 Last week, the U.S. Supreme Court denied certiorari in Apache Stronghold v. United States, about which we’ve written at length. But the Court also denied review in another important First Amendment case on the same day: L.M. v. Town of Middleborough, which concerns the limits of student self-expression in schools. The case involves a student at Nichols Middle School in Middleborough, Massachusetts, who was prevented by faculty from attending class when he wore a T-shirt that read, “There Are Only Two Genders.” According to the facts of the case, Nichols Middle School actively encouraged student expression when it came to endorsing the view that there are many genders, but would not tolerate the opposing view. The student, known as L.M., brought suit, alleging First Amendment violations based in part on viewpoint discrimination. The critical precedent for student expression in schools is Tinker v. Des Moines, a Vietnam-era case that firmly established the principle that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker involved students wearing black armbands as a form of silent protest against the Vietnam war. Whatever your beliefs about the gender identity debate, it is similarly an issue of intense discussion throughout the media and larger public. As such, similar legal reasoning – that prohibited student expression must “materially and substantially interfere” with the functioning of the school to warrant censorship – should apply. Using the Tinker test, however, both the federal district court and the First Circuit Court of Appeals denied relief. The lower courts followed the judgment of school administrators that this passive speech could trigger and cause harm to other, vulnerable students, demonstrating the inherent subjectivity of this area of law. Justice Samuel Alito called this standard “vague” and sure to be “permissive” of censorship. Indeed, in an impassioned dissent from the Supreme Court’s certiorari denial, Justice Alito (joined by Justice Clarence Thomas) took heated issue with the lower courts’ findings, particularly as they relate to the First Circuit’s dismissal of LM’s viewpoint discrimination claims. He wrote: “The court below erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle ... To the contrary, viewpoint neutrality has long been seen as going to ‘the very heart of the First Amendment.’ The First Circuit was wrong to expel this bedrock constitutional safeguard from our schools. “The First Circuit also watered down the test adopted in Tinker for determining whether a school’s restriction of student speech is allowed. Because free speech is the default and censorship the exception, Tinker set forth a ‘demanding standard.’ We held that a school can restrict speech when it has ‘evidence’ that such restrictions are ‘necessary’ to ‘avoid material and substantial interference with schoolwork or discipline.’ Thus, absent a ‘specific showing’ of such a disruption – like ‘threats or acts of violence on school premises’ – this justification for suppressing student speech does not apply. Under this standard, NMS (Nichols Middle School) had no right to censor L.M.” [Citations omitted.] We agree with Justice Alito that the Court should have granted review in this case – if for no other reason than to clarify the Tinker ruling, which has been subject to wildly divergent interpretations over the years. The First Circuit’s rewriting of the Tinker test leaves a lot up to speculative faculty opinions. As Justice Alito writes, it “demands that a federal court abdicate its responsibility to safeguard students’ First Amendment rights and instead defer to school officials’ assessment of the meaning and effect of speech.” In an increasingly censorious world, that seems an insufficient safeguard. Comments are closed.
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