Taylor v. Roswell Independent School District

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 8, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SETH TAYLOR; JACOB COBOS, by
and through his parents Ralph and
Adrienne Cobos; LACY CORMAN, by
and through her parents Gary and
Ladonna Corman; ARIELLE GREEN, by
and through her parents Joseph and
Socorro Green; REED MAY, by and
through his parents Bruce and April May,
Plaintiffs - Appellants, No. 11-2242
v.
ROSWELL INDEPENDENT SCHOOL
DISTRICT; MICHAEL GOTTLIEB, in
his capacity as Superintendent of Schools
for Roswell Independent School District,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:10-CV-00606 LFG-ACT)
Mathew D. Staver, Liberty Counsel, Maitland, Florida (Stephen M. Crampton, Mary E.
McAlister, and Matthew H. Krause, Liberty Counsel, Lynchburg, Virginia, and Anita L.
Staver, Liberty Counsel, Maitland, Florida, with him on the briefs), appearing for
Appellants.
Jerry A. Walz, Walz and Associates, Albuquerque, New Mexico, appearing for
Appellees.
Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
The plaintiffs are, or at all relevant times were, high school students from Roswell,
New Mexico, who belong to a religious group called “Relentless” (“Plaintiffs”).1 They
sued Roswell Independent School District and Superintendent Michael Gottlieb in his
official capacity (collectively “the District”) seeking declaratory and injunctive relief.
Their complaint alleged that school officials violated their First and Fourteenth
Amendment rights by preventing them from distributing 2,500 rubber fetus dolls to other
1
When the complaint in this case was filed, Plaintiffs were students at either
Goddard or Roswell High. Our review of the record indicates that four of the five
plaintiffs have since graduated and one plaintiff, Jacob Cobos, is expected to graduate in
May 2013. Plaintiffs seek declaratory and injunctive relief. They do not seek damages,
even nominal damages. In Board of School Commissioners of Indianapolis v. Jacobs,
420 U.S. 128 (1975) (per curiam), the Supreme Court dismissed as moot a challenge by
high school students to regulation of their school newspaper after the Court learned at
oral argument that all of the plaintiffs had graduated.
In this case, however, at least one plaintiff, Mr. Cobos, remains in school. He
clearly has standing, and his claim is not moot. “[T]he presence of one party with
standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld
v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006). See also Campbell v.
Buckley, 203 F.3d 738, 740 n.1 (10th Cir. 2000) (“Because the individual plaintiffs . . .
have standing, and because [they] jointly raise the same substantive arguments on appeal
. . . there is no need to address the standing of the [other] plaintiffs.”) (citing Bowsher v.
Synar, 478 U.S. 714, 721 (1986)); Nat’l Rifle Ass’n v. Magaw, 132 F.3d 272, 278 n.4 (6th
Cir. 1997) (“[A]s long as one plaintiff meets the requirements of Article III, the court can
adjudicate the issues raised in the complaint.”).
We therefore proceed to the merits.
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students. It also challenged the District’s policies requiring preapproval before
distributing any non-school-sponsored material on school grounds.
A magistrate judge granted summary judgment for the District on all claims, and
Plaintiffs appealed.2 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
dismissal of Plaintiffs’ free speech, free exercise, and equal protection claims. We also
affirm dismissal of Plaintiffs’ facial challenge to Roswell District’s preapproval policies.
We note that the public school setting is important to our analysis.
I. BACKGROUND
A. Factual History
The five plaintiffs in this case are, or at all relevant times were, students of two
high schools, Roswell and Goddard High. They belong to a religious youth group called
Relentless, which is affiliated with a local church called Church on the Move. Relentless
is not affiliated with any school.
Relentless members testified in depositions that they routinely engaged in
religious expression at school. For example, they often spoke to other students, in groups
and one-on-one, about their religious beliefs and anti-abortion views; and they regularly
prayed, silently and aloud, while on school grounds, including during class. Plaintiffs
were never disciplined or asked to stop these activities.
2
Both parties consented to proceed before Magistrate Judge Lorenzo F. Garcia,
with the understanding that appeal from any judgment entered by the magistrate judge
would be to the United States Court of Appeals for the Tenth Circuit. See 28 U.S.C.
636(c); Fed. R. Civ. P. 73(b).
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In late 2009, Plaintiffs and other Relentless members began an outreach campaign
to express kindness and charity to fellow students and teachers, and to “put God back into
the schools.” Aplt. Appx., Vol. I at 195. Each week they distributed different items at
both schools. A pastor from Church on the Move, Tim Aguilar, led the students in
organizing and planning these events and was present on school grounds for the
distributions. Relentless initially gave 220 McDonald’s chicken salad sandwiches
(donated by a church member) to the faculty at both high schools. In ensuing weeks, they
distributed to students and faculty hot chocolate, candy canes with religious messages,
and “affirmation rocks” with scriptural references painted on one side. Aplt. Appx., Vol.
IV at 993-95.
When these distributions began, Roswell District had two policies concerning
distribution of non-school related materials on campus. Policy 7110 required advance
permission from the District before distribution in any quantity of promotional items or
advertisements on campus. A separate, longstanding but unwritten policy required
students to obtain permission before on-campus distribution of non-school-sponsored
literature. These policies are described in more detail later in this section.
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The Relentless students did not seek permission before distributing the previously
mentioned items.3 They were not disciplined, reprimanded, or asked to stop. There is no
evidence these distributions caused disruption.
1. The Rubber Fetus Doll Distributions
On January 29, 2010, Pastor Aguilar and the Relentless students planned to
distribute 2,500 small rubber dolls, one to every student at both schools. Each two-inch
doll was designed to be a realistic representation of a human fetus. A card attached to
each doll explained that it represented the actual size and weight of a “12 week old
baby,” that is, a fetus at 12 weeks of gestation. Aplee. Appx., Vol. I at 22-23. One side
of the card encouraged students to visit or call the Chaves County Pregnancy Resource
Center, a clinic affiliated with Church on the Move. The other side featured a Relentless
logo and this scriptural passage:
For you formed my inward parts; You wove me in my
mother[’]s womb. I will give thanks to You, for I am fearfully
and wonderfully made; Wonderful are your works, And my
soul knows it very well.
Psalms 139:13-14
Aplee. Appx., Vol. I at 23.
3
Although it is undisputed that the Relentless students did not seek permission for
the early distributions, Pastor Aguilar testified in his deposition that he and other adult
organizers from the church sought and received verbal permission for at least one
distribution. He could not recall which administrator gave permission or for which
distribution.
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At Goddard High, Pastor Aguilar and eight or nine Relentless students set up
tables in the lobby and began the distribution about 7:30 a.m. They approached every
student entering the school and offered a doll. The entrances were not blocked, and the
Relentless members allowed those who declined to take a doll to continue on their way.
Assistant Principal Brian Luck arrived and noticed the distribution. He went to his
office and radioed other administrators to ask whether the students had approval for the
distribution. Assistant Principal Michelle Edgett responded that the students did not have
approval and told Mr. Luck he should “probably” take possession of the dolls.4 Aplt.
Appx., Vol. I at 175. On his way back to the lobby, Mr. Luck saw several students
throwing what looked like small rubber balls at the wall. The “balls” turned out to be
dismembered heads of the rubber fetus dolls. Several female students stopped him to
complain. Relentless members were not among those dismembering or throwing the
dolls.
Mr. Luck approached the Relentless students and said, “It’s time to shut this down.
. . . Some people are getting offended.” Aplt. Appx., Vol. IV at 996. He took the
remaining dolls and told the students they would be returned at the end of the day. At
this point, the Relentless group had distributed more than 300 dolls at Goddard High.
4
Mr. Luck testified at his deposition that at the time of these events, he was newly
appointed as an Assistant Principal and did not have the authority to grant or deny
approval for student distributions on campus.
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Later that morning, a Goddard High administrator called the principal of Roswell
High, Ruben Bolaños, to ask if a similar distribution was underway at Roswell High.
Principal Bolaños was not on campus, so he telephoned a campus security officer and
instructed him to investigate and to confiscate the dolls “[i]f it’s a disruption to the
educational process.” Aplt. Appx., Vol. I at 123. Two campus security guards at
Roswell High investigated and eventually determined the dolls should be confiscated.
Both schools experienced doll-related disruptions that day. Many students pulled
the dolls apart, tearing the heads off and using them as rubber balls or sticking them on
pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became
stuck. Dolls were used to plug toilets. Several students covered the dolls in hand
sanitizer and lit them on fire. One or more male students removed the dolls’ heads,
inverted the bodies to make them resemble penises, and hung them on the outside of their
pants’ zippers.
Teachers at both schools complained that students’ preoccupation with the dolls
disrupted classroom instruction. While teachers were trying to instruct, students threw
dolls and doll heads across classrooms, at one another, and into wastebaskets. Some
teachers said the disruptions took eight to 10 minutes each class period, and others said
their teaching plans were derailed entirely. An honors freshman English class canceled a
scheduled test because students had become engaged in name calling and insults over the
topic of abortion. A Roswell security officer described the day as “a disaster” because of
the dolls. Aplt. Appx., Vol. II at 447.
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About two weeks later, on February 11, 2010, Relentless attempted to distribute
the dolls again, believing it was their Christian duty and constitutional right.
Administrators at both schools immediately stopped this second distribution. A Goddard
High administrator announced over the public address system that “[n]othing is to be
passed out that is not school related,” and warned that “there will be disciplinary actions
taken” if the distribution continued. Aplt. Appx., Vol. I at 21. At Roswell High,
Principal Bolaños emailed instructions to the faculty that rubber fetuses should be
confiscated and any student distributing them should be referred to the administration.
On the same day, other students at Roswell High were allowed to distribute
Valentine’s Day-related items such as candy, cards, and stuffed animals. [Id.] The
record does not tell whether any students distributed large quantities of these items or
whether they received prior approval. There is no evidence of disturbance from the
Valentine’s Day-related distributions.
In late February, Relentless’s legal counsel sent a written demand to the District
that the group be permitted to conduct the fetus doll distribution. Around this time,
Superintendent Michael Gottlieb, administrators of both schools, and the senior pastor of
Church on the Move, Troy Smotherman, met to discuss this issue (the “Gottlieb
meeting”). During the Gottlieb meeting, participants discussed the possibility that
Relentless might implement a less controversial message of abstinence. Superintendent
Gottlieb asked Pastor Smotherman whether Relentless would consider distributing the
fetus dolls more quietly, suggesting the group could “just put these babies in [students’]
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backpacks . . . without the big to-do.” Aplt. Appx., Vol. I at 114. The meeting ended
without resolution.
2. Later Relentless Distributions
After the meeting, Relentless varied their distributions. Later in February, they
distributed wristbands with the message “I’m Worth Waiting For.” Aplt. Appx., Vol. IV
at 999. The group did not seek prior approval, which violated Roswell District’s standard
practice. Both schools allowed the distributions to continue, but two Relentless students
from Goddard High, including one plaintiff, were required to attend “Saturday school”
for violating the preapproval policy.
In subsequent months, Relentless distributed more items featuring scriptural
quotes and religious and anti-abortion messages, including stickers, plastic Easter eggs,
pencils, and dog tags. Relentless sought and received permission to distribute the Easter
eggs, but Goddard administrators asked them not to block entrances or approach other
students as they entered the building. It is not clear whether they sought permission for
the other distributions, but there is no evidence of any disruption from any distributions
that occurred after the Gottlieb meeting. [Aplt. Appx., Vol. IV at 1042.]
In September 2010, after the next school year had begun, Relentless
“surreptitiously” left 1,000 doughnuts in the faculty lounges of both schools, with stickers
featuring the Relentless logo and a quote from Galatians 6:9, “Let us not grow weary in
well doing.” Aplt. Appx., Vol. IV at 1000-01. One Relentless member who is not a
plaintiff in this case was disciplined for entering the faculty lounge after being told not to
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do so, but no other disciplinary actions were taken. The doughnuts were removed in part
due to “food safety concerns.” Id. at 1001.
3. Roswell District Policies Regarding On-Campus Distributions
Two Roswell District policies have been referred to in this case. First, Policy
7110 was in place before the rubber doll distribution. It requires the school principal’s
preapproval to engage in promotional activities on campus, including advertising or
solicitations. Policy 7110 bans outright the promotion of certain items on campus, such
as alcohol and drugs. It does not mention religion.
At the time of the rubber doll distribution, the District had a long-standing,
unwritten policy of requiring students to obtain approval before distributing non-school-
sponsored material on school grounds. In May 2010, the District formalized this
unwritten policy when it promulgated Policy 5195, captioned “Distribution of Non
School Sponsored Literature.” Aplt. Appx., Vol. I at 186-87. This policy requires that
students obtain approval from the school administration before distributing more than 10
copies of “any non-school sponsored literature.”
Section 2 of the policy provides that approval may be withheld if the school
district administration “reasonably determines” that the distribution:
a. Would cause a substantial disruption or a material
interference with the normal operation of the school or
school activities.
b. Is potentially offensive to a substantial portion of the
school community due to the depiction or description of
sexual conduct, violence, morbidity or the use of language
which is profane or obscene and which is inappropriate for
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the school environment as judged by the standards of the
school community.
c. Is libelous or which violates the rights of privacy of any
person.
d. Is false or misleading or misrepresents facts.
e. Is demeaning to any race, religion, sex, or ethnic group.
f. Encourages violation of local, state or federal laws.
Aplt. Appx., Vol. I at 186.
Sections 1 and 3 of the policy describe certain procedural safeguards. The District
must approve or deny a distribution request within five school days. This time may be
extended only with written approval of Superintendent Gottlieb. The District must
provide a written explanation of the reasons for any denial. Students whose requests are
denied have a right to two appeals. The first appeal is made directly to Superintendent
Gottlieb, with a final appeal to the Board of Education. If a student appeals to the Board,
it must provide a hearing within 10 school days and render its decision at its next regular
meeting.
Section 4 of the policy provides definitions of terms, including “distribution” and
“non school sponsored.” Aplt. Appx., Vol. I at 186. Sections 5 and 6 give school
officials the right to “designate a time, location and means by which the distribution may
take place,” and to revoke approval if the distribution causes a substantial disruption.
Aplt. Appx., Vol. I at 186-87.
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B. Procedural History
Plaintiffs’ Second Amended Complaint sought injunctive relief and alleged three
counts. Count I included two First Amendment speech claims. First, Plaintiffs brought a
facial challenge against the District’s preapproval policies for non-school-sponsored
material, alleging the policies are unconstitutional prior restraints and are
unconstitutionally vague. Second, they challenged the policies as applied to Plaintiffs,
claiming that the District’s refusal to allow them to distribute the fetus dolls violated their
free speech rights. Count II alleged violation of Plaintiffs’ free exercise rights under a so-
called hybrid claim theory.5 Finally, Count III alleged that the District discriminated
against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause.
At the close of discovery, the parties filed cross-motions for summary judgment.
No oral argument was held. The magistrate judge issued a 64-page opinion granting
summary judgment for the District on all claims. Plaintiffs appealed on all counts, but
abandoned the hybrid claim theory with respect to its free exercise claim.
5
The hybrid claim theory allows a court to apply strict scrutiny when “a free
exercise claim is coupled with some other constitutional claim” and the plaintiff makes “a
colorable showing of infringement of [the] companion constitutional right.” Axson-Flynn
v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (quotations omitted). We have
recognized this theory with reservations, noting that the “hybrid-rights theory has been
roundly criticized from every quarter and many have pointed out the danger of
interpreting [it] broadly.” Id. at 1296. On appeal, Plaintiffs argue their free exercise
claim but abandon the hybrid claim theory. We therefore do not discuss the hybrid claim
theory in this opinion.
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II. DISCUSSION
Plaintiffs claim that when the schools prevented them from distributing the rubber
fetus dolls, their constitutional rights to free speech, free exercise of religion, and equal
protection were violated. They also claim that the speech violation was the product of
school policies that are unconstitutional on their face as prior restraints and for reasons of
vagueness and overbreadth.6 As we explain below, Plaintiffs’ free speech challenges fail
because school officials reasonably forecasted that the distribution would cause
substantial disruption and because the distribution did cause substantial disruption.
Plaintiffs’ free exercise and equal protection claims fail because the decision to stop the
distribution was not based on religion, and Plaintiffs failed to show they were treated
differently from similarly situated students.
Plaintiffs’ facial challenge to the school policy also fails. The policy is not
unconstitutional under the prior restraint doctrine because it constrains official discretion
and contains adequate procedural safeguards—and because it applies to the school
environment where greater deference is given to school officials. It is not void for
vagueness because students of ordinary intelligence can understand its meaning and it
neither authorizes nor encourages arbitrary or discriminatory enforcement. As we
explain below, we do not address the overbreadth issue.
6
Plaintiffs did not raise an overbreadth claim in their complaint, but the parties
argued the theory before the magistrate judge, who addressed overbreadth in the decision
granting summary judgment.
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A. Standard of Review
We review a grant of summary judgment de novo, under the same standard
applied by the district court (or in this case, the magistrate judge). Clinger v. N.M.
Highlands Univ., 215 F.3d 1162, 1165 (10th Cir. 2000). Summary judgment is proper
when “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
genuinely disputed if “the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Witt v. Roadway Exp., 136 F.3d 1424, 1429 (10th Cir. 1998).
A fact is material if it “might affect the outcome of the suit under the governing law.” Id.“[W]e draw all reasonable inferences from the evidence in favor of” Plaintiffs as the
nonmoving party. Id. Summary judgment for the District is appropriate only if “the
record taken as a whole could not lead a rational trier of fact to find for the” Plaintiffs.
Tiberi v. Cigna Corp., 89 F.3d 1423, 1428 (10th Cir. 1996).
In First Amendment cases, we are obligated “to make an independent examination
of the whole record in order to make sure that the judgment does not constitute a
forbidden intrusion on the field of free expression.” Snyder v. Phelps, 131 S. Ct. 1207,
1216 (2011) (quotations omitted); Bose Corp. v. Consumers Union, 466 U.S. 485, 499
(1984); Barker v. Del City, 215 F.3d 1134, 1137 (10th Cir. 2000).
We first consider the free speech challenge to the District’s refusal to allow the
rubber fetus distribution. Second, we address Plaintiffs’ facial challenge to the District’s
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policies as unconstitutional prior restraints and for vagueness. Third, we consider the
Plaintiffs’ free exercise claim. Finally, we address the equal protection claim.
B. The Free Speech As-Applied Claim
The First Amendment guarantees the right to free expression and is applicable to
the states through the Due Process Clause of the Fourteenth Amendment. Gitlow v. New
York, 268 U.S. 652, 666 (1925); De Jonge v. Oregon, 299 U.S. 353, 364 (1937); Cannon
v. City and Cnty. of Denver, 998 F.2d 867, 871 (10th Cir. 1993).
The magistrate judge analyzed Plaintiffs’ free speech claim under two standards
developed in Tinker v. Des Moines, 393 U.S. 503 (1969), and Hazelwood School District
v. Kuhlmeier, 484 U.S. 260 (1988), and held that the District was entitled to summary
judgment under both standards. We affirm under the Tinker standard. Hazelwood is
inapplicable because the expression at issue here is private student speech and not school-
sponsored speech.
Two important questions are not at issue. First, this case does not turn on whether
the content of Plaintiffs’ message warrants First Amendment protection—there is no
question that it does. The record shows Plaintiffs meant to convey a religious and
political message when they distributed the rubber dolls, and the Constitution requires
they be permitted to express these views at school in some form. See Tinker, 393 U.S. at
513; Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). For example, the District almost
certainly may not prevent Plaintiffs from sharing their religious views in nondisruptive
small group discussions with other students who wish to participate; nor can the District
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exercise editorial control over the content of Plaintiffs’ private expression or decide
whether to approve Plaintiffs’ distribution of materials on the basis of their viewpoint.
See Tinker, 393 U.S. at 509. Insofar as the District has acknowledged that Plaintiffs’
many other religiously-themed distributions at both schools did not disrupt the school
environment, it correctly allowed those distributions to continue. See id.; Williams, 443
F.2d at 431.
Second, the parties do not contest that the District was allowed, under Tinker and
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), to confiscate already-
distributed rubber dolls from any students who threw them, used them to harm school
property, or displayed them as props for lewd or obscene expressions of their own.
What is contested is whether the District violated Plaintiffs’ free speech rights
when it stopped their on-campus distribution of large quantities of the rubber fetus dolls.
The answer depends on whether school officials reasonably forecasted that this particular
form of expression (i.e., mass distribution of hundreds or thousands of three-dimensional
rubber dolls to public high school students during the school day) would create a
substantial disruption to school discipline. Seamons v. Snow, 84 F.3d 1226, 1237 (10th
Cir. 1996).
In the following discussion, we determine that Plaintiffs’ claims involve private—
that is, non-school-sponsored—student speech and therefore fall under the Tinker
standard. Applying Tinker, we hold that the District did not violate Plaintiffs’ free speech
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rights because it reasonably forecasted that distribution of the rubber dolls would lead to
a substantial disruption.
1. The Tinker Standard Applies to Plaintiffs’ Distribution
Restrictions on student speech in public schools are analyzed under one of two
standards. Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1225 (10th Cir.
2009). Tinker governs private student speech; Hazelwood governs school-sponsored
speech. Corder, 566 F.3d at 1225.7
Private student expression that is unconnected to any school-sponsored activity is
subject to the more stringent Tinker standard. Morse v. Frederick, 551 U.S. 393, 405-06
(2007). In Tinker, the plaintiffs were punished for wearing black armbands at school to
express their disagreement with U.S. involvement in the Vietnam War. Tinker, 393 U.S.
at 504. The Supreme Court held that the school could not restrict this speech unless the
school reasonably forecasted that the speech would cause substantial disruption to the
school environment. Id. at 509.8
7
A third standard addresses speech in public schools that can be characterized as
“government speech, such as the principal speaking at a school assembly.” Axson-Flynn,
356 F.3d at 1285 (quotations omitted). As the current case involves student speakers, this
standard is not relevant.
8
The Tenth Circuit first applied the Tinker standard in the 1971 case of Williams
v. Eaton, where we held that college football players had a free speech right to wear black
armbands during a game to protest the racial policies of the other team’s school. 443
F.2d 422, 430-32 (10th Cir. 1971).
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In contrast, the Supreme Court has explained that student speech is analyzed under
the Hazelwood standard when “students, parents, and members of the public might
reasonably perceive [the speech] to bear the imprimatur of the school.” Morse, 551 U.S.
at 405. At issue in Hazelwood was a school’s decision to censor the content of a high
school newspaper published as part of the school’s journalism program. Id. Schools “do
not offend the First Amendment by exercising editorial control over the style and content
of student speech in school-sponsored expressive activities,” provided the restrictions
“are reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at
273.
In the present case, “[n]o one would reasonably believe” the distribution of rubber
fetuses “bore the school’s imprimatur.” Morse, 551 U.S. at 405. As in Tinker, Plaintiffs
were expressing their private views, and their expression was not part of any school-
sponsored program. The Tinker standard therefore applies. See Roberts v. Madigan, 921
F.2d 1047, 1057 (10th Cir. 1990) (“[I]f the speech involved is not fairly considered part
of the school curriculum or school-sponsored activities, then it may only be regulated if it
would materially and substantially interfere with the requirements of appropriate
discipline.” (quotations omitted)).
2. The District’s Actions Did Not Violate Plaintiffs’ Free Speech Rights
a. Further Background on the Tinker Standard
Under Tinker, a public school may not restrict private student expression unless
the school reasonably forecasts it “would materially and substantially interfere with the
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requirements of appropriate discipline in operation of the school,” or “impinge upon the
rights of other students.” Tinker, 393 U.S. at 505-06, 509.9
A disruption need not actually materialize. School officials may act to prevent
problems as long as the situation “might reasonably [lead] authorities to forecast”
substantial disruption or interference with the rights of others. Id. at 514. This forecast
must be reasonable. Officials may not restrict speech based on “undifferentiated fear or
apprehension of disturbance” or a “mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.” Id. at 508-09.
For a school’s forecast to be reasonable, courts generally require that it be based
on a “concrete threat” of substantial disruption. Sypniewski v. Warren Hills Regional Bd.
of Educ., 307 F.3d 243, 262 (3d Cir. 2002). Tinker rejected the idea that a “silent,
passive” expression that merely provokes discussion in the hallway constitutes such a
threat, particularly if that expression is political. 393 U.S. at 514. The Second and Third
Circuits have reinforced this notion, overturning schools’ bans on t-shirts criticizing
George W. Bush or featuring comedian Jeff Foxworthy. Guiles v. Marineau, 461 F.3d
320 (2d Cir. 2006); Sypniewski, 307 F.3d at 254.10
9
Subsequent Supreme Court cases have allowed schools to restrict student speech
that is lewd or patently offensive or promotes illegal drug use. Bethel Sch. Dist. No. 403
v. Fraser, 478 U.S. 675, 685 (1986); Morse v. Frederick, 551 U.S. 393, 395 (2007).
These cases offer useful insight for understanding Tinker’s substantial disruption test.
10
We note, however, that several circuits (including ours) have upheld restrictions
on passive, silent expression—even political expression—where it is clearly associated
Continued . . .
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When the speech is neither passive nor silent, restrictions are more readily (but not
always) upheld. For example, the Ninth Circuit held that student athletes were
constitutionally protected in peacefully circulating a petition criticizing their coach, but
upheld the school’s decision to suspend them for holding a protest before a sporting event
and refusing to board the team bus. Pinard v. Clatskanie Sch. Dist., 467 F.3d 755 (9th
Cir. 2006). The court found the protest was not protected because it created a substantial
disruption with the operation of the school basketball program. Id. at 769. See also
Morse, 551 U.S. at 397; Fraser, 478 U.S. at 678.
When school officials reasonably forecast substantial disruption, they have
discretion to restrict forms of student speech that might otherwise be protected in a non-
school setting. “‘[T]he First Amendment gives a high school student the classroom right
to wear Tinker’s armband, but not Cohen’s jacket.’” Fraser, 478 U.S. at 682 (quoting
Thomas v. Bd. of Educ., 607 F.2d 1043, 1057 (2d Cir. 1979) (Newman, J., concurring in
______________________________________
Cont.
with past school violence or substantial disruption. For example, in West v. Derby
Unified School District, 206 F.3d 1358 (10th Cir. 2000), we upheld a school policy
prohibiting students from displaying the Confederate flag, finding the school reasonably
forecasted substantial disruption due to past racial tension in the school context
associated with that image. Id. at 1365. See also Defoe v. Spiva, 625 F.3d 324 (6th Cir.
2010) (upholding school’s ban on Confederate flag); BWA v. Farmington R-7 Sch. Dist.,
554 F.3d 734, 738-41 (8th Cir. 2009) (same); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008)
(same). Cf. Sypniewski v. Warren Hills Regional Bd. of Educ., 307 F.3d 243, 262 (3d
Cir. 2002) (rejecting school’s ban on t-shirt featuring comedian Jeff Foxworthy based on
a finding that the word “redneck” was not associated closely enough with a racial gang at
the school known as the “Hicks”).
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the result) (referring to Cohen v. California, 403 U.S. 15 (1971), in which the Supreme
Court found an adult plaintiff had a First Amendment right to wear a jacket bearing
profanity regarding the military draft in a courthouse)); see e.g., West v. Derby Unified
Sch. Dist. No. 260, 206 F.3d 1358, 1366 (10th Cir. 2000) (upholding school’s ban on
displaying a Confederate flag).
b. Tinker Applied to the Fetus Doll Distribution
Plaintiffs’ distribution conveyed a political and religious message and would likely
merit First Amendment protection outside the school context. Inside the school walls,
however, we must consider whether the expression was, or was reasonably forecast to be,
disruptive. Unlike in Tinker, the expression here was neither silent nor passive. It
involved proactive contact with large numbers of other students. The items being
distributed remained on school grounds in the hands of students throughout the school
day. The sheer number of items also created strong potential for substantial disruption.
Furthermore, these fetus dolls were made of rubber—a material that could easily
be, and was, pulled apart, bounced against walls, and stuck to ceilings. The dolls’ small
size made them tempting projectiles and toilet-clogging devices. This scenario carries
more potential for disruption than the passive, silent act of wearing a t-shirt or a black
armband. And that potential quickly came to fruition. The record is replete with reports
of doll-related disruptions throughout the day on January 29, 2010, including substantial
disruptions to classroom instruction, damage to school property (the ceilings and
plumbing), and risks to student safety (the fire-starting and doll-throwing).
-21-
Plaintiffs note that most disruptions occurred only because of wrongful behavior
of third parties and that no Plaintiffs participated in these activities. They argue that
preventing their speech because of bad acts of others amounts to banning leafleting
because of litterbugs. See Jews for Jesus v. Mass. Bay Transp. Auth., 984 F.2d 1319,
1324-25 (1st Cir. 1993). This argument might be effective outside the school context, but
it ignores the “special characteristics of the school environment,” Tinker, 393 U.S. at 506,
where the government has a compelling interest in protecting the educational mission of
the school and ensuring student safety. See Morse, 551 U.S. at 406-07; Fraser, 478 U.S.
at 682; New Jersey v. T.L.O., 469 U.S. 325, 340 (1985); PeTA v. Rasmussen, 298 F.3d
1198, 1205 (10th Cir. 2002).11
Plaintiffs also argue that the magistrate judge ignored disputes of material fact
regarding the District’s reasons for shutting down the distribution. They stress Assistant
Principal Luck’s statement to Plaintiffs at the time he confiscated the fetus dolls: “It’s
time to shut this down . . . Some people are getting offended.” Aplt. Appx., Vol. IV at
11
Plaintiffs do not cite (and we have not found) case law holding that school
officials’ ability to limit disruptive expression depends on the blameworthiness of the
speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its
learning environment and its students, and courts generally inquire only whether the
potential for substantial disruption is genuine. For example, in West, we upheld a
school’s ban on the Confederate flag because the flag was associated with racial violence
in the school environment, but we did not examine whether the student who had
displayed the flag was actually advocating violence. 206 F.3d at 1365. Moreover, there
is no indication in this case that the problematic student disruptions were aimed at
stopping plaintiffs’ expression, and plaintiffs did not otherwise develop such an
argument.
-22-
996. They urge us to infer from this that Mr. Luck chose to stop the distribution solely
because he was personally offended, or was worried that others would be offended, by
Plaintiffs’ religious, anti-abortion message. The District says Mr. Luck was referring to
the non-Relentless students’ dismemberment and throwing of the dolls, which he and
other students found offensive. Plaintiffs reject this explanation, describing Mr. Luck’s
testimony about the hallway disruptions and the students’ complaints as incredible.
We agree that Mr. Luck’s statement lacked specificity, but we are not convinced
Plaintiffs’ inference is reasonable. Plaintiffs provide no evidence to dispute Mr. Luck’s
deposition testimony about the hallway disruptions or the complaints of the two female
students. We see no reason to discount this testimony. Viewing evidence in light most
favorable to Plaintiffs does not extend to ignoring undisputed evidence that undermines
their position.
Even if we accepted Plaintiffs’ interpretation of Mr. Luck’s statement, this claim
would still fail. To survive summary judgment, a disputed fact must be material. Fed. R.
Civ. P. 56(a). In assessing materiality, “[w]e are obligated to examine the record as a
whole . . . and evaluate what the school actually did, as opposed to carving out an isolated
statement from the record.” Fleming v. Jefferson Cnty. Sch. Dist., 298 F.3d 918, 931
(10th Cir. 2002). Any dispute as to the exact meaning of Mr. Luck’s statement is not
material when viewed against the whole record.
Plaintiffs argue that the District’s decision to stop the distribution was unjustified
because the fetus dolls were confiscated before any substantial disruption had occurred.
-23-
But the District was not obligated to wait until a substantial disruption materialized, so
long as its forecast was reasonable. The substantial disruptions that actually transpired
show the forecast was reasonable.
Finally, even if Mr. Luck initially stopped the distribution for impermissible
reasons, Plaintiffs could not defeat summary judgment. At Roswell High, the dolls were
not confiscated until security guards had observed actual disruptions. As for Goddard
High, Plaintiffs’ reading of Mr. Luck’s statement shows at most that the school’s decision
to stop the distribution was unjustified for some short period of time—likely a few
minutes, but no more than one or two hours. Because Plaintiffs seek only injunctive
relief, any claim they could have under this fact interpretation became moot once actual
substantial disruptions occurred.
In short, there is ample undisputed evidence that the District had permissible
reasons for stopping the distribution. Plaintiffs’ free speech rights were therefore not
violated.
C. Facial Challenge to the District’s Preapproval Policies
A facial challenge involves “an examination of whether the terms of the [policy]
itself measured against the relevant constitutional doctrine, and independent of the
constitutionality of particular applications, contain a constitutional infirmity that
invalidates the [policy] in its entirety.” Doe v. City of Albuquerque, 667 F.3d 1111, 1127
(10th Cir. 2012) (quotations omitted).
-24-
Plaintiffs assert that District policies are unconstitutional on their face as prior
restraints and for reasons of vagueness and overbreadth. We begin our analysis by
defining the scope of our review, which is limited to considering Plaintiffs’ prior restraint
and vagueness arguments as applied to relevant portions of Policy 5195. We next
consider Plaintiffs’ prior restraint argument. Finally, we address vagueness.
1. Scope of Plaintiffs’ Facial Challenge
As a preliminary matter, we must consider the scope of Plaintiffs’ facial challenge.
For reasons we discuss below, our review is limited in two ways. First, the only District
policy properly before us is the portion of Policy 5195 relevant to Plaintiffs’ desired
speech. This includes Policy 5195’s preapproval requirement and accompanying
procedural safeguards, together with the substantive restriction included in subsection
2.a. Second, because Plaintiffs have not adequately developed an overbreadth argument,
our review is limited to their prior restraint and vagueness arguments.
a. Policies Included in Our Facial Review
Plaintiffs attempt a facial attack on every District policy that could potentially
govern student speech, including all of Policy 5195, Policy 7110, and the unwritten
standard practice that preceded Policy 5195. This sweeping scope of review would be
excessive. “Facial challenges are strong medicine, and thus we must be vigilant in
applying a most exacting analysis to such claims.” Doctor John’s, Inc. v. City of Roy,
465 F.3d 1150, 1157 (10th Cir. 2006) (considering facial challenge on prior restraint and
vagueness grounds).
-25-
“Facial challenges are disfavored for several reasons” including the risk of
“premature interpretation” because such challenges “often rest on speculation.” Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) (upholding a
state election law over political party’s facial challenge that the law violated its
constitutional right to free association). Additionally, broad facial challenges “run
contrary to the fundamental principle of judicial restraint that courts should neither
anticipate a question of constitutional law in advance of the necessity of deciding it nor
formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied.” Id. (quotations omitted). Plaintiffs do not cite, and we have
not encountered, binding or persuasive case law allowing, much less requiring, a court to
entertain expansive facial challenges to whole collections of laws or policies like the
challenge they attempt here.
We therefore decline to perform such a sweeping review. Our inquiry concerns
those portions of the District’s policies that pertain to the particular speech in which
Plaintiffs wish to engage. Formal adoption of Policy 5195 subsumed the unwritten
standard practice, rendering it moot with respect to our facial analysis.12 For similar
reasons, we do not consider the facial constitutionality of Policy 7110. Although the
record indicates that, before the adoption of Policy 5195, some school officials believed
Policy 7110 applied to the rubber fetus distribution, the promulgation of Policy 5195, if
12
Policy 5195 was promulgated largely in response to the rubber fetus
controversy.
-26-
upheld here, renders Policy 7110 immaterial to future student distributions like those
Plaintiffs wish to conduct.
Finally, our facial review includes only relevant portions of Policy 5195. The
District refused permission for the rubber fetus distribution because it believed the
distribution was disruptive. This justification is covered by subsection 2.a., which allows
school officials to restrict any distribution that “[w]ould cause a substantial disruption or
a material interference with the normal operation of the school or school activities.”
Aplt. Appx., Vol. I at 186. Other bases for restriction covered by subsections 2.b through
2.f—for example, because the material is obscene or illegal, are irrelevant here.
Our review is therefore limited to the Policy 5195’s preapproval requirement and
accompanying procedural safeguards, together with the substantive Tinker restriction in
subsection 2.a.13
13
The question of which policies are relevant to Plaintiffs’ desired speech (and are
therefore appropriately included in our review) should not be confused with the idea of
prudential or third-party standing. Generally speaking, “a person to whom a [policy] may
constitutionally be applied will not be heard to challenge that [policy] on the ground that
it may conceivably be applied unconstitutionally to others . . .” Broadrick v. Oklahoma,
413 U.S. 601, 610 (1973). But “within the context of the First Amendment,” courts have
recognized “a lessening of prudential limitations on standing,” which allows a plaintiff to
facially challenge a law or policy even if the plaintiff’s own expression is not
constitutionally protected. ACORN v. City of Tulsa, 835 F.2d 735, 738 (10th Cir. 1987).
This is known as an overbreadth challenge, which, as we explain below, has not been
adequately raised and argued in this appeal. See Broadrick, 413 U.S. at 610.
-27-
b. Arguments Included in Our Facial Review
Plaintiffs assert that the District’s policy is facially unconstitutional as a prior
restraint and for reasons of vagueness and overbreadth. Although they develop prior
restraint and vagueness arguments by addressing the legal standards and case law specific
to these theories, they fail to do the same for overbreadth.
The overbreadth doctrine is an alternative facial challenge theory similar to, but
distinct from, vagueness. See Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005) (“The
Supreme Court has traditionally viewed vagueness and overbreadth as logically related
and similar doctrines.” (quotations omitted)); see also Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497-98 (1982); West, 206 F.3d at 1367-68.
A law or policy “may be invalidated as overbroad if a substantial number of its
applications are unconstitutional, judged in relation to the statute's plainly legitimate
sweep.” United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (quotations omitted).
Although Plaintiffs make several conclusory statements that the District’s policy is
overbroad, they do not address—or even acknowledge—the legal standard for
overbreadth. Nor do they explain why they believe the policy is overbroad.14
14
Although we do not consider overbreadth, it is unlikely such a theory would
succeed. To prevail on an overbreadth theory, a plaintiff must show that a challenged
policy prohibits a “broad range of protected conduct,” and there must be “a realistic
danger that the [policy] itself will significantly compromise recognized First Amendment
protections of parties not before the Court.” City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 796, 800-01 (1984). “The possibility of an impermissible
Continued . . .
-28-
“[W]e routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant's opening brief.” Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007). Our review of Plaintiffs’ facial challenge is therefore
limited to their prior restraint and vagueness arguments.
2. Policy 5195 is Not an Unconstitutional Prior Restraint
The magistrate judge upheld the preapproval requirement because it sets
reasonable limits on student speech and has adequate procedural safeguards. We agree.
We note at the outset that Policy 5195’s preapproval requirement does not affect
all private student expression. It does not apply to spoken communication. For example,
the policy does not require Relentless students to seek preapproval for many of the
expressive activities in which they routinely engage on school grounds, such as sharing
their religious and anti-abortion views with other students or praying silently and out loud
on school grounds and in the classroom.
The preapproval requirement also does not affect symbolic expression. Students
are not required, for example, to obtain permission before wearing black armbands,
______________________________________
Cont.
application of a [policy] does not in itself mean the [policy] is substantially overbroad.”
ACORN, 835 F.2d at 744.
As we will explain, the substantive restriction at issue, subsection 2.a, restates the
Tinker standard. Tinker represents the most speech-protective standard articulated by the
Supreme Court in school speech cases. See Morse, 551 U.S. at 417-419 (Thomas, J.,
concurring). It is doubtful that Plaintiffs could demonstrate that a majority of
applications of the Tinker standard would be unconstitutional.
-29-
carrying or displaying signs or posters, engaging in silent or non-silent protests, or
circulating a petition. There may be circumstances under which school officials could,
subject to Tinker’s limitations, constitutionally restrict these expressive activities during
or after the fact, but the preapproval requirement does not apply.
The only type of expressive activity for which students must seek preapproval is
the distribution of non-school-sponsored materials, and even then preapproval is required
only if students intend to distribute more than 10 items on school grounds.
We begin our analysis of Plaintiffs’ prior restraint argument by explaining where
the preapproval requirement fits in a prior restraint analysis. We then analyze the policy,
concluding that it is constitutionally permissible in light of its procedural protections, its
substantive standard, and the special context of the school environment.
a. What Is a Prior Restraint?
Generally, a “prior restraint” restricts speech in advance on the basis of content
and carries a presumption of unconstitutionality. See R.A.V. v. City of St. Paul, 505 U.S.
377, 382-83 (1992); Erwin Chemerinsky, Constitutional Law: Principles and Policies
978-79 (4th ed. 2011); see also United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005)
(“A prior restraint on speech is a law, regulation or judicial order that suppresses speech .
. . on the basis of the speech’s content and in advance of its actual expression.”) (citing
Alexander v. United States, 509 U.S. 544, 550 (1993)). Prior restraints generally take one
of two classic forms: judicial injunctions and administrative licensing schemes. See
Chemerinsky, supra, at 978-79.
-30-
A judicial injunction is usually a court order forbidding specific speakers from
specific expression. A well-known example comes from Nebraska Press Association v.
Stuart, 427 U.S. 539 (1976), where the Supreme Court held unconstitutional a state court
injunction preventing the media from publishing certain information about a preliminary
hearing in an ongoing murder prosecution. Id. at 561.
In contrast, an administrative licensing scheme does not usually target a particular
speaker or instance of speech. Rather, it requires a speaker to obtain approval before
engaging in certain forms of speech in a given forum, sometimes based on the volume or
scale of the intended speech. A typical example comes from Forsyth County v.
Nationalist Movement, 505 U.S. 123, 130 (1992), in which a local ordinance required
citizens to obtain a permit before holding a parade or assembly on public property. Id.In the present case, the District’s preapproval requirement resembles an
administrative licensing scheme because it requires preapproval for student speech that is
non-school-related and involves distribution of more than 10 items of literature on school
grounds.
Licensing restrictions that are content neutral and restrict only the time, place, and
manner of speech are not subjected to the most rigorous prior restraint scrutiny. See, e.g.,
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (upholding licensing restriction on
sound amplification in city park as a content neutral time, place, and manner restriction
-31-
without applying prior restraint analysis).15 The District’s preapproval requirement
appears to be content neutral on its face. But although it includes content neutral time,
place, and manner restrictions, it allows officials to use discretion in deciding whether to
allow speech, and nothing in the policy prevents officials from considering the subject
matter of the speech when predicting whether it will cause substantial disruption. See
Forsyth Cnty., 505 U.S. at 134 (“Listeners’ reaction to speech is not a content-neutral
basis for regulation.”). This element of discretion calls for prior restraint scrutiny. See
id. at 130.
b. The Preapproval Requirement Is Valid
Administrative pre-approval prior restraints can survive First Amendment review
only when they meet very high standards established by the Supreme Court. Two
considerations save the pertinent portions of Policy 5195 from facial constitutional attack.
First, the policy contains procedural safeguards, including the opportunity to bring two
15
A policy is content neutral if its restrictions do not hinge on either the viewpoint
or the subject manner of the speech. Hill v. Colorado, 530 U.S. 703, 723 (2000); see
R.A.V., 505 U.S. at 391 (example of a viewpoint restriction in the form of an ordinance
prohibiting expression of racist messages while allowing speech in favor of racial
tolerance and equality); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S.
530, 532 (1980) (example of a subject matter restriction in the form of a statute
prohibiting utility companies from discussing controversial issues of public policy in
inserts included in customer bills). Subject matter regulation is “not as obnoxious as
viewpoint-based regulation,” but either form of content regulation raises constitutional
concerns. Hill, 530 U.S. at 723.
Content-neutral “time, place, and manner” restrictions must be narrowly tailored
to serve a significant government interest and must leave open ample alternative channels
for communication. Id. at 725-26.
-32-
appeals. Second, the policy imposes substantive constraints on official discretion that are
constitutionally sufficient in the special context of a public school, where students enjoy
free speech rights but not to the same extent as they would in the public square.
Additionally, we note that our conclusion is consistent with the trend of decisions of our
sibling circuits on this issue.
i. Procedural Safeguards
In non-school settings, an administrative licensing process can overcome the
presumption of unconstitutionality only if it contains “procedural safeguards designed to
obviate the dangers of a censorship system,” i.e., content discrimination. City of Littleton
v. Z.J. Gifts D-4, 541 U.S. 774, 779 (10th Cir. 2004) (quoting Freedman v. State of
Maryland, 380 U.S. 51, 58 (1964)); see also Hill v. Colorado, 530 U.S. 703, 723 (2000)
(discussing the dangers of content discrimination, which includes both viewpoint and
subject matter discrimination).
The Supreme Court first emphasized the importance of procedural safeguards in
Freedman v. State of Maryland, where it considered a challenge to a statute requiring a
film to receive advanced approval before public screening. 380 U.S. at 52. The statute
included no provision to ensure applicants would receive a timely decision from the
“censorship board,” and it made the board’s decision final with no option to appeal a
denial without undertaking a time-consuming lawsuit. Id. at 54. The Court rejected the
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statute because it contained no “procedural safeguards designed to obviate the dangers of
a censorship system.” Id. at 58.16
Several decades later, the Court decided Forsyth County v. Nationalist Movement,
which involved a licensing scheme that regulated use of public property for expressive
activity. 505 U.S. at 133. A county ordinance allowed officials to vary the fee imposed
for a parade or assembly permit based on the estimated cost for law enforcement at the
event. Id. The Court overturned the ordinance because it lacked procedural safeguards to
prevent viewpoint discrimination: the ordinance did not require officials to explain their
decisions or to render a decision in any particular timeframe, and it provided no process
for appealing an adverse decision. Id. The ordinance also lacked criteria to guide official
discretion and prevent arbitrary decision making. Id. at 133-34.
In short, “[n]othing in the [Forsyth County] law or its application prevent[ed] the
official from encouraging some views and discouraging others.” Id.; see Nationalist
Movement v. City of New York, 481 F.3d 178, 185-86 (3d Cir. 2007) (upholding non-
discretionary permit application fee but striking down provision requiring applicants to
provide security deposit for potential damage to city property with amount set based on
content of planned speech); see also Thomas v. Chicago Park Dist., 534 U.S. 316 (2002).
16
The Freedman Court held that the censorship statute must include three
procedural safeguards: (1) “[a]ny restraint imposed in advance of a final judicial
determination on the merits must . . . be limited to preservation of the status quo,” 380
U.S. at 59; (2) “the procedure must . . . assure a prompt final judicial decision,” id.; and
(3) the government must carry burden of proving that the expression at issue is
unprotected, id. at 58.
-34-
This circuit has similarly relied on the Forsyth County procedural standards—explanation
of decisions, timeframe restrictions, and appeals process—in reviewing challenged
licensing schemes. See Doctor John’s, 465 F.3d at 1162 (upholding a licensing scheme
in part because it satisfied procedural safeguards outlined in Forsyth County).
Our careful review of Policy 5195 convinces us that the policy contains adequate
procedural safeguards consistent with what Forsyth County requires. For example, the
policy ensures prompt and transparent decision making, requiring officials to approve or
deny a student’s request within five school days and to provide written explanation of any
denial. Students are entitled to appeal an unfavorable decision, first to Superintendent
Gottlieb and then to the Board of Education, which must provide a hearing within 10
school days and provide a decision at its next regular meeting. These safeguards are
designed to prevent viewpoint discrimination in the vast majority of circumstances.
In short, we find the policy contains adequate procedural safeguards to pass
constitutional muster.
ii. Substantive Constraints on Discretion in the School Context
Neither the Supreme Court nor this court has specifically addressed the
constitutionality of preapproval requirements in the school context. Our review of the
District’s policy is guided by general First Amendment case law, which requires
substantive constraints to limit official discretion to “obviate the dangers of . . .
censorship.” Freedman, 380 U.S. at 58. But we must account for the Supreme Court’s
clear direction that students’ “First Amendment rights [are] circumscribed ‘in light of the
-35-
special characteristics of the school environment.’” Morse, 551 U.S. at 405 (quoting
Tinker, 393 U.S. at 506).
Outside the school context, preapproval requirements that permit broad official
discretion—for example, in the issuance of a parade or assembly permit—often run afoul
of the First Amendment. See, e.g., NAACP v. Button, 371 U.S. 415, 433 (1963)
(“Because First Amendment freedoms need breathing space to survive, government may
regulate in the area only with narrow specificity.”). But in the school context officials
may use more discretion in addressing student speech. “If the schools are to perform
their traditional function of ‘inculcat[ing] the habits and manners of civility,’ they must
be allowed the space and discretion to deal with the nuances. The touchstone is
reasonableness.” Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1543
(7th Cir. 1996) (citation omitted) (quoting Fraser, 478 U.S. at 681). “[S]chools may
regulate some speech ‘even though the government could not censor similar speech
outside the school.’” Morse, 551 U.S. at 406 (quoting Hazelwood, 484 U.S. at 266).17
We are constrained by the Court’s instructions in this area.
17
Even outside the First Amendment arena, the Court has emphasized that
“special needs inhere in the public school context.” Bd. of Educ. of Indep. Sch. Dist. No.
92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 829 (2002) (quotations omitted)
(addressing Fourth Amendment issue). Students’ constitutional rights under the First,
Fourth, and Fourteenth Amendments are therefore “different in public schools than
elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and
tutelary responsibility for children.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656
(1995).
-36-
Turning to Roswell District’s Policy 5195, Section 2 constrains official discretion
by providing a finite list of grounds on which officials may refuse approval for a student
distribution. These “articulated standards” serve to prevent “censorship through
uncontrolled discretion.” Forsyth Cnty., 505 U.S. at 133. As we explained above, the
portion of section 2 that is relevant to Plaintiffs’ facial challenge is subsection 2.a, which
allows the school to disallow a student distribution if the distribution “[w]ould cause a
substantial disruption or a material interference with the normal operation of the school
or school activities.” Aplt. Appx., Vol. I at 186. The policy language mirrors the Tinker
standard. See 393 U.S. at 505-06. Our earlier analysis of Plaintiffs’ as-applied First
Amendment challenge employed the Tinker standard to review the District’s decision to
stop a distribution that was under way. Here, the language of subsection 2.a incorporates
that standard to cabin official discretion and guide decision makers in determining
whether a particular distribution should be allowed. See Forsyth Cnty., 505 U.S. at 133.
Plaintiffs assert that subsection 2.a is subjective and argue that it therefore does
not limit official discretion or prevent arbitrary decision making. But Plaintiffs’
argument ignores that this part of the policy embodies the Tinker standard, which
evaluates the exercise of school discretion based on objective reasonableness. See
Tinker, 393 U.S. at 514. The inclusion of the Tinker standard in subsection 2.a instructs
decision makers that distributions should not be prohibited unless they would
substantially disrupt or materially interfere with school operations or activities. In other
words, minor or immaterial disruptions do not justify withholding approval.
-37-
Moreover, we note that in Tinker itself, the action under review was a form of
prior restraint. Two days before the students planned to wear the armbands to school to
protest the war in Vietnam, the school principals “met and adopted a policy that any
student wearing an armband to school would be asked to remove it, and if he refused
would be suspended until he returned without the armband.” 393 U.S. at 504. When the
students arrived at school wearing the armbands, the school sent them home and
suspended them “until they would come back without their armbands.” Id. The school
officials suppressed the students’ speech for the most part before it occurred, which fits
the general definition of prior restraint.
The Supreme Court in Tinker held that the school could not take such action in the
absence of “facts which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school activities.” Id. at 514. The
Court thereby articulated a standard that the school could use to restrict, in advance,
student speech that could be reasonably forecast to cause substantial disruption. That is
what the District’s policy does here.
We therefore conclude, based on Tinker and its progeny, that the policy constrains
official discretion sufficiently for the school context. We emphasize, however, that
district officials must take care to apply the policy in a viewpoint-neutral manner to avoid
its unconstitutional application. In particular, we note the District’s procedural
requirement that a school must provide a written statement of its reasons for denying
permission for a particular distribution. In stating such reasons, officials must do more
-38-
than simply parrot the Tinker-based policy language. They must provide a fact-based
explanation for why officials reasonably forecast that a particular distribution will cause a
substantial disruption. See Tinker, 393 U.S. at 513 (“[T]he prohibition of expression of
one particular opinion, at least without evidence that it is necessary to avoid material and
substantial interference with schoolwork or discipline, is not constitutionally
permissible.”); Nebraska Press, 427 U.S. at 565 (reviewing a judicial injunction and
discussing the importance of making clear, fact-based findings to support the need for
prior restraint of speech).
iii. Other Circuits’ Decisions on School Preapproval Policies
The foregoing conclusion finds support in the decisions of other circuits that have
considered school preapproval policies. Our review of these cases serves to place the
present case in context and to demonstrate that our decision fits comfortably in the trend
of decisions in this area. Nearly all circuits that have addressed this issue have concluded
that the First Amendment permits school preapproval policies in some form. Although
courts have not taken a uniform approach in analyzing particular policies, the clear trend
is one of upholding policies that contain adequate procedural safeguards and place
reasonable limits on official discretion.
We discuss our sibling circuit decisions in two groups, beginning with early
decisions issued in the decade immediately after the Supreme Court’s decision in Tinker,
followed by a review of more recent cases.
Shortly after Tinker, the Second, Fourth, and Fifth Circuits concluded that schools
-39-
could require students to submit student-authored literature for approval before
distributing it on a school campus. “[T]here is nothing per se unreasonable about
requiring a high school student to submit written material to school authorities prior to
distribution.” Sullivan v. Houston Indep. Sch. Dist., 475 F.2d 1071 (5th Cir. 1973).
“[S]chool authorities may exercise reasonable prior restraint upon the exercise of
students’ first amendment rights,” but any policy “must contain precise criteria
sufficiently spelling out what is forbidden,” and must provide for “[p]rompt approval or
disapproval . . . [;] [s]pecification of the effect of failure to act promptly; and . . . [a]n
adequate and prompt appeals procedure.” Nitzberg v. Parks, 525 F.2d 378, 382 (4th Cir.
1975) (quotations omitted); see also Eisner v. Stamford Bd. of Educ., 440 F.2d 803, 806-
07 (2d Cir. 1971) (analyzing whether public school setting is an “exceptional case” under
Near v. Minnesota, 283 U.S. 697 (1931), and concluding that a school preapproval policy
was constitutionally permissible).
Although these courts concluded that school preapproval policies were
constitutionally permissible as a general matter, they rejected specific policies that lacked
procedural safeguards and/or failed to set substantive limits on official discretion. See
Nitzberg, 525 F.2d at 383-84; Baughman v. Freienmuth, 478 F.2d 1345, 1351 (4th Cir.
1973); Quarterman v. Byrd, 453 F.2d 54, 60 (4th Cir. 1971); Eisner, 440 F.2d at 810; see
also Riseman v. Sch. Comm. of City of Quincy, 439 F.2d 148, 149-50 (1st Cir. 1971)
(rejecting preapproval policy that was vague, overbroad, and did not “reflect any effort to
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minimize the adverse effect of prior restraint”).18
These early cases’ insistence that school preapproval policies be clearly defined
and contain adequate procedural safeguards remains relevant to our analysis. As we have
already discussed, the District policy at issue in the present case contains the necessary
procedural safeguards lacking in the policies rejected in cases like Eisner and Nitzberg.
But other aspects of these early cases are time bound. They were decided without
the benefit of the more recent Supreme Court guidance we rely on in this case. In
particular, the Fourth Circuit in Nitzberg rejected a provision authorizing officials to ban
any distribution that would “reasonably lead the principal to forecast substantial
disruption of or material interference with school activities.” 525 F.2d at 383. The
Nitzberg court recognized that this language was drawn from Tinker, but nevertheless
found it vague and overbroad as a preapproval standard. Id. Drawing on current
Supreme Court law that was unavailable to the Fourth Circuit in 1975, we uphold
language in the Roswell District policy that is similar to the Tinker-based language
rejected by Nitzberg. Our conclusion differs from that in Nitzberg for two reasons.19
18
The Fifth Circuit’s decision in Sullivan is an example of a policy that met
constitutional muster. The Sullivan court upheld a school preapproval policy after
concluding that it contained reasonable and good faith protections. 475 F.2d at 1076.
The policy established time frames for official review, specific provisions governing
disciplinary procedures, and an appeals process. Id. at 1073-74. It allowed the school to
withhold permission only in specific circumstances, for example, if the publication was
libelous or obscene or advocated violation of laws or school rules. Id. at 1073.
19
In addition to the reasons discussed here, we also note that the Nitzberg court
failed to recognize that, as discussed previously, the school actions in Tinker were taken
Continued . . .
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First, Nitzberg labeled the policy at issue as vague and overbroad without defining
the legal standards it was applying to those terms or providing further analysis. Id.20 In
1992, Forsyth provided a clear analytical framework for preapproval policies that is
distinct from issues of vagueness. The relevant part of this analytical framework requires
us to ask whether the policy provides sufficient guidance to decision makers to prevent
“censorship through uncontrolled discretion.” Forsyth, 505 U.S. at 123.
Second, and perhaps even more important, as we have already explained, the
Supreme Court’s post-Tinker school speech cases grant school officials more discretion
in restricting student speech than would be permitted outside the school context. See
Morse, 551 U.S. at 405-06; Fraser, 478 U.S. at 682; see also Muller, 98 F.3d at 1543.
More recent circuit court decisions, including our decision today, have recognized this.21
We now turn to the second, more recent, group of circuit cases addressing school
preapproval policies. In the past three decades, the school preapproval policies
considered in circuit decisions have for the most part contained procedural safeguards
and decision making criteria. As a result, circuits have generally upheld the challenged
______________________________________
Cont.
pursuant to a school policy and the Tinker Court articulated the substantial disruption
standard as a guide for officials in deciding whether to allow student speech to proceed.
20
We address the issue of vagueness as applied to the Roswell District policy in
the next section of this opinion.
21
“In more recent years [since Tinker], however, the Court has been much less
protective of speech in school environment and much more deferential to school
authorities.” Chemerinsky, supra, at 1194.
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policies they considered.
The Eighth Circuit upheld a high school’s preapproval policy in Bystrom ex rel.
Bystrom v. Fridley High School, Indep. Sch. Dist. No. 14, 822 F.2d 747 (8th Cir. 1987),
rejecting “the view that prior restraints are per se unconstitutional in the high-school
context.” Id. at 750. The Bystrom court specifically upheld a provision in the policy that
was “intended to codify the rule of Tinker.” Id. at 754. The provision allowed the school
to restrict speech on the basis that it could “cause a material and substantial disruption to
the proper and orderly operation and discipline of the school,” so long as there were
“specific facts upon which the likelihood of disruption [could] be forecasted.” Id. at 754.
The Seventh Circuit upheld preapproval policies in two cases. In Muller ex rel.
Muller v. Jefferson Lighthouse School, it upheld a preapproval policy at an elementary
school, concluding the policy contained “adequate procedural safeguards.” 98 F.3d at
1541.22 In Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295(7th Cir. 1993), the same court considered a junior high school preapproval policy that
allowed school officials to restrict materials if they were deemed obscene or libelous,
would invade the privacy of others, or would “cause substantial disruption of the proper
and orderly operation of the school.” Id. at 1296. The policy also banned outright any
distribution of religious materials. Id. The court overturned the blanket restriction on
22
The Muller court declined to apply Tinker, relying instead on Hazelwood,
because the policy at issue was in an elementary school. The court reasoned that the
“marketplace of ideas” theme reflected in Tinker was “less appropriate” in an elementary
school of “five through thirteen-year-olds.” Id. at 1538.
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religious materials, but upheld the remainder of the policy and its preapproval
requirement. Id. at 1297-1303.23
Most recently, the Sixth Circuit upheld a policy strikingly similar to Policy 5195.
M.A.L. ex rel. M.L. v. Kinsland, 543 F.3d 841 (6th Cir. 2008). Like the Roswell District
policy, the Kinsland policy required students to submit materials to school officials in
advance and allowed the school to designate the time, place, and manner of distribution.
Id. at 845. The Kinsland policy contained procedural safeguards similar to the Roswell
policy. It designated strict time frames for official decision, required written explanation
for any denial, and guaranteed students at least two appeals. Id. at 844-45. Additionally,
like the Roswell District policy, the Kinsland policy allowed a school to deny approval if
the principal “reasonably determine[d]” that it “[w]ould cause a substantial disruption of
or a material interference with the normal operation of the school or school activities.”
23
Muller and Hedges implicitly reversed the Seventh Circuit’s previous position
in Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir. 1972), which rejected school
preapproval policies as an unconstitutional prior restraint. Id. at 1557-59. Neither Muller
nor Hedges mentioned Fujishima, but other cases and courts have noted the shift. E.g.,
Wernsing v. Thompson, 423 F.3d 732, 748 (7th Cir. 2005) (acknowledging inconsistency
between Muller and Fujishima); Harless v. Darr, 937 F. Supp. 1339, 1344-45 (S.D. Ind.
1996) (questioning the continued validity of Fujishima given subsequent Supreme Court
and Seventh Circuit case law); Hedges ex rel. Hedges v. Wauconda Cmty. Unit Sch. Dist.
No. 118, 807 F. Supp. 444, 457 n.14 (N.D. Ill. 1992) (noting that the Seventh Circuit has
departed from Fujishima’s analytical framework), rev’d on other grounds by Hedges, 9
F.3d at 1303; see also Pounds v. Katy Indep. Sch. Dist., 517 F. Supp. 2d 901, 918 (S.D.
Texas 2007) (noting that the Seventh Circuit allows prior-review requirements in schools
under Muller without mention of Fujishima).
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Id. at 845.24
We are aware of only one circuit opinion in the past three decades to reject a
school preapproval policy. In Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988), high
school students distributed copies of a non-school-sponsored student newspaper at a
school-sponsored barbecue on school grounds. Id. at 1150. They were reprimanded for
not seeking preapproval for the distribution, as required by school policy. Id. at 1150-51.
Although the newspaper was “generally critical of school administration policies,” the
principal did not find any content objectionable or any problem with the manner of the
distribution. Id. at 1150-51.
Among other things, the policy allowed the school to ban materials based on
evidence that would reasonably support “a judgment that significant or substantial
disruption of the normal operation of the school” could result. Id. at 1151. The policy
provided certain types of expression could be considered evidence of potential disruption,
including material criticizing school officials. Id. The school “admitted that if the
students had submitted [the newspaper] for prior review, [the school] would have allowed
distribution without change.” Id. Finding itself “confronted with a unique and ironic
situation in which a school . . . punished students for distribution of material which both
24
Our analysis differs from that in Kinsland because the Sixth Circuit applied
Hazelwood, rather than the more speech-protective Tinker standard. Id. at 847, 849. As
we explain in our discussion of the Plaintiffs’ as-applied free speech claim, the Supreme
Court recently clarified that Tinker governs claims involving private (non-school-
sponsored) student speech. See Morse, 551 U.S. at 405-06.
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sides acknowledge could not be suppressed under the first amendment,” the Ninth Circuit
reversed the district court’s decision to dismiss the students’ First Amendment claim. Id.
at 1151-52. The opinion states that the policy was based on “undifferentiated fears,” id.
at 1159, and concludes that “a policy which subjects all non-school sponsored
communications to predistribution review . . . violates the first amendment,” id. at 1157.25
We agree that the student speech in Burch was entitled to First Amendment
protection and that portions of the policy were probably unconstitutional on their face,
such as the provision making criticism of school officials a ground on which to deny
permission for distribution. But Burch’s broad statement suggesting that no preapproval
policy could pass constitutional muster runs counter to every school speech case we have
cited in this opinion. It is even difficult to square with the Supreme Court’s rulings
concerning licensing schemes outside the school context. Moreover, Burch’s persuasive
force is diminished after 25 years of Supreme Court and various circuit court school
speech decisions upholding school officials’ discretion to maintain a nondisruptive school
environment. For these reasons, we do not find Burch persuasive and do not follow it
here.
25
Parts of the Burch opinion read like an analysis of an as-applied challenge to the
policy, for example, by stating, “[t]here was no evidence that [the newspaper] had
interfered with the operation of the high school or impinged upon other students’ rights.”
861 F.2d at 1151. Yet the court’s conclusion seems to address a facial challenge: “There
is . . . no justification for this policy, which conditions all distribution of student writings
on school premises upon prior school approval.” Id. at 1159.
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In sum, our reading of Supreme Court case law leads us to conclude, along with a
majority of our sibling circuits, that a school may enact a preapproval policy subject to
the constitutional requirements we have described. The District’s policy meets these
requirements.
* * *
For these reasons, we affirm the magistrate judge’s holding that the preapproval
policy is not facially unconstitutional as a prior restraint.
3. Policy 5195 is Not Unconstitutionally Vague
The magistrate judge rejected Plaintiffs’ argument that the District’s preapproval
requirement is unconstitutionally vague. We agree.
A policy may be “impermissibly vague for either of two independent reasons.
First, if it fails to provide people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits. Second, if it authorizes or even encourages
arbitrary and discriminatory enforcement.” Jordan, 425 F.3d at 824-25. Plaintiffs argue
that the policy “leave[s] students and administrators to guess at what speech is subject to
approval.” Aplt. Br. at 31. They rely primarily on Supreme Court authority requiring
narrow specificity in criminal statutes that affect First Amendment expression. E.g.,
Grayned v. City of Rockford, 408 U.S. 104 (1972); Button, 371 U.S. at 432.
But Plaintiffs’ cited cases do not concern non-criminal policies in the unique
context of public schools. See Village of Hoffman Estates, 455 U.S. at 498-99 (“The
Court has . . . expressed greater tolerance of enactments with civil rather than criminal
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penalties because the consequences of imprecision are qualitatively less severe.”); see
also Morse, 551 U.S. at 396-97 (“Constitutional rights of students in public school are
not automatically coextensive with rights of adults in other settings, and . . . the rights of
students must be applied in light of the special characteristics of the school environment.”
(quotations and citations omitted)).
Our review of the policy convinces us that a reasonable high school student of
ordinary intelligence would understand when preapproval is needed and how to go about
requesting it. See West, 206 F.3d at 1368; see also Grayned, 408 U.S. at 108 (a law must
“give the person of ordinary intelligence a reasonable opportunity to know what is
prohibited”). Policy 5195 clearly requires students to obtain approval before distributing
10 or more non-school-sponsored items on campus. It offers extensive definitions of
“distribution” and “non school sponsored literature.” The latter includes written, printed,
visual, or auditory materials that are not related to school curricula. [Id.] The policy
spells out the steps required for submitting a request.
Plaintiffs also argue that the policy is subject to “wildly divergent interpretations”
and thus invites arbitrary or discriminatory enforcement. Aplt. Br. at 37; see Jordan, 425
F.3d at 824-25. They offer no evidence of inconsistent application. Instead, they point to
deposition testimony in which different school officials offered varying opinions as to
how the policy would apply to hypothetical scenarios. But occasional differences in
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theoretical interpretation will not render a policy facially unconstitutional. See Hoffman
Estates, 455 U.S. at 497-98.26
We therefore affirm the magistrate judge’s holding that the policy is not
unconstitutionally vague.
4. Concluding Statements on Plaintiffs’ Facial Challenge
Having concluded that the District’s preapproval requirement is not facially
unconstitutional as a prior restraint or for reasons of vagueness or overbreadth, we affirm
the magistrate judge’s summary judgment order dismissing Plaintiffs’ facial challenge.
We emphasize our holding extends only to Policy 5195’s preapproval requirement and
associated procedural safeguards, and to the substantive restriction in subsection 2.a. We
make no determination regarding the constitutionality of other District policies or
provisions that do not apply to the speech in which Plaintiffs wish to engage.
We close the facial challenge discussion with a cautionary note. Although public
school officials enjoy more discretion regarding speech regulation relative to officials in
other contexts, this discretion is limited. District officials are “not at liberty to suppress
or punish speech simply because they disagree with it, or because it takes a political or
social viewpoint different from . . . that subscribed to by the majority.” Bystrom, 822
F.2d at 755. Nor is it constitutional to prevent private student speech solely out of
concern that some listeners may be offended by a controversial message. See Tinker, 393
26
Moreover, these examples mostly involved hypothetical questions about the
unwritten standard practice, now subsumed by the more detailed written Policy 5195.
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U.S. at 510. We hold only that this policy is not unconstitutional on its face. “This does
not mean that every application . . . will be valid.” Bystrom 822, F.2d at 755. The
Constitution, and not the policies alone, governs any restriction of student speech.
D. Plaintiffs’ Free Exercise Claim
“Like other provisions of the First Amendment,” the Free Exercise Clause is
“applied to the states under the Fourteenth Amendment.” Green v. Haskell Cnty. Bd. of
Comm’rs, 568 F.3d 784, 796 (10th Cir. 2009); see also Cantwell v. State of Connecticut,
310 U.S. 296, 303 (1940). The magistrate judge granted summary judgment for the
District on Plaintiffs’ free exercise claim. It found that the District’s actions were based
upon neutral rules of general applicability and were rationally related to the District’s
“reasonable and legitimate pedagogical concerns,” including, among other things,
“maintaining school security and order” and “preserving a proper educational
environment and preventing its disruption.” Aplt. Appx., Vol. IV at 1040.
“Depending on the nature of the challenged . . . government action, a free exercise
claim can prompt either strict scrutiny or rational basis review.” Axson-Flynn v. Johnson,
356 F.3d 1277, 1294 (10th Cir. 2004) (quotation omitted). Government actions that stem
from “neutral” rules of “general applicability” are subject to rational basis review, even if
the application of the neutral rule “has the incidental effect of burdening a particular
religious practice.” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531
(1993); see also Employment Division v. Smith, 494 U.S. 872, 878-881 (1990); Corder,
566 F.3d at 1232. A rule is neutral “so long as its object is something other than the
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infringement or restriction of religious practices.” Corder, 566 F.3d at 1233. Under
rational basis review, the action survives a constitutional challenge if it is at least
“rationally related to a legitimate government interest.” Id. at 1232.
On the other hand, when a government policy facially targets religion or is
established for the purpose of targeting religion, application of that policy is subject to
strict scrutiny. Corder, 566 F.3d at 1232-1233. Under strict scrutiny, the government
must prove its policy or application of that policy is narrowly tailored to accomplish a
government interest that is compelling, not merely legitimate. City of Hialeah, 508 U.S.
at 546.
Plaintiffs acknowledge that the District’s policy regarding student distributions is
facially neutral. They nevertheless argue that strict scrutiny should apply because they
allege the District stopped the distribution with the purpose of suppressing their religious
message. E.g., City of Hialeah, 508 U.S. at 533-34. They ask us to infer this from the
fact that school officials permitted non-Relentless students to distribute Valentine’s Day
cards, birthday party invitations, candy, and the like, while denying permission for their
rubber fetus distribution.
For Plaintiffs’ argument to be persuasive, the other distributions must be similar
enough in all material respects to support a conclusion that the District’s decision to stop
the distribution was based on its religious nature. Otherwise, any burden to Plaintiffs’
religious exercise is “an incidental effect” of applying a neutral rule—and is thus subject
to rational basis review. City of Hialeah, 508 U.S. at 531; Corder, 566 F.3d at 1232.
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Unfortunately for Plaintiffs’ argument, none of the non-religious distributions were
materially similar to the rubber fetus distribution, quantitatively or qualitatively. There is
no evidence anyone else attempted to distribute hundreds or thousands of items. There is
also no evidence that any of the permitted non-religious distributions caused, or presented
a potential for, substantial disruption.
Plaintiffs also argue that Mr. Luck’s statement, “It’s time to shut this down. . . .
Some people are getting offended,” Aplt. Appx., Vol. IV at 996, shows that the District
acted with the purpose of suppressing their religious exercise. As we explain in our
discussion of Plaintiffs’ as-applied free speech claim, we are not convinced that Mr.
Luck’s statement indicates that he or anyone else was offended by the religious nature of
the Plaintiff’s expression.
But even if we accept Plaintiffs’ inference with respect to this single statement, the
record viewed as a whole still does not support an inference that the District restricted
Plaintiffs’ speech because of its religious content. See Fleming, 298 F.3d at 931 (“We are
obligated to examine the record as a whole . . . as opposed to carving out an isolated
statement from the record.”). The record indicates that Mr. Luck’s involvement in
preventing the rubber fetus distribution was limited to this one early interaction. Senior
administrators at both schools and several district officials, including Superintendent
Gottlieb, made the ultimate decision to disallow the distribution. The evidence indicates
these decision makers were acting with permissible motives, especially in light of the
multiple disruptions to the educational program.
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Plaintiffs also do not explain how their allegation that the District acted with the
purpose of suppressing their religious exercise squares with how the District routinely
accommodated their religious expression in other forms that were not disruptive—for
example, their many other religious distributions and their silent and spoken prayers on
school grounds. We cannot reasonably infer from the record that the District acted with
the purpose of suppressing religious practice.
We therefore determine the District’s actions were based upon neutral rules of
general applicability, subject to rational basis review. Corder, 566 F.3d at 1232(“Neutral rules of general applicability normally do not raise free exercise concerns even
if they incidentally burden a particular religious practice or belief.”) (quoting Smith, 494
U.S. at 879). Applying rational basis, we conclude that the District’s interests justified
the incidental effect of burdening Plaintiffs’ religious exercise.
The only reasonable inference from the record is that the District disallowed the
rubber fetus dolls for the neutral reason that they were disruptive, and that it allowed the
other distributions and expressions for the neutral reason that they were not disruptive.
Efforts to avoid disruption are rationally related to the school’s interests in maintaining
discipline and protecting the educational environment. Case law makes clear these
interests are a good deal more than merely rational. Rasmussen, 298 F.3d at 1205; see
also Morse, 551 U.S. at 406-07; Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655-56
(1995).
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We therefore conclude that the District’s decisions to stop the fetus doll
distributions survive rational basis review. We affirm the magistrate judge’s dismissal of
the free exercise claim.
E. The Equal Protection Claim
The magistrate judge dismissed Plaintiffs’ equal protection claim, concluding they
had failed to show they were similarly situated to others treated differently. We agree.
The Equal Protection Clause provides that “[n]o state shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.A.
To prevail on an equal protection claim, a plaintiff must show that she was treated
differently from others who were similarly situated. Tonkovich v. Kansas Bd. of Regents,
159 F.3d 504, 532 (10th Cir. 1998) (“[I]n order to prevail on his equal protection claim,
[the plaintiff] must show that the University treated him differently than others ‘similarly
situated’. . .”); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40
(1985); Landmark Land Co. v. Buchanan, 874 F.2d 717, 722 (10th Cir. 1989). “The
Equal Protection Clause does not forbid classifications. It simply keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.”
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added).
Plaintiffs argue that they were treated differently because non-Relentless students
were permitted to distribute Valentine’s Day cards, chocolate, and stuffed animals on the
same day that they were prevented from distributing the rubber fetuses. But different
treatment is problematic only if Plaintiffs were similarly situated to the non-Relentless
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students whose distributions were allowed. As our analysis of Plaintiffs’ free exercise
claim shows, they were not similarly situated. The Valentine’s Day cards and other items
were different in kind and scale from the rubber doll distribution. No other students
attempted to distribute hundreds or thousands of items, and there is no evidence any other
distribution caused substantial disruptions.
Furthermore, the distributions most similar to the rubber fetus distribution in kind
and scale were other religiously themed distributions conducted by Plaintiffs and other
Relentless members themselves, such as the hot chocolate, affirmation rocks, wristbands,
dog tags, pencils, and Easter eggs—which the District allowed. We cannot reasonably
infer from these facts that Plaintiffs were singled out for different treatment.
Because Plaintiffs cannot demonstrate that they were similarly situated to others
who were treated differently, the equal protection claim must fail. We therefore affirm
the magistrate judge’s grant of summary judgment to the District on Plaintiffs’ equal
protection claim.
III. CONCLUSION
For the foregoing reasons, we affirm the magistrate judge’s grant of summary
judgment to the District on all claims.
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