Taylor v. Roswell Indep. Sch. Dist., No. 11-2242 (10th Cir. Apr.8, 2013)
Abstract: A U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) three-judge panel has ruled that a New Mexico school district’s decision to ban students from distributing rubber doll fetuses on campus as part of the students’ anti-abortion activities did not violate the students’ First Amendment free speech or free exercise of religion rights, or their Fourteenth Amendment equal protection rights. It also rejected the students’ facial challenge to the school district’s policy requiring pre-approval before distributing any non-school-sponsored material on school grounds.
The panel determined that distribution of the dolls constituted private student speech governed by the principles enunciated in Tinker v. Des Moines, 393 U.S. 503 (1969). Applying Tinker’s substantial disruption standard, it concluded that the school district officials were justified in prohibiting distribution of the rubber fetuses.
The panel also rejected the students’ facial challenge of the pre-approval policy, which was premised on prior restraint and vagueness. The panel concluded that the policy contained adequate procedural safeguards to pass constitutional muster. It also found the policy sufficiently constrained official discretion in the school context because of the inclusion of the Tinker standard in the policy. It, likewise, determined the policy was not unconstitutionally vague because: “Our review of the policy convinces us that a reasonable high school student of ordinary intelligence would understand when pre-approval is needed and how to go about requesting it.”
Finding nothing in the record from which it could reasonably infer that the school district acted with the purpose of suppressing religious practice, the panel found the school district’s actions were based on neutral rules of general applicability. Lastly, the panel rejected the equal protection claim because the students failed to show that they were similarly situated to other students who were treated differently.
Facts/Issues: Students at two high schools, Roswell High School (RHS) and Goddard High School (GHS), who are also members of a religious youth group known as Relentless which is affiliated with a local church, engaged in various forms of religious expression at school. Each week they distributed different items at both schools. At the time the distributions began Roswell Independent School District (RISD) 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.
In January 2010, the Relentless students, along with the pastor of their church, planned to distribute small rubber dolls, designed to be a realistic representation of a human fetus, to each student at both schools. At GHS, the pastor and eight or nine students were already distributing the dolls when Assistant Principal Brian Luck arrived and observed the distribution. After speaking with other GHS administrators, he learned the distribution had not been approved. Luck ended the distribution.
Later that morning a GHS administrator called the RHS principal to see if a similar distribution was occurring at that school. Being off-site at the time, the RHS principal contacted his on-site security guard and instructed the guard to confiscate the dolls if there was disruption to the educational process. After investigating, two guards determined the dolls should be confiscated. Both schools experienced doll-related disruptions, including the dolls being used to plug toilets, being stuck to ceilings, and set on fire.
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 consumed eight to 10 minutes each class period, and others said their teaching plans were derailed entirely.
In February 2010, the Relentless students attempted to distribute the dolls again, but were prevented by administrators at both schools. On the same day, other students were permitted to distribute Valentine’s Day-related items, such as candy, cards, and stuffed animals. There was no evidence of disruption from the distribution of Valentine’s Day-related items.
Relentless students subsequently engaged in a number of on campus distributions without any clear indication of prior approval, with the exception of an Easter egg distribution which was approved. However, there was no evidence that any of these distributions caused disruption.
RISD Policy 7110 was in place before the rubber fetus 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.
The other policy in place at the time of the doll distribution was a long-standing unwritten policy of requiring students to obtain approval before distributing non-school sponsored material on school grounds. In May 2010, RISD formalized this unwritten policy when it promulgated Policy 5195, captioned “Distribution of Non School Sponsored Literature.” 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 Policy 5195 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 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.
The policy includes certain procedural safeguards. The district must approve or deny a distribution request within five school days. The district must provide a written explanation of the reasons for any denial. Students whose requests are denied have a right to appeal. The policy provides definitions of terms, including “distribution” and “non school sponsored.” The policy gives 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.
The students filed suit in federal district court against RISD, seeking injunctive relief and alleging 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 the 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 the plaintiffs’ free exercise rights under a so called hybrid claim theory. Finally, Count III alleged that the district discriminated against the plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. The magistrate judge granted summary judgment for the district on all claims. The plaintiffs appealed all counts, but abandoned their hybrid claim theory.
Ruling/Rationale: The Tenth Circuit panel affirmed the lower court’s grant of summary judgment in favor of RISD on all claims. The free speech challenges failed because school officials reasonably forecasted that the distribution would cause substantial disruption and because the distribution did cause substantial disruption.
Applying Tinker v. Des Moines, 393 U.S. 503 (1969), to the doll distribution, the panel acknowledged that had it taken place outside the school context, the political and religious messages being conveyed would have likely merited First Amendment protection. However, because the distribution took place within school walls, it was subject to scrutiny under the reasonable forecast of disruption standard. The breath of the distribution, i.e., a doll for each student at the two high schools, a total of 2,500, created a strong potential for substantial disruption. The panel also noted: “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).”
The panel rejected the students’ argument that the disruptions were the work of students not part of Relentless and, therefore, their behavior could not be attributed to the group. It stressed that the Tinker standard is not concerned with who causes the disruption, but rather on speech/expression that causes disruption.
The panel also addressed the students’ claim that RISD’s preapproval policies policies are unconstitutional on their face as prior restraints and for reasons of vagueness and overbreadth. The panel determined that two considerations saved the pertinent portions of Policy 5195 from facial constitutional challenge:
First, the policy contains procedural safeguards, including the opportunity to bring two 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.
Based on Tinker and its progeny, the panel concluded that “the policy constrains official discretion sufficiently for the school context.” However, it warned that RISD officials “must take care to apply the policy in a viewpoint-neutral manner to avoid its unconstitutional application.
In addition, the panel found support for its conclusion that Policy 5195 is not an incidence of unconstitutional prior restraint in the decisions of other circuits that have considered school preapproval policies. It noted that “the clear trend is one of upholding policies that contain adequate procedural safeguards and place reasonable limits on official discretion.”
In particular, the panel cited the Eighth Circuit decision in Bystrom ex rel. Bystrom v. Fridley High School, Indep. Sch. Dist. No. 14, 822 F.2d 747 (8th Cir. 1987), the Seventh Circuit decisions in Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996) and Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295 (7th Cir. 1993), and the Sixth Circuit decision in M.A.L. ex rel. M.L. v. Kinsland, 543 F.3d 841 (6th Cir. 2008). The panel rejected the Ninth Circuit’s decision in Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988), striking down a preapproval policy. It said, “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.”
The panel also found the preapproval requirement was not unconstitutionally vague: “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.”
Turning to the students’ claim that their free exercise of religion rights were violated, the panel that because RISD’s actions were based upon neutral rules of general applicability, those actions were subject to rational basis review. It found that the “only reasonable inference from the record is that [RISD] disallowed the rubber fetus dolls for the neutral reason that they were disruptive, and that [officials] allowed the other distributions and expressions for the neutral reason that they were not disruptive.” Pointing out that efforts to avoid disruption are rationally related to the school’s interests in maintaining discipline and protecting the educational environment, the panel concluded that RISD’s “decisions to stop the fetus doll distributions survive rational basis review.”
Finally, the panel rejected the students’ equal protection claim on the that ground the students were not similarly situated to other students who received different treatment. It pointed out that the “Valentine’s Day cards and other items were different in kind and scale from the rubber doll distribution.” The panel emphasized that “[n]o other students attempted to distribute hundreds or thousands of items, and there is no evidence any other distribution caused substantial disruptions.”
Taylor v. Roswell Indep. Sch. Dist., No. 11-2242 (10th Cir. Apr.8, 2013)
[Editor's Note: In March 2013, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) in K.A. v. Pocono Mountain Sch. Dist. holding that a Pennsylvania elementary school student is entitled to a preliminary injunction barring a school district from enforcing its materials distribution policy that prohibits the student from distributing to classmates flyers produced by a local church promoting a Christmas party. The panel determined that the school district’s decision to restrict the student’s speech should be analyzed under the substantial disruption standard enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), despite the fact that the speech occurred in an elementary school setting, and the materials were prepared by an outside group.]