Amicus Brief: L.M. v. Town of Middleborough

L.M. is a student at Nichols Middle School in Middleborough, Massachusetts, where school officials regularly engage in expression supporting the view that a person’s identity, not biology, determines whether the person is male, female, both, neither, or something else. Officials also encourage students to engage in their own expression on this subject by inviting them to wear “your Pride gear to celebrate Pride Month.” L.M. disagrees with the school-endorsed view and wore a t-shirt to school that said, “There are only two genders.” The shirt caused no disruption. Nevertheless, school officials took L.M. out of his first class and told him that he must remove the shirt or be sent home. He was unwilling to remove the shirt, so his father picked him up from school.

L.M.’s attorney sent a letter to the school informing officials that their restrictions on L.M.’s speech were unconstitutional. The school’s counsel admitted that the school discriminates on the basis of viewpoint. To protest the school’s censorship, L.M. covered the words “only two” with a piece of tape that said “censored,” and wore that shirt to school. Although the shirt did not cause any disruption—the main justification for school regulation of student conduct—school officials immediately told L.M. that he could not wear that shirt either.

L.M. sought a temporary restraining order and preliminary injunction, which the district court denied, and then with the parties’ consent converted into a final judgment. L.M. has appealed to the First Circuit. The Manhattan Institute joined the Mountain States Legal Foundation on a brief that focuses on the “harm to others” exception to student speech rights. At base, L.M.'s speech may not be censored by government officials because it constitutes pure speech expressing foundational principles that have been repeatedly reaffirmed by the Supreme Court.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute. 

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