Welcome back to the podcast for our second episode of the day.

Earlier today we discussed the Apache case.

I'm releasing a second episode because I really wanted to dive into another certiorary denial involving the case called LM vs Middleburgh, this denial highlights one of the most contentious debates in America right now, the clash between free speech rights and protecting students in our schools.

Similar to Apache, two justices wrote passionate dissents arguing the court should have taken the case.

Let me tell you why this seemingly simple story about a middle school T shirt has constitutional scholars, school administrators, and parents all paying attention.

Please note that this summary is read by an automated voice.

Before we dive into the middleburrow case, I wanted to bring up three other matters.

First is a recap of another developing Supreme Court case called in resdoge service.

On May 23, 2025, Chief Justice Roberts granted a stay in a case involving the US DOGE Service, the government efficiency body that President Trump created with Elon Musk's involvement.

Here's what happened.

The watchdog group CREW filed a Freedom of Information act request demanding documents from doge, arguing that DOGE operates like a government agency and should be subject to public records laws.

When DOGE didn't respond quickly enough, CREW sued.

The case took an interesting turn when a federal judge ordered discovery, including depositions of Doge officials and production of internal recommendations to federal agencies to determine whether DOGE must comply with FYA in the first place.

The government argued this was backwards logic.

The discovery process was giving CREW much of what they'd get if they won the case outright, while potentially violating the separation of powers by forcing presidential advisors to reveal their confidential deliberations.

Chief Justice Roberts agreed and put the whole discovery process on hold.

This case perfectly illustrates the ongoing tension between government transparency and executive privilege.

And like today's main story, it shows how constitutional principles often clash in unexpected ways.

I'll keep following this one and update you as it develops.

Second, a quick programming note.

I'm currently working to backfill the podcast with oral arguments from earlier Supreme Court terms.

Right now, I'm making my way through the middle of the 2023-24 term, so if you're looking for more content or want to catch up on cases you might have missed, those episodes are available now.

Finally, a quick scheduling note.

I'm tied up with work on Thursday.

If the Court hands down decisions, look for my episodes on Friday.

Now let's turn to our main story about student speech and school safety.

Let me set the scene.

It's March 2023 in Middleborough, Massachusetts, a seventh grader called LM to protect his privacy walks into Nichols Middle School wearing a black T shirt with white letters that read there are only two genders.

Within hours, LM's school pulls LM from gym class and sends him home.

LM protests the censorship by wearing a shirt that says there are censored genders.

The school bans that shirt.

But this story is really just beginning.

What started as a routine dress code enforcement would eventually reach the highest court in the land, exposing fundamental disagreements about student rights in the digital age.

To understand what happened here, we need to go back to 1969 and a landmark Supreme Court case called Tinker vs.

Des Moines.

In that case, students wore black armbands to school to protest the Vietnam War.

The school tried to ban the armbands, but the Supreme Court said students don't shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

But, and this is crucial, Tinker also established that schools can restrict students speech in two specific situations.

First, if the speech would cause a material disruption to the school environment.

Second, if the speech invades the rights of others.

These two standards have been the framework for student speech cases ever since.

But as you'll see, applying them in practice has proven incredibly difficult.

Now let's look at this from the school's point of view.

Nicholls Middle School serves students between ages 10 and 14.

School administrators knew several students at the school identified as transgender or gender non conforming.

Some of these students had experienced serious mental health struggles, including suicidal thoughts related to how other students treated them because of their gender identities.

The school had conducted a survey showing more than 20 students had expressed concerns about bullying and feeling unwelcome, specifically mentioning how LGBTQ students were treated.

The acting principal had previous experience working with gender non conforming students who had been hospitalized for suicide attempts or required transfers to other districts because of harassment.

So when a teacher reported LMS T shirt and expressed concern that LGBTQ students might be impacted and potentially disrupt classes, administrators faced a difficult choice.

They interpreted the shirt's message, there are only two genders as essentially telling transgender and gender non conforming students that their identities were invalid or non existent.

The school also pointed to Massachusetts state law, which requires schools to protect students from discrimination and harassment based on gender identity.

From the administrator's perspective, allowing the shirt could create a hostile environment for vulnerable students and potentially violate state anti discrimination requirements.

LM's side of the story presents a completely different picture.

LM believed the message expressed a basic biological fact that there are only two sexes, male and female, and that gender corresponds to biological sex.

LM had observed the school promoting what LM saw as the opposite viewpoint through Pride Month celebrations, diversity posters, and encouraging students to express support for LGBTQ identities.

LM's argument was fundamentally about viewpoint discrimination.

The school was actively promoting one perspective on gender identity while censoring the opposing view.

LM had worn other political messages on T shirts like Don't Tread on Me and First Amendment Rights without any problems.

The school only objected when LM expressed a view that contradicted the school's preferred position on gender.

Importantly, LMS shirt didn't target any specific individual and didn't cause any actual disruption.

No students became visibly upset.

No fights broke out.

No classes were interrupted.

The censorship was based entirely on speculation about what might happen.

LM's family sued the school district.

The district court ruled against lm, saying the T shirt violated other students rights under Tinker's rights of others standard.

The judge concluded that transgender and gender non conforming students had a right to attend school without being confronted by messages attacking their identities.

The case then went to the First Circuit Court of Appeals, which upheld the school's actions but used different reasoning.

Instead of the rights of others argument, the appeals court focused on Tinker's material disruption standard.

But here's where things get really interesting.

The First Circuit created what critics call a novel legal test.

The court said schools can restrict passive silent student speech if two conditions are met.

First, the speech must reasonably be interpreted as demeaning characteristics of personal identity that are unalterable or deeply rooted.

Second, schools must reasonably forecast that the demeaning message will poison the educational atmosphere through its serious negative psychological impact on students with the demeaned characteristic.

What's fascinating here is that LMS lawyers argued this decision created or deepened multiple conflicts between different federal appeals courts.

They claimed nine separate circuit splits areas where courts in different parts of the country are reaching opposite conclusions on similar legal questions.

For example, some courts say schools can never engage in viewpoint discrimination, while others allow it under certain circumstances.

Some courts require schools to present specific evidence of likely disruption, while others accept more general concerns about psychological harm.

Some courts reject the heckler's veto, the idea that speech can be banned because others might react badly to it, while others seem to accept it.

The school district strongly disputed these claims, arguing that courts across the country have consistently applied Tinker in similar ways and that LMS lawyers were mischaracterizing both the First Circuit's decision and and other courts rulings when LM's case reached the Supreme Court, the justices faced a petition asking them to review the First Circuit's decision.

In May 2025.

The court denied certiorari, which means the justices declined to hear the case.

Most Supreme Court denials happen without explanation, but this case was different.

Two Justices, Clarence Thomas and Samuel Alito, wrote dissenting opinions explaining why they thought the Court should have taken the case.

Justice Thomas wrote a short but pointed dissent.

What's particularly interesting is that Thomas has long argued that the Tinker decision itself was wrong and without basis in the Constitution.

Thomas would prefer to dispense with Tinker altogether, but Thomas acknowledged that as long as Tinker remains binding precedent, lower courts must apply it faithfully.

Thomas argued that the First Circuit flouted Tinker by finding a material disruption when LM clearly had not created one.

In Thomas's view, wearing T shirts reading there are only two genders and later there are censored genders plainly did not cause the kind of substantial interference with school operations that Tinker requires.

Justice Alito, joined by Justice Thomas, wrote a much longer dissent that reads almost like a roadmap for how the Supreme Court might eventually approach these issues.

Alito framed the case as presenting an issue of great importance for our nation's youth, whether schools can suppress student speech simply because administrators disagree with the viewpoint or worry about causing offense.

Alito made two main arguments for why the Court should have granted review.

First, schools cannot engage in viewpoint discrimination.

Alito pointed out that in the original Tinker case, schools allowed students to wear all sorts of political symbols, including even the iron cross, a symbol associated with Nazism, but banned only the anti war armbands.

The Court found this selective enforcement unconstitutional.

Here, Alito argued, the school was doing exactly the same thing, allowing and even encouraging expression, supporting fluid gender identity while censoring opposing views.

This created an impermissible orthodoxy where only officially approved sentiments on gender identity were permitted.

Second, Alito argued that the First Circuit had watered down Tinkers demanding standard for material disruption.

The Supreme Court has described Tinker's test as requiring schools to show substantial interference with school operations, not just psychological discomfort.

The black armbands in the original Tinker case also involved an emotionally charged topic.

Students couldn't concentrate when reminded of friends and neighbors wounded or killed in Vietnam, but the Court still protected the speech.

Alito was particularly critical of the First Circuit's focus on the student's young age.

Mary Beth tinker herself was 13 when she wore her armband to junior high school.

Yet the Court applied the same constitutional standard to her as to older high school students.

If schools choose to teach young students about LGBTQ issues, Alito argued, those schools must also tolerate dissenting views on those same topics.

So what does the Supreme Court's silence tell us?

The denial of certiorari den despite two Justices arguing the case presented, critical constitutional questions suggest that Tinker v.

Des Moines has become increasingly fractured and inconsistent in how different courts apply it.

Justice Alito cataloged what he characterized as nine separate circuit splits, while LM's lawyers documented conflicts involving fundamental First Amendment principles.

The Court's refusal to grant review, even with two Justices calling the issues vital, suggests either the Court isn't ready to clarify or narrow Tinker, or the justices believe the circuit conflicts aren't as clear cut as L.M.

s side claimed.

Justice Thomas's continued criticism of Tinker as constitutionally baseless signals ongoing doctrinal tension.

But Thomas's acknowledgment that Tinker remains binding precedent indicates no immediate prospect for wholesale reconsideration.

This leaves lower courts continuing to apply Tinker inconsistently, particularly in cases involving identity based speech that implicates both traditional free speech principles and modern concerns about student safety and inclusion.

From a practical standpoint, the denial creates significant uncertainty for school administrators who must navigate competing legal and social pressures without clear constitutional guidance.

Schools operate under state anti discrimination laws like Massachusetts requirements in this case that mandate protection of LGBTQ students while simultaneously facing potential federal constitutional challenges if administrators restrict student speech too broadly.

The middleburrow case perfectly illustrates this impossible position.

School administrators knew the school had vulnerable transgender and gender non conforming students, some with histories of suicidal thoughts, yet faced a federal lawsuit when administrators tried to prevent what they reasonably viewed as harmful speech.

The First Circuit's novel two part test for demeaning speech provides some framework, but that test applies only in the First Circuit and conflicts with other Circuit's approaches.

Without Supreme Court guidance, schools must make high stakes decisions about student speech with inconsistent legal standards, risking either federal constitutional violations or state law non compliance.

This uncertainty gets compounded by the highly charged political nature of gender identity issues, where any decision will likely generate controversy from parents, students, and advocacy groups on all sides.

The practical result is that school policies on identity related student expression will vary dramatically by geographic region, creating an uneven patchwork of student rights that depends more on zip code than constitutional principle.

Students in Massachusetts now live under different First Amendment protections than students in Texas or California, and that's a problem regardless of where you stand on the underlying gender identity debates.

This case perfectly captures the complexity of constitutional law in our polarized era.

Both sides can point to legitimate concerns protecting vulnerable students from psychological harm versus preserving robust free speech rights.

Both sides can cite constitutional principles and Supreme Court precedents supporting their positions.

And both sides face real consequences when courts rule against them.

What makes this case particularly significant is that it's not really about T shirts or even gender identity.

It's about how we balance competing constitutional values in our public schools and whether schools can pick winners and losers in ideological debates.

Those are questions that affect every student, parent and educator in America.

The Supreme Court's silence means these battles will continue playing out in lower courts, school board meetings, and classrooms across the country.

Until the justices provide clearer guidance, students, parents and administrators will have to navigate this uncertain terrain as best they can.

That's all for today's episode.

As always, thanks for listening, and I'll see you next time.