will not be worn in the building without permission of an administrator.

• Wheeled shoes and platform shoes are dangerous on our floors and not allowed. Blankets or other clothing that drapes down or is considered a tripping hazard will not be allowed.

• Clothing must not state, imply, or depict hate speech or imagery that target[s] groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.

• Any other apparel that the administration determines to be unacceptable to our community standards will not be allowed.

(Emphases added). The Dress Code concludes by stating that should a student "wear something inappropriate to school, [the student] will be asked to call their parent/guardian to request that more...