United States Court of Appeals
                        For the First Circuit

Nos. 23-1535, 23-1645

   L.M., a minor by and through his father and stepmother and
       natural guardians, Christopher and Susan Morrison,

                        Plaintiff, Appellant,

                                 v.

   TOWN OF MIDDLEBOROUGH, MASSACHUSETTS; MIDDLEBOROUGH SCHOOL
   COMMITTEE; CAROLYN J. LYONS, Superintendent, Middleborough
Public Schools, in her official capacity; HEATHER TUCKER, Acting
  Principal, Nichols Middle School, in her official capacity,

                        Defendants, Appellees.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Indira Talwani, U.S. District Judge]


                               Before

                      Barron, Chief Judge,
            Thompson and Montecalvo, Circuit Judges.


     David A. Cortman, with whom Rory T. Gray, Tyson C. Langhofer,
P. Logan Spena, John J. Bursch, Andrew D. Beckwith, Samuel J.
Whiting, Alliance Defending Freedom, and Massachusetts Family
Institute were on brief, for appellant.
     J. Michael Connolly, Thomas S. Vaseliou, Rachel L. Daley, and
Consovoy McCarthy PLLC on brief for Parents Defending Education,
amicus curiae.
     Joseph D. Spate, Assistant Deputy Solicitor General of South
Carolina, Alan Wilson, Attorney General, Robert Cook, Solicitor
General, J. Emory Smith, Jr., Deputy Solicitor General, Thomas T.
Hydrick, Assistant Deputy Solicitor General, Steve Marshall,
Attorney General of Alabama, Tim Griffin, Attorney General of
Arkansas, Christopher M. Carr, Attorney General of Georgia, Raúl
Labrador, Attorney General of Idaho, Brenna Bird, Attorney General
of Iowa, Daniel Cameron, Attorney General of Kentucky, Jeff Landry,
Attorney General of Louisiana, Lynn Fitch, Attorney General of
Mississippi, Andrew Bailey, Attorney General of Missouri, Austin
Knudsen, Attorney General of Montana, Michael T. Hilgers, Attorney
General of Nebraska, Drew Wrigley, Attorney General of North
Dakota, Ken Paxton, Attorney General of Texas, Sean Reyes, Attorney
General of Utah, and Jason Miyares, Attorney General of Virginia,
on brief for South Carolina, Alabama, Arkansas, Georgia, Idaho,
Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana,
Nebraska, North Dakota, Texas, Utah, and Virginia, amici curiae.
     Robert Corn-Revere and Abigail E. Smith on brief for
Foundation for Individual Rights and Expression, amicus curiae.
     Gary M. Lawkowski and Dhillon Law Group, Inc. on brief for
Center for American Liberty, amicus curiae.
     James L. Kerwin, William E. Trachman, and Ilya Shapiro on
brief for Mountain States Legal Foundation and Manhattan
Institute, amici curiae.
     Catherine W. Short and Sheila A. Green on brief for Life Legal
Defense Foundation and Young America's Foundation, amici curiae.
     Gene C. Shaerr, Jennifer C. Braceras, and Schaerr Jaffe LLP
on brief for Independent Women's Law Center, amicus curiae.
     Deborah J. Dewart on brief for the Institute for Faith and
Family, amicus curiae.
     Deborah I. Ecker, with whom Gregg J. Corbo and KP Law, P.C.
were on brief, for appellees.
     Ruth A. Bourquin, Kirsten V. Mayer, and Rachel E. Davidson on
brief for the American Civil Liberties Union of Massachusetts,
Inc., amicus curiae.
     Chris Erchull, Mary L. Bonauto, Gary D. Buseck, Michael J.
Long, Kelly T. Gonzalez, and Long, Dipietro, and Gonzalez, LLP on
brief for GLBTQ Legal Advocates & Defenders and Massachusetts
Association of School Superintendents, amici curiae.
     Charles McLaurin, Jin Hee Lee, Avatara Smith-Carrington,
Janai S. Nelson, Samuel Spital, Alexsis Johnson, and Colin Burke
on brief for NAACP Legal Defense & Educational Fund, Inc., amicus
curiae.

                           June 9, 2024
            BARRON, Chief Judge.         Tinker v. Des Moines Independent

Community School District, 

 (1969), famously upheld

the First Amendment right of public-school students to wear black

armbands at school in protest of the country's involvement in the

Vietnam War.      The Supreme Court was sensitive, however, to the

"special characteristics of the school environment" and so took

care to explain that there was "no evidence whatever of . . .

interference, actual or nascent, with the schools' work or of

collision with the rights of other students to be secure and to be

let alone."      

.         It also affirmed more generally

that "of course" school authorities may restrict student speech

that   "materially      disrupts      classwork    or   involves    substantial

disorder or invasion of the rights of others" or, otherwise put,

"'materially and substantially interfere[s] with the requirements

of appropriate discipline in the operation of the school' [or]

. . . collid[es] with the rights of others."               

 (citation

omitted).

            In the more-than-half century since Tinker, the Court

has addressed variations of the First Amendment question presented

in that landmark case.              But it has not addressed the vexing

question of when (if ever) public-school students' First Amendment

rights    must   give   way    to   school     administrators'     authority   to

regulate speech that (though expressed passively, silently, and

without    mentioning    any    specific       students)   assertedly   demeans


                                       - 3 -
characteristics of personal identity, such as race, sex, religion,

or sexual orientation.

          In these consolidated appeals, we confront a dispute

that raises that question for the first time in our Circuit,

although other federal courts have confronted it before.       The

underlying suit, filed in the District of Massachusetts, concerns

the "hate speech" provision of a public middle school dress code,

which the defendants applied to prohibit a twelve-year-old student

first from wearing a t-shirt that read "There Are Only Two Genders"

and then from wearing that same t-shirt with the words "Only Two"

covered by a piece of tape on which was written "CENSORED."

          Relying solely on Tinker's "invasion of the rights of

others" limitation, and thus not Tinker's "material disruption"

limitation, the District Court denied the student's motion for a

preliminary injunction.   On that same basis, the District Court

granted the defendants final judgment on all the student's claims,

which challenged both the dress code's specific applications and

two portions of the dress code on their face.       We affirm the

District Court's rulings, albeit on somewhat different grounds.

                                I.

                                A.

                                1.

          John T. Nichols Middle School ("NMS") is a public middle

school in Middleborough, Massachusetts.   NMS's students are in the


                              - 4 -
sixth through eighth grades and are between ten and fourteen years

old.

            NMS and the Middleborough Public School System ("MPSS")

administrators knew that several NMS students identified as part

of the "LGBTQ+ community."            In addition, Heather Tucker, the then-

interim principal of NMS, who had just started at the school, was

aware that several NMS students identified as "transgender or

gender nonconforming."

            Prior   to     coming     to   NMS,    Tucker     had   educated   young

students for two decades.           During that time, she met with students

who had been bullied based on their gender identities and worked

closely with students who had self-harmed, contemplated suicide,

or attempted to commit suicide "because of their gender identity."

Tucker also worked on teams that had recommended out-of-district

placements    for   students       "because     of    [those    students']     gender

identity and suicidal ideation."

            Carolyn Lyons, the superintendent of the MPSS, also knew

that several NMS students had "attempted to commit suicide or have

had suicidal ideations in the past few years, including members of

the LGBTQ+ community."        Lyons further stated in an affidavit that

"[t]hese    situations      have      frequently      cited    LQBTQ+   status   and

treatment as a major factor."                Lyons attested that "[s]tudent

survey   data   collected        in   June    2022,    through      NMS's   platform

Panorama,    show   over    20     individual     student[s']       comments    about


                                        - 5 -
perceived bullying at school, feeling unwelcome at school, and

expressing specific concerns about how the LGBTQ+ population is

treated at school."

            NMS   had   a   student-run     organization   called    the   Gay

Straight Alliance Club ("GSA"), which was "intended as a space for

students who fit under the LGBTQ+ umbrella or are their allies"

(cleaned up).     The GSA was open to all NMS students, and at any

given time "approximately ten to twenty students . . . attend[ed]

the GSA['s] [monthly] meetings."

                                     2.

            NMS's code of conduct included a dress code ("Dress

Code") that was set forth in the "Student & Family Handbook," which

was provided to NMS's students and their families.                  The Dress

Code's preface states that the Dress Code is "governed by health,

safety[,] and appropriateness" and that, because "an environment

conducive   to    learning    is   necessary,"    clothing   that     "causes

distractions and inhibits learning is not allowed."            The preface

further states that students are "encourage[d] . . . to dress in

a neat and presentable manner that reflects pride in themselves

and their school."

            The Dress Code provides:

            •    Clothing must be neat and clean.
            •    Clothing that is excessively revealing
            . . . will not be allowed.
            •    Tank tops or basketball shirts must have
            a t-shirt underneath.


                                    - 6 -
          •    Chains, chain belts, spikes, studs, and
          gang related attire is not allowed.
          •    Clothing with alcohol, tobacco, vulgar
          writing, sexual references or controlled
          substance reference[s] will not be allowed.
          •    Outer coats, hats, caps, bandanas,
          sweatshirt hoods, and sunglasses will not be
          worn in the building without permission of an
          administrator.
          •    Wheeled shoes and platform shoes are
          dangerous on our floors and not allowed.
          Blankets or other clothing that drapes down or
          is considered a tripping hazard will not be
          allowed.
          •    Clothing must not state, imply, or depict
          hate speech or imagery that target[s] groups
          based on race, ethnicity, gender, sexual
          orientation,   gender    identity,   religious
          affiliation, or any other classification.
          •    Any other apparel that the administration
          determines to be unacceptable to our community
          standards will not be allowed.

(Emphases added).   The Dress Code concludes by stating that should

a student "wear something inappropriate to school, [the student]

will be asked to call their parent/guardian to request that more

appropriate attire be brought to school" and that "[r]epeated

violations of the dress code will result in disciplinary action."

                                3.

          In the Spring of 2023, L.M. was a seventh grader at NMS.

He held the belief that there are only two biological sexes (male

and female), that the word "gender" is synonymous with "sex[,]"

and that because there are only two biological sexes there are

only two genders.




                               - 7 -
            On March 21, 2023, L.M. wore a black t-shirt to school

that displayed, in black capitalized letters with thick white

outlines, the words "There Are Only Two Genders" (the "Shirt").

L.M. wore the Shirt both to express his own views, which he

understood to be contrary to those NMS espouses on the subject,

and to convey his belief that his views are not "inherently

hateful."

            After L.M. arrived at his first-period class, a teacher

contacted Jason Carroll, the assistant principal of NMS, about the

Shirt.   The teacher expressed concerns about the "physical safety"

of L.M. "as well as other students' safety, citing to multiple

members of the LGBTQ+ population at NMS as current students in the

building who would be impacted by the t-shirt['s] message and

potentially disrupt classes."   Carroll then contacted Tucker, who

went to L.M.'s class and asked him to meet with her.

            Tucker explained that L.M. could not wear the Shirt at

school and could either remove it while at school or discuss the

matter further.   L.M. requested to discuss the matter further, so

Tucker asked him to come with her to another room to continue the

discussion.

            In the separate room, with the school counselor also

present, Tucker explained that some students had "complained" and

that L.M. could not return to class if he did not remove the Shirt.




                                - 8 -
When L.M. declined to do so, Tucker called L.M.'s father to explain

that L.M. would need to remove the Shirt to return to class.

          L.M.'s father stood by L.M.'s decision not to remove the

Shirt and thereafter picked L.M. up from school and took him home.

School administrators took no other action at that point.

          L.M.    did   not   personally   witness   any   noticeable

disruption on March 21 or thereafter that resulted from his wearing

of the Shirt.    L.M. has since worn shirts expressing his views on

a range of other topics, which included messages like "Don't Tread

on Me" and "First Amendment Rights," none of which he was asked to

remove.   L.M. has not been disciplined by NMS administrators for

wearing the Shirt or any of those shirts or for any views he has

expressed while off school grounds.

                                  4.

          On April 1, 2023, L.M.'s father sent Lyons an email in

which he asked for an explanation of the problem with the Shirt,

given that "nothing about [the] shirt . . . was directed to any

particular person" and that "[i]t simply stated [L.M.'s] view on

a subject that has become a political hot topic . . . that is being

discussed . . . all across our country."      Lyons responded in an

email on April 4, 2023, that stated that L.M. had not been, nor

would be, disciplined for having worn the Shirt.     Lyons explained

that Tucker had been enforcing the Dress Code because the Shirt's




                                - 9 -
contents had been understood to "target[] students of a protected

class; namely in the area of gender identity."

            On April 27, 2023, L.M.'s counsel sent Lyons a letter

that asserted NMS had violated L.M.'s free-speech rights under

Tinker by prohibiting him from wearing the Shirt and that "the

'hate     speech'    provision"    of    the     Dress   Code     was     facially

unconstitutional.       The letter further stated that L.M. intended to

wear the Shirt on May 5 and that, if NMS "interfere[d] with [L.M.]

doing so again," it "may be necessary" for L.M. to initiate legal

action.

            MPSS's counsel responded on May 4 with a letter that

stated NMS's actions had been justified under applicable legal

authorities. The letter stated that state law "provides [students]

protection against discrimination, harassment and bullying on the

basis of . . . gender identity" and that those protections were

against "communications, whether oral, written, . . . or through

the   wearing   of     apparel,   that     may   reasonably      be     considered

intimidating,       hostile,   offensive    or   unwelcome      based    on   . . .

gender identity . . . and/or may otherwise be reasonably likely to

lead to a disruption of [school] operations."             The letter further

stated that MPSS administrators would prohibit the wearing of t-

shirts "likely to be considered discriminatory, harassing and/or

bullying . . . by suggesting that [others'] sexual orientation,

gender identity or expression does not exist or is invalid."


                                    - 10 -
            NMS's      actions   attracted    local    and   national    media

coverage.   L.M. participated in several interviews with news media

about the March 21 incident and became the subject of local and

national news coverage.

            On April 13, two individuals stood near NMS's bus drop-

off area, but off school property, and held signs that read, "there

are only two genders" and "keep woke politics out our schools."

The next day, counter-protesters standing off school property held

signs that read, "trans people belong," "everyone is welcome here,"

and "we support trans rights."             Lyons received complaints from

community members about both groups of individuals.

            In late April and early May, Lyons, Tucker, NMS, and

Middleborough High School received a slew of messages, emails, and

phone calls related to the controversy involving the Shirt.              Lyons

described some of the calls as being "threatening in nature," and

Tucker attested that she and other NMS staff received "hateful

messages" in emails from individuals both within and without

Massachusetts.

            On   May    1,   2023,   NMS   received   over   fifty   telephone

messages Tucker described as "hateful and lewd."                     The calls

continued for about two weeks, tapered off, and started up again

around May 31.

            Lyons found out about a post on the social-media platform

"X," formerly known as "Twitter,"             that listed the        NMS staff


                                     - 11 -
directory and stated, "if you see these people in public, you know

what   to   do."   In   response    to    some   of    these   messages,   the

Middleborough Police Department provided a police detail to NMS

between April 24 and April 28.

                                     5.

            L.M. wore the Shirt to school again on May 5.          This time

he covered the words "Only Two" with a piece of tape on which was

written in marker "CENSORED" (the "Taped Shirt").              L.M. wore the

Taped Shirt to "speak up about" and protest NMS barring him from

wearing the Shirt even though other students, according to L.M.,

were permitted to express other views on gender.

            Soon after arriving at school on May 5, L.M. was brought

to Tucker's office.     While L.M. was alone in the office, Lyons,

Tucker, and school counsel conferred and decided not to allow L.M.

to wear the Taped Shirt.    L.M. ultimately took the Taped Shirt off

and returned to class.    He was not disciplined for having worn the

Taped Shirt.

            On May 9, two other NMS students wore t-shirts to school

that read "There Are Only Two Genders."               Tucker met with those

students and told them they could not wear those shirts.              One of

the students removed the shirt and returned to class.              The other

student declined to comply, and their parents were called. Neither

student faced discipline.




                                   - 12 -
                                            B.

            L.M., by and through his natural guardians, filed suit

in    the   United       States    District        Court    for      the   District     of

Massachusetts pursuant to 

.                     The complaint alleged

violations    of     L.M.'s       rights    under    the     First     and     Fourteenth

Amendments to the U.S. Constitution.                       The complaint named as

defendants the Town of Middleborough, the Middleborough School

Committee,    superintendent          Lyons,       and     then-interim        now-acting

principal Tucker (collectively "Middleborough").

            L.M.'s       complaint       alleged    that,       by   barring    him    from

wearing the Shirt and Taped Shirt, Middleborough violated the First

Amendment as incorporated against the states through the Due

Process Clause of the Fourteenth Amendment.                     The complaint further

alleged that the Dress Code's prohibitions on "hate speech" that

"target[s]"    groups       and     on     clothing        "unacceptable       to     . . .

community standards" are facially unconstitutional because they

are   impermissible        prior    restraints,          void    for   vagueness,      and

overbroad.         The    complaint        sought    an     injunction       prohibiting

Middleborough from barring L.M.'s wearing of the Shirt, Taped

Shirt, and similar t-shirts; a declaratory judgment that the

challenged portions of the Dress Code are unconstitutional, both

facially and as applied to L.M.'s t-shirts; and actual and nominal

damages.




                                          - 13 -
            Soon thereafter, L.M. moved for a temporary restraining

order and a preliminary injunction.            Middleborough opposed both

motions.

            Middleborough     first    noted    that        Massachusetts    law

required schools to "develop anti-bullying plans that recognize

the vulnerability of certain students" and prevent bullying or

harassment   based    on   gender   identity    and    that    Middleborough's

actions must be understood in the context of guidance provided by

the Massachusetts Board of Elementary and Secondary Education

directing schools to "create a culture in which transgender and

gender nonconforming students feel safe, supported, and fully

included."   Middleborough also reviewed the evidence of the school

administrators'      "specific   knowledge     of     the    vulnerability   of

students who are members of the LGBTQ+ community."               Middleborough

then invoked out-of-circuit decisions applying Tinker's rights-

of-others    and   material-disruption       limitations        in   assertedly

similar contexts.      See Harper v. Poway Unified Sch. Dist., 

, 1177–83 (9th Cir. 2006) (addressing a t-shirt

in the high-school context that displayed "Be ashamed, our school

embraced what God has condemned" on the front and "Homosexuality

is shameful" on the back), vacated as moot by Harper ex rel. Harper

v. Poway Unified Sch. Dist., 

 (2007); Scott v. Sch.

Bd. of Alachua Cnty., 

, 1247–49 (11th Cir. 2003)

(addressing high-school students' display of a confederate flag on


                                    - 14 -
school premises); Sapp v. Sch. Bd. of Alachua Cnty., Fla., No.

09cv242, 

, at *1, *4–*5 (N.D. Fla. Sept. 30, 2011)

(addressing a t-shirt that displayed "Islam is of the Devil" in

the middle- and high-school contexts).

          Based    on   the   record   and    the    rulings,   Middleborough

argued that "it is clear that [its] decision that [L.M.'s] message

on the [Shirt] would invade the rights of others, the rights of

particularly vulnerable students who are members of the [LGBTQ+]

community (a protected class) to feel safe in school and to be

free from harassment and bullying while in school, was reasonable."

Middleborough also argued that "[i]t was, likewise, reasonable for

[it] to conclude that [L.M.'s] shirt would materially disrupt

classwork or involve substantial disorder in the school."              Noting

the young age of NMS's students and the school's "active LGBTQ+

community," Middleborough further argued that "[t]he level of

self-advocacy    expressed    by   this      group   of   students   strongly

suggests that they would not sit idly by and allow someone to deny

their very existence" and that "[i]t was . . . reasonable for the

[NMS administrators] to take proactive measure to ensure the

integrity of the learning environment in NMS."

          Middleborough separately argued that L.M. was not likely

to succeed on the merits of his as-applied claim concerning the

Taped Shirt.    Middleborough contended that, "[a]s with the message

on [the Shirt], [administrators] reasonably forecasted that the


                                   - 15 -
message on [the Taped Shirt], that merely replaced the [words 'only

two'] with the word 'censored,' would not only make the LGBTQ+

students feel unsafe and excluded in the educational environment

but would also cause a substantial disruption in the school and

was inconsistent with NMS [sic] basic educational mission of

inclusivity and creating a safe welcoming environment for all

students to learn."

           Middleburgh emphasized that its decision to bar L.M.

from wearing the Taped Shirt on May 5 did not occur "in a vacuum"

and followed "the history of disruption caused by [L.M.] wearing

the [Shirt]" as well as L.M.'s attorney having "linked the two

shirts by making [Middleborough] aware that [L.M.] was going to

wear the same shirt to school on May 5."        Middleborough thus argued

that it "could reasonably forecast that [the Taped Shirt] would

cause disruption and would interfere in the rights of other

students under the circumstances."

           As   to   L.M.'s   First     Amendment-based     facial   claims,

Middleborough first contended that he did not have Article III

standing   to   challenge     the   Dress    Code.    Middleborough    also

contended, in the alternative, that the prohibition on clothing

depicting "hate speech that target[s] groups based [on,] among

other   protected     categories,     sexual    orientation     or    gender

identity," was not overbroad because it "comport[ed] with the laws

and   regulations    that   protect[]    students    from   discrimination,


                                    - 16 -
harassment and bullying."   Middleborough separately contended that

L.M. was unlikely to succeed on his Due Process-based facial claims

because L.M. was never disciplined and did not "articulate . . .

what process he claims he is or was due" given that the handbook

containing the Dress Code "provides disciplinary guidelines and

procedures."

          The District Court denied the temporary-restraining-

order motion on June 1 and the preliminary-injunction motion on

June 16. In denying the latter motion, the District Court reviewed

the evidence of what Middleborough knew about students at NMS and

those students' vulnerability before turning to the merits.

          With respect to the March 21 incident involving the

Shirt,   the   District     Court     concluded    that    the   "school

administrators were well within their discretion to conclude" that

the message displayed on the Shirt "may communicate that only two

gender identities -- male and female -- are valid, and any others

are invalid or nonexistent."    The District Court reasoned Tinker's

rights-of-others   limitation       applied,   because    "students   who

identify differently . . . have a right to attend school without

being confronted by messages attacking their identities."             The

District Court thus concluded that L.M. had failed to establish a

likelihood of success on the merits because he could not "counter

[Middleborough's] showing" that it had enforced the Dress Code on




                                - 17 -
March 21 "to protect [against] the invasion of the rights of other

students to a safe and secure educational environment."

             With respect to the May 5 incident involving the Taped

Shirt, the District Court concluded that the analysis was no

different.     The District Court concluded that L.M. could not show

a likelihood of success, because Middleborough could "reasonably

conclude that the Taped Shirt did not merely protest censorship

but conveyed the 'censored' message and thus invaded the rights of

other students." In a footnote, the District Court explained that,

in light of its rulings, it did not need to determine if Tinker's

material-disruption limitation would also be applicable to any of

L.M.'s claims.       The District Court thus did not address the

possible relevance of any of the evidence concerning what had

occurred at NMS between March 21 and May 5 or thereafter.

             Finally, the District Court ruled L.M. had no likelihood

of success with respect to his facial challenges.                It reasoned

that   was   so   because   the   Dress   Code   both   "does   not   threaten

discipline for a violation . . . that has not been specifically

identified by the school as improper" and "provides that if

students wear something inappropriate to school, they will be asked

to call their parent/guardian to request that more appropriate

attire be brought to school" (cleaned up).

             L.M. filed a notice of interlocutory appeal of the

District Court's ruling on June 23, 2023.          On July 17, the parties


                                    - 18 -
filed a joint motion for final judgment pursuant to Federal Rules

of Civil Procedure 54(a), 56, and 65(a)(2).                The parties "agreed

that, based on the factual record as established through the

preliminary injunction proceedings, judgment as a matter of law

[was] appropriate" and asked the District Court to convert its

ruling into a final judgment because the "interests of the Parties

. . . will be better served by an appeal from a final judgment."

The parties clearly expressed that they "continue to dispute the

proper legal outcome of [L.M.'s] constitutional claims."

          Two      days    later,      the   District    Court    entered    final

judgment for Middleborough as to all L.M.'s claims, incorporating

the reasoning from the preliminary-injunction ruling.                 L.M. timely

appealed, and on August 15, 2023, this Court granted the parties'

joint motion to consolidate the appeals.

                                         II.

          The parties agree that the factual record needs no

further development, and neither party contends that any material

facts are in dispute.        Our review is de novo. See García-Rubiera

v. Calderón, 

 (1st Cir. 2009).

          We recognize that "where First Amendment interests are

implicated, our review must be more searching," Mullin v. Town of

Fairhaven,   

    (1st    Cir.    2002),   as   we   have   an

obligation "to independently review the factual record to ensure

that the [lower] court's judgment does not unlawfully intrude on


                                       - 19 -
free expression," Boy Scouts of America v. Dale, 

 (2000). We note, too, that the parties agree Tinker governs

this dispute and "places the burden on the school to justify

student   speech     restrictions."      Norris   ex    rel.    A.M.   v.    Cape

Elizabeth Sch. Dist., 

 (1st Cir. 2020).            The parties

do not dispute that school administrators "may rely only on the

justification originally provided to" L.M. for restricting his

speech.   

.

                                     III.

           L.M.      contends     that   the   District        Court's      First

Amendment-related rulings on his claims -- both facial and as-

applied   --   for    monetary,    declaratory,   and    injunctive      relief

conflict with Tinker.        But, as we will explain, regardless of

whether Tinker's rights-of-others limitation applies here,                     we

conclude that Tinker's material-disruption limitation does.1                   We

thus affirm the District Court's Tinker-based rulings on that

ground -- save for one of the First Amendment-related facial

claims, for which we conclude that L.M. lacks Article III standing.

See United States v. George, 

 (1st Cir. 2018) ("We




     1 One of the amici argues that Middleborough could not rely
on Tinker's rights-of-others limitation as a matter of state law,
but "we need not address" that contention "[b]ecause the parties
did not raise the issue," Norris, 

 n.22, and because
we affirm under Tinker's material-disruption limitation.


                                    - 20 -
are at liberty to affirm a district court's judgment on any ground

made manifest by the record.").

              We dive into the details of L.M.'s challenges to the

District Court's Tinker-based rulings in Parts IV and V.            First,

however, we need to set forth the legal framework that, under

Tinker, we understand to apply in this context.            We thus now

explain what that framework is and our reasons for embracing it.2

                                      A.

              As we noted above, the District Court relied solely on

Tinker's rights-of-others limitation in upholding Middleborough's

actions.      Specifically, the District Court held that "students who

identify differently . . . have a right to attend school without

being confronted by messages attacking their identities" and that

L.M.       could   not   "counter    [Middleborough's]   showing"    that

Middleborough had enforced the Dress Code on both days "to protect

[against] the invasion of the rights of other students to a safe

and secure educational environment."




       Our analysis does not address Tinker's application in a
       2

post-secondary school setting.     Cf. Sypniewski v. Warren Hills
Reg'l Bd. of Educ., 

 (3d Cir. 2002) ("[T]he public
school setting is fundamentally different from other contexts,
including the university setting."); Hardwick ex rel. Hardwick v.
Heyward, 

 (4th Cir. 2013) ("Elementary and
secondary schools are undoubtedly different than colleges . . .
and this distinction results in different legal standards in some
instances.").


                                    - 21 -
            There is some uncertainty, however, as to when, if ever,

the rights-of-others limitation applies to passive and silent

expression that does not target any specific student or students

but assertedly demeans a personal characteristic like race, sex,

religion, or sexual orientation that other students at the school

share.    Tinker itself had no reason to address how, or whether,

such speech implicates that limitation, as the armbands at issue

there    were   not   asserted   to   espouse   any   message    other   than

opposition to the Vietnam War and did not -- unlike the t-shirts

here -- refer to any such personal characteristic.              See 

.

            Tinker also did not elaborate on the contents of "the

rights of other students to be secure and to be let alone."               

.    The Court did cite approvingly, 

, to a Fifth

Circuit decision that upheld school officials' authority to forbid

the wearing of "freedom buttons" at school based on evidence that

"actions by the students in distributing [the] buttons, pinning

[the buttons] on others, and throwing [the buttons] through windows

constituted a complete breakdown in school discipline."            Blackwell

v. Issaquena Cnty. Bd. of Educ., 

 (5th Cir. 1966).

But no physically coercive conduct by the speaker is involved here.

And while the rights-of-others limitation appears to encompass

tortious speech more generally, see Kuhlmeier v. Hazelwood Sch.

Dist., 

, 1375-77 (8th Cir. 1986), rev'd on other


                                  - 22 -
grounds by Hazelwood Sch. Dist. v. Kuhlmeier, 

 (1988),

there is no developed contention that speech of that sort is

involved here either.

            The   Supreme    Court     has    recently       affirmed    schools'

authority to regulate "severe bullying and harassment," but the

Court did so without specifying whether schools may do so pursuant

to the rights-of-others limitation.           See Mahanoy Area Sch. Dist.

v. B.L. ex rel. Levy, 

 (2021).                   The Court merely

emphasized that the "special characteristics" of the public-school

context afford schools "special leeway when [they] regulate speech

that occurs under [their] supervision."           

            There has been discussion in post-Tinker caselaw about

whether     the   rights-of-others       limitation          applies     only   to

circumstances     in    which    the    speech    in        question    would   be

independently unlawful and there is no developed contention that

the speech involved here is.         But the Court has made clear that it

has   not   decided    whether   the   limitation      is    so    limited.     See

Kuhlmeier, 

 n.5.

            For our part, we have held that the rights-of-others

limitation applies in the case of bullying, even when there is no

physical invasion of any kind -- seemingly without regard to

whether the state separately makes such bullying a source of tort

liability.    See Doe v. Hopkinton Pub. Schs., 

, 507-09

(2021); cf. Norris, 

.           Beyond that, though, we have


                                     - 23 -
not addressed the scope of that limitation.                We note that the

bullying speech in Doe and Norris was asserted to target a specific

student.   But there is no contention that L.M.'s speech similarly

was,   notwithstanding    that   it    addressed     in    general   terms   a

characteristic of personal identity that other students at the

school shared.

           At the same time, it is not obvious how passive, silently

expressed student speech that targets no specific students but

demeans characteristics like those described above relates to the

material-disruption      limitation.       Given     the    nature   of   the

expression involved in Tinker, the Court there had no occasion to

address such a question directly.        The evidence of disruption the

Court concluded was missing appeared to relate to "aggressive,

disruptive action," "group demonstrations," or "threats or acts of

violence on school premises" that would impede a school from

carrying out its educational mission and not to the possible

negative psychological effects of the speech in question on a

subset of students.      

.

           More recently the Court addressed a school's attempt to

regulate   off-campus      speech      under   the    material-disruption

limitation. See Mahanoy, 

.          In doing so, the Court

made clear that the standard for showing the limitation applied

was "demanding."   

                                 - 24 -
          We also have not had occasion to address how or whether

the material-disruption limitation is implicated by expression

that assertedly demeans a characteristic of personal identity like

race, sex, religion, or sexual orientation.     So, our precedent,

too, does not offer any direct guidance on that score.

          There is, however, an extensive body of federal court

caselaw that applies Tinker in circumstances -- akin to those

present in this case -- involving passive and silently expressed

messages by students that do not target specific students but that

assertedly demean other students' personal characteristics, like

race, sex, religion, or sexual orientation.    As we will explain,

those rulings address when school authorities may regulate such

expression and whether they may do so to prevent a "material[]

disrupt[ion]" of the classroom, a "collision with the rights of

other students to be secure and to be let alone," or both.   Tinker,

.   We thus now review those rulings for the

guidance that they may offer here.

                                B.

          Two circuit-level rulings in this line have relied on

the rights-of-others limitation.     The first is the now-vacated-

as-moot Ninth Circuit decision in Harper v. Poway Unified School

District, 

 (9th Cir. 2006), vacated as moot by Harper

ex rel. Harper v. Poway Unified School District, 

(2007), which affirmed the denial of a preliminary injunction to


                              - 25 -
prevent public high-school officials from barring a student from

wearing a t-shirt that read "Homosexuality is Shameful."               Id. at

1178.

            Harper reasoned that "[b]eing secure involves not only

freedom from physical assaults but from psychological attacks that

cause young people to question their self-worth" and that "[t]he

'right to be let alone'" is a "'recognizable privacy interest

. . .'    [that    is]   perhaps     most    important   'when   persons   are

"powerless to avoid it."'"           Id. (quoting Hill v. Colorado, 

 (2000)).          The court explained that speech that

strikes at a "core characteristic" of a minority group's identity

has   a   "detrimental"     effect   on     "[the   students']   psychological

health . . . [and] educational development" and, in so explaining,

relied on social-science literature, of which it took judicial

notice, that concluded such denigration is "harmful . . . to [those

students'] educational performance."            Id. at 1178-79.

            Harper concluded that the school "had a valid and lawful

basis"     for    barring   the    t-shirt     under   the   rights-of-others

limitation, because the shirt's message "was injurious to gay and

lesbian students and interfered with their right to learn."                Id.

at 1180.    In so holding, Harper appeared to presume that t-shirts

could be restricted in a high school pursuant to the rights-of-

others limitation whenever their denigrating message was "directed




                                     - 26 -
at students' minority status such as race, religion, and sexual

orientation."       Id. at 1183.

            The second rights-of-others ruling is West v. Derby

Unified School District No. 260, 

 (10th

Cir. 2000), in which the Tenth Circuit rejected a First Amendment

challenge to the suspension of a middle-school student for his

violating    the    school    district's     racial-harassment       policy    by

drawing a confederate flag in class.              Notably, however, Derby

concluded that the school district "had reason to believe that a

student's    display    of    the   Confederate   flag"   would      not   only

"interfere with the rights of other students to be secure and let

alone" but also "cause disruption."           

.     The court did

so, moreover, without suggesting that different showings were

necessary to trigger each limitation.           

.

            Unlike Harper, however, Derby neither explained why the

rights of other students "to be secure and to be let alone" were

implicated    nor    relied    on   a   presumption   about    the    negative

psychological impact on minority students of the expression.                  The

court instead relied on the factual predicate of racial tensions

in the school district, which included students spray painting

racist and threatening graffiti in school bathrooms, a fight

breaking out because a student wore a confederate-flag headband,

and students responding to displays of the flag with t-shirts

bearing the letter "'X,' denoting support for the teachings of


                                    - 27 -
Malcolm X."    

.         Derby made clear, though, that

administrators had acted reasonably even with respect to the middle

schooler's drawing of the flag, notwithstanding that the more

extreme incidents occurred at the high school and "the [racial]

tensions were not widespread and involved relatively few students

at the middle school."        

.

             Several rulings in this line have relied on similar logic

in invoking the material-disruption limitation to approve of a

school's authority to regulate seemingly similar expression.                 But,

in doing so, those rulings have either expressly eschewed reliance

on, or simply not mentioned, the rights-of-others limitation.

             Nuxoll ex rel. Nuxoll v. Indian Prairie School District

#204 is an example.        There, the Seventh Circuit addressed a school

rule barring "'derogatory comments,' oral or written, 'that refer

to   race,   ethnicity,     religion,      gender,    sexual     orientation,   or

disability'" as applied to a t-shirt bearing the message "Be Happy,

Not Gay."     

 (7th Cir. 2008).

             The   court    acknowledged      as     "prudent"    the   student's

concession that the message "homosexuals go to Hell" could be

barred as "fighting words."          

.      But the court made clear

that, the "fighting words" category aside, Tinker also permitted

school officials to restrict some passive, silent expression of

derogatory     comments      that,    by    demeaning     characteristics       of

"personal identity" such as those listed in the rule, "strike a


                                     - 28 -
person at the core of his being" because of how "unalterable" or

"otherwise deeply rooted" those characteristics are.           

.

And that was so, Nuxoll made clear, even if the speech did not

expressly target specific students.        

.

           Like Harper,    Nuxoll noted evidence suggesting "that

adolescent students subjected to derogatory comments about such

characteristics may find it even harder than usual to concentrate

on their studies and perform up to the school's expectations."

 (collecting social-science literature).       The court also

observed that it could "foresee" that other students might respond

with   "negative   comments     on   the   Bible"   or   the    religious

characteristic of the speaker and thereby "poison the school

atmosphere" and "deterior[ate] the school's ability to educate its

students."   

.      As the court put it, "[m]utual respect

and forbearance enforced by the school may well be essential to

the maintenance of a minimally decorous atmosphere for learning."

           Nuxoll rejected the school's assertion, however, that

the school rule could be upheld against a facial attack under

Tinker because "all" it does is "protect the 'rights' of the

students against whom derogatory comments are directed."           

.   Nuxoll instead stated the school was "on stronger ground" in

contending that, because the rule "strikes a reasonable balance




                                 - 29 -
between . . . free speech and ordered learning," the material-

disruption limitation justified the rule.                 

.

                   Nuxoll pointed to the "psychological effects" of such

expression and reasoned that a "material disruption" under Tinker

need not involve violence and could involve "a decline in students'

test scores, an upsurge in truancy, or other symptoms of a sick

school -- symptoms therefore of substantial disruption."                   

.      Nuxoll   then   indicated    that   speech   demeaning    the

characteristics          of    personal    identity   that   the   school's    rule

covered could be prohibited under Tinker's material-disruption

limitation if school authorities could reasonably forecast that

the speech would have "psychological effects" on students with

those characteristics that would yield such "symptoms."                    

.3

                   The court held that, on its face, "Be Happy, Not Gay"

was only "tepidly negative" and so would not have "even a slight

tendency . . . to poison the educational atmosphere," thereby

clarifying that it might matter how "negative" the message was.

.4          Indeed, Nuxoll suggested that a case involving a t-


       In context, we understand Nuxoll to have been referring to
        3

absenteeism and declining academic performance among the students
with the demeaned characteristic suffering the "psychological
effects" of being exposed to, and demeaned by, the expression.
See 

.
       In reasoning that "Be Happy, Not Gay" was only "tepidly
        4

negative" -- and not "derogatory" or "demeaning" -- the Seventh



                                          - 30 -
shirt "on which was written 'blacks have lower IQs than whites' or

'a woman's place is in the home'" would be different because of

the   "psychological   effects"       on   students   with   the    demeaned

characteristic of that expression.         

.   And, in reversing

with instructions to enter a preliminary injunction and remanding

for further proceedings, Nuxoll observed that "[t]he district

judge will be required to strike a careful balance between the

limited constitutional right of a high-school student to campaign

inside the school against the sexual orientation of other students

and the school's interest in maintaining an atmosphere in which

students are not distracted from their studies by wrenching debates

over issues of personal identity."         

.

          The Seventh Circuit revisited the same expression and

school in Zamecnik v. Indian Prairie School District No. 204, 

 (7th Cir. 2011).       Zamecnik acknowledged that "[s]chool

authorities are entitled to exercise discretion in determining

when student speech crosses the line between hurt feelings and

substantial   disruption   of   the    educational    mission"     but   still

concluded that the high school had failed to adduce sufficient

evidence to ground a forecast of future material disruption.              

.



Circuit noted that "'gay' used to be an approximate synonym for
'happy'" and, thus, the message's negative import would not be
clear on its face without cultural context. Id. at 675-76.


                                  - 31 -
          Importantly, Zamecnik held, "the fact that homosexual

students and their sympathizers harassed [the plaintiff] because

of their disapproval of her message [was] not a permissible ground

for banning it" because otherwise protected speech "met by . . .

unprivileged retaliatory conduct" cannot be suppressed because of

that conduct.   Id. at 879.   But Zamecnik did not question Nuxoll's

observation that schools had a legitimate interest in regulating

expression that is especially demeaning out of a concern that, if

students "attack[ed] each other with wounding words" about one

another's personal characteristics, such a "First Amendment free-

for-all[]" could "poison the school atmosphere," Nuxoll, 

, or "cause serious disruption of the decorum and

peaceable atmosphere of an institution dedicated to the education

of the youth," Zamecnik, 

.   "A school has legitimate

responsibilities, albeit paternalistic in character, toward the

immature captive audience that consists of its students," the court

explained, "including the responsibility of protecting them from

being seriously distracted from their studies by offensive speech

during school hours."   

.    Thus, in holding that "Be

Happy, Not Gay" would not "have even a slight tendency to . . .

poison the educational atmosphere," the court did not suggest that




                                - 32 -
the outcome would be the same for a more overtly demeaning message

and, if anything, indicated the opposite.              See 

 at 876–78.5

                 The Third Circuit in Sypniewski v. Warren Hills Regional

Board of Education, 

 (3d Cir. 2002), similarly relied

on   the     material-disruption        limitation    to   assess   the   facial

validity of a school district's racial-harassment policy and its

application to bar a student from wearing a t-shirt displaying the

term "redneck."6           Sypniewski observed that "'[t]he mere fact that

expressive activity causes hurt feelings, offense, or resentment

does       not    render    the   expression    unprotected'"   and   that   the




       This reasoning in Nuxoll and Zamecnik mirrored the Seventh
       5

Circuit's earlier analysis in Muller ex rel. Muller v. Jefferson
Lighthouse School, 

 (7th Cir. 1996), overruled on other
grounds by N.J. by Jacob v. Sonnabend, 

 (7th
Cir. 2022), with respect to younger students.          "[An adult]
Christian can tell the Jew he is going to hell, or the [adult] Jew
can tell the Christian he is not one of God's chosen," Muller
opined without reference to either Tinker limitation, but "it makes
no sense to say that the overly zealous Christian or Jewish child
in an elementary school can say the same thing to his classmate."
Id. at 1540.      Muller also explained that elementary-school
officials could restrict "[r]acist and . . . hateful views" that
"could crush a child's sense of self-worth." Id. (emphasis added).
       Sypniewski followed the Third Circuit's decision in Saxe v.
       6

State College Area School District, which held that a school
district's anti-harassment policy could not pass constitutional
muster under the material-disruption limitation insofar as the
policy barred speech "intended to [cause disruption]" and speech
that creates a "hostile environment" without "any threshold
showing of severity or pervasiveness[,]" 

, 216-17 (3d
Cir. 2001) (emphasis added). In so holding, Saxe noted that the
"precise scope of Tinker's [rights-of-others limitation] is
unclear" but that "it is certainly not enough that the speech is
merely offensive to some listener." Id. at 217.


                                       - 33 -
prohibition       on   written    materials        that    create      "ill       will"    was

overbroad     under      Tinker     because      it   could      not    be     reasonably

interpreted to refer to "something more than mere offense."                                Id.

at 264-65 (quoting R.A.V. v. City of St. Paul, 

(1992) (White, J., concurring)).

             At the same time, Sypniewski upheld the portion of the

policy prohibiting materials that "create[] . . . hatred," because

the term "hatred" "implie[d] such strong feelings that a serious

possibility of disruption might be inferred."                           

 (emphases

added).      Moreover, Sypniewski upheld the prohibition on "name

calling"     in   part     because    "[a]lthough         mere   offense          is    not   a

justification for suppression of speech, schools are generally

permitted to step in and protect students from abuse."                                  Id. at

264.      And,    with    respect    to    the     as-applied     claim,          the    court

seemingly approved the school's authority to bar the confederate

flag, given its connection to a student gang known as "the Hicks"

and past incidents of racial tension involving its members, but

not    the   "redneck"      t-shirt,      because     of   the    lack       of    evidence

indicating that students would react to that word in light of the

district's past racial disturbances.                  See id. at 254-57.

             Thereafter, the Eleventh Circuit also relied on Tinker's

material-disruption          limitation       in      holding     that        high-school

students could be disciplined for displaying confederate flags on

school grounds.          See Scott, 

.                "Public school


                                          - 34 -
students' First Amendment rights . . . should not interfere with

a school administrator's professional observation that certain

expressions have led to, and therefore could lead to, an unhealthy

and potentially unsafe learning environment for the children they

serve."   

.    And, in accord with Nuxoll, Scott indicated

a school would not need evidence of past violence at the school to

deem the expression materially disruptive: "[O]ne only needs to

consult   the   evening   news   to   understand   the   concern   school

administrators had regarding the disruption . . . emotional trauma

and outright violence which the display of the symbols involved in

this case could provoke." 

 (emphasis added). Indeed, the court

noted that "[w]ords like 'symbol', 'heritage', 'racism', 'power',

'slavery', and 'white supremacy' are highly emotionally charged"

and that it is "constitutionally allowable for school officials to

closely contour the range of expression children are permitted

regarding such volatile issues."          

.   Scott reasoned

both that "[p]art of a public school's essential mission" is

"teach[ing] students of differing races, creeds and colors to

engage each other in civil terms rather than in 'terms of debate

highly offensive or highly threatening to others'" and that the

school had not "attempted to suppress civil debate on racial

matters" but only those symbols "[so] associated with racial

prejudice [and] so likely to provoke feelings of hatred and ill

will in others that they are inappropriate in the school context."


                                 - 35 -


 (quoting Denno v. Sch. Bd. of Volusia Cnty., Fla., 

 (11th Cir. 2000)).

            The Sixth Circuit reached a similar conclusion in Barr

v. Lafon, 

 (6th Cir. 2008), which also upheld a school

district's ban on displays of the confederate flag.         The court

first rejected the students' argument that the school board's

forecast of future disruption was unreasonable because there was

no evidence that the confederate flag itself had caused past

disruption on the ground that "Tinker . . . does not require that

the banned form of expression itself actually have been the source

of past disruptions."      

.    Barr then concluded that the

record "belie[d]" the students' arguments that racial tensions at

the school were not as high as the board claimed, there was

"minimal evidence of prior disruption," and thus there was little

basis for anticipating future disruption. 

. To those

points, the court observed that "[t]here is no requirement that

disruption under Tinker be violent" and that "an increase in

absenteeism" is "the epitome of disruption in the educational

process."    

.

            More recently, in Sapp v. School Board of Alachua County,

Florida, No. 09-cv-242, 

 (N.D. Fla. Sept. 30, 2011),

a district court in the Eleventh Circuit drew on Scott to uphold

a school district's ban on wearing t-shirts at school that read

"Islam is of the Devil."    The court first pointed to past incidents


                                 - 36 -
of disturbance, such as a high-school football game where attendees

wearing the t-shirts had been asked to leave after a student became

deeply upset and the principal of the elementary school "received

disturbing and threatening emails." 

. Sapp then upheld

the administrators' actions under Tinker's material-disruption

limitation because administrators had forecasted that, based on

their years of experience as educators, the t-shirts' demeaning

message would "lead to an unnecessary distraction and a hostile

environment."      

.      The court credited determinations by

administrators that "the message was offensive and demeaning to

[the school's twenty-five] Muslim students . . . and could cause

an unsafe environment due to the polarizing effect of the anti-

Islamic message," 

 at *5 & n.3; that t-shirts that "single[]

out   a   group   of   people   and     call[]    them   evil"    would    lead   to

unnecessary distraction, 

; and that such a message being

displayed on a t-shirt would "foster a hostile and intimidating

atmosphere for students" and "compromise[] the school's ability to

provide [an] . . . effective educational setting," 

                                         C.

            The    reasoning       of     these       rulings     suggests    that

distinctions between the two Tinker limitations in the context of

student       speech        that        assertedly         demeans         personal

characteristics        --   like      race,    sex,      religion,    or     sexual

orientation -- may be more semantic than real.                   Doctrinal labels


                                      - 37 -
aside,   these    courts       appear   to   have   converged     on    the       shared

understanding -- most fully articulated in Nuxoll -- that school

officials may bar passive and silently expressed messages by

students at school that target no specific student if: (1) the

expression   is   reasonably       interpreted      to   demean      one     of    those

characteristics      of        personal      identity,    given        the        common

understanding     that     such    characteristics       are    "unalterable          or

otherwise deeply rooted" and that demeaning them "strike[s] a

person at the core of his being," Nuxoll, 

; cf.

Saxe, 240 F.3d at 206 (noting the especially incendiary nature of

"disparaging comment[s] directed at an individual's sex, race, or

some other personal characteristic" (emphasis added)); and (2) the

demeaning    message      is     reasonably      forecasted     to     "poison      the

educational atmosphere" due to its serious negative psychological

impact on students with the demeaned characteristic and thereby

lead to "symptoms of a sick school -- symptoms therefore of

substantial disruption," Nuxoll, 

.7


     7 Harper is no exception despite holding that the rights-of-
others limitation permitted the restriction of such demeaning
speech only if it was "directed at students' minority status."

. Harper left little doubt that Tinker permits
the restriction of expression in such circumstances as described
above, as it explained that expression demeaning a characteristic
of a majority rather than minority group "is more likely to fall
under the 'substantial disruption' prong of Tinker" and that its
ruling left open "the possibility that some verbal assaults on
core characteristics of majority high school students would merit
application of [the rights-of-others limitation]."    

 at 1183
n.28.


                                        - 38 -
          Our review of these rulings persuades us that Tinker

permits public-school authorities to regulate such expression when

they can make the two showings described above.        We agree that

those showings suffice to ensure that speech is being barred only

for reasons Tinker permits and not merely because it is "offensive"

in the way that a controversial opinion always may be.        See 

.

          Importantly,   although   the   standard   for   showing    a

material disruption is "demanding," Mahanoy, 

, a

school need not be certain of its forecast.      "[T]aking the case

law as a whole we don't think a school is required to prove that

unless the speech at issue is forbidden serious consequences will

in fact ensue.   That could rarely be proved. . . . It is enough

for the school to present 'facts which might reasonably lead school

officials to forecast substantial disruption.'"      Nuxoll, 

 (quoting Boucher v. Sch. Bd. of Sch. Dist. of Greenfield,

 (7th Cir. 1998)) (collecting cases).      As the

Sixth Circuit explained, "Tinker does not require school officials

to wait until the horse has left the barn before closing the door."

Lowery v. Euvard, 

 (6th Cir. 2007).

          There is also the question whether public schools may

regulate student expression based on these two showings pursuant

to only one of Tinker's two limitations and, if so, which one.       As

we earlier explained, there is no clear answer in controlling


                              - 39 -
precedent to that question.      Our review of the rulings discussed

above also reveals no obvious rationale for concluding that one

limitation applies to the exclusion of the other.

           Nonetheless,   most   federal        courts   in    this    line   of

authority have identified the material-disruption limitation as

the better fit.     And while it may be that -- as Derby appears to

have concluded -- the rights-of-others limitation applies, we see

no reason to break with that consensus view.                    The material-

disruption limitation has served as a workable doctrinal means of

accounting for the concerns that arise in this context and that

Tinker requires us to assess.      It usefully permits the depth of

the expression's disruptive impact on the learning environment to

be evaluated in relation to myriad school contexts and the myriad

forms that assertedly demeaning speech may take.

                                   D.

           All that said, L.M. does argue that Tinker bars schools

from   regulating   student   speech    based    on   the     its   "subjective

psychological intrusion[]" on listeners.              For that reason, he

contends, we may not uphold Middleborough's actions here under

Tinker based on a forecast of disruption that is rooted in the

psychological effects on other students of expression that is

passive, silent, and targets no specific students. But his reasons

do not convince us to reject the framework drawn from the long

line of authority described above.


                                 - 40 -
              L.M. is right that we must be sensitive to Tinker's

overarching concern about "punish[ing]" students for "silent,

passive expressions of opinion, unaccompanied by any disorder or

disturbance on the part of" the speakers themselves.                

.    Tinker stressed that "in our system, undifferentiated fear

or apprehension of disturbance is not enough to overcome the right

to freedom of expression" because the reality is that "[a]ny

departure from absolute regimentation may cause trouble."                    

Tinker observed that "[a]ny variation from the majority's opinion

may inspire fear.      Any word spoken, in class, in the lunchroom, or

on the campus, that deviates from the views of another person may

start an argument or cause a disturbance."          

    But, because "our

Constitution says that we must take this risk," the Court explained

that,   for    a   school   "to   justify    prohibition   of   a    particular

expression of opinion, it must be able to show that its action was

caused by something more than a mere desire to avoid the discomfort

and unpleasantness that always accompany an unpopular viewpoint."

 (emphases added).

              In short, L.M. is right that Tinker establishes that

public schools cannot "confine[]" students "to the expression of

those   sentiments     that   are    officially    approved,"       as   "school

officials cannot suppress 'expressions of feelings with which they

do not wish to contend.'"         

 at 511 (quoting Burnside v. Byars,

 (5th Cir. 1966)).            Thus, it does not permit a


                                    - 41 -
"hurt   feelings"   exception   that   any   opinion   that   could   cause

"offense" may trigger.     Zamecnik, 

.          Otherwise,

school authorities could do what Tinker clearly forbids: protect

other students "from the discomfort and unpleasantness that always

accompany an unpopular viewpoint."           

 (emphasis

added).

           None of the decisions in the line of authority just

reviewed, Harper included, however, purported to permit reliance

on an "undifferentiated fear or apprehension of disturbance" or a

desire to avoid the "trouble" that accompanies "[a]ny departure

from absolute regimentation."     

 (emphases added).         Each

found that there was "something more" than the "mere desire to

avoid . . . discomfort and unpleasantness" involved.           

(emphasis added).

           We recognize that L.M. contrasts regulable speech that

causes a negative psychological impact on others, such as bullying

or harassing speech, see Doe, 19 F.4th at 508-09; Chen ex rel.

Chen v. Albany Unified Sch. Dist., 

, 718 (9th Cir.

2022); C.R. v. Eugene Sch. Dist. 4J, 

(9th Cir. 2016), with passive, silent expression that is not

similarly targeted at specific students.          L.M. does so on the

ground that the former species of speech is "coercive" because it

pervasively and repeatedly targets specific students, while the

latter species results in what he contends is merely a "subjective


                                 - 42 -
psychological intrusion[,]" such that, in his view, the speech may

not be regulated under Tinker.

               But L.M. himself acknowledged at oral argument that

schools    could     bar    silent,     passive     expression   that    described

persons who identify as transgender in obviously highly demeaning

terms    but    targeted    no     specific   individual.8       And    while   L.M.

concedes only that such expression would constitute "fighting

words," see R.A.V., 

, much as the plaintiff

argued    in    Nuxoll     about    a   similarly    highly   demeaning    message

("homosexuals go to hell"), 

, we do not see how

the fighting-words rubric is more illuminating than, and thus

preferable to, the material-disruption rubric.

               To   that    point,      by   invoking   the   "fighting     words"

doctrine, L.M. is embracing, necessarily, the notion that words

that otherwise would not constitute "fighting words" may be so

deemed in the public-school setting because of the heightened

psychological sensitivities of school children.                  After all, even

such highly demeaning expression as L.M. thinks regulable would


     8 Specifically, L.M. conceded that a school could bar a shirt
displaying the message "All Trans Kids Are Retarded." We do not
use that language lightly, but the example clarifies that all
parties agree that there are messages so overtly and highly
demeaning of a personal characteristic that, if displayed on a
shirt, can be restricted by a school based solely on its words,
even if no specific students are targeted. From this example it
would appear the parties also would agree that known religious,
racial, and sex- and sexual-orientation-related slurs also fall
within this category of overtly and highly demeaning speech.


                                         - 43 -
not constitute "fighting words" outside a school.     See Chaplinsky

v. New Hampshire, 

 (1942) ("[Fighting words are]

words . . . which by their very utterance . . . tend to incite an

immediate breach of the peace."); United States v. Bartow, 

 (4th Cir. 2021) (recognizing that speaking "even

the most egregious racial slur," without more, "is not a fighting

word per se" and that "fighting words" are limited to "direct

personal insults" that are "directed to the person of the hearer"

(internal citations omitted)). Yet, we find it strange that school

authorities   could   respond    to   demeaning   speech   when   its

"psychological effects," Nuxoll, 

, are strong enough

to provoke "violent resentment" by other students, cf. Gooding v.

Wilson, 

 (1972) (describing fighting words as

language that "when used to or of another person, and in his

presence, naturally tend to provoke violent resentment"), but not

when those effects are strong enough to "crush a child's sense of

self-worth," Muller, 

, and so impede that child's

ability to learn, see Trachtman v. Anker, 

 (2d

Cir. 1977) (Gurfein, J., concurring) (observing in applying Tinker

in a high-school setting that "a blow to the psyche may do more

permanent damage than a blow to the chin"), or otherwise "poison

the educational atmosphere," Nuxoll, 

, and so lead

to "symptoms of a sick school," 

.




                                - 44 -
           Relatedly, L.M. does not suggest that Derby (on which

the District Court here relied) was wrong to uphold the restriction

on the passive, silent display of the confederate flag.        He argues

only that the confederate flag is distinguishable from his speech

because, on his account, his "messages about gender . . . aren't

remotely comparable to the Confederate flag, which flew over a

breakaway polity dedicated to the slavery of African Americans."

Thus, in this way, too, L.M.'s real challenge appears to turn on

a question of degree and not kind about the nature of the message

-- a question to which we will turn our attention shortly.             Cf.

Morse v. Frederick, 

 (2007) ("Stripped of

rhetorical flourishes, then, the debate [with the dissent] . . .

is less about constitutional first principles than about whether

[the   student's]   banner   constitutes   promotion   of   illegal   drug

use. . . . [A] contrary view on that relatively narrow question

hardly justifies sounding the First Amendment bugle.").

           We should add that, consistent with the line of authority

that we find persuasive, the Supreme Court post-Tinker has itself

credited school authorities' concerns about the serious negative

psychological impact of student expression on other students.          It

did so in holding that a student could be disciplined for a lewd

speech at a school assembly in part because the speech "was acutely

insulting to teenage girl students" and "could well be seriously




                                 - 45 -
damaging to its less mature audience."               Bethel Sch. Dist. No. 403

v. Fraser, 

 (1986) (emphasis added).

            To be sure, L.M. does point to three circuit rulings

that he contends support his position: Saxe, 

 (3d Cir.

2001); Sypniewski, 

 (3d Cir. 2002); and Zamecnik, 

 (7th Cir. 2011). But none undermines the Tinker framework

that we distill from the large body of federal court rulings in

this area, and indeed, all three are in that line.

            L.M. is right that Saxe held that a school district's

anti-harassment policy was overbroad under Tinker.                  But Saxe did

not   set   forth   a   categorical      rule   protecting     such    derogatory

expression when passively and silently expressed.               It instead drew

a   distinction     between   "speech     about      some   enumerated   personal

characteristic[]" that is "merely offensive to some listener" and

speech of that kind where there is some "threshold showing of

severity" in the educational environment caused by the speech.

Id. at 216-17 (emphasis added).           Thus, Saxe concluded that, while

the school district had a "compelling interest in promoting an

educational environment that is safe and conducive to learning,"

the school district could not prohibit "derogatory" speech about

"such   contentious       issues    as     'racial      customs,'      'religious

tradition'     . . .      [or]     'sexual        orientation'"       without   a

"particularized      reason   as   to    why    it    anticipates     substantial

disruption."      Id. at 217.


                                    - 46 -
            Sypniewski, which followed Saxe, is no different.             As we

have seen, it, too, deemed a school policy restricting speech --

there, one barring racial harassment -- overbroad in barring

"written material . . . [that] creates ill will."                 

.   But it also upheld the portion of the policy prohibiting

materials     that   "create[]   . . .       hatred"    because    that   term

"implie[d] such strong feelings that a serious possibility of

disruption might be inferred."         

 (emphasis added); but

see Derby, 

 (upholding policy that, as construed

by the school district, prohibited written material "that is

racially divisive or creates ill will or hatred").             And Sypniewski

held that the school administrators there were without authority

to bar the t-shirt bearing the word "redneck" because the evidence

did not support the conclusion that students at the school would

react to that word similar to how they reacted to terms like "hick"

or displays of the confederate flag.          See 

.

            Finally, Zamecnik did affirm the injunction against the

high school barring the "Be Happy, Not Gay" message because the

evidence for forecasting a material disruption was speculative,

unpersuasive given the heckler's veto doctrine, and unreliable in

explaining     why   the   phrase     in     question    was   "particularly

insidious."    

.         But Zamecnik reasoned that "Be

Happy, Not Gay" was "only tepidly negative" and would not "have

even a slight tendency to . . . poison the educational atmosphere."


                                    - 47 -


.       Thus, the court did not suggest that the outcome

would be the same for a more overtly demeaning message and, if

anything, indicated the opposite.            See 

 at 876–78.

                                        E.

          In following the lead of other courts that have grappled

with similar cases, we emphasize that in many realms of public

life one must bear the risk of being subjected to messages that

are demeaning of race, sex, religion, or sexual orientation, even

when   those     messages      are      highly        disparaging    of      those

characteristics.        But,   like     these    other    courts,   we    do   not

understand Tinker, in holding that schools must allow for robust

discussion     and   debate    over    even     the    most    contentious     and

controversial topics, to have held that our public schools must be

a similarly unregulated place.

          The Supreme Court has recognized,                   post-Tinker,     that

"[it] does not follow . . . that simply because the use of an

offensive form of expression may not be prohibited to adults making

what the speaker considers a political point, the same latitude

must be permitted to children in a public school."                  Fraser, 

; see Thomas v. Bd. of Educ., Granville Cent. Sch.

Dist., 

, 1057 (2d Cir. 1979) (Newman, J., concurring

in the judgment) ("[T]he First Amendment gives a high school

student the classroom right to wear Tinker's armband, but not

Cohen's jacket.").      Indeed, the Court has observed that "[even in]


                                      - 48 -
our Nation's legislative halls, where some of the most vigorous

political debates in our society are carried on, there are rules

prohibiting the use of expressions offensive to other participants

in the debate" and that "the role and purpose of the American

public school system is to inculcate the habits and manners of

civility as values in themselves indispensable to the practice of

self-government."   Fraser, 

 (cleaned up).

          Across the decades, the federal courts in the line of

authority we find persuasive have recognized that the "special

characteristics of the school environment," Tinker, 

, warrant affording school officials the ability to respond to

the way speech demeaning other students' "unalterable or otherwise

deeply rooted personal characteristics" can "poison the school

atmosphere," Nuxoll, 

.      That flexibility to

"teach . . . [and] demonstrate the appropriate form of civil

discourse and political expression," Fraser, 

,

however, has not been understood by these same courts to entitle

school authorities to regulate debate on any topic just because it

may be highly upsetting to some students.      As Judge Brown has

explained, "[p]art of a public school's mission must be to teach

students of differing races, creeds and colors to engage each other

in civil terms rather than in 'terms of debate highly offensive or

highly threatening to others.'"   West v. Derby Unified Sch. Dist.

No. 260, 

 (D. Kan. 1998) (emphasis


                              - 49 -
added) (quoting Fraser, 

), aff'd by Derby, 

; see also Harper, 

 (distinguishing demeaning

comments about political topics, like the war in Iraq, with such

comments   "relating    to   a   core   characteristic    of     particularly

vulnerable students" based on the degree of "damag[e] to the

individual   or   the   educational     process").     And     so,    with   our

framework for applying Tinker to this sensitive context in place,

we now turn to L.M.'s specific challenges to the rulings below.

                                    IV.

           We begin with L.M.'s challenges to the rulings rejecting

his as-applied claims, which turn on what this record shows about

the reasonableness of both Middleborough's (1) interpretation of

the messages at issue in each claim as being demeaning of the kind

of   characteristic     of   personal   identity     described       above   and

(2) forecast that each of those messages, due to its negative

psychological impact on students with the demeaned characteristic,

would "poison the educational atmosphere" and thereby materially

disrupt the learning environment, Nuxoll, 

. Because

we conclude that the record reveals that Middleborough has made

each showing, we conclude its actions must be upheld under Tinker's




                                   - 50 -
material-disruption limitation even if not also, based on those

same showings, under Tinker's rights-of-others limitation.

                                    A.

          As to the as-applied claim that concerns Middleborough's

actions on March 21, L.M. asserts that the Shirt was "on all fours"

with Tinker's armbands or, at least, was like the "Be Happy, Not

Gay" t-shirt Nuxoll found "tepidly negative" on its face and having

not "even a slight tendency to . . . poison the educational

atmosphere."    

.    L.M. separately contends that, in

any   event,    the   record   evidence    is   too   sparse   to   support

Middleborough's forecast of the expression's disruptive impact on

student learning due to the "vague" nature of the supporting

affidavits from school administrators.          We are not convinced on

either score.

                                    1.

          Insofar as the Shirt does demean the gender identities

of students who are transgender or gender nonconforming, we agree

with Middleborough it is no less likely to "strike a person at the

core of his being" than it would if it demeaned the religion, race,

sex, or sexual orientation of other students.         Nuxoll, 

; see Bostock v. Clayton Cnty., Ga., 

 (2020); Mass.

G.L. ch. 71, § 37O; Mass. G.L. ch. 76, § 5.             Notably, on this

specific point, L.M. contends only that the message -- though

concerning gender identity -- is not demeaning of anyone's gender


                                  - 51 -
identity.    So, the threshold question is whether the message is

demeaning of gender identity at all.

            We see little sense in federal courts taking charge of

defining the precise words that do or do not convey a message

demeaning of such personal characteristics, so long as the words

in question reasonably may be understood to do so by school

administrators.     See Morse, 

 ("The message on [the

student's] banner is cryptic. . . . But [the principal] thought

the banner would be interpreted by those viewing it as promoting

illegal drug use, and that interpretation is plainly a reasonable

one."); Norris, 

 (explaining that the Supreme Court

"has   repeatedly    emphasized   the      necessary   discretion   school

officials must exercise and the attendant deference owed to many

of their decisions"); see also Scott, 

; Nuxoll,

.    Indeed, there are good reasons for federal courts

to be wary of making such an assessment for those whose job it is

to deliver public education.      Cf. Nuxoll, 

 ("[W]e

are concerned that if the rule is invalidated the school will be

placed on a razor's edge, where if it bans offensive comments it

is sued for violating free speech and if it fails to protect

students . . . it is sued for violating laws against harassment.").

            In some cases, the assessment may be easy -- the words

involved may not address such a characteristic at all, do so in

terms not plausibly thought negative, or, alternatively, be the


                                  - 52 -
kind of denigrating speech that even L.M. acknowledges schools may

restrict.    But there is a spectrum of negativity, see Nuxoll, 

   (holding   that   "'demeaning'   [was]     too   strong   a

characterization" of the message, which on its face was "only

tepidly negative"); but see 

 (Rovner, J., concurring

in the judgment), and because we must decide questions of degree

and not just kind, deference here cannot amount to rote acceptance,

see Norris, 

.

            L.M. does assert that the Shirt's message is "purely

ideological" and "summarized [his] beliefs at a high level of

generality    without   criticizing     opposing   views."     Thus,   L.M.

contends, the Shirt's message is not "hateful or bigoted" and

neither targets anyone nor "criticiz[es] opposing views," as it

"doesn't deny any person's existence of inherent value."               L.M.

does not dispute, however, that the message expresses the view

that students with different "beliefs about the nature of [their]

existence" are wrong.

            Consistent with that acknowledgement, the District Court

determined the message is reasonably understood to be an assertion,

however sincerely believed, that individuals who do not identify

as either male or female have no gender with which they may

identify, as male and female are their only options.                 As the

District Court put it, the message "may communicate that only two




                                    - 53 -
gender identities -- male and female -- are valid, and any others

are invalid or nonexistent."

            We agree with the District Court and so cannot say the

message, on its face, shows Middleborough acted unreasonably in

concluding that the Shirt would be understood -- in this middle-

school setting in which the children range from ten-to-fourteen

years old -- to demean the identity of transgender and gender-

nonconforming NMS students.           Cf. Nuxoll, 

 ("[F]or

most    people     these    are    major   components       of   their      personal

identity -- none more so than a sexual orientation that deviates

from the norm.       Such comments can strike a person at the core of

his being."); Trachtman, 

 ("The defendants have

consistently treated the topic of sexuality as an important part

of students' lives, which requires special treatment because of

its    sensitive    nature.").        We   also    note     that    Middleborough

interpreted the message in applying a dress code and thus in the

context of assessing a particular means of expression that is

neither    fleeting        nor    admits   of     nuance.          As   a    result,

Middleborough's assessment of the message's demeaning character

does not necessarily reflect a categorical judgment that, whenever

uttered, the message has such a character.                So understood, we see

no basis for substituting our judgment for Middleborough's as to

whether the Shirt demeaned the gender identities of other students

at NMS.


                                      - 54 -
                                    2.

           We turn, then, to the reasonableness of Middleborough's

forecast that, by demeaning those identities, the Shirt would be

materially disruptive to the learning environment because of its

negative   psychological       impact    on       transgender     and     gender

nonconforming students at NMS.           In that regard, Middleborough

argues that, based off its specific knowledge of the students at

NMS, it "reasonably forecast[ed]" that the Shirt's message "alone"

would "materially disrupt transgender and gender non-conforming

students' ability to focus on learning while in a classroom where

the message is being displayed."         Middleborough further contends

that, given its knowledge of "past incidents in which [students in

the   LGBTQ+     community]    expressed      concern     about     not   being

sufficiently protected," it reasonably concluded that "if [L.M.

was] permitted to wear the same shirt, others would follow suit

. . . . [and] that disruption would . . . have ensued with a

standoff between a group of students wearing the message [of the

Shirt] . . . and those students who are members of the LGBTQ+

community and their allies."

           L.M. responds      that Middleborough's concerns on this

score are supported only by "vague affidavits referencing [those]

concerns without addressing their cause."             He thus contends that

the   evidence   does   not   demonstrate     a   "link   between    students'

troubles and passive t-shirt messages," as nothing in the record


                                  - 55 -
shows that a message like this one had been used in any prior

bullying or caused any of the struggles by transgender and gender

nonconforming NMS students of which school officials were keenly

aware.

            School officials, however, must have some margin to make

high-stakes assessments in conditions of inevitable uncertainty.

See Mahanoy, 

 (Alito, J., concurring) ("[T]he school

has a duty to protect students while in school because their

parents are unable to do that during those hours."); 

(Maj. Op.); Zamecnik, 

 ("A school . . . [has] the

responsibility    of    protecting    . . .   its   students   from   being

seriously distracted from their studies by offensive speech during

school hours.").       In consequence of what the record here shows

about what Middleborough reasonably understood the message to

convey and what it knew about the NMS student population, we do

not understand Tinker, our own precedents, or any other circuits'

decisions    to    support    our     second-guessing     Middleborough's

assessment that there was the requisite basis for the forecast of

material disruption here.

            First, there is the demeaning nature of the message.         To

be sure, there is a spectrum of messages that are demeaning of

characteristics such as race, sex, religion, sexual orientation,

and so gender identity as well.        It is hard to see how it would be

unreasonable to forecast the disruptive impact of messages at the


                                    - 56 -
most demeaning end of that spectrum, given their tendency to poison

the educational atmosphere.           See Nuxoll, 

 ("Imagine

the psychological effects if the plaintiff wore a T-shirt on which

was written 'blacks have lower IQs than whites' or 'a woman's place

is in the home.'"); Saxe, 

 (reasoning that

"disparaging        comment[s]"       about       other   students'      personal

characteristics may "create an 'hostile environment'" and thus be

restricted    if    there   is    a   "threshold     showing    of   severity   or

pervasiveness").

             But, while oral argument indicated the Shirt's message

is not at the farthest end of demeaning, see n.8 supra, neither is

it, on its face, only "tepidly negative."                 L.M. himself agrees

that the message directly denies the self-conceptions of certain

middle-school students, and those denied self-conceptions are no

less deeply rooted than those based on religion, race, sex, or

sexual orientation.         This is also a middle-school setting, with

some kids as young as ten.             See, e.g., Walker-Serrano ex rel.

Walker v. Leonard, 

, 416–17 (3d Cir. 2003) (recognizing

that   the    age    of   students     is     a   relevant     consideration    in

administrators' decisions to regulate student speech); Sonnabend,

 (same); K.A. ex rel. Ayers v. Pocono Mountain Sch.

Dist., 

 (3d Cir. 2013) (same).                       In addition,

Middleborough was enforcing a dress code, so it was making a

forecast regarding the disruptive impact of a particular means of


                                      - 57 -
expression and not of, say, a stray remark on a playground, a point

made during discussion or debate, or a classroom inquiry.              The

forecast concerned the predicted impact of a message that would

confront any student proximate to it throughout the school day.

See Tinker, 

 (Stewart, J., concurring) (stating

that "in some precisely delineated areas, a child -- like someone

in a captive audience -- is not possessed of that full capacity

for   individual   choice   which   is   the   presupposition   of   First

Amendment guarantees." (emphasis added) (quoting Ginsberg v. New

York, 

 (1968) (Stewart, J., concurring in the

judgment))); Morse, 

 ("[S]chool boards have the

authority to determine 'what manner of speech in the classroom or

in school assembly is inappropriate.'" (emphasis added) (first

quoting Fraser, 

, then citing Fraser, 

 (Brennan, J., concurring in the judgment))).

           Second, in making its assessment of how disruptive the

Shirt would be on the educational atmosphere, Middleborough was

not acting on abstract concerns about the potential impact of

speech demeaning the gender identities of some students at NMS.

Middleborough was not aware of any prior incidents or problems

caused by this specific message.         But it knew the serious nature

of the struggles, including suicidal ideation, that some of those

students had experienced related to their treatment based on their

gender identities by other students, and the effect those struggles


                                - 58 -
could have on those students' ability to learn.           Indeed, Tucker

had previously worked on recommending out-of-district placements

for   such   students   prior   to   her   coming   to   NMS.   In   such

circumstances, we think it was reasonable for Middleborough to

forecast that a message displayed throughout the school day denying

the existence of the gender identities of transgender and gender

non-conforming students would have a serious negative impact on

those students' ability to concentrate on their classroom work.

See Zamecnik, 

 ("[Schools have] the responsibility

of protecting [students] from being seriously distracted from

their studies by offensive speech during school hours."); Sapp,

, at *5.

             Finally, precisely because the message was reasonably

understood to be so demeaning of some other students' gender

identities, there was the potential for the back-and-forth of

negative comments and slogans between factions of students that

Nuxoll could "foresee [leading to] a deterioration in the school's

ability to educate its students."          

.     And that

potentiality, too, was not rooted solely in abstract concerns.         In

addition to Tucker having been told by Carroll that L.M.'s teacher

"was concerned" that "members of the LGBTQ+ population at NMS as

current students . . . would be impacted by the t-shirt['s] message

and potentially disrupt classes," administrators were aware from

student survey data that a number of students had "specific


                                 - 59 -
concerns about how the LGBTQ+ population [was] treated" at NMS.

Given its specific knowledge of those facts and the "vulnerability

of gender non-conforming and transgender youth . . . attending

NMS," Middleborough had legitimate reason to be worried about

"uninhibited     . . .   hallway     debate   over    [gender     identity]    --

whether carried out in the form of dueling T-shirts, dueling

banners, dueling pamphlets, annotated Bibles, or soapbox oratory"

that would "lead to . . . symptoms of a sick school."              Nuxoll, 

.

          Against this backdrop, we see no reason to substitute

our judgment for Middleborough's with respect to its application

of its Dress Code here.            We conclude the record supports as

reasonable an assessment that the message in this school context

would so negatively affect the psychology of young students with

the   demeaned    gender     identities    that      it   would   "poison     the

educational    atmosphere"     and    so   result    in   declines    in    those

students' academic performance and increases in their absences

from school -- in other words, what Nuxoll described as "symptoms

of a sick school . . . [and] therefore of substantial disruption."

.

          We     recognize     that    L.M.   claims      Middleborough       was

motivated by "a few subjective complaints" and "simply dislikes"

his views.       But we have explained why we do not accept that

characterization of the predicate on which Middleborough acted,


                                     - 60 -
and nothing indicates Middleborough permitted comparably demeaning

speech, cf. Tinker, 

 (emphasizing that the school

"did       not   purport     to     prohibit   the    wearing    of   all    symbols    of

political          or    controversial    significance,"        including        the   Iron

Cross), barred L.M.'s oral expression of disagreement with pro-

LGBTQ+ views in school, or prohibited the mere utterance of the

particular message in question, cf. 

 (reasoning that, if

a rule were adopted "forbidding discussion of the Vietnam conflict,

or expression by any student of opposition to it anywhere on school

property except as part of a prescribed classroom exercise," that

rule       would    be    unconstitutional      absent      a   showing     of   material

disruption); see also Castorina ex rel. Rewt v. Madison Cnty. Sch.

Bd., 

, 541-42, 544 (6th Cir. 2001) (reversing grant of

summary judgment where evidence suggested viewpoint discrimination

because "only certain racial viewpoints [were banned] without any

showing of disruption"); Holloman ex rel. Holloman v. Harland, 

 (11th Cir. 2004) (reversing a grant of summary

judgment after concluding that there was a dispute of material

fact as to whether the student was "punished for the substance of

his    unpatriotic          views    rather    than    an   alleged    disruption       of

class").9



       We see no reason to take up L.M.'s invitation to be, as far
       9

as we can tell, the first court to import recent decisions that
clearly did not contemplate the special characteristics of the



                                          - 61 -
             L.M. contends that he wore the Shirt to respond to

Middleborough's asserted views on gender.             But Tinker does not

require a school to tolerate t-shirts that denigrate a race or

ethnicity, for instance, just because the school celebrates Black

History Month, Asian and Pacific American Heritage Month, and

Hispanic Heritage Month.        See Harper, 

.           For

this reason, too, we reject L.M.'s contention that Middleborough

was not entitled to act as it did in barring the Shirt pursuant to

Tinker's material-disruption limitation, even if not also pursuant

to the rights-of-others limitation based on the same two showings.

                                     B.

             Turning to the as-applied claim concerning the incident

involving the Taped Shirt on May 5, our analysis is largely the

same.   L.M. contends he wore that shirt to protest Middleborough's

March   21    actions.    But      "[w]e    conduct   the   Tinker     inquiry

objectively"    and   focus   on   "the    reasonableness   of   the   school

administration's response, not on the intent of the student."

Norris, 

 (quoting Cuff ex rel. B.C. v. Valley Cent.

Sch. Dist., 

 (2d Cir. 2012)).

             The Taped Shirt did cover "Only Two" with the word

"CENSORED," which raises a question as to whether it conveyed a

less negative message than the Shirt.         But the Taped Shirt was the


public-school setting into that setting. See Matal v. Tam, 

 (2017); Iancu v. Brunetti, 

 (2019).


                                   - 62 -
same shirt and thus, aside from the taping, looked the same.                       And

while L.M. left his first-period class with Tucker and did not

return to classes on March 21, L.M. spoke at the School Committee

meeting about the precise contents of the Shirt on April 13, had

significant local and national press coverage between March 21 and

May 5, and had photos of himself wearing the Shirt go viral online

in that period.        Middleborough thus reasonably concluded that,

given the attention L.M.'s wearing of the Shirt on March 21

garnered, other students would know the words written on the Taped

Shirt, even if two words were covered up.                    See Hardwick ex rel.

Hardwick   v.    Heyward,    

    (4th   Cir.      2013)

(upholding bar on a student wearing certain shirts protesting her

school's prohibition on displays of the confederate flag because

administrators "reasonably predicted that the protest shirt was

likely to cause a substantial disruption" because it "explicitly

broadcast"      the   same   racially        inflammatory       messages    as    the

Confederate flag and thus "could just as easily" cause the same

disruptions).

                                        V.

           We turn, then, to L.M.'s challenges to the District

Court's    rulings    granting     judgment         as   a    matter   of   law     to

Middleborough on his claims facially attacking the Dress Code.

Those claims concern the Dress Code's (1) prohibition on clothing

that "state[s], impl[ies], or depict[s] hate speech or imagery


                                    - 63 -
that target[s] groups based on race, ethnicity, gender, sexual

orientation, gender identity, religious affiliation, or any other

classification"        and      (2)    rule     that     clothing    "[school]

administration determines to be unacceptable to our community

standards will not be allowed [at NMS]."               We see no merit to this

set of challenges either.

                                        A.

            As to L.M.'s community-standards-provision claim, our

jurisdiction is limited to "Cases" and "Controversies."                      U.S.

Const. art. III § 2 cl. 1; see Doyle v. Huntress, Inc., 

 (1st Cir. 2005) (explaining our "obligation to inquire sua

sponte into our jurisdiction over the matter" in every case").

L.M. thus must show he has standing to bring this claim.                      See

Wilkins v. Genzyme Corp., 

 (1st Cir. 2024).                     He

cannot.

            In   the    email     exchange     with    L.M.'s   father,   Lyons

explained that L.M. had been asked to remove the Shirt because

"[t]he content of [his] shirt targeted students of a protected

class; namely in the area of gender identity" before pasting the

entirety of the Dress Code.           That statement most naturally refers

to the hate-speech provision, and L.M. makes no argument otherwise.

L.M.'s    counsel's    letter    to   Middleborough      also   identified    the

hate-speech provision as the sole relevant and unconstitutional

provision, and no other evidence indicates that the community-


                                      - 64 -
standards provision was even a partial basis for Middleborough's

actions on either March 21 or May 5.

           Because L.M. "advances no affirmative argument that [the

community-standards provision] is not severable from different

parts of the [Dress Code]" he asserts are invalid and were applied

to him, L.M. has no standing to challenge the community-standards

provision based on past prohibitions.       See Signs for Jesus v. Town

of Pembroke, NH, 

 (1st Cir. 2020).       There is also

no non-speculative basis for concluding that future prohibitions

would be fairly traceable to the community-standards provision.

See Clapper v. Amnesty Int'l USA, 

 (2013).

                                   B.

           As to the hate-speech-provision claim, L.M. advances

various reasons it is facially unconstitutional.         But we do not

find those reasons persuasive.10

                                   1.

           L.M. contends that the provision is unconstitutionally

vague under the Fourteenth Amendment's Due Process Clause, because

the   provision   affords   Middleborough    unbridled   discretion   to

enforce it in a discriminatory and viewpoint-discriminatory manner



       Middleborough's cursory contention that L.M. does not have
      10

standing to challenge the hate-speech provision because his speech
was unprotected conflates the question of whether speech is
protected with whether that protected speech may nonetheless be
constitutionally regulated under Tinker.


                                - 65 -
in that "hate speech" has "no standard definition and is largely

in the eye of the beholder" and the "any other classification"

language is "completely vacuous."             School disciplinary rules,

however, "need not be as detailed as a criminal code" because

"maintaining security and order in the schools requires a certain

degree   of    flexibility   in   school    disciplinary    procedures"   and

schools have a legitimate "need to be able to impose disciplinary

sanctions for a wide range of unanticipated conduct."             Fraser, 

; see Sypniewski, 

 (explaining that

"courts have been less demanding of specificity" when confronted

with   vagueness    challenges    to   student   dress     and   disciplinary

codes); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 

 (3d Cir. 2011) (en banc).         The Dress Code also permits

a student to be disciplined only for "[r]epeated violations,"

thereby ensuring notice will be given in advance of such action.

See A.M. ex rel. McAllum v. Cash, 

 (5th Cir.

2009); Hardwick, 

. Thus, this challenge claim fails

as to his Due Process-based claims for monetary, declaratory, and

injunctive relief.

                                       2.

              L.M.'s claim that the provision is overbroad under the

First Amendment relies in part on its use of the term "hate

speech," which he contends has "no standard definition," and in

part on its bar against clothing that "state[s]," "depict[s]," or


                                   - 66 -
"impl[ies]" such speech.            He also argues that the bar on messages

that "target groups" based on "any other classification" permits

Middleborough to invent any "group" it wants and sweep in any

speech that refers to anyone, especially if "target[ing]" turns on

"the reaction of listeners."               In pressing these points, L.M.

emphasizes      that    the   hate-speech     provision         does    not     refer    to

substantial disruption or interference with other students' rights

and therefore "most . . . applications [of the provision] are to

protected, not unprotected, speech."

            The Supreme Court has emphasized post-Tinker, however,

that   public     schools     require    flexibility       in     the     drafting      and

administration of disciplinary codes.                 See Fraser, 

.   And because there is "a much broader 'plainly legitimate'

area of speech [that] can be regulated at school than outside

school," Sypniewski, 

, "the overbreadth doctrine

warrants    a    more    hesitant     application     in     [the       public-school]

setting    than    in    other   contexts,"      Hardwick,        

(alteration       in    original)    (quoting    Newsom      ex     rel.       Newsom    v.

Albemarle Cnty. Sch. Bd., 

 (4th Cir. 2003)).

            It    is    significant,     therefore,        that     the    hate-speech

provision applies only to apparel and then only when worn "to

school"    (emphasis      added).       Cf.   Saxe,    

    n.11

(expressing concern that anti-harassment policy could be "read to

cover conduct occurring outside of school premises").                            The word


                                        - 67 -
"hate" in "hate speech" also indicates that the provision refers

only to speech that provokes "such strong feelings that a serious

possibility of disruption might be inferred."                     Sypniewski, 

.        Thus, we do not understand the provision to bar "any

unwelcome [message] which offends an individual because of some

enumerated personal characteristics."                   Saxe, 

(cleaned up).          As a result, the provision's failure to mention

"material disruption" or "invasion of the rights of others" is not

fatal.       Cf. 

 (finding "hostile environment" portion of

anti-harassment policy overbroad because it "[did] not, on its

face,        require     any     threshold       showing     of      severity     or

pervasiveness"); Sypniewski, 

.

              In    contending   that     the    provision   could    "sweep[]    in

speech that only a diversity, equity, and inclusion expert would

find 'hateful,' and even depictions of famous art," L.M. points in

part    to    the    provision's    use    of     the   words     "impl[ies]"    and

"depict[s]."        But the prohibited messages still must constitute

"hate speech," as the words L.M. highlights here merely describe

means (including subtle ones) of expressing the prohibited "hate

speech."11      Nor does the residual clause support L.M.'s concern


       11L.M. argues that the provision unconstitutionally
discriminates in viewpoint between "negative" and "positive"
messages, but we do not read Tinker or any other Supreme Court or
federal court student-speech decision to require "positive
messages" be prohibited if a "negative" message is regulable



                                        - 68 -
that the provision could sweep in any classification one could

imagine.        The word "other" ensures that it encompasses only

classifications akin to those listed, all of which pertain to

classes    of    persons   commonly    protected   in   anti-discrimination

measures.   See, e.g., Circuit City Stores, Inc. v. Adams, 

 (2001) (explaining the ejusdem generis canon); cf.

Fraser, 

 (explaining that the "role and purpose" of

public schools is to "inculcate the habits and manners of civility

as values" (citation omitted)).

            Finally, the word "target" causes no concern, as we see

no reason to construe it (as L.M. contends we must) to have a

meaning dependent entirely on the subjective understanding of any

student rather than the objectively reasonable understanding of

school administrators.       Nor does L.M. argue that the word "target"

renders the provision overbroad once it is construed in that

narrower way.12




because it materially disrupts or invades others' rights.      Cf.
Sypniewski, 

 ("[S]chools are generally permitted to
step in and protect students from abuse.").
     12L.M. also contends that the provision is an impermissible
prior restraint because it "forbids certain messages before they
occur." But, as he offers no support for equating the provision
with restrictions that have been deemed prior restraints, see
Alexander v. United States, 

, 553 n.2 (1993), the
contention is waived for lack of development, see United States v.
Zannino, 

 (1st Cir. 1990).


                                      - 69 -
                               VI.

          We close by emphasizing a point that may be obvious but

should not be overlooked.   The question here is not whether the

t-shirts should have been barred.     The question is who should

decide whether to bar them -- educators or federal judges.   Based

on Tinker, the cases applying it, and the specific record here, we

cannot say that in this instance the Constitution assigns the

sensitive (and potentially consequential) judgment about what

would make "an environment conducive to learning" at NMS to us

rather than to the educators closest to the scene.

          The judgment of the District Court is affirmed.




                             - 70 -