Denial of cert in T-shirt case draws mixed reviews

Listen to this article

Two Boston lawyers are resting easy now that the U.S. Supreme Court has decided not to hear the appeal of a Middleborough student prohibited from wearing a T-shirt with a message that school officials deemed to be over the line.

On May 27, the court denied the petition for certiorari filed by the plaintiff in L.M. v. Middleborough.

KP Law attorneys Deborah I. Ecker and Gregg J. Corbo were retained when officials at the John T. Nichols Middle School were caught in the national spotlight over the invocation of a hate-speech provision in the school’s dress code prohibiting a student from wearing a T-shirt that read “There Are Only Two Genders.”

The student sued in federal court, alleging a violation of his First Amendment rights. Representing the school district defendants, Ecker and Corbo convinced the 1st U.S. Circuit Court of Appeals to uphold a federal judge’s dismissal of the student’s civil rights claims.

The Supreme Court’s May 27 denial of cert in Middleborough leaves the 1st Circuit’s decision intact.

“Because of the political environment, it was concerning that the Supreme Court would take up the case,” Ecker says. “We’re pleased that the court instead focused on the precedent of Tinker [v. Des Moines Independent Community School District] and the cases that have followed.”

The denial of cert leaves standing a 2024 decision in which a panel of the 1st Circuit applied the Supreme Court’s landmark student speech case, Tinker, to hold public schools may bar passive and silently expressed messages by students that target no specific student so long as: (1) the expression is reasonably interpreted to demean one of those characteristics of personal identity; and (2) the demeaning message is reasonably forecasted to “poison the educational atmosphere.”

Corbo says he’s glad the case has reached a final resolution.

“We’re happy that all of our hard work paid off in a way that is not just beneficial to this client but other clients faced with similar situations,” Corbo says. “[School officials] can take comfort in the fact that they can make these spur-of-the-moment decisions. As long as they act reasonably, they don’t need to be afraid the courts are always going to be looking over their shoulders.”

But First Amendment lawyer Harvey A. Silverglate, of Boston’s Zalkind, Duncan & Bernstein, says he’s dismayed by the Supreme Court’s decision.

“To quote Captain Renault in the great movie ‘Casablanca,’ ‘I’m shocked’ at the Supreme Court’s failure to take up this case,” Silverglate says. “This is the simplest of cases. This is a clear violation of Tinker.”

The court may have passed on Middleborough given the number of significant cases already on the docket addressing gender identity issues, suggests Boston University School of Law Professor Linda C. McClain.

“They have a case concerning a state ban on gender-affirming care that they will decide this term,” says McClain, referring to U.S. v. Skrmetti. “They also have [Mahmoud v. Taylor] coming out of the 4th Circuit, where parents have objected to their kids [being exposed to] books about gay people and non-binary people in the curriculum. The justices might have thought that they already have a lot of hot-button, culture war issues on the docket right now, so why add another.”

In Middleborough, the court passed on an opportunity to address a question of fundamental importance, according to Silverglate.

“The infection of political correctness is very dangerous in our society,” he says. “If we can’t listen to opinions or [allow] demonstrations that bother us, we are training our students to be little hot-house flowers.”

And that fails to prepare them for the real world, Silverglate says.

“When they graduate, they are going to encounter all kinds of hate speech and ideas they find abhorrent,” he says.

Silverglate cites his own experience as a Jewish person attending Princeton in the early 1960s.

“It was terribly antisemitic; it was racist. There were no American blacks in my class,” Silverglate says. “I was called all kinds of names. I concluded that I wanted the haters to be free to call me names because I wanted to know on whom I should not turn my back. I found hate speech useful, not intimidating, to know who the haters were. That formed my lifelong absolutism as a free speech advocate.”

McClain says she sees Tinker as the “high-water mark” for protection of student speech in schools, observing that several post-Tinker cases cited by the 1st Circuit in Middleborough held in favor of the school and against a student’s free speech claim.

“The 1st Circuit ruling for the school district in [Middleborough] is consistent with those post-Tinker cases,” McClain says. “Maybe a critical mass on the [Supreme Court] believes that it is best to let schools and school districts make these context-sensitive decisions and not second-guess.”

Corbo says he doesn’t see the Tinker standard as interpreted by the 1st Circuit as “opening the door” to educators making decisions on student speech tainted by their personal political or social views.

“The key is that educators still need to act ‘reasonably,’” Corbo says. “If there’s no reasonable likelihood that someone wearing a MAGA hat is going to cause a disruption, and [the educator] simply prohibits [wearing a MAGA hat] because they don’t like it, then that is something that is reviewable by a court [as to whether the educator’s actions] were within reasonable bounds. Having discretion doesn’t mean you can do whatever you want.”