Curry v. Saginaw

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JOEL CURRY, a minor, by and through his parents,
Plaintiff-Appellant, -
PAUL & MELANIE CURRY,
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No. 06-2439
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v. >
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Defendant-Appellee, -
IRENE HENSINER, Principal Handley School,
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Defendant. -
SAGINAW CITY SCHOOL DISTRICT,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-10143—David M. Lawson, District Judge.
Argued: September 14, 2007
Decided and Filed: January 16, 2008
Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: Jeffrey A. Shafer, ALLIANCE DEFENSE FUND, Washington, D.C., for Appellant.
Mary Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, for Appellee. ON BRIEF:
Jeffrey A. Shafer, ALLIANCE DEFENSE FUND, Washington, D.C., for Appellant. Mary
Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, for Appellee. Steven W. Fitschen,
NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for Amicus Curiae.
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OPINION
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ALAN E. NORRIS, Circuit Judge. In this appeal, we address whether an elementary school
student has a First Amendment right to promote an unsolicited religious message during an
organized curricular activity.
Plaintiff Joel Curry and his parents filed suit against the School District of Saginaw,
Michigan, and Irene Hensinger, the principal of the school Joel attended, alleging that Joel’s
constitutional rights were abridged when Principal Hensinger did not allow Joel to “sell” pipe-
cleaner candy canes if a card bearing a religious message was attached. A “sale” of goods was to
1
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occur at a three-day simulated marketplace event that existed as part of the fifth grade curriculum
at Joel’s elementary school.
The district court granted defendants’ motion for summary judgment as to all parties. It first
reasoned that no violation of Joel’s First Amendment right could be attributed to the school district.
Turning to Principal Hensinger, the court concluded that she had abridged Joel’s constitutional right
to freedom of speech, but enjoyed qualified immunity from liability because the precise contours
of that right were not clearly established.
On appeal, Plaintiff contends that the district court erred in its application of qualified
immunity to Principal Hensinger. We conclude that Principal Hensinger did not violate a
constitutional right enjoyed by Joel and we therefore affirm the district court’s grant of summary
judgment, albeit on different grounds.
I.
Joel Curry was a fifth grade student at the Handley School in Saginaw, Michigan during the
2003-2004 academic year. As part of the fifth grade curriculum, students participated in an exercise
called “Classroom City.” The event was designed to provide students a variety of learning
experiences including exposure to literature, marketing, government, civics, economics, and
mathematics. The exercise culminated in a three-day event held in the school gymnasium during
which students, using faux school currency, sold goods they had produced specifically for the event.
Lisa Sweebe, Joel’s social studies teacher, managed the exercise. In early November,
Sweebe sent out packets to students and their parents describing Classroom City and what was
expected of the students. The 2003 Classroom City was held on December 11, 12, and 16. The
guidelines for the assignment stated:
•You will need to create, market, and sell a product for the simulation Class Room
City.
•You cannot sell or use food products.
•You cannot play or sell games of chance.
•Your product must be something that is handmade.
•Materials and supplies cannot exceed $10.00 in cost.
•You can sell as many as three different products.
•You will need a sample of your product(s) to do an all school market survey. You
will receive more details from your math teacher concerning the market survey.
•Your market analysis will help you determine how much inventory you will need
to start your business.
•Remember as you prepare for your business that part of the spirit of the competition
is to have a product that stands out from all the others.
As indicated above, before a product could be approved for sale, students were required to
conduct a market survey. Participants created a prototype of their products, and a representative
sample of the student body taken from all grades was asked to indicate which products they might
be willing to purchase. During the actual three-day event, the entire student body, under the
supervision of the physical education instructor, attended Classroom City and made purchases at the
mock storefronts with the faux currency. The stores were monitored to see which students
accumulated the most money.
At the suggestion of his mother, Joel decided to make Christmas tree ornaments in the shape
of candy canes utilizing pipe cleaners and beads. Joel’s father offered to create cards to attach to the
No. 06-2439 Curry v. Saginaw City School District Page 3
ornaments explaining how the candy cane can be viewed as a symbol of Christianity. However,
when Joel submitted his ornament prototype for the market survey, he did not attach the card.
Sometime after the market survey was completed, Joel added a card to the ornaments he
planned to sell during Classroom City. It read as follows:
The Meaning of the Candy Cane
Hard candy: Reminds us that Jesus is like a “rock,” strong and dependable.
The color Red: Is for God’s love that sent Jesus to give his life for us on the cross.
The Stripes: Remind us of Jesus’ suffering–his crown of thorns, the wounds in his
hands and feet; and the cross on which he died.
Peppermint Flavor: Is like the gift of spices from the wise men.
White Candy: Stands for Jesus as the holy, sinless Son of God.
Cane: Is like a staff used by shepherds in caring for sheep. Jesus leads us and
watches over us when we Trust him.
Joel and his parents did not alert school administrators to the addition of the card.
Joel was paired for the exercise with Siddarth Reddy. The two decided that Siddarth would
prepare the storefront and Joel would prepare the products to sell. When Siddarth learned of the
card, he informed Joel that “[n]obody wants to hear about Jesus.” Siddarth subsequently decided to
make his own products for sale, resulting in his bearing the burden of both constructing the
storefront and making a product for sale. During the event itself, Joel manned the storefront during
the morning hours and Siddarth during the afternoon.
On December 11, 2003, the first day of the Classroom City event, Jennifer Harris, the gym
teacher, who was supervising Classroom City, sought the counsel of Lisa Sweebe when she
discovered that Joel was “selling religious items.” Sweebe proceeded to Joel’s storefront to see what
he was selling. Joel showed Sweebe his ornament with the attached card. Sweebe asked Joel if the
card had been attached at the time of the market survey, and Joel said that it had not. Although
Joel’s product did not violate the rules of Classroom City, Sweebe told Joel that he could not sell
the ornament with the card attached until she had a chance to talk with the principal, Irene
Hensinger. She further stated that he had done nothing wrong, but she was concerned about the
card’s religious content and whether other students might be offended. For the rest of the day, Joel
sold his ornaments without the card.
Sweebe initially was unable to locate Hensinger. Around noon, Joel’s mother arrived at the
school. After learning that Joel was not permitted to sell the ornament with the attachment, she told
Sweebe that the use of the cards fell within Joel’s constitutional rights as a student and offered to
bring in some literature supporting her position.
Later that afternoon, Sweebe left a note for Hensinger, which included a copy of the card’s
content along with the question, “Can this be sold? Mom says this is within Joel’s rights? I need
your okay.” Later, when Sweebe discussed the matter with Hensinger, she also provided the
literature that Joel’s mother had furnished. Hensinger, in turn, passed the information on to assistant
superintendent Dr. John Norwood.
No. 06-2439 Curry v. Saginaw City School District Page 4
That evening at home, Joel told his mother that he wished to sell the ornaments with the card
so that others could learn about Jesus. The following day, December 12, Joel’s mother placed a
copy of an article written by an attorney entitled “Students’ Rights on Public School Campuses” in
Sweebe’s school mailbox. She included a note informing Sweebe, “[t]here is just a ton of info on
the internet [sic] from various organizations. Some of the groups are even offering free counsel to
anyone who may have questions about students’ rights to free speech.”
This article along with the note was also forwarded to Dr. Norwood by Hensinger. At some
point between December 12 and 16, Hensinger spoke to Dr. Norwood about Joel’s ornament and
attached card. Both were of the opinion that the use of the card was inappropriate. On the morning
of December 16, Hensinger met with Joel’s mother and informed her that, after consideration, the
school would not permit Joel to sell the ornaments with the attached card. Hensinger further stated
that Classroom City was considered instructional time and, because the cards contained religious
content, their use would not be permitted. If Joel still wished to sell the candy canes with the card,
he could do so after school in the parking lot. Joel did not attempt to sell his ornaments with the
cards in the parking lot. Instead, he sold the ornaments without the cards during the exercise.
Joel received a grade of “A” for his part of the Classroom City project, and was not
disciplined for attempting to sell the candy canes with the religious cards. The parties agree that
Hensinger’s actions were taken in her official capacity as principal of the school.
II.
We review a district court’s grant of summary judgment de novo, employing the same
standard as the district court. Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir. 2004). Summary
judgment is appropriate where the record shows that “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A. Qualified Immunity
A claim of qualified immunity is ordinarily examined in two steps: “[f]irst, a court must
consider whether the facts, viewed in the light most favorable to the plaintiff, ‘show the offic[ial’s]
conduct violated a constitutional right,’” and second, “the court must then decide ‘whether the right
was clearly established.’” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Sixth Circuit has occasionally expanded
that inquiry into a three-step sequential analysis: “The first inquiry is whether the Plaintiff has
shown a violation of a constitutionally protected right; the second inquiry is whether that right was
clearly established at the time such that a reasonable official would have understood that his
behavior violated that right; and the third inquiry is ‘whether the plaintiff has alleged sufficient facts,
and supported the allegations by sufficient evidence, to indicate that what the official allegedly did
was objectively unreasonable in light of the clearly established rights.’” Tucker v. City of Richmond,
Ky., 388 F.3d 216, 219 (6th Cir. 2004) (quoting Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.
2002)). The third inquiry impacts the analysis when despite the violation of a clearly established
constitutional right, the official’s conduct was objectively reasonable, and so should still enjoy
qualified immunity. See Sample v. Bailey, 409 F.3d 689, 696 n.3 (6th Cir. 2005) (“If we find the
first two requirements have been met, the final inquiry is ‘whether the plaintiff has offered sufficient
evidence to indicate that what the official allegedly did was objectively unreasonable in light of the
clearly established constitutional rights.’” (quoting Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.
2003))).
B. Constitutional Right
Plaintiff’s complaint alleged multiple possible constitutional violations relating to the
suppression of Joel’s card, including the right to freedom of expression, and free exercise of religion.
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The district court decided, and “plaintiffs agreed that the free exercise claim was subsumed in the
free expression claim.” Curry ex. rel. Curry, 452 F. Supp. 2d 723, 740 (E.D. Mich. 2006). On
appeal, Plaintiff claims only a violation of the constitutional right to freedom of speech.
In order to determine whether said constitutional right was violated in this case, we must first
decide the framework under which Joel’s speech should be analyzed. If the expression was private
expression, which just happened to occur at school, we look to Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 509 (1969) (noting that private expression may be restricted only upon a
showing that such expression “would substantially interfere with the work of the school or impinge
upon the rights of other students”). However, when the expression is school-sponsored speech, such
as a school newspaper, or speech made as part of a school’s curriculum, schools are afforded greater
latitude to restrict the speech. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)
(“[E]ducators do not offend the First Amendment by exercising editorial control over the style and
content of student speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.”).
It is undisputed that Classroom City was part of the fifth grade curriculum. According to the
Supreme Court, the Hazelwood standard applies when
students, parents, and members of the public might reasonably perceive [the
expression] to bear the imprimatur of the school. These activities may fairly be
characterized as part of the school curriculum, whether or not they occur in a
traditional classroom setting, so long as they are supervised by faculty members and
designed to impart particular knowledge or skills to student participants and
audiences.
Hazelwood, 484 U.S. at 271. Plaintiff suggests that Hazelwood only applies if the audience might
mistake the speech as originating from the school. However, that reading is too narrow.1 This court
has applied the Hazelwood standard when the speech at issue was made as part of school activities:
The Supreme Court has drawn a distinction between “personal expression that
happens to occur on school premises” and expressive activities that are “sponsored”
by the school and “may fairly be characterized as part of the school curriculum. . .
.” Hazelwood, 484 U.S. at 271, 108 S. Ct. at 569-570, 98 L. Ed. 2d at 605. Speech
sponsored by the school is subject to “greater control” by school authorities than
speech not so sponsored, because educators have a legitimate interest in assuring that
participants in the sponsored activity “learn whatever lessons the activity is designed
to teach. . . .” Id. As long as the actions of the educators are “reasonably related to
legitimate pedagogical concerns,” therefore, the Hazelwood Court held, as we have
seen, that “educators do not offend the First Amendment by exercising editorial
control over the style and content of student speech in school-sponsored expressive
activities. . . .” Id., 484 U.S. at 272, 108 S. Ct. at 571, 98 L. Ed. 2d at 606.
Poling v. Murphy, 872 F.2d 757, 762 (6th Cir. 1989). Expressive activities made as part of the
school curriculum call for a Hazelwood analysis, while the high standard of Tinker is reserved for
1
For speech to be perceived as bearing the imprimatur of the school does not require that the audience believe
the speech originated from the school, only that an observer would reasonably perceive that the school approved the
speech. Imprimatur is defined as “[o]fficial approval; sanction.” American Heritage Dictionary 822 (4th ed. 2000); see
also Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 763 (1995) (stating that an “open forum in a public
university does not confer any imprimatur of state approval on religious sects or practices.”) (emphasis added) (citation
omitted). Classroom City products were to be approved by the school, and this fact was known by students and parents.
Even though Joel and his parents circumvented the product approval process, students and parents were unaware of this,
and reasonably would have perceived the product as school-approved if it had been sold.
No. 06-2439 Curry v. Saginaw City School District Page 6
when the “problem involves direct, primary First Amendment rights akin to ‘pure speech.’” Boroff
v. Van Wert City Bd. of Educ., 220 F.3d 465, 468 (6th Cir. 2000) (quoting Tinker, 393 U.S. at 508).
“While children [] do not ‘shed their constitutional rights . . . at the schoolhouse gate,’ the
nature of those rights is what is appropriate for children in school.” Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 655-56, (1995) (quoting Tinker, 393 U.S. at 506). Local school officials are
best situated to determine what is appropriate for children in school, and constitutional claims have
consistently been given a less rigorous review in school settings. Blau v. Fort Thomas Pub. Sch.
Dist., 401 F.3d 381, 393 (6th Cir. 2005) (“The Court has repeatedly emphasized the need for
affirming the comprehensive authority of the States and of school officials, consistent with
fundamental constitutional safeguards, to prescribe and control conduct in the schools.”) (quoting
Tinker, 393 U.S. at 507). The Blau court went on to state that “[i]n the First Amendment arena and
other arenas as well, the Supreme Court thus has frequently emphasized that public schools have
considerable latitude in fashioning rules that further their educational mission and in developing a
reasonable fit between the ends and means of their policies.” Id. “‘The very complexity of the
problems of . . . managing a statewide public school system suggests that there will be more than
one constitutionally permissible method of solving them.’” Evans-Marshall v. Bd. of Educ., 428 F.3d
223, 237 (6th Cir. 2005) (Sutton, J., concurring) (quoting San Antonio Indep. Sch. Dist. v. Rodriquez,
411 U.S. 1, 42 (1973)). It is often the case that “the determination of what manner of speech in the
classroom . . . is inappropriate properly rests with the school board rather than with the federal
courts.” Id. (quoting Hazelwood, 484 U.S. at 267).
The district court declined to decide the standard under which to judge the constitutionality
of preventing Joel Curry from selling his product with the religious card attachment. Instead, it held
that “the defendant’s restriction of Joel Curry’s speech cannot be justified even under Hazelwood’s
more generous standards.” Curry, 452 F. Supp. 2d at 735. Because we conclude that the appropriate
standard is that of Hazelwood, the restriction of Joel’s expression was constitutionally permissible
only if it was “reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273.
The district court confined its analysis of pedagogical concerns to the academic variety,
stating that “[t]he lessons Classroom City was designed to teach presumably included economics,
marketing, civics, and entrepreneurialism. Standing alone, the candy canes with a religious card
attached met those ostensible goals.” Curry, 452 F. Supp. 2d at 736. However, “[t]he universe of
legitimate pedagogical concerns is by no means confined to the academic . . . .” Poling, 872 F.2d
at 762 (teaching a student civility toward others is a legitimate pedagogical concern). Plaintiff at
oral argument emphasized that the written instructions distributed before the event did not preclude
a religious product. However, the constitutional analysis of the restriction would be the same
whether the school proscribed religious products before or during the event. The fact that student
expression as part of a curricular activity meets the stated parameters of an assignment does not
insulate it from school regulation.
“In an elementary school setting, the appropriateness of student expression depends on
several factors, including the type of speech, the age of the locutor and audience, the school’s
control over the activity in which the expression occurs, and whether the school solicits individual
views from students during the activity.” Walz ex. rel. Walz, 342 F.3d 271, 278 (3d Cir. 2003)
(holding that a student’s First Amendment right to freedom of speech was not violated when the
student was prevented from passing out candy canes with a religious card attached at a classroom
party). Joel’s candy cane with the religious card attached was not simply a personal religious
observance, analogous to wearing a cross, or a t-shirt with a slogan. The expression was part of a
curricular assignment, and not one that invited personal views—the assignment encouraged creative
products, but it did not solicit viewpoints. The Walz court noted that there is “a marked difference
between expression that symbolizes individual religious observance, such as wearing a cross on a
necklace, and expression that proselytizes a particular view.” Id. at 278-79 (citing Hills v. Scottsdale
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Unified Sch. Dist., 329 F.3d 1044, 1053 (9th Cir. 2003) (“The [School] District cannot refuse to
distribute literature advertising a program with underlying religious content where it distributes quite
similar literature for secular summer camps, but it can refuse to distribute literature that itself
contains proselytizing language. The difference is subtle but important.”)).
In this case, the admitted purpose of the plaintiff in distributing the candy cane was to
promote Jesus to the other students. The school’s assignment requiring students to develop products
for sale in Classroom City cannot be seen as a solicitation of personal views on a subject; Joel was
in fifth grade and the potential audience included much younger students (these products were to
be sold to the entire elementary school student body); and the school had complete control over
Classroom City, including a formal approval process for the products to be sold, which Joel evaded.
“It is only when the decision to censor . . . student expression has no valid educational
purpose that the First Amendment is so directly and sharply implicated as to require judicial
intervention to protect students’ constitutional rights.” Hazelwood, 484 U.S. at 273 (citation
omitted). Hazelwood does not require us to balance the gravity of the school’s educational purpose
against Joel’s First Amendment right to free speech, only that the educational purpose behind the
speech suppression be valid. Here, the principal decided that allowing the card would not be
appropriate because it was religious, and therefore could offend other students and their parents (in
fact the religious card did offend Joel’s business partner for Classroom City). The school’s desire
to avoid having its curricular event offend other children or their parents, and to avoid subjecting
young children to an unsolicited religious promotional message that might conflict with what they
are taught at home qualifies as a valid educational purpose. See Edwards v. Aguillard, 482 U.S. 578,
584 (1987) (“Families entrust public schools with the education of their children, but condition their
trust on the understanding that the classroom will not purposely be used to advance religious views
that may conflict with the private beliefs of the student and his or her family.”).
Notably, we are not called upon to evaluate whether the principal made the best decision in
disallowing the card. “[A] federal court is obviously not the ideal body to try to answer such a
question.” Poling, 872 F.2d at 761. Instead we hold only that the principal’s determination that the
religious card should not be permitted was the product of her reasonable evaluation of legitimate
pedagogical concerns, and fell within her discretion as a school administrator, and therefore did not
violate any right Joel enjoyed under the First Amendment.
III.
Because we conclude that Principal Hensinger’s decision to prevent Joel from selling the
candy cane with its religious attachment was driven by legitimate pedagogical concerns, Joel’s
constitutional rights were not abridged. Since there was no constitutional violation, the qualified
immunity inquiry is ended. We AFFIRM the district court’s grant of summary judgment for the
defendant.