“The Demeaning-Identity Test” – Supreme Court’s Refusal to Review
L. M. v. Middleborough Leaves First Circuit’s New Student-Speech Standard Intact

1. Introduction

L. M. v. Town of Middleborough, Massachusetts (605 U.S. ___, 2025) arose after a seventh-grade student wore two T-shirts — “There Are Only Two Genders” and, when that shirt was banned, “There Are CENSORED Genders” — to Nichols Middle School (NMS). School officials prohibited both shirts, invoking concerns for the safety and psychological well-being of transgender and gender-non-conforming classmates. L. M., through his parents, sued under 42 U.S.C. §1983, claiming that the ban violated his First and Fourteenth Amendment rights. The district court denied relief; the First Circuit affirmed, crafting a two-part test that allows schools to suppress passive, silent student speech which:

1. can “reasonably” be interpreted as demeaning a deeply rooted characteristic of personal identity (race, sex, religion, sexual orientation, gender identity, etc.); and
2. is “reasonably forecast” to “poison the educational atmosphere” by producing serious negative psychological effects amounting to a “material disruption.”

On 27 May 2025 the Supreme Court denied certiorari. Justice Thomas and Justice Alito (joined by Thomas) dissented, criticising the First Circuit for both (i) viewpoint discrimination and (ii) diluting the venerable Tinker v. Des Moines “material disruption” standard. Although a denial of certiorari sets no national precedent, the First Circuit’s novel rule now governs public schools within that circuit and deepens an already visible split among federal appeals courts.

2. Summary of the Judgment

• Supreme Court action: Petitioner’s request for review is denied.
• Main holding: None; denial of cert leaves lower-court judgment intact without endorsement.
• Thomas & Alito dissents: • First Circuit “flouts” Tinker. • Its “bespoke” test licences viewpoint discrimination. • The Court should clarify that students retain robust free-speech rights against a “heckler’s veto.”

3. Analysis

3.1 Precedents Cited

The dissenting opinions provide a tour of student-speech jurisprudence:

• Tinker v. Des Moines (1969) – Schools may restrict student speech only if it materially disrupts classwork or invades the rights of others. Seen as the cornerstone of K-12 First Amendment rights.
• Morse v. Frederick (2007) – Allowed certain restrictions on student speech promoting illegal drug use; Thomas’s concurrence urged overruling Tinker altogether.
• Mahanoy Area SD v. B.L. (2021) – Reaffirmed that Tinker remains “demanding” and that off-campus speech enjoys heightened protection.
• R.A.V. v. St. Paul (1992) – Government may not engage in viewpoint discrimination even within otherwise unprotected speech categories.
• Matal v. Tam (2017) & Iancu v. Brunetti (2019) – Invalidated bans on disparaging or scandalous trademarks as viewpoint-based.
• West Virginia Bd. of Ed. v. Barnette (1943), Bethel SD v. Fraser (1986), Lee v. Weisman (1992) – Recognise students’ expressive rights and the limits on school authority.

The First Circuit borrowed lines from prior circuit decisions (Zamecnik, Nuxoll, Harper, Parents Defending Education) but, as Justice Alito emphasised, assembled them into a new two-factor test without Supreme Court blessing.

3.2 Legal Reasoning

3.2.1 First Circuit’s Reasoning (Now the Governing Rule in That Circuit)

1. Identified “demeaning personal identity” speech as uniquely likely to harm target students’ ability to learn.
2. Held that schools may rely on reasonable forecasts supported by experience — here, prior reports of LGBTQ+ students’ vulnerability and suicidal ideation — rather than documented disturbances.
3. Concluded that “There Are Only Two Genders” implicitly invalidates non-binary identities and therefore demeans classmates’ core being, satisfying prong 1.
4. Forecasted negative psychological impacts that would manifest as reduced performance and absenteeism, satisfying prong 2 (material disruption).
5. Sidestepped classic viewpoint-neutrality doctrine, asserting that “special characteristics of the public-school setting” justify a different approach.

3.2.2 Dissenting Reasoning

Justices Alito and Thomas attack the First Circuit on two fronts:

1. Viewpoint Discrimination: Tinker and multiple post-Tinker cases forbid suppression of speech because of its viewpoint. By allowing pro-“many genders” messages while banning a pro-binary message, the school engaged in classic viewpoint discrimination.
2. Misapplication of Material-Disruption Test: • Tinker requires concrete evidence, not speculative predictions.
   • The shirts caused no actual disturbance; reports of possible hurt feelings are insufficient.
   • Deference to administrators creates a “heckler’s veto.”

In Justice Alito’s words, the First Circuit transformed a “demanding” standard into a “vague, permissive, jargon-laden rule” that essentially nullifies Tinker whenever speech is deemed psychologically harmful.

3.3 Impact

• Within the First Circuit (ME, MA, NH, PR, RI): Schools now have an explicit judicial roadmap to prohibit T-shirts, buttons, or other silent symbols that can be labelled “demeaning” to protected identities, even without evidence of fights, walkouts, or classroom disruption.
• National Circuit Split: The Seventh Circuit (e.g., Zamecnik) and Third Circuit (Sypniewski) have upheld students’ right to wear comparable shirts. The Ninth and Sixth Circuits have decisions trending the opposite way. The split is now starker.
• Doctrinal Uncertainty: • Is “psychological impact” a valid substitute for tangible disruption?
  • Can schools engage in viewpoint balancing when values of inclusion conflict with free speech?
  • How young is “too young” for robust First Amendment protection? Dissent says age is irrelevant once the topic is in the curriculum.
• Practical Effect on School Policies: Expect dress-code provisions referencing “demeaning” expressions to proliferate. Litigation risk increases, as administrators must predict psychological fallout from slogans on all sides of contentious debates (gender, religion, race, Israel/Palestine, etc.).
• Signals to Future Litigants: Denial of cert is not affirmance on the merits. Another case, perhaps with a majority willing to grant review, could overrule the First Circuit’s approach or squarely revisit Tinker.

4. Complex Concepts Simplified

• Certiorari (“cert”): Discretionary process by which the Supreme Court chooses which cases to review. Four votes are needed to grant. Denial leaves the lower-court decision standing but does not endorse it as nationwide precedent.
• Tinker “Material Disruption” Test: Schools may stop student speech only if they can show facts indicating the speech will cause substantial interference with school operations (e.g., fights, halted instruction) — not merely that people dislike it.
• Viewpoint Discrimination: Government favouring one side of a debate while silencing the other. Almost always unconstitutional.
• Heckler’s Veto: Permitting reactionary audiences (those offended or potentially violent) to silence a speaker by threatening disturbance. The First Amendment usually forbids authorities from yielding to such threats.
• Protected Class: Group of persons shielded by law from discrimination based on characteristics like race, sex, gender identity, religion, etc. Speech about such classes can still be protected under the First Amendment.

5. Conclusion

The Supreme Court’s silent stance in L. M. v. Middleborough leaves two things in place: (1) the long-standing, but increasingly fractured, Tinker framework; and (2) the First Circuit’s new “demeaning-identity” elaboration that substantially lowers the bar for school censorship when speech is critical of protected identities. While the ruling technically binds only New England and Puerto Rico, it equips school districts elsewhere with a blueprint for expansive dress-code enforcement that many will likely follow until the Supreme Court squarely addresses the issue.

Whether future cases will adopt Justice Alito’s call to reaffirm strict viewpoint neutrality or Thomas’s more radical invitation to discard Tinker altogether remains to be seen. For now, public schools in much of the country must navigate an uncertain landscape in which the protection of students’ expressive rights, the promotion of inclusive environments, and the spectre of litigation are on a collision course — a tension the highest Court has, for the moment, left unresolved.