On March 21, 2023, L.M., a seventh grader at John T. Nichols Middle School (“NMS”) in Middleborough, Massachusetts, United States, wore a black T-shirt to school that read “There Are Only Two Genders”.

L.M.’s first-period teacher contacted the assistant principal of NMS and raised concerns about the physical safety risks to L.M. and the negative impact the message on the shirt could have on LGBTQ+ students. L.M. was asked to meet with Heather Tucker, the then-interim principal of NMS. In the presence of the school counselor, Tucker explained to L.M. that he could not wear the shirt to school, mentioning complaints from other students. She then asked L.M. to remove the shirt, but L.M. refused to comply. Tucker contacted L.M.’s father, who supported his son’s decision and came to pick him up from school.

L.M. did not personally observe any disruption on that day or afterward. He later wore several shirts with various messages, such as “Don’t Tread On Me” and “First Amendment Rights”, and the school did not request that he remove any of those shirts.

On April 1, 2023, L.M.’s father sent an email to Carol Lyons, the superintendent of the Middleborough Public School System (“MPSS”), requesting clarification of the actions taken by NMS on March 21. L.M.’s father said that the shirt was not aimed at anyone in particular, and that it merely expressed L.M.’s personal opinion on a political issue that has become widely debated across the country.

On April 4, Lyons responded by email, stressing that L.M. had not been, nor would be, disciplined for wearing the shirt. She clarified that Tucker was only enforcing the school’s dress code since the shirt’s message was perceived as targeting students from a certain protected class, particularly regarding gender identity.

NMS’s dress code states that clothing which causes distractions or interferes with learning is prohibited, emphasizing the importance of maintaining a conducive learning environment. The dress code states: “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,” and that “Any other apparel that the administration determines to be unacceptable to our community standards will not be allowed.” The dress code stipulated that if a student wears inappropriate clothing to school, they will be required to contact their parent or guardian to have a more suitable clothing brought in, and repeated violations of the dress code will lead to disciplinary consequences.

On April 13, two individuals stood outside of school property, near the NMS bus drop-off area, holding signs that read, “There Are Only Two Genders” and “Keep Woke Politics Out Our School”. The following day, counter-protesters gathered at the same spot with signs that read, “Trans People Belong”, “Everyone Is Welcome Here”, and “We Support Trans Rights”. Lyons received complaints from community members regarding both groups.

NMS’s actions gained both local and national media attention, with L.M. participating in multiple interviews with news outlet regarding the March 21 incident. Lyons, Tucker, NMS and Middleborough High School received messages, emails and phone calls related to the controversy surrounding L.M’s shirt, described by Tucker as “hateful and lewd”. [p. 11] Lyons also came across a post on the social media platform X (formerly Twitter) that included a NMS staff directory, encouraging people to confront the people listed if encountered. In response, the Middleborough Police Department provided protection to NMS from April 24 to April 28.

On April 27, L.M.’s legal counsel sent a letter to Lyons, claiming that NMS had violated L.M.’s free speech rights and that the hate speech provision in the dress code was unconstitutional. The letter indicated that L.M. was planning to wear the shirt again on May 5, warning that legal action may follow if NMS interfered a second time.

On May 4, MPSS’s counsel responded with a letter, asserting that NMS’s actions were legally justified. The letter referenced state law safeguarding students against discrimination, harassment, and bullying related to gender identity, including any form of expression that could be perceived as hostile, unwelcome, or offensive to gender identity. It reiterated that MPSS administrators would prohibit the wearing of T-shirts that could be viewed as discriminatory, harassing, or bullying by implying that other’s sexual orientation, gender identity, or expression is invalid or nonexistent.

On May 5, L.M. wore the shirt to school again, this time covering the words “Only Two” with tape labelled “CENSORED”. Lyons, Tucker, and the school counsel decided that L.M. should not be allowed to wear the taped shirt. L.M. was taken to Tucker’s office, where he ultimately removed the shirt and returned to class without facing any disciplinary action.

Through his natural guardians, L.M. filed a lawsuit in the U.S. District Court of Massachusetts. The defendants listed in the complaint were the Town of Middleborough, the Middleborough School Committee, Lyons, and Principal Tucker (“Middleborough”).

L.M. appealed the ruling to the First Circuit Court of Appeals.

Chief Judge Barron delivered the judgment of the First Circuit U.S. Court of Appeals. The central issue for the Court’s determination was the extent school authorities had the authority to regulate student free speech.

L.M. argued that NMS violated his rights to freedom of expression under the First Amendment of the U.S. Constitution. He sought an injunction to prevent Middleborough from barring him from wearing the shirt, the taped shirt, or similar T-shirts and a declaratory judgment that portions of the dress code are unconstitutional, and damages. L.M. submitted that NMS’s dress code was unconstitutional because its restrictions on hate speech and on clothing deemed “unacceptable to […] community standards” were unconstitutional as they were vague and overbroad under both the First and the Fourteenth Amendments (which protects the right to due process). [p.7] He argued that the dress code grants NMS excessive discretion and that it gave NMS the right to “forbid certain messages before they occur”. [p. 69] L.M. argued that the term “hate” in “hate speech” was ambiguous and open to subjective interpretation, that the phrase “any other classification” was overbroad which allowed the school to invent any “group” it wants, and that the term “targeting” could be subjectively interpreted depending of “the reaction of listeners.” [p. 67] L.M. also argued that the dress code unconstitutionally discriminates, based on the school’s personal perspective, between “negative” and “positive” messages and that, as it does not require substantial disruption or interference with other student’s rights, its enforcement could restrict protected speech rather than unprotected speech.

L.M. focused on the interpretation of his messages displayed on the shirts and insisted the intent was solely to express his views, despite knowing that they were in opposition to the NMS administrators’ position. He maintained that “gender” is synonymous with “sex”, and that, because there are only two biological sexes – male and female – there are only two genders. In response to Middleborough’s arguments that the shirt demeaned gender identities of transgender or gender nonconforming students, L.M. argued that, while the message essentially addressed gender identity, it was not meant to demean or deny the existence or value of any individual and that his beliefs were not “hateful or bigoted” but were “purely ideological.” [p. 53] On the taped shirt, L.M. stated that his objective was solely to protest NMS’s actions on March 21, which prevented him from expressing his opinion while other students were free to share their opposing views on gender. He objected to Middleborough’s response, submitting that it was driven by subjective complaints and a general dislike of his views and contested the school’s interpretation of his messages, which portrayed them as demeaning, psychologically harmful to students, and “materially disruptive to the learning environment.” [p. 55] L.M. maintained that Middleborough’s action on March 21 were comparable to the precedents of Tinker and Nuxoll ex re. Nuxoll v. Indian Prairie School District. L.M. accepted that Tinker governs the dispute and that the burden of justifying the restrictions on student speech fell on Middleborough but argued that the District Court’s ruling was inconsistent with Tinker’s First Amendment principles as he argued that Tinker prohibited public schools from regulating student speech based on “subjective psychological intrusion on listeners”. [p. 40] He added that, unlike the “coercive” expression in Tinker, his speech was passive and silent, and did not target any specific individual. [p. 42] L.M. argued that, like in Nuxoll, his shirts’ messages did challenge certain students’ self-conceptions, but that there was insufficient evidence to support Middleborough’s claims that the shirt disrupted the school’s environment as there was no evidence that the shirt’s passive message caused any issues among NMS students or that similar messages had led to prior bullying of LGBTQ+ students. He maintained that the school’s concerns were based on “vague affidavits” that failed to address the underlying cause. [p. 55] L.M. also referred to three circuit court rulings, Saxe v. State College Area School District, Sypniewski v. Warren Hills Regional Board of Education, and Zamecnik v. Indian Prairie School District – all of which issued similar decisions. In particular, in Saxe, the Court cited Tinker and held that the school’s anti-harassment policy was overbroad and violated First Amendment rights and emphasized that, while schools must prevent harassment, they must do so without infringing on students’ free speech. In response to Middleborough’s reference to West v. Derby Unified School District, L.M. argued that, unlike the Confederate flag displayed in Derby which represented a secessionist state founded on slavery and oppression and caused direct community outrage, his own message on gender was passive and did not target any specific individual.

Middleborough submitted that its dress code and actions on March 21 and May 5 aligned with Massachusetts regulations which mandate schools to develop anti-bullying plans that acknowledge the “vulnerability of certain students” and prevent bullying based on gender identity. [p.14] The Massachusetts Board of Elementary and Secondary Education mandates schools to create a supportive and inclusive environment for transgender and gender nonconforming students.

In response to L.M.’s assertions that there was insufficient evidence of substantial disruption caused by his T-shirts, Middleborough argued that the school administrators had clear evidence of LGBTQ+ student vulnerability and that several students had been bullied and felt unwelcome at school, including LGBTQ+ students who had “attempted to commit suicide or have suicidal ideations.” [p. 5] It referred to a student survey conducted in June 2022 at NMS, which included over 20 comments highlighting concerns about the treatment of LGBTQ+ students at school. Middlesbrough argued that the decision to prevent L.M. wearing the shirt was justified and that the school’s actions to protect the learning environment were reasonable as the shirts infringed on LGBTQ+ students’ rights to safety and freedom from harassment. It added that the prohibition was justified because NMS administrators anticipated the shirts could “involve substantial disorder in the school” considering the young age of NMS’s students and the active LGBTQ+ community at the school, which strongly advocates for its rights and would not tolerate denial of its existence. [p.15] Middlesborough submitted that it could “reasonably forecast” that the message on the shirt would disrupt the learning environment as it was aware of past incidents in which LGBTQ+ students raised concerns about their safety, and had concluded that allowing L.M. to wear the shirt would result in conflicts between L.M. and his supporters on one side and LGBTQ+ students and their allies on the other. [p.15] Middleborough stressed that the school’s actions were not taken “in a vacuum” but were decided rationally, and influenced by  “a history of disruption” caused by the shirts and L.M.’s counsel informing MPSS that L.M. intended to wear the same shirt again. [p. 16] Middleborough argued that L.M.’s claims regarding the taped shirt were not fully substantiated as, similar to the message on the shirt, the taped shirt would not only make LGBTQ+ students feel excluded but would also cause significant disruption: even though the words “Only Two” were replaced with “Censored”, the taped shirt was still inconsistent with NMS’s educational mission of inclusivity. Middleborough maintained that, given the attention L.M.’s shirt received on March 21, NMS was right to enforce its dress code on May 5, as students would still be able to discern the words that were covered by tape.

Middleborough responded to L.M.’s claims about the dress code’s vagueness, submitting that the dress code’s prohibitions against hate speech targeting sexual orientation or gender identity were not overbroad as they were consistent with laws protecting students from discrimination and harassment. It also accepted that Tinker governs the present case and that it bore the burden of justifying the restrictions on student speech, but argued that L.M. lacked standing to challenge the hate speech provision because his speech was inherently unprotected. Middleborough referred to Harper v. Poway Unified School District, Scott v. School Board of Alachua County and Sapp v. School Board of Alachua County where the courts had found that schools have the authority to restrict student speech if it disrupts the educational environment and so reinforced the principle that, under the Tinker limitations, schools can regulate student speech, particularly when the speech promotes illegal behavior or infringes on the rights of others.

The Court explained that to determine whether L.M.’s right to freedom of expression had been violated it had to determine whether his speech was protected and, if so, whether school authorities could regulate it under the limitations outlined in Tinker. It analyzed Tinker’s two limitations – the rights-of-others limitation and material-disruption limitation – to determine their applicability. The rights-of-others limitation balances individual freedoms with the protection of others’ rights, and acknowledges that fundamental rights, such as freedom of expression, may be restricted when they infringe on the rights of others. The Court noted that the District Court’s reasoning relied solely on this limitation to uphold Middleborough’s actions but noted that it remained uncertain whether this limitation applies to passive expression that does not target a specific student as Tinker did not explicitly address that form of expression. The Court was also uncertain how passive speech that does not target specific individuals but demeans personal characteristics, relates to the material-disruption limitation. It relied on Tinker, which established that disruption must involve “aggressive, disruptive action”, “group demonstrations”, or “threats or acts of violence on school premises” that impede the school’s educational mission, rather than merely cause psychological distress to certain students. [p. 24] The Court also cited other significant federal cases that applied Tinker to scenarios involving passive student expressions that demean personal characteristics without targeting specific individuals, including Harper, West, Nuxoll, Zamecnik, Scott, Sapp and Barr v. Lafon.

The Court concluded that public schools can regulate student expression under Tinker’s material-disruption limitation rather than the rights-of-others limitation, as most federal courts have found it to be the more effective approach in various contexts. Applying this framework, the Court upheld Middleborough’s decision to restrict L.M.’s T-shirts, finding that the school’s interpretation was reasonable, that both T-shirts demeaned gender identity and posed a risk of disrupting the learning environment, and that the decision was supported by prior incidents and evidence of the vulnerability of transgender and gender-nonconforming students. The Court stressed the importance of allowing schools discretion in assessing potential disruptions and justified the regulation of student speech based on foreseeable disruption rather than merely on offensiveness.

The Court acknowledged L.M.’s emphasis on Tinker’s protection of passive, silent expression, particularly when it does not cause disorder, and underscored that the mere “undifferentiated fear or apprehension of disruption” is insufficient to justify restrictions on free expression. [p. 41] It agreed with L.M. that Tinker prohibits schools from mandating government-approved views, and explicitly rejected the exception for “hurt feelings”, emphasizing that “discomfort and unpleasantness” alone do not justify censorship; the Court held that schools must demonstrate concrete concerns beyond mere offense [p. 42] The Court addressed L.M.’s distinction between speech that causes psychological harm and silent, passive expression that does not target specific individuals and found the “fighting words” doctrine cited by L.M. to be less relevant than the Tinker material-disruption standard. It noted that speech undermining students’ self-worth or disrupting the educational environment could contribute to “symptoms of a sick school”. [p. 38] The Court added that post-Tinker precedents, particularly Bethel School District v. Fraser, recognized the potential negative psychological effects of certain student expressions on other students and that these rulings highlighted the importance of safeguarding the learning environment that supports a diverse and potentially vulnerable student body.

Responding to L.M.’s reference to Saxe, Sypniewski, and Zamecnik in support of his position, the Court found these cases aligned with Tinker. It agreed with L.M. that, as established in Saxe, overbroad anti-harassment policies cannot ban derogatory speech without evidence of substantial disruption. Similarly, the Court noted that Sypniewsky distinguished between genuinely disruptive speech and benign personal expression, requiring a foreseeable disruption for a school to justify restricting expression, and that Zamecnik also reinforced the need for evidence of disruption, rejecting bans on messages deemed “tepidly negative”. [p. 30] The Court did not interpret Tinker as requiring schools to be completely unregulated places and referred to Fraser in acknowledging that the fact that adults’ expression cannot be restricted does not mean the same leeway should be granted to children in public schools. The Court noted that the purpose of public schools is to instill values of civility, which justifies the establishment of rules against offensive expressions. The Court addressed L.M.’s specific challenges to the jurisprudence and rejected his claims which focused on the reasonableness of Middleborough’s interpretation of the T-shirts’ messages as demeaning to personal identity traits, and the school’s prediction that these messages would materially disrupt the learning environment. The Court agreed with Middleborough’s arguments on both points, and concluded that the school’s actions were primarily justified under Tinker’s material-disruption standard.

The Court dismissed L.M.’s argument that there was not sufficient evidence of potential disruption or that the administrators’ affidavits were too vague. It found that the T-shirts’ messages could reasonably be interpreted as just as personally harmful as if it had demeaned students based on their religion, race, sex, or sexual orientation and, as long as the expression was reasonably understood as demeaning, the school’s actions were justified. The Court stressed that federal courts should be cautious in making such determinations, as public school authorities are better positioned to assess the context.

The Court noted that L.M. did not deny that his messages implied students with different “beliefs about the nature of their existence” were wrong. [p. 53] It agreed with the District Court that the T-shirts were perceived as demeaning to the identities of transgender and gender nonconforming NMS students and upheld Middleborough’s interpretation under its dress code, highlighting that the school’s assessment applied to L.M.’s case specifically as messages were not always demeaning in every context. Accordingly, the Court found no reason to override Middleborough’s judgement.

In assessing whether Middleborough had reasonably predicted that the T-shirts would disrupt the learning environment, particularly for transgender and gender nonconforming students, the Court held that Middleborough reasonably understood the message being conveyed, especially given the uncertainty of the situation, and emphasized that neither Tinker nor any other precedent justified questioning the school’s judgment. The Court also rejected L.M.’s claim that Middleborough’s decision was taken because it disliked his views and found that the school had not prohibited L.M. from expressing his disagreement with LGBTQ+ students verbally, or from simply stating similar messages.

Regarding the taped shirt, the Court applied the same reasoning as it did for the original shirt and found that the school had reasonably interpreted the taped shirt’s message and rejected L.M.’s contention that he was protesting Middleborough’s actions against the first shirt. Although the Court acknowledged that taping the words “ONLY TWO” might convey a less negative message, it concluded that both shirts appeared essentially the same.

The Court rejected L.M.’s challenge to the provision in the dress code that “any other apparel that the administration determines to be unacceptable to our community standards will not be allowed” on the grounds that there was no evidence that Middlesborough applied this provision when making its decisions about L.M.’s shirts. Regarding the hate-speech provision in the dress code, the Court found that L.M. had failed to clearly distinguish whether his speech was fully protected by the Constitution and whether the school could still limit that protected speech under Tinker. It also dismissed his vagueness claims, and agreed with Middleborough that public schools do not need regulations “as detailed as a criminal code”, as they require a certain degree of flexibility to maintain order and discipline in response to unexpected behavior – which was also upheld in Tinker. [p.66] The Court clarified that the hate-speech provision applied strictly to school clothing; that the word “hate” targets speech likely to cause disruption; and that the word “other” refers only to categories similar to those already mentioned, which represent protected classes under anti-discrimination measures. The Court further held that the word “target” raised no issue in L.M.’s argument, and clarified that its interpretation should not be entirely based on the understanding of school administrators.

The Court ended by emphasizing that the question here was not whether the shirt and the taped shirt should be banned, but whether school administrators or federal judges should have the authority to make that decision. Relying on its own reasoning, as well as Tinker and related precedents, the Court concluded that administrators have the authority to make this kind of judgment, as they are more familiar with how to ensure a suitable learning environment.

Accordingly, the Court affirmed the judgment of the District Court.