In L.M. v. Middleborough, 605 U.S. ____ (2025), two U.S. Supreme Court justices dissented from a denial of certiorari in a case from a Massachusetts middle school that restricted student speech.
Student speech at stake in t-shirt case
The case arose after the petitioner, Liam Morrison, designed as L.M., wore a shirt to a public middle school with the words “There Are Only Two Genders.” After he was sent home, he returned with another shirt that read “There are CENSORED Genders,” which he was also asked to remove.
A U.S. District court upheld the right of school authorities to suppress such expression as did the First Circuit Court of Appeals, and the Supreme Court denied certiorari.
Justice Thomas’s brief dissent
Justice Clarence Thomas’s brief dissent from this denial is somewhat ironic. He dissented on the basis that the school’s actions conflicted with the decision in Tinker v. Des Moines Independent Community School District (1969), which had upheld the right of students to wear black arm bands to school to protest the Vietnam War, in a case in which the school had not demonstrated any substantial disruption to classroom instruction, but which Thomas, who favored giving schools greater authority over such matters, openly admitted he did not support. However, he believed that as long as the decision remained in place, the Court should apply its reasoning.
Justice Alito’s longer dissent
Justice Samuel Alito’s longer dissent, which Thomas also joined, argued that the school’s action constituted unconstitutional viewpoint discrimination in violation of the First Amendment and that it departed from the stricter standards outlined for restricting passive student speech in the Tinker case.
Alito noted that the school had sponsored a “PRIDE Spirit Week,” and had permitted a student to wear a shirt saying “HE SHE THEY IT’S ALL OKAY,” thus lending support to one side of the gender debate while denying expression to the other. Alito further believed that the standards the school had applied in this case, which relied chiefly on fear of disruption, rather than any evidence that such disruption had occurred, was contrary to the stricter standards established in Tinker for protecting student speech.
The First Circuit had permitted censorship in cases where “the expression is reasonably interpreted to demean one of those characteristics of personal identity, given the common understanding that such characteristics are unalterable or otherwise deeply rooted and that demeaning them strike[s] a person at the core of his being,” and that “the demeaning message is reasonably forecasted to poison the education atmosphere due to its serious negative psychological impact on students with the demeaned characteristic and thereby lead to symptoms of a sick school—symptoms therefore of substantial disruption.”
Alito argued that this new two-part test conflicted with a variety of First Amendment decisions that had prevented governments from excepting “controversial, offensive, or disfavored views” from expression. Noting that individuals who had lost loved ones in Vietnam may well have been disturbed and offended by the armbands in the Tinker case, Alito observed that “Feeling upset ... is an unavoidable part of living in our ‘often disputatious’ society, and Tinker made abundantly clear that the ‘mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint’ is no reason to thwart a student’s speech.”
Courts had not previously recognized “a special category of speech, i.e., speech that can be interpreted as demeaning a deeply rooted characteristic of personal identity.” Noting that “Tinker’s ‘material disruption’ standard is demanding by design,” he observed “That is because free speech is the rule not the exception” whereas the circuit court’s test flips that principle on its head.”
Fearing that the decision would result in widespread deprivation of student rights, and elevate a “heckler’s veto,” Alito argued that students deserved clarity that only a Supreme Court decision could provide.
Future directions
At a time of debate about transgender participants in sports and a strong administration pushback against Diversity, Equity, and Inclusion (DEI) policies, this case highlights deep national divisions over issues of gender identity. The Supreme Court will most likely have to clarify in the future, particularly if other circuit courts believe that the First Circuit Court decision conflicts with Tinker and other decisions.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.