L.M. v. Town of Middleborough
Description: A seventh grade student wore a T-shirt to Nichols Middle School in Middleborough, Massachusetts, that said, “There are only two genders.” The principal of the school, along with a school counselor, pulled him out of class and ordered him to remove his shirt. After he politely declined, school officials said that he must remove the shirt or he could not return to class. As a result, he left school and missed the rest of his classes that day.
Dozens of states, groups ask Supreme Court to hear 'There are only two genders' T-shirt case
WASHINGTON – Multiple education experts, free speech advocates, and 18 states have filed friend-of-the-court briefs with the U.S. Supreme Court that ask it to take the case of a student forbidden by his Massachusetts school from wearing two different T-shirts to school with the words “There are only two genders” and “There are [censored] genders” on the front.
In June, the U.S. Court of Appeals for the 1st Circuit affirmed the school’s decision, prompting Alliance Defending Freedom attorneys, who represent the student, to ask the high court to review the case and rule that Nichols Middle School in Middleborough violated the First Amendment when it stopped the student from wearing his shirts to school.
“Students don’t lose their free speech rights the moment they walk into a school building,” said ADF Senior Counsel and Vice President of U.S. Litigation David Cortman. “This case isn’t about T-shirts; it’s about a public school telling a middle-schooler that he isn’t allowed to express a view that differs from their own. The school actively promotes its view about gender through posters and ‘Pride’ events, and it encourages students to wear clothing with messages on the same topic—so long as that clothing expresses the school’s preferred views on the subject. Our legal system is built on the truth that the government cannot silence any speaker just because it disapproves of what they say. We appreciate the many states and organizations that have joined us in urging the Supreme Court to take this critical free speech case.”
“By silencing L.M., the First Circuit created a speech-hostile standard that—contrary to [Tinker v. Des Moines Independent Community School District]—allows schools to restrain even silent, passive displays of speech that cause no actual disruption,” the multi-state brief led by the states of South Carolina and West Virginia explains. “It split from other circuits on issues like what facts a school must show to justify a restriction on student speech. And it effectively sanctioned viewpoint discrimination in public schools.”
“If the First Circuit’s broad expansion of Tinker’s ‘invasion of the rights of others’ exception is allowed to stand, school administrators nationwide will wield it to censor unpopular or dissenting viewpoints—miseducating students about their expressive rights in our pluralist society,” adds the brief filed by Foundation for Individual Rights and Expression.
Attorneys with ADF and Massachusetts Family Institute representing the student filed the lawsuit, L.M. v. Town of Middleborough, in May 2023.
The ADF Center for Academic Freedom is dedicated to protecting First Amendment and related freedoms for students and faculty so that everyone can freely participate in the marketplace of ideas without fear of government censorship.
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Friend-of-the-court briefs filed with U.S. Supreme Court
- Americans for Prosperity Foundation
- Foundation for Individual Rights and Expression
- Independent Women's Law Center
- J.R., a minor, by and through his mother and general guardian, Eden Hope Rodriguez, and Claremont Institute's Center for Constitutional Jurisprudence
- Life Legal Defense Foundation and Young America's Foundation
- National Religious Broadcasters
- Parents Defending Education
- Pacific Justice Institute
- States of South Carolina, West Virginia, Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Texas, Utah, and Virginia
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ABOUT David Cortman
David A. Cortman serves as senior counsel and vice president of U.S. litigation with Alliance Defending Freedom. He has been practicing law since 1996, and currently supervises a team of over 40 attorneys and legal staff who specialize in constitutional law, focusing on religious freedom, sanctity of life, and marriage and family. Cortman has litigated hundreds of constitutional law cases including two victories at the U.S. Supreme Court. In Trinity Lutheran Church v. Comer, he secured a 7-2 victory that overturned Missouri’s denial of a religious school’s participation in a state funding program. Cortman also argued Reed v. Town of Gilbert, securing a 9-0 ruling that prohibits the government from discriminating against religious speech. A member of the bar in Georgia, Florida, Arizona, and the District of Columbia, he is also admitted to practice in over two dozen federal courts, including the U.S. Supreme Court. Cortman obtained his J.D. magna cum laude from Regent University School of Law.
ABOUT John Bursch
John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom. Bursch has argued 12 U.S. Supreme Court cases and more than 30 state supreme court cases since 2011, and a recent study concluded that among all frequent Supreme Court advocates who did not work for the federal government, he had the 3rd highest success rate for persuading justices to adopt his legal position. Bursch served as solicitor general for the state of Michigan from 2011-2013. He has argued multiple Michigan Supreme Court cases in eight of the last ten terms and has successfully litigated hundreds of matters nationwide, including six with at least $1 billion at stake. As part of his private firm, Bursch Law PLLC, he has represented Fortune 500 companies, foreign and domestic governments, top public officials, and industry associations in high-profile cases, primarily on appeal. He received his J.D. magna cum laude in 1997 from the University of Minnesota Law School and is admitted to practice in numerous federal district and appellate courts, including the U.S. Supreme Court.
ABOUT Logan Spena
Logan Spena serves as legal counsel for the Center for Academic Freedom with Alliance Defending Freedom, where he defends the rights of students, professors, and organizations to speak, associate, and worship freely. Before joining ADF, Spena served as deputy policy director in the Missouri governor’s office, where he oversaw the state’s regulatory reform efforts and worked to approve legislation on many issues including education, foster care, and protecting the unborn. Spena graduated from the University of Virginia School of Law in 2016, where he served as an editor on the Virginia Law Review. Spena earned his B.A. in Government: Political Theory from Patrick Henry College in 2012. He is a member of the Missouri bar.