This month, the U.S. District Court for the District of Massachusetts declined to issue a preliminary injunction in L.M. v. Town of Middleborough, No. 1:23-cv-11111-IT, which would have precluded school officials from enforcing the school dress code to prohibit a student from wearing a t-shirt with the message “THERE ARE ONLY TWO GENDERS” while at school. In denying the student’s motion for a preliminary injunction, the Court concluded that the student, L.M., was unlikely to succeed on the merits of his claim that the defendants violated his rights under the First and Fourteenth Amendments.
The school district maintains a dress code which provides, in part, that clothing “must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.” In March of 2023, L.M., a twelve-year-old student, attended school wearing a t-shirt with the message “THERE ARE ONLY TWO GENDERS.” The school principal informed L.M. that students and staff complained that the shirt upset them, and that L.M. needed to remove the shirt to return to class. L.M. declined, and the principal called L.M.’s father who removed L.M. from school that day. Subsequently, L.M.’s counsel issued a letter to the superintendent asserting that the school had censored L.M. and explained that L.M. intended to wear the shirt to school again. The student wore the shirt to school a second time. On this second occasion, L.M. had covered the phrase “ONLY TWO” with a piece of tape with the word “CENSORED” written on it. Again, L.M. was asked to remove the shirt.
L.M., through his guardians, initiated an action under 42 U.S.C. §1983 asserting that the defendants’ application of the dress code to restrict L.M.’s t-shirt, but not other messages by students pertaining to sexual orientation, gender identity, and expression, amounted to impermissible viewpoint discrimination. L.M. argued that symbols relating to pride and diversity must be similarly prohibited in the school setting. L.M. also asserted that the dress code is vague and overbroad on its face. Prior to a hearing on the merits, L.M. sought a preliminary injunction, which was denied by the court.
The issuance of a preliminary injunction is an extraordinary remedy that is only granted if a plaintiff makes a clear showing of entitlement to such relief. In considering whether to grant a motion for preliminary injunction, the court considers four factors: (1) the likelihood of success on the merits; (2) the potential for irreparable harm to the moving party if the injunction is denied; (3) the balance of relevant impositions; and (4) the effect, if any, of the court’s ruling on the public interest. The court concluded that L.M. failed to demonstrate a likelihood of success on the merits. Citing Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the court reasoned that while students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, schools may impose reasonable limitations on speech. Specifically, the court relied on the statement in Tinker that a school may regulate speech that is in “collision with the rights of others to be secure and be let alone”. The record established that Massachusetts has identified trans and non-gender conforming students as a protected group and that school staff had received numerous complaints and concerns about the shirt.
The court ruled that the student was “unable to counter [the school district’s] showing that enforcement of the Dress Code was undertaken to protect the invasion of the rights of other students to a safe and secure educational environment. It determined that school administrators “were well within their discretion to conclude that the statement ‘THERE ARE ONLY TWO GENDERS’ may communicate that only two gender identities–male and female–are valid, and any others are invalid or nonexistent, and to conclude that students who identify differently, whether they do so openly or not, have a right to attend school without being confronted by messages attacking their identities.”
Several facts in the case bear mention. First, the student was not disciplined – he was merely barred from wearing the shirt in school. Second, he was allowed to wear other messaging apparel in school. Third, he was able to communicate freely on social media and in other contexts. Finally, the court’s decision – which is not a “final” decision in the case – does not address whether the result may have been any different under the Massachusetts student speech statute, G.L. c. 71, § 82.
The L.M. v. Town of Middleborough decision and the Supreme Court precedent relied upon is an important reminder that public schools may prohibit particular expressions of opinion, where those expressions are incompatible with the school’s obligations to provide a safe and secure educational environment for other students. The extent of this authority will depend on the specific facts and circumstances of each case and should be assessed carefully.
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This update is provided for informational purposes only and should not be considered legal advice.