The Latest Development Involving Speech that Denigrates Others and Students’ First Amendment Rights in Public Schools

Student dress code policies often prohibit expression on clothing that could denigrate the identities of other students in school. T-shirts with confederate flags or anti-LGBTQ+ messages, in particular, have sometimes been the center of legal controversy. When public school officials ask a student to change clothing that violates such a dress code policy, they may be accused of violating a students’ free expression rights under the First Amendment of the U.S. Constitution. A 2024 First Circuit Court of Appeals decision exhibits the legal tensions present in such controversies. This recent case, L.M. v. Town of Middleborough, addresses whether public school officials violated a student's First Amendment rights when they asked him to remove a T-shirt that stated “There are only two genders.” The First Circuit concluded that school officials were permitted to prohibit this type of T-shirt without offending the First Amendment.Before examining this most recent case on the matter, the article provides some necessary background information involving research on LGBTQ+ harassment and students’ First Amendment rights in public schools. Also, earlier examples of circuit courts that have addressed similar controversies are highlighted in order to set the context. This article concludes with a brief discussion on why laws and policies addressing demeaning speech are important for school leaders to understand and how greater collaboration between law and education can lead to more inclusive school environments for students.Due to the limited research on the school experiences of LGBTQ+ youth, in 1999, the Gay, Lesbian and Straight Education Network (GLSEN) started a national school climate biennial survey to learn about the school experiences of LGBTQ+ youth between the ages of 13 and 18.1 The GLSEN study documents the unique challenges that LGBTQ+ adolescent students face in schools and the effects of a hostile school environment on their wellbeing and academic success.2 The study also examines how school policies and supportive measures might create a more positive school culture and climate for LGBTQ+ youth.3 According to GLSEN's 2021 School Climate Survey, 83.1% of LGBTQ+ students experienced harassment or assault based on personal characteristics and 76.1% of LGBTQ+ students experienced verbal harassment by being called names or threatened specifically based on their sexual orientation, gender expression and gender during the school year.4 The GLSEN survey also revealed that when LGBTQ+ students do report bullying and harassment, educators’ responses have not improved over time.5Multiple research studies have shown that LGBTQ+ students have higher rates of suicide especially for transgender students.6 For example, the 2023 Youth Risk Behavior Study (YRBS) data revealed that approximately 26% of transgender and questioning students attempted suicide in the past year compared with 5% cisgender male and 11% of cisgender female students.7 Researchers have also documented higher rates of suicide ideation, truancy, depression, and anxiety when LGBTQ+ students are not supported in the school setting.8 GLSEN's 2021 School Climate Survey revealed that comprehensive policies have better outcomes than generic anti-bullying/harassment policies in creating a safe learning environment for LGBTQ+ youth, yet only 12.0% of students reported that their school had a comprehensive policy that specifically enumerated sexual orientation and gender identity.9 The 2023 YRBS results found that when there is an LGBTQ+ inclusive school climate, students are less likely to experience poor mental health, suicidal thoughts and behaviors, substance use, violence and sexual risk behaviors.10School leaders and educators must create school climates that prioritize the well-being and health of transgender and non-binary students due to these startling disparities in their risk of committing suicide, experiencing suicide ideation, anxiety, and being bullied and harassed.11 Dr. Either, director of C.D.C.’s adolescent and school health division stated clearly that there are “5 percent of young people in the country, who, because of the way they identify around their gender, are stigmatized, bullied, made to feel unsafe, feel disconnected at school and consequently have poor mental health and higher risk for suicide than their cisgender peers.”12 The above research underscores that it is vital that school leaders create and implement school policies and practices that support a positive school climate for LGBTQ+ students specially for transgender and non-binary students.13At the same time, many states are proposing or enacting anti-trans legislation. For example, in 2025, there were 600 bills under consideration in the U.S. that would impact trans persons. Several of these focus on education and healthcare.14 The Trump administration has also issued an Executive Order calling for the federal government to define sex as only male or female.15 This applies to the federal government. Additionally, an Executive Order must “align with existing laws.” In other words, an Executive Order may not override existing laws.16 As of March 2025, there are 23 states that prohibit discrimination related to gender identity.17 Even in those states that do not have state legislation, there might be court cases that provide guidance in a specific jurisdiction.18 If a school leader is in a state with no state protections and no binding court decisions, school leaders may nonetheless create a climate that appreciates and embraces all students’ well-being. They may also advocate for district-level policies that protect LGBTQ+ students. For example, school leaders can advocate for inclusive policies, educate staff about their responsibilities to maintain a safe environment, and enforce anti-bullying measures.There are five U.S. Supreme Court cases that provide the framework for K–12 student expression jurisprudence. These cases include: Tinker v. Des Moines Independent Community School District;19Bethel School District No. 403 v. Fraser;20Hazelwood v. Kuhlmeier;21Morse v. Frederick;22 and Mahanoy Area School District v. B.L.23 These Court decisions provide a blueprint for navigating students’ First Amendment rights in public schools. Although all five cases are significant for public schools, this article specifically focuses on the Supreme Court's Tinker decision because it aligns most closely with the issue at hand – whether public school officials can curtail speech that denigrates others in school settings.In Tinker, the Supreme Court examined whether public school officials violated the First Amendment rights of students who were suspended for wearing black armbands to school in protest of the Vietnam War. Finding no evidence that the armbands created a material and substantial disruption in the school, the Court ruled in favor of the students. The Court also reasoned that, when the students wore armbands, they were not interfering or colliding “with the rights of other students to be secure and to be let alone.”24 As such, students’ private political expression is protected by the First Amendment unless it creates a material and substantial disruption in the school (i.e., Tinker's first prong) and/or if it collides with the rights of others (i.e., Tinker's second prong).Although the U.S. Supreme Court has never specifically addressed speech that denigrates other students in a K-12 public school setting, some lower federal courts have been confronted with such legal questions.25 These courts applied the Tinker decision when student attire has been found to interfere with the rights of other students and/or has caused disruption at school.26 Here, we focus on the only two federal circuit cases involving T-shirts that presented anti-LGBTQ+ messages.27 We also briefly highlight a few other illustrative cases that have examined similar concerns involving racially insensitive expression on student attire.28In Harper, the Ninth Circuit analyzed a matter involving a T-shirt worn by a student to protest the National Day of Silence.29 The Day of Silence is recognized in April each year and serves as a day of action to raise awareness of the bullying of LGBTQ+ students.30 During a “Straight Pride” counter-protest, a student wore a T-shirt that cited a Bible passage that read, “I will not accept what God has condemned” and “Homosexuality is shameful.”31 School personnel contended that this inflammatory T-shirt created a hostile environment for other students in the school. The student was never disciplined even though the T-shirt allegedly caused a substantial disruption at the school. Nevertheless, the student sued the school district.32 Relying on the Rosenberger v. Rector and Visitors of University of Virginia U.S. Supreme Court decision,33 the student alleged that school officials engaged in viewpoint discrimination when they did not permit him to the wear the T-shirt—because the government is forbidden from favoring one speaker over another. The federal district court denied the student's motion for a preliminary injunction because there was some evidence in the record suggesting that school officials could reasonably forecast a substantial disruption in the school setting.The Ninth Circuit Court of Appeals affirmed and applied Tinker's second prong, finding that the T-shirt impinged upon the rights of other students.34 According to the Ninth Circuit: [H]is T-shirt ‘collides with the rights of other students’ in the most fundamental way. Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic, such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses. As Tinker clearly states, students have the right to ‘be secure and to be let alone.’35The judge reasoned that this T-shirt might be afforded First Amendment protections outside a public school setting; however in a school, rights are determined “in light of the special characteristics.”36 Relying on social science research in reaching its conclusion, the circuit court explained that this speech strikes at a student's “core characteristic”37 and has a “detrimental”38 effect on their psychological well-being. The research cited underscored the harassment that many LGBTQ+ students experience in schools as a result of their sexual orientation or gender identity.In response to the student's viewpoint discrimination argument, the Ninth Circuit posited that Tinker does not require school officials to tolerate shirts that denigrate students based on race during Black History month. Moreover, the court relied on earlier cases involving students wearing Confederate flag symbols to school, highlighting that “[w]hile the Confederate flag may express a particular viewpoint, [i]t is not only constitutionally allowable for school officials to limit the expression of racially explosive views, it is their duty to do so.”39 Thus, there was no requirement that school personnel must permit shirts that denigrate students based on their sexual orientation during the National Day of Silence.Judge Kozinski dissented in Harper, and wrote that the majority misapplied the Tinker decision; he highlighted the importance of free debate on important social issues and contended that homosexuality is a political matter.40 Relatedly, he argued that school officials were promoting one political or religious viewpoint over another. In response, the majority stressed that although debate on social and political issues is often justified, such discussion does not “justify students in high schools or elementary schools assaulting their fellow students with demeaning statements: by calling gay students shameful, by labeling black students inferior, or by wearing T-shirts saying that Jews are doomed to Hell.”41A request for an en banc42 hearing was denied. Concurring with the denial of the en banc request, one judge criticized the dissent: The dissenters still don't get the message—or Tinker! Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him, is not simply ‘unpleasant and offensive.’ It strikes at the very core of the young student's dignity and self-worth. . .Perhaps some of us are unaware of, or have forgotten, what it is like to be young, belong to a small minority group, and be subjected to verbal assaults and opprobrium while trying to get an education in a public school, or perhaps some are simply insensitive to the injury that public scorn and ridicule can cause young minority students. Or maybe some simply find it difficult to comprehend the extent of the injury attacks such as Harper's cause gay students. Whatever the reason for the dissenters’ blindness, it is surely not beyond the authority of local school boards to attempt to protect young minority students against verbal persecution, and the exercise of that authority by school boards is surely consistent with Tinker's protection of the right of individual students ‘to be secure and to be let alone.’43In granting the student's petition for writ of certiorari,44 the Court vacated the judgment and remanded to the Ninth Circuit to dismiss the appeal as moot. In so doing, the Court noted that the district court had already entered final judgment and the plaintiff had graduated.45 As such, the final decision has limited precedential value, but as discussed below, other federal courts have cited this case.In Nuxoll, and later revisiting the issue in Zamecnik v. Indian Prairie School District,46 two students who attended a high school in Illinois claimed that their First Amendment rights were violated when school personnel disciplined the older of the two students for wearing a T-shirt that said “Be Happy, Not Gay” on the day after the National Day of Silence. School personnel requested the student wearing the shirt to cross out the words “not gay” because they asserted that these words could create disruption at the school. The school’ s policy prohibited “derogatory comments, oral or written, that refer to race, ethnicity, religion, gender, sexual orientation, or disability.47The plaintiffs filed a motion for a preliminary injunction, alleging that school personnel violated their First Amendment rights.48 The federal district court denied the student's motion, finding that under Hazelwood this expression was contrary to the school's legitimate educational mission and that the students failed to demonstrate that their rights to free expression had been violated.49The Seventh Circuit reversed, finding no evidence of disruption under Tinker's first prong.50 The circuit court also reasoned that by allowing the shirt, the school would be viewpoint neutral on the National Day of Silence. The majority wrote that a shirt that said “homosexuals go to Hell” could be barred, but he the “Be Happy, Not Gay” was only and did not the educational Moreover, the circuit court found that there was no that the were at a particular individual and that there was not evidence of a The case was remanded to the lower court with for the court to the preliminary injunction that the students a with the of the case, but for did not this to be a case about viewpoint discrimination because Tinker did not focus on whether the school expression of that was to U.S. in the Vietnam War. also that the was only school district and the Seventh Circuit the district decision to a judgment in favor of the The court found that the First Amendment does not a the Seventh Circuit did in Zamecnik that are to exercise in when student speech the between and substantial disruption of the educational to the two circuit court decisions discussed that anti-LGBTQ+ school leaders might also to other that have addressed racially hostile speech or speech for For example, the and the to school officials to speech that denigrates other even without disruption These courts relied on from earlier Supreme Court student speech decisions, of student speech that is contrary to the public school's In to the Ninth the and recognized Tinker's second in cases involving racially hostile In the for example, the court found that a student who a Confederate flag in class could interfere with the rights of other students to be secure and let but also cause a substantial the of the law is some school officials in these there are no decisions involving speech that denigrates other more when policies that prohibit anti-LGBTQ+ speech in K–12 public these earlier decisions, courts were with the of students’ free speech rights in schools while the of school officials to students. when student speech that denigrates other students in public schools, some have made an important between political expression and These that harassment based on gay is not speech in public school students have right to such expression the dignity and educational of a that about sexual orientation or other personal characteristics to a debate about According to these T-shirts are a type of that the and often speech that with of religious those same that there is a between an on a of and an on the social and of a of Although school attempt to be neutral when students’ speech some raise the about whether the from an might be more than an because of the that LGBTQ+ students have often experienced in this First Circuit case, the Ninth and the Seventh Circuit were the only two federal circuit courts that have addressed anti-LGBTQ+ expression on clothing in K–12 public schools to this This more recent decision provides on the L.M. v. Town of Middleborough, the First Circuit addressed whether school officials could prohibit a student from wearing a T-shirt that “There are only two as as a second T-shirt that had a over the words When the student first wore this shirt to high school in he was asked to remove it and a school officials explained that this shirt students based on gender The school district also to its dress a speech that speech or that other students based on race, ethnicity, gender, sexual orientation, gender as as other It also said that other that the administration to be to will not be The dress code that a student to school, will be asked to their to request that more attire be to and that of the dress code will result in the student but the student later wore a of the T-shirt to school. The student was asked to remove this shirt and did The and student alleging a of the student's First Amendment other the student and argued that the speech of the dress code was because it was and response, school officials explained that a few after the student was asked to change two that that are only two and out A few the day that said people is and support trans School officials about and about the The noted that some of the were in school highlighted that state law an anti-bullying that recognized the of School officials also posited that earlier decisions from other circuit courts v. had students for similar on these they contended that it was that they could students for a shirt that would the rights of other students – especially those who are The school officials also noted that this shirt would cause disruption because the LGBTQ+ in the school would not by and to their very and because the shirt the school's educational mission of federal district court relied on Tinker's of the rights of second prong) and denied the student's motion for a preliminary The court also the school district final judgment on all of the student's involving the dress that who identify . . . have a right to school without being confronted by their the lower the First Circuit Court of Appeals relied more on Tinker's substantial disruption prong) of of the rights of others According to the First it was about whether Tinker's second applies to and expression that does not specifically a student but a personal such as race, or Thus, on the Tinker's first prong, the circuit court reasoned that expression that a of personal and a that is reasonably to the educational due to its psychological impact on the students who are by the could lead to substantial the court a on the for educators and not to what would environment to in L.M. v. Town of is that under Tinker's substantial disruption prong, school personnel can expression that does not a specific individual if the speech a of personal school officials can reasonably forecast that the will the educational as result of the psychological on those who have been court also the unique school environment and the to on school the other the court stressed that school personnel may not speech that they may more the legal this case has important for educators’ legal in addressing speech that denigrates students in schools. that educators learn about the law and the legal they to education policy and outside their and contended that law is a that educators can to their most important According to and the importance of educators to be of in order protect their their schools and educators to be “with a of school law because not so can be a of educational importance of educators the law has as as the U.S. Supreme Court in its v. of Education decision that educational policies and practices by law can and in a way to to be For LGBTQ+ the that is to especially transgender and non-binary youth, when educators are unaware of the can lead to As discussed in the LGBTQ+ students who do not experience a supportive environment have higher rates of suicide, suicide ideation, and these experiences create a disruption for the student and the school. legal about the recent court decisions, educators can the law to their decisions that LGBTQ+ students’ rights are being and and that law and also in many issues for educators and that of these concerns be by school leaders without the legal in they and the of the political and social they educators legal to be leaders to in about policy and that schools from with the that for their district or with the school leaders who have from with the collaboration is important as school leaders have limited legal as of their the same time, they are to understand how the law their and many of they had greater about the law to do their to and leaders to understand the their and must these can be though and leaders who about a set of laws and to the of all their students. leaders can create inclusive environments for LGBTQ+ students by in and with to that students are learning in positive school not In one of the most important for educators is to create an learning environment all students feel safe to leaders have the and to protect LGBTQ+ students from the and harassment they experience in many schools