25th Annual
National First Amendment
Moot Court Competition
Kendra Key, Chief Justice, Vanderbilt Moot Court Board
Jessica Day, Managing Associate Justice, Vanderbilt Moot Court Board
Robin Frazer, Executive Associate Justice, Problem Writer
Sean Hastings, Associate Justice, Problem Writer
Jared Davis, Associate Justice, Problem Writer
Morgan Morrison, Executive Associate Justice, First Amendment Competition
Monica Espinosa, Associate Justice, First Amendment Competition
Caitlin Heaton, Associate Justice, First Amendment Competition
Sean Ryan, Associate Justice, First Amendment Competition
MOOT COURT COMPETITION RULES
I. GENERAL RULES
RULE 1. APPLICATIONS
(a) Eligibility. The competition is open to all law schools fully accredited by the ABA.
Teams may only consist of two members, both of which must be in their second or third
year of law school.
(b) Procedural Requirements. All teams qualified to compete must submit an intent-tocompete form and a check or credit card information for $500, to the Vanderbilt Moot Court
Board,
by
mail
(postmarked)
or
submit
online
registration
materials
(http://www.newseuminstitute.org/first-amendment-center/mootcourt/) no later than Oct. 15,
2014.
(c) Selection of Participants. The competition is open to 36 teams. If the competition is
oversubscribed, admission will be based on the quality of the team and the school's
commitment to the competition. To assist in making these determinations, applicants may
submit team-member resumes and any other information that would suggest a serious
commitment to a high level of performance in the competition. Any additional supporting
material must be submitted with the intent to compete form and payment, electronically
(http://www.newseuminstitute.org/first-amendment-center/mootcourt)
or
by
mail
(postmarked) no later than Oct. 15, 2014.
(d) Notification of Status. All entrants will be notified of their status on Nov. 1, 2014, via the
e-mail address they provided to the Vanderbilt Moot Court Board in their application
materials.
(e) Refunds. Teams not selected to compete will be refunded their entry fees after Nov. 1,
2014. Teams that are chosen to compete will not be given a refund at any time or under any
circumstances.
II. BRIEFS
RULE 2. GENERAL
(a) Participation in Brief Writing. Both team members are expected to participate in
preparing the brief together and in arguing during the oral competition. Only the two team
members registered for the competition may write or participate in drafting the brief,
including editing. Teams may not have “Brief Specialists” who participate in preparing the
brief but do not argue. Additionally, participants may not receive any assistance from
coaches, faculty members, attorneys, judges, other law students, or other persons in
preparing or editing the brief.
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(b) Content of Briefs. The list of cases included in the problem packet is not a closed
universe. As such, participants may, but need not, conduct independent research and include
that research in their briefs.
(c) Petitioner and Respondent. Teams will be randomly assigned to write either the Petitioner
or Respondent brief. Teams will be notified by e-mail of their status as Petitioner or
Respondent on Nov. 1, 2014.
(d) Team Identification. Every team is randomly assigned a team letter. Teams will be
notified by e-mail of their team letter on Nov. 1, 2014, The team letter shall be the only form
of identification used in the brief. This letter shall be included on the cover of the brief in lieu
of the team name. Violation of this rule may result in a maximum of two (2) points being
deducted from the total brief score.
(e) Property of Vanderbilt. All briefs submitted for purposes of the Competition become the
exclusive property of Vanderbilt University Law School Moot Court Board.
RULE 3. LENGTH AND FORMAT OF BRIEFS
(a) Format. Briefs shall be in the format used in the United States Courts of Appeals (see
Federal Rules of Appellate Procedure 28 and 32), subject to the Rules of the National First
Amendment Moot Court Competition. Teams should follow the specific instructions included
the Rules of the National First Amendment Competition in the event they differ from the
Federal Rules of Appellate Procedure. Teams assigned to write briefs on behalf of the
Respondent must have a red front and back cover. Teams assigned to write briefs on behalf
of the Petitioner must have a blue front and back cover. A list of constitutional provisions,
treaties, etc., should not be included in the brief. All briefs are expected to contain, in the
appropriate order:
1. Table of Contents;
2. Table of Authorities—cases (alphabetically arranged), statutes, and other authorities—with
reference to the pages of the brief where they are cited;
3. Statement of Jurisdiction, including:
(a) The basis for the district court’s or agency’s subject matter jurisdiction, with citation
to applicable statutory provisions and stating relevant facts establishing jurisdiction;
(b) The basis for the court of appeals’ jurisdiction, with citations to applicable statutory
provisions and stating relevant facts establishing jurisdiction;
(c) An assertion that the appeal is from a final order or judgment that disposes of all
parties’ claims, or information establishing the court of appeals’ jurisdiction on some
other basis;
4. Statement of the Issues;
5. Statement of the Case, which should briefly indicate the nature of the case, the course of
proceedings, and the disposition below;
6. Statement of Facts, which should include appropriate references to the record;
7. Summary of the Argument, which must contain a succinct, clear, and accurate statement of
the arguments made in the body of the brief, and which must not merely repeat the argument
headings;
8. Argument, which must contain:
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(a) Parties’ contentions and the reasons for them, with citations to the authorities and
parts of the record on which they rely; and
(b) For each issue, a concise statement of the applicable standard of review (which may
appear in the discussion of the issue or under a separate heading placed before the
discussion of the issues); and
9. A short Conclusion, which should state the precise relief being sought.
These are the only sections to be included in the briefs. Every violation of the
aforementioned provisions will result in two (2) points being deducted from the total brief
score.
(b) Length. The argument and argument summary portions of the brief shall not exceed
twenty-five (25) pages in length (this page limitation does not include the Table of Contents,
Table of Authorities, Statement of Jurisdiction, Statement of the Issue(s), Statement of the
Case, Statement of the Facts, and Appendices). The type size must be twelve (12), the font
must be Times New Roman (Please note that this requirement is different from the applicable
Supreme Court Rule), the text must be double-spaced, all margins must be one inch, and the
pages must not exceed eight and a half (8 ½) by eleven (11) inches. In addition, the pages
containing the Table of Contents, Table of Authorities, and the Statement of the Jurisdiction
should be numbered with small Roman Numerals (i, ii, iii . . .). Begin numbering pages with
Arabic numerals at the Statement of the Issues section (1, 2, 3 . . .). The brief must be bound
at the left margin using perfect, spiral, or plastic comb binding. The front covers of the brief
shall contain: (1) the name of the court and the number of the case; (2) the title of the case;
(3) the nature of the proceeding in the court (e.g. Appeal; On Writ of Certiorari) and the
name of the court, agency, or board below; (4) the title of the document (e.g. Brief for
Petitioner); and (5) the National First Amendment Competition assigned numbers of counsel
representing the party on whose behalf the document is filed. Each violation of the
aforementioned provisions will result in two (2) points being deducted from the total brief
score.
(c) Citations. All citations shall be complete and in the form prescribed in Harvard Law
Review Association, A Uniform System of Citation (19th ed.), generally referred to as “The
Bluebook.” Brief scorers will be spot-checking five (5) rules to be determined by the
National First Amendment Competition. Failure to comply with the selected rules may result
in deduction of up to three (3) points per rule from the total brief score.
RULE 4. PLAGIARISM
(a) Definition of Plagiarism. Plagiarism is defined as the act of incorporating into one’s
work a substantially similar portion of another’s work without adequately or properly
indicating that source. All competitors will be bound by this definition.
(b) Reporting Alleged Plagiarism. Any competitor having knowledge of potential violations
of the rule against plagiarism should report his/her concern by mail to the attention of First
Amendment Center/Vanderbilt Moot Court Board, 1207 18th Ave. S., Nashville, TN 37212),
by email (mootcourt@fac.org), or by phone to Gene Policinski, Chief Operating Office of the
Newseum Institute’s First Amendment Center (615-7271303). Under no circumstances
should any competitor contact another team regarding plagiarism.
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(c) Procedures for Responding to Plagiarism. In the event of alleged plagiarism, the
Vanderbilt Moot Court Board, in conjunction with a Vanderbilt Law School Faculty
Committee and the Vanderbilt Honor Council, will evaluate the brief in question. Penalties,
including but not limited to disqualification from the Competition, will be assessed at the
discretion of the Vanderbilt Moot Court Board and Faculty Committee.
RULE 5. SERVICE OF BRIEFS
(a) Service of Briefs on the Vanderbilt Moot Court Board. Each team shall serve one
(1) bound paper copy of its brief and one (1) PDF copy of its brief to the Vanderbilt Moot
Court Board. The one (1) bound copy of the brief must be postmarked no later than Jan. 16,
2015 (First Amendment Center/Vanderbilt Moot Court Board, 1207 18th Ave. S., Nashville,
TN 37212, 615/727-1302). Also included in this package should be a copy of the online
registration form, which was emailed to the "team contact" at the time of registration. The
PDF copy of the brief is to be e-mailed to the Vanderbilt Moot Court Board at
mootcourt@fac.org by 5:30 p.m. (CST) on Jan. 16, 2015. Three (3) points will be deducted
from the total brief score should the brief arrive after 5:30 p.m. (CST) on Jan. 16, 2015. One
(1) point will be deducted for each additional day late.
(b) Service of Briefs on Opposing Teams. On, January 23, 2015all briefs will be posted to the
National
First
Amendment
Moot
Court
Competition
website
at
http://www.newseuminstitute.org/first-amendment-center/mootcourt.
Teams
will
be
responsible for checking the website to obtain opposing teams’ briefs.
RULE 6. SCORING THE BRIEFS
(a) Scoring. Five (5) judges will score each team’s brief. The scores will be normalized using
a hierarchal statistical model that accounts for the generosity of each scoring judge. For more
information on the statistical model used to normalize the scores, please see “A Normalized
Scoring
Model
for
Law
School
Competitions”
located
at
http://www.greenbag.org/v16n4/v16n4_articles_cheng_and_farmer.pdf.
(b) Penalties for Rule Violations. Penalties for rule violations will be deducted from the
team’s total brief score. All teams are responsible for complying with the rules and knowing
the penalties for such violations.
(c) Weight. The brief score will count as fifty percent (50%) of each team’s total score for
each round until the quarterfinals. The brief will not count in the quarterfinal, semifinal, or
final rounds.
(d) Best Brief Award. The team with the highest brief score shall be awarded Best Brief. In
the event of a tie, the award will be divided evenly among the teams. A copy of the 2014 Best
Brief is available at http://www.newseuminstitute.org/first-amendment-center/mootcourt.
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III. ORAL ARGUMENTS
RULE 7. GENERAL
(a) Participation in Oral Arguments. Only the two team members registered for the
competition may participate in oral arguments. Both members are required to participate
in all four preliminary rounds, and each will independently be eligible to receive the Best
Oralist Award. Only the two team members may sit at counsels’ table during oral arguments.
Coaches are specifically disallowed from sitting at counsels’ table. Additionally, each team
is responsible for crafting and creating its own oral argument, without assistance from
any faculty member, coach, attorney, or other person. After the team serves its brief on
the Vanderbilt Moot Court Board, the team may seek general critiquing of practice
arguments. Teams may receive no guidance from coaches or advisors during a round. Such a
violation may disqualify the team from advancing.
(b) Team Identification. Throughout the competition, teams will be identified to judges by
their randomly assigned letter. Competitors shall not use apparel, jewelry, backpacks, hand
gestures or other materials that identify academic affiliations. If a judge asks a team member
what school the team member represents, the student should respond that the rules do not
permit the divulging of that information until after the competition. Violation of this rule may
result in a maximum of two (2) points being deducted from the total oral argument score.
(c) Spectators/Guests. All rounds are open to spectators at the discretion of the bailiff. All
spectators must have an official National First Amendment Moot Court Competition nametag
to attend rounds and events related to the competition. Guests may only view rounds where
their team is participating. Space may be limited in some of the competition rooms. The
Vanderbilt Moot Court Board will try to accommodate your guests but if seating is limited
the bailiff for your round may have to ask your guests to return to the North Lobby of the law
school. Also, guests and coaches may not be present in the competition room when the
judges are computing the scores for the competitors. They may return with you and hear the
critique.
No team member, coach, or faculty advisor and/or guest of any school still participating
in the Competition shall attend the argument of any other school, or receive
information from any person who has attended an argument of any other school.
Coaches may attend all rounds in which their team is participating but they may not sit at
counsel’s table. All competitors and coaches may attend the semifinal and final rounds.
(d) Right to Videotape. The Vanderbilt Moot Court Board and the First Amendment Center
reserve the right to videotape the competitors during oral arguments from all rounds, and to
use, display, or reproduce this videotape for any and all purposes they deem necessary or
appropriate.
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RULE 8. FORMAT
(a) Time Allowed for Argument. Oral arguments shall be limited to a total of twenty-four
(24) minutes per team. Team members may allocate their time in any manner desired by prior
arrangement with the bailiff as long as each oralist argues a minimum of ten (10) minutes. A
penalty of two (2) points will be assessed to any oralist who does not argue for a minimum of
ten (10) minutes. Judges, at their discretion, may interrupt arguments to ask questions.
Petitioners, by prior arrangement with the bailiff, may reserve up to three (3) minutes for
rebuttal. Petitioners desiring rebuttal time must inform the bailiff of the name of the team
member who will make the rebuttal argument in advance of the round.
(b) Bailiff’s Time Warnings. Bailiffs will keep time during the oral arguments and will use
cards to inform competitors of how much time they have remaining. The specific time
warnings will be: 12 mins., 10 mins., 7 mins., 5 mins., 2 mins., 1 min., and 30 seconds. When
the competitor’s time is up, the bailiff will verbally announce “time.” Once time has been
called, the competitor may request additional time from the Chief Justice. The allowance of
more time is solely at the discretion of the Chief Justice.
IV. ROUNDS
RULE 9. PRELIMINARY ROUNDS
(a) General. There will be four preliminary rounds. In the first three rounds, teams will be
randomly assigned an opponent. Teams will not meet more than once in these initial three
rounds. Each team will argue at least once as Petitioner and once as Respondent. Ideally,
each team will argue each side twice. However, this may not be possible due to the nature of
the Power Match (see subsection (d) below).
(b) Scoring. The oral scores will be determined by a panel of three judges, without
knowledge of the brief score. Each team member will be judged on a fifty (50) point scale.
The total score for the two team members will be the team score.
(c) Weight. The total oral score will count for fifty percent (50%) of the overall preliminary
score.
(d) Power Match. The fourth round is based on each team’s performance in the first three
preliminary rounds. A team’s point total shall be calculated by adding the total brief score
with the total oral score. The scores will be normalized using a hierarchal statistical model
that accounts for the generosity of each scoring judge. The team with the highest overall
score will be paired against the team with the lowest overall score; the team with the second
highest score will be paired against the team with the second lowest score, and so on. Ties in
rank will be broken in the manner that best enables all teams to argue each side twice. Teams
will not be informed of their actual ranking.
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(e) Best Oralist. The Best Oralist will be based on individual oral performances in the
preliminary rounds and Power Match. Each participant’s total oral score will be determined
using a hierarchal statistical model that accounts for the generosity of each scoring judge.
The participant with the highest individual score shall win the Best Oralist Award. In the
event of a tie, the award shall be divided evenly among the Best Oralists.
(f) Addition of a Vanderbilt Team. The Competition is designed for an even number of teams.
In the event that a team drops out of the Competition (or if for some other unforeseen reason
there are an odd number of teams) a pre-selected Vanderbilt team will be entered in the
Competition. This team will compete in the four preliminary oral rounds, and its brief will be
scored along with all other briefs. The Vanderbilt team will not be eligible to advance to the
elimination rounds or receive the award for Best Brief or Best Oralist.
RULE 10. QUARTERFINALS
(a) General. Only eight teams will advance to the quarterfinals. The quarterfinals are based
on each team’s performance in the preliminary rounds and Power Match. A team’s point total
shall be calculated by adding the total brief score with the total oral score. The scores will be
normalized using a hierarchal statistical model that accounts for the generosity of each
scoring judge. The eight teams with the highest overall scores will advance.
(b) Pairings. The team with the highest oral score will be paired against the team with the
lowest oral score; the team with the second highest oral score will be paired against the team
with the second lowest oral score, and so on. Ties will be resolved in favor of the team with
the highest total brief score. Teams will not be informed of their actual ranking. This bracket
will remain the same for the rest of the competition.
(c) Representation. To determine which team will represent Petitioner and which will
represent Respondent, the Moot Court Board will first determine if the teams argued different
sides in the Power Match. If so, then each team will take the side not argued in the Power
Match. If both teams argued the same side in the Power Match, then the Moot Court Board
will determine whether two teams have met in an earlier round. If they have met in an earlier
round, each team will take the side not argued in the earlier round. If they have not met in an
earlier round, a coin toss (called by a Vanderbilt Moot Court Board member), will determine
which team will represent Petitioner and which team will represent Respondent.
(d) Scoring. None of the previous scores are considered in this round. Additionally, the brief
score is not considered. To determine the winner of this round, the panel of judges shall make
their ruling based on a majority vote. Each judge’s vote shall be cast for the team he or she
discerns to have exhibited the better oral team performance. The winner of each match-up
will advance to the Semifinal Round.
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RULE 11. SEMIFINAL ROUND
(a) General. The winners of the quarterfinal round shall advance to the semifinal round. The
teams will be paired against each other according to the bracket created for the quarterfinals.
There will only be one round of oral argument.
(b) Representation. To determine which team will represent Petitioner and which will
represent Respondent, the Moot Court Board will first determine if the teams argued different
sides in the quarterfinals. If so, each team will take the side not argued in the quarterfinals. If
both teams argued the same side in the quarterfinals, then the Moot Court Board will
determine whether two teams have met in an earlier round. If they have met in an earlier
round, each team will take the side not argued in the earlier round. If they have not met in an
earlier round, a coin toss (called by a Vanderbilt Moot Court Board member), will determine
which team will represent Petitioner and which team will represent Respondent.
(c) Scoring. None of the previous scores are considered in this round. Additionally, the brief
score is not considered. To determine the winner of this round, the panel of judges shall make
their ruling based on a majority vote. Each judge’s vote shall be cast for the team that he or
she discerns to have exhibited the better oral team performance. The winner of each matchup will advance to the Final Round.
RULE 12. FINAL ROUND
(a) General. The winners of the semifinal round shall advance to the final round. There will
only be one round of oral argument.
(b) Representation. To determine which team will represent Petitioner and which will
represent Respondent, the Moot Court Board will first determine if the teams argued different
sides in the semifinals. If so, each team will take the side not argued in the semifinals. If both
teams argued the same side in the semifinals, then the Moot Court Board will determine
whether two teams have met in an earlier round. If they have met in an earlier round, each
team will take the side not argued in the earlier round. If they have not met in an earlier
round, a coin toss (called by a Vanderbilt Moot Court Board member), will determine which
team will represent Petitioner and which team will represent Respondent.
(c) Scoring. None of the previous scores are considered in this round. Additionally, the brief
score is not considered. To determine the winner of this round, a panel of judges shall make
their ruling based on a majority vote. Each judge’s vote shall be cast for the team that he/she
discerns to have exhibited the better oral team performance. The winner of the final round is
the Winner of the First Amendment Moot Court Competition. The remaining team will be the
Runner-up of the First Amendment Moot Court Competition.
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V. ADMINISTRATION
RULE 13. RELEASE OF SCORES
Each team will receive a letter containing their total brief score, oral scores, and ranking
following the Competition. No scores will be distributed at the Competition. Additionally,
teams may not obtain the scores and rankings of other teams involved in the Competition.
RULE 14. WITHDRAWAL OF A COMPETING TEAM
(a) Inability to Compete with Notification. If a team withdraws from the competition one
week or less before the competition and notifies the Vanderbilt Moot Court Board, the team
may be prohibited from competing for the next two years. If a team withdraws from the
competition more than one week before the competition and notifies the Vanderbilt Moot
Court Board, no refund will be made. Should a team need to withdraw, the team should
promptly contact Ms. Denise Philp by phone at (615) 727-1302 or by e-mail to both
dphilp@newseum.org, and mootcourt@fac.org.
(b) Failure to appear without Notification. If a team fails to appear at the competition and did
not notify the Vanderbilt Moot Court Board that the team would be absent, the team will be
prohibited from competing in the competition for no less than two years.
RULE 15. RESERVED RIGHTS
(a) Additional Rules. In addition to these Rules, the Vanderbilt Moot Court Board reserves
the right to amend or modify these Rules as it deems necessary. Teams will be notified of any
amendments or modifications in advance of the Competition.
(b) Penalties. The Vanderbilt Moot Court Board reserves the right to assess such penalties for
failure to comply with these rules as it deems reasonable and appropriate, including but not
limited to disqualification from the Competition.
(c) Interpretation of Rules. All interpretations of these Rules shall be in the absolute
discretion of the Vanderbilt Moot Court Board and shall be final and binding upon all
participants. Requests for interpretation of these rules should be e-mailed to
mootcourt@fac.org. Requests should be made at the earliest possible date and in any case no
later than Jan. 31, 2015.
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RULES OF APPELLATE PROCEDURE
(Unofficial version, amended for the National First Amendment Moot Court Competition)
Rule 28. Briefs
(a)
(b)
Petitioner’s Brief. The petitioner’s brief must contain, under appropriate headings and
in the order indicated:
(1) a table of contents, with page references;
(2) a table of authorities—cases (alphabetically arranged), statutes, and other
authorities—with references to the pages of the brief where they are cited;
(3) a jurisdictional statement, including;
i. The basis for the district court’s or agency’s subject matter jurisdiction,
with citations to applicable statutory provisions and stating relevant facts
establishing jurisdiction;
ii. The basis for the court of appeal’s jurisdiction, with citations to applicable
statutory provisions and stating relevant facts establishing jurisdiction.
iii. The basis for the Supreme Court’s jurisdiction, with citations to applicable
statutory provisions and stating relevant facts establishing jurisdiction.
(4) a statement of the issues presented for review;
(5) a statement of the case briefly indicating the nature of the case, the course of
proceedings, and the disposition below;
(6) a statement of facts relevant to the issues submitted for review with appropriate
references to the record;
(7) a summary of the argument, which must contain a succinct, clear, and accurate
statement of the arguments made in the body of the brief, and which must not merely
repeat the argument headings;
(8) the argument, which must contain:
i. petitioner’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the petitioner relies; and
ii. for each issue, a concise statement of the applicable standard of review
(which may appear in the discussion of the issue or under a separate
heading placed before the discussion of the issues);
(9) a short conclusion stating the precise relief sought.
Respondent’s Brief. The respondent’s brief must conform to the requirements of Rule
28(a) (1–9).
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Rule 32. Form of briefs, the appendix, and other papers
(b) Form of briefs and the appendix—Briefs and appendices may be produced by
standard typographic printing or by any duplicating or copying process which
produces a clear black image on white paper. All printed matter must appear in
12-point Times New Roman type on white paper. Briefs and appendices
produced by the standard typographic process shall be prepared in volumes
having pages 8½ by 11 inches, 1 inch margins on all sides, double spaced, and
two-sided. The two-sided print shall begin on the first page of the Table of
Contents.
i. 1 brief must be spiral bound.
ii. 6 briefs must be printed using normal printing methods.
1. The cover page of these briefs shall have the same information as
that printed on cover page of the required spiral bounded copy.
2. Staple each brief separately
iii. One copy must be emailed to the Executive Associate Justice in charge of
the competition (quinton.e.thompson@vanderbilt.edu).
(c) If briefs are produced by commercial printing or duplicating firms, or, if produced
otherwise and the covers to be described are available, the cover of the brief of
the petitioner should be blue; and that of the respondent, red. This rule is
applicable only to the spiral bound copies. All paper copies need only be
comprised of white paper. The front covers of the briefs and of appendices, if
separately printed, shall contain: (1) the name of the court and the number of the
case; (2) the title of the case; (3) the nature of the proceeding in the court (e.g.
Appeal; Petition for Review) and the name of the court, agency, or board below;
(4) the title of the document (e.g. Brief for Petitioner); and (5) the Moot Court
Competition assigned numbers of counsel representing the party on whose behalf
the document is filed.
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF EAGLETON
K.E., a Minor, by and through her
Mother, Paula EVERGREEN
Plaintiff,
v.
CAPITAL CITY SCHOOL DISTRICT 12
Defendant.
)
)
)
)
)
)
)
)
)
)
)
No. VU-2014-1-DIST
Decided March 11, 2013
Memorandum and Order
CALIPARI, District Judge.
Pending before this Court is a 42 U.S.C. § 1983 federal civil rights action against
Capital City School District 12. Plaintiff K.E., a minor, by and through her mother Paula
Evergreen, seeks an injunction barring enforcement of the School District’s ban of certain
stickers for violating her First Amendment right to free speech.
Before the Court are the parties’ cross-motions for summary judgment. Because the
slogan on the stickers is lewd, the School District was within its bounds to ban the stickers.
Accordingly, Plaintiff’s motion is hereby DENIED and Defendant’s motion is hereby
GRANTED.
I.
Factual Background
The facts in this case are not in dispute and are drawn from the parties’ Joint Statement of
Undisputed Facts filed concurrently with their cross-motions for summary judgment.
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In April 2012, Capital City in the state of Eagleton found itself in a contentious social and
political battle. Earlier that year, in January 2012, the local chapter of the nonprofit group
Eagletonians for Equality (“EFE”) spearheaded efforts to collect signatures for the citizens of
Capital City to vote on an ordinance that would make discrimination on the basis of sexual
orientation in employment and places of public accommodation unlawful in Capital City. On
April 1, the municipal government of Capital City announced that the requisite number of
signatures had been collected and that the ordinance would be put to a popular vote in the
November 2012 elections. The referendum became popularly known as “Prop 14.”
As one of the most notorious “swing states” in presidential elections, Eagleton’s citizens
often are evenly divided on social and political issues—and Capital City is no different. While
EFE enjoys strong support among many citizens in Capital City, the city also boasts a sizeable
population that embraces traditional family values. For instance, a large number of Capital
City’s citizens are members of the local branch of Eagletonians for Family Values (“EFV”).
Thus, the referendum vote was predicted to be very close. Mayor Elizabeth Trinkett—a staunch
conservative whose recent mayoral campaign was heavily backed by members of EFV and who
actively opposed Prop 14—stated in one April 2012 interview that she was already planning for
“a re-count and a re-count of that re-count.”
One of the most highly publicized run-ins in recent memory between EFE and EFV
occurred six years ago, in 2007, when two male gay students attended prom together at S. Crane
Memorial High School, a 700-student public high school in School District 12 of Capital City.
The school made no attempt to prevent the students from attending the dance together. Indeed,
the school’s principal, Donald Snow, issued a statement that while the school would let all
students attend prom with the dates of their choice, the school maintained a position of neutrality
2
on the morality of homosexuality. However, other members of the community (particularly
members of EFV) were upset by the incident. To voice their concern about the lack of emphasis
on traditional family values in Capital City’s schools, twenty EFV members protested outside the
prom. To protest their protest, roughly the same number of EFE members also attended and
voiced support for gay students. The dueling protests did not escalate—there were no physical
altercations, the volume of the protesters’ chants was kept to a reasonable level, and the two
students entered the dance with little fanfare. However, the incident became the talk of the town,
and both local and national media covered the event. Additionally, the prom was the subject of
commentary by hosts of several late night talk shows. As a consequence, school officials were
inundated with multiple phone calls and interview requests for several weeks following the
prom.
Five years later, during the week of September 3-7, 2012, several students at S. Crane
Memorial High School decided to voice their support for the passage of Prop 14. It began with
four freshmen students (members of the class of 2016), all of whom were 14 years old at the
time: K.E., P.M., G.M., and J.M. On K.E.’s home computer, the four friends created stickers to
wear at school. They bought adhesive paper from an office supply store and printed the stickers
at K.E.’s home. The stickers were approximately 3.5 inches in diameter. The stickers’
background consisted of vertical quarter-inch stripes in a “rainbow” pattern—red followed by
orange followed by yellow, etc. Bolded white letters with a black outline appeared on top of the
rainbow background and read in 42-point font: “Screw Hate, Don’t Discriminate.”
School District 12’s dress code policy provides in pertinent part:
The dress, speech, and work habits of the student should in every way possible
support the seriousness of the educational enterprise. School District 12
considers the following examples as dress in poor taste that will merit
disciplinary actions: clothing imprinted with nudity, vulgarity, obscenity,
3
profanity and double entendre pictures or slogans . . . .
On September 3, the four students arrived at school wearing the stickers. The stickers
were clearly visible and were placed on the students’ outer clothing near their right shoulders.
Teachers reported that no incidents of note or complaints occurred on September 3 in regard to
the stickers. A few other students began to ask K.E., P.M., G.M., and J.M for stickers so they
too could wear them to school to show their support for Prop 14. Accordingly, K.E. printed off
twenty-five more stickers that night on her home printer.
The next day, on September 4, K.E. passed out the twenty-five stickers by the end of the
second period. Several more students expressed a desire to wear a sticker and suggested that she
take a count of how many students were interested in the stickers. During lunch, K.E. and P.M.
asked other students if they would like to get a sticker the next day. She kept track of how many
students requested the stickers in a notebook.
However, her canvassing was not entirely uneventful. When she approached a table of
students comprised of junior members of EFV,1 the EFV students expressed their unhappiness
with the word “hate” being used to label their position. Apparently, the EFV students thought
the stickers disparagingly portrayed their opinions, which they believed to originate from a place
of love and recognition for the role of heterosexual relationships in society. K.E., P.M., and the
EFV students then engaged in what school officials have described as a “loud discussion,” and
students at adjacent tables turned to observe the debate. Mr. Mitch Abernathy, a teacher
monitoring the cafeteria, quickly ended the dispute by walking over and ordering the students
involved to sit down and finish eating. No physical altercations occurred, and the bell signaling
the end of the lunch period rang shortly thereafter.
1
To clarify, EFV does not maintain a school-sponsored club at S. Crane Memorial High School. The junior division
of EFV is an entirely outside organization and has no affiliation with any Capital City public schools.
4
Between September 5 and 6, K.E. passed out fifty more stickers to a variety of freshman,
sophomore, junior, and senior students. During these two days, several teachers informed
Principal Snow that the stickers were becoming the frequent source of discussion among the
students. For example, teachers reported that much of the hallway conversation revolved around
the stickers and the propriety of passing Prop 14. Additionally, students were often discussing
and emotionally “debating” the issue as they walked into classrooms. Several teachers described
how they had to spend time at the beginning of each class to quiet the students and direct their
attention to learning the subject at hand.
A few teachers also informed Principal Snow that students wearing the stickers were
occasionally the subject of negative heckling. For example, during a math class on September 5,
a teacher asked P.M. (who was wearing the sticker) to solve a math problem at the white board.
As P.M. walked up to the board, a student stuck out his foot to trip him and said “screw you” as
P.M. passed him. The teacher verbally reprimanded the student, but did not give the student a
formal punishment. The teacher and other students reported that P.M. appeared “slightly
shaken” and “frazzled,” but that he accurately completed the problem at the board. Other
teachers reported overhearing similar statements of “screw you” in the hallways and cafeteria
that were directed at students wearing the stickers.
Additionally, over the course of the week, S. Crane Memorial High School received
approximately 2-3 calls each day from parents complaining about the stickers. Office staff were
generally able to handle the phone calls, but on three occasions Principal Snow or other school
officials took the calls. Several parents stated that they would like to instill traditional family
values in their children and that they were upset when their children had come home from school
5
wearing the stickers. Other parents complained that the slogan “Screw Hate” is inappropriate for
the school setting because it carries offensive sexual connotations.
On September 7, Mayor Trinkett was scheduled to deliver an address to the entire student
body at 3:00 p.m. Weeks earlier, the school had scheduled Mayor Trinkett to give a speech
regarding her new education initiative. In early 2012, Mayor Trinkett and her staff formulated a
plan for improving Capital City’s schools by instituting an “academy” system in middle and high
schools, in which students would be grouped along their career interests and receive specialized
curriculum to correspond with their chosen industry. Mayor Trinkett and her staff hoped that the
academy system would improve students’ performance by creating opportunities to incorporate
real-world examples into the classroom and prepare students for work or college after high
school. During her address, Mayor Trinkett planned to announce that School District 12 had
been chosen as the “pilot district” and that the academies would be implemented at S. Crane
Memorial High School the following school year.
Around 10:00 a.m. on September 7, several students reported to teachers that a group of
approximately twenty sticker-wearing students were planning to refuse to attend Trinkett’s
speech. Reportedly, shortly before Trinkett’s speech was scheduled to begin, these stickerwearing students were going to inform their teachers that they refused to attend the speech as a
form of protest because they fundamentally disagreed with Trinkett’s platform regarding Prop
14. The students were planning to request to remain in the guidance counselor’s office and
complete their homework during the duration of the speech. K.E., P.M., G.M., and J.M, were
not among the students that were going to refuse to attend the speech.
In light of these discoveries, at 11:00 a.m. Principal Snow announced on the loudspeaker
that all students must turn over their stickers to the teachers. Principal Snow banned the stickers
6
at S. Crane Memorial High School, and announced that School District 12 has also banned them
at all other schools in the district. He explained that from this point forward, any student
wearing a sticker on their clothing or belongings would be asked to remove the sticker and would
receive detention if they refused. Principal Snow gave two reasons for the ban in his address to
the students: (1) the stickers were clearly disrupting the educational environment of the school,
and (2) he was disappointed that the students would use such a “crude” slogan to express
themselves. Additionally, Principal Snow stated that Mayor Trinkett’s speech was a required
event. Principal Snow further explained that any student who failed to attend would be
suspended if the student did not have an “excused absence”2 under the school’s attendance policy
or if the School District determined that the student refused to attend as an act of protest. Several
students (including K.E. and P.M.) refused to take off the sticker. Accordingly, K.E. and P.M.
received detentions and served them the following Saturday (September 8). However, other than
those students with “excused absences,” all students attended Trinkett’s speech. No students
asked to remain in the guidance counselor’s office, and Trinkett’s address proceeded without any
disruption.
Both K.E. and her mother, Paula Evergreen, were very upset by the School District’s
decision to ban the stickers. Upon reflection, they determined that K.E. would like to continue
wearing the stickers at school. Even though Prop 14 was passed in the November 2012 election,
K.E. states that she would like to continue wearing the stickers to express her opposition to
Eagleton’s ban on gay marriage (which was recently upheld as constitutional by the Eagleton
Supreme Court in Stein v. Ratford, 476 Eag. 23 (2011)). After her appeal to the School District
2
The school’s attendance policy states: “An absence will be considered an ‘excused absence’ if a parent, legal
guardian, or doctor, when appropriate, supplies written documentation that the student was absent for one of the
following reasons: illness; chronic/extended illness; prearranged appointments; family death or emergency; religious
observations; or exceptional circumstances that are approved by the Principal.”
7
was denied, K.E. filed an action in this Court, by and through her mother Paula Evergreen,
seeking an injunction barring enforcement of the school’s ban on the “Screw Hate, Don’t
Discriminate” stickers for violating her right to free speech as guaranteed by the First
Amendment. K.E. does not seek damages nor does she contest her detention, as she has already
served it.
II.
Standard of Review
Summary judgment is proper when there exists no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears
the initial burden of showing an absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). This Court must draw all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party
opposing the motion cannot rest on “mere allegations or denials” but must produce “specific
facts” showing that the moving party is not entitled to summary judgment due to the existence of
a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III.
Analysis
A.
Legal Standard
The First Amendment has been incorporated against the states via the Due Process
Clause of the Fourteenth Amendment. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336
n.1 (1995). Additionally, primary and secondary school students do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
Nonetheless, despite Tinker’s dramatic proclamation, the typical rules that apply outside
of the schoolhouse gates do not apply within them; rather, even the U.S. Supreme Court in
8
Tinker recognized that students’ First Amendment rights are limited by the “special
characteristics of the school environment” and the “comprehensive authority of the States and of
school officials . . . to prescribe and control conduct in the schools.” Id. at 506-07; see also id. at
515 (Stewart, J., concurring) (“[T]he First Amendment rights of children are [not] co-extensive
with those of adults.”). Furthermore, although the Court has never overruled Tinker, we have
seen a dramatic scaling-back of students’ rights in many areas of the law in the past four decades.
For example, the Court has further limited students’ First Amendment rights by permitting
schools to categorically ban speech that contains certain content. Morse v. Frederick, 551 U.S.
393 (2007); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). Likewise, in the realm of
the Fourth Amendment, the Court has held that schools need not have probable cause to search
students and that schools may conduct random drug tests on students. Bd. of Educ. of Indep. Sch.
Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002); Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646 (1995); New Jersey v. T.L.O., 469 U.S. 325 (1985). Thus, in the words of
one commentator, post-Tinker court decisions have made it clear that students do, in fact, “leave
most of their constitutional rights at the schoolhouse gate.” Erwin Chemerinsky, Students Do
Leave Their First Amendment Rights at the Schoolhouse Gates: What’s Left of Tinker?, 48
Drake L. Rev. 527, 530 (2000).
Tinker and its concern with disruption to the school’s educational environment involves
so-called “pure speech.” 393 U.S. at 505. However, the Court has since carved out exceptions
to Tinker’s general rule by devising different tests based on whether the speech is lewd or plainly
offensive, whether the speech promotes illegal drug use, or whether the speech involves schoolsponsored expressive activities. Morse, 551 U.S. at 408; Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 273 (1988); Fraser, 478 U.S. at 685; see also K.A. ex rel. Ayers v. Pocono Mountain
9
Sch. Dist., 710 F.3d 99, 111 (3d Cir. 2013) (citations omitted) (“Tinker sets the general rule for
regulating school speech, and that rule is subject to several narrow exceptions.”). Thus, our
present foray into student speech jurisprudence depends on which of the Supreme Court’s
precedent—Tinker, Fraser, Morse, or Hazelwood—provides the most appropriate framework to
analyze the School District’s ban on the stickers worn by K.E. and other students at S. Crane
Memorial High School. Gillman ex rel. Gillman v. Sch. Bd. for Holmes Cnty., Fla., 567 F. Supp.
2d 1359, 1365 (N.D. Fla. 2008) (“Supreme Court precedent has identified four categories of
student speech . . . .”).
i.
Tinker v. Des Moines Independent Community School District
In the words of one of the litigants in Tinker, “What George (Washington) and the boys
did for white males in 1776, what Abraham Lincoln did to a certain extent during the time of the
Civil War for African-American males, what the women’s suffrage movement in the 1920s did
for women, the Tinker case did for children in America.” David L. Hudson Jr., On 30-Year
Anniversary, Tinker Participants Look Back at Landmark Case, FIRST AMENDMENT CENTER
(Feb. 24, 1999), http://www.firstamendmentcenter.org/on-30-year-anniversary-tinkerparticipants-look-back-at-landmark-case. Tinker was the first time the Court formally
recognized that the First Amendment protects primary and secondary students’ speech and thus
is an appropriate starting point for our analysis.
In Tinker, two high school students and one junior high student devised a plan to wear
black armbands at school in protest of the then-ongoing hostilities in Vietnam. 393 U.S. at 504.
School officials got wind of their plan and adopted a policy banning the armbands. Id. Fully
aware of the school’s policy, the students nonetheless wore the armbands and were suspended.
Id. In a landmark decision, the Court held that the school violated the students’ rights. Id. at
10
514. In doing so, the Court fashioned a test that prohibits school officials from restricting
student speech unless they are able to articulate a “substantial disruption of or material
interference with school activities.” Id.
The Court ruled that wearing the armband was a symbolic act resembling “pure speech”
and was therefore entitled to “comprehensive protection under the First Amendment.” Id. at
505-06. However, as noted above, the Court also recognized the extensive authority of schools
to control students’ conduct; consequently, the Court’s analysis examined “the area where
students in the exercise of First Amendment rights collide with the rules of the school
authorities.” Id. at 507. To balance these competing interests, the Court focused on the amount
of disruption (or the lack thereof) that the student speech causes. Id. at 508. Specifically, while
an “undifferentiated fear or apprehension of disturbance” or “a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint” cannot
overcome students’ First Amendment rights, the Court held that schools may restrict students’
speech when the speech “materially and substantially interfere[s] with the requirements of
appropriate discipline in the operation of the school.” Id. at 508-09. Furthermore, the school
need not wait until an actual disruption occurs and may restrict the speech if it “reasonably . . .
forecast[s]” that the speech will cause a substantial disruption. Id. at 514.
On the facts of Tinker, the Court recognized that the armbands constituted “silent, passive
expression of opinion, unaccompanied by any disorder or disturbance.” Id. at 508. The record
failed to show that the school officials had any reason to “anticipate that the wearing of the
armbands would substantially interfere with the work of the school or impinge upon the rights of
other students.” Id. at 509.
ii.
Bethel School District No. 403 v. Fraser
11
The Court did not revisit student speech until nearly two decades later. In Fraser, the
Court modified the Tinker framework by recognizing that there is some student speech that
schools may restrict without any regard to whether it caused a “substantial disruption.” 478 U.S.
at 683. Particularly, the Fraser Court held that schools may categorically ban student speech
that is “lewd, indecent, or offensive.” 478 U.S. at 683; see also B.H. ex rel. Hawk v. Easton Area
Sch. Dist., 725 F.3d 293, 304 (3d Cir. 2013) (en banc), cert. denied, 134 S. Ct. 1515 (2014)
(citing Fraser, 478 U.S. at 683) (“[T]he government may categorically restrict vulgar, lewd,
profane, or plainly offensive speech in schools, even if it would not be obscene outside of
school.”).
In Fraser, a high school student addressed 600 of his classmates in a speech nominating a
fellow classmate for student elective office. 478 U.S. at 677. During his speech, the student
referred to his classmate “in terms of an elaborate, graphic, and explicit sexual metaphor.” Id. at
678. In holding that the school acted constitutionally when it disciplined the student, the Court
held that schools may “prohibit the use of vulgar and offensive terms” as part of its duty to teach
the “essential lessons of civil, mature conduct.” Id. at 683. In doing so, the Court definitively
recognized that “constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings.” Id. at 682.
While the test the Court employed in Fraser is less than clear, the Court later interpreted
Fraser as standing for the point that schools may ban lewd or plainly offensive speech without
any regard to whether the speech caused a “substantial disruption.” See Morse, 551 U.S. at 405
(“Whatever approach Fraser employed, it certainly did not conduct the ‘substantial disruption’
analysis prescribed by Tinker.”); Hazelwood, 484 U.S. at 271 n.4 (“Fraser rested on the ‘vulgar,’
‘lewd,’ and ‘plainly offensive’ character of a speech . . . rather than on any propensity of the
12
speech to ‘materially disrup[t] classwork or involv[e] substantial disorder or invasion of the
rights of others.’ ”).
iii.
Hazelwood School District v. Kuhlmeier
Shortly after Fraser, the Court in Hazelwood once again chipped away at Tinker and
created another exception in the “substantial disruption” framework. Hazelwood concerned a
school’s efforts to exercise “editorial control” over what students may publish in the school’s
newspaper. 484 U.S. at 262. In Hazelwood, three staff members of a school newspaper sued
after the school prevented them from publishing a story describing students’ experiences with
teen pregnancy. Id. at 263. The school newspaper was funded entirely by the school and was
written by students in a journalism class. Id. Due to a concern that the pregnant girls’ identities
would not remain anonymous and that the content was inappropriate for some of the younger
students at the school, the principal directed the journalism teacher to withhold from publication
the pages containing the teen pregnancy story. Id. at 263-64.
In holding that the school acted constitutionally in preventing the publication of the story,
the Court distinguished Tinker and ruled that the “substantial disruption” analysis did not apply:
“The question whether the First Amendment requires a school to tolerate particular student
speech—the question that we addressed in Tinker—is different from the question whether the
First Amendment requires a school affirmatively to promote particular student speech.” Id. at
270-71. Instead, the Court held that schools may exercise “editorial control” over the “the style
and content of student speech in school-sponsored expressive activities” without regard to
whether it would interfere with the educational work of the school “so long as [the school’s]
actions are reasonably related to legitimate pedagogical concerns.” Id. at 272-73.
iv.
Morse v. Frederick
13
The Supreme Court’s most recent decision on student speech came in 2007, when the
Court held that schools may categorically ban student speech that encourages illegal drug use.
Morse, 551 U.S. at 403. In Morse, a high school official permitted students to gather and
observe as the Olympic Torch Relay passed by the school. Id. at 397. When the torch passed
by, a student unfurled a 14-foot banner emblazoned with the phrase “BONG HiTS 4 JESUS.”
Id. Although the Court admitted that the sign was rather “cryptic,” it concluded that it was
reasonable for school administrators to interpret the sign as advocating for illegal drug use. Id. at
401.
After determining that schools have a compelling interest in deterring drug use by its
students, the Court concluded that “[t]he ‘special characteristics of the school environment’ . . .
and the governmental interest in stopping student drug abuse . . . allow schools to restrict student
expression that they reasonably regard as promoting illegal drug use.” Id. at 407-08 (quoting
Tinker, 393 U.S. at 506). The school had argued that the Court should hold that the sign was
“plainly offensive” under Fraser; however, the Court declined to adopt that broader rule and
instead carved out a specific exception to the Tinker framework for speech that promotes illegal
drug use. Id. at 409.
v.
Standard to Apply in the Instant Case
The parties have argued vigorously and much ink has been spilled over the correct legal
standard under which to adjudge K.E.’s wearing of the “Screw Hate, Don’t Discriminate”
stickers. Although the parties felt the need to engage in intense debate and extensive briefing,
this Court easily concludes that Fraser is the most appropriate framework to apply. When
dealing with student speech that the school contends is lewd, the Supreme Court’s precedent
instructs that Fraser is the correct standard. 478 U.S. at 683.
14
First, K.E. remains adamant that the political nature of the stickers somehow erases the
word “screw” from the sticker and transforms the sticker into the “pure speech” that was
involved in Tinker, thereby warranting a “substantial disruption” analysis. But unfortunately for
young K.E., that is simply not the case. J.A. v. Fort Wayne Cmty. Sch., No. 1:12–CV–155 JVB,
2013 WL 4479229, at *6 (N.D. Ind. Aug. 20, 2013) (stating that a “positive cancer awareness
message did not sanitize [a] vulgar slogan” on bracelets worn by students). There is absolutely
nothing in Fraser that would instruct this Court to change the way it analyzes student speech that
the school views as lewd when the speech also happens to discuss a political issue. Easton, 725
F.3d at 325 (Hardiman, J., dissenting) (stating that a limitation on a school’s ability to restrict
“student speech that could reasonably be deemed lewd, vulgar, plainly offensive, or constituting
sexual innuendo” because the speech also comments on a political or social issue “finds no
support in Fraser or its progeny”). Such a result would be absurd—under K.E.’s logic, should a
school have to prove a “substantial disruption” if a student wore a shirt covered in lewd sexual
references if the shirt also happened to be opposing drunk driving or drug use? I think not. See
Pyle v. S. Hadley Sch. Comm., 861 F. Supp. 157 (D. Mass. 1994) (holding that school officials
acted reasonably under Fraser when they banned a t-shirt with the slogan “See Dick Drink. See
Dick Drive. See Dick Die. Don’t be a Dick.”); Broussard v. Sch. Bd. of Norfolk, 801 F. Supp.
1526 (E.D. Va. 1992) (upholding under Fraser a student’s punishment for wearing t-shirt with
the phrase “Drugs Suck!”).
Second, K.E. has argued that Fraser’s standard should be altered when the speech is only
“ambiguously lewd” instead of “plainly lewd.” K.E. relies on the case B.H. ex rel. Hawk v.
Easton Area School District, in which the Third Circuit held that a school’s ability to restrict
student speech under Fraser is somehow limited when the speech is only “ambiguously lewd.”
15
725 F.3d at 308. I am grateful that only decisions of the Thirteenth Circuit bind this Court,
because the Third Circuit’s holding contradicts the Supreme Court’s precedent and abounds with
practical problems. Id. at 339 (Greenaway, J., dissenting).
The Court’s holding in Fraser states that a school may restrict speech that is “lewd,
indecent, or offensive.” 478 U.S. at 683. Nowhere in the Court’s opinion does it limit its
holding to “plainly lewd” speech or differentiate “ambiguously” from “plainly” lewd speech; in
fact, the only time that the Fraser Court used the word “plainly” was in stating that the student’s
speech was “plainly offensive.” Id. Thus, from a plain reading of Fraser, it appears that schools
may regulate speech that contains any level of lewdness, but may not regulate “offensive” speech
unless it rises to the level of “plainly offensive” speech. See Morse, 551 U.S. at 409 (“[Fraser]
should not be read to encompass any speech that could fit under some definition of ‘offensive.’
After all, much political and religious speech might be perceived as offensive to some.”); K.J. v.
Sauk Prairie Sch. Dist., No. 11-cv-622-bbc, 2012 U.S. Dist. LEXIS 187689, at *9-10 (W.D. Wis.
Feb. 6, 2012) (stating that “the Court’s concern [in Fraser] was the sexual innuendo” and that
“[i]t remains unclear just how far schools may go to regulate speech that is not sexually explicit,
lewd or indecent but is nevertheless vulgar, offensive or inappropriate”).
Second, how is a school official—or a court, for that matter—supposed to differentiate
between speech that is “plainly lewd” from speech that is merely “ambiguously lewd”? Easton,
725 F.3d at 339 (Greenaway, J., dissenting). As Judge Greenaway rightly pointed out in his
dissent in Easton, there is no principled or reliable way to distinguish the ambiguously lewd from
the plainly lewd. Id. (“[W]hat words or phrases fall outside of the ambiguous designation other
than the ‘seven dirty words’?”). Other than the most obvious expletives or sexual metaphors
similar to the speech in Fraser itself, school districts would have no guiding principle to help
16
them distinguish cases in which they can categorically ban speech under Fraser from cases in
which they must prove Tinker’s elusive “substantial disruption” standard. Thus, it is a much
more practical rule (and one supported by the case law) to recognize that schools may ban speech
that is lewd at any level, rather than trying to embark on the impossible task of differentiating
“plainly lewd” from “ambiguously lewd.”
Therefore, because K.E.’s speech was not made in the course of school-sponsored
activities and did not advocate for illegal drug use, Hazelwood and Morse are clearly
inapplicable. Moreover, because Fraser is not altered when the student speech carries a political
message or may be considered merely “ambiguously lewd,” this Court holds that Fraser, rather
than Tinker, is the appropriate legal standard under which to analyze the stickers worn by K.E.
and other students at S. Crane Memorial High School. Thus, despite the parties’ extensive
briefing on whether the stickers caused a “substantial disruption” or if school administrators
could “reasonably forecast” such a disruption, this Court has no opportunity or reason to reach
those arguments.
B.
Application of Fraser
Now that this Court has determined Fraser is the appropriate standard under which to
analyze the stickers at issue, this Court must determine whether the phrase “Screw Hate, Don’t
Discriminate” rises to the level of lewd, indecent, or plainly offensive speech that may be
categorically banned under Fraser. This Court holds that because the phrase “Screw Hate”
carries lewd, sexual connotations, the School District acted constitutionally when it banned the
stickers.
Determining what speech rises to the level of lewd or plainly offensive under Fraser is a
fact-intensive inquiry without much formal guidance from the case law—particularly because
17
speech can be classified as “lewd” within the school setting “even if it would not be obscene
outside of school.” Easton, 725 F.3d at 304. Nonetheless, courts often begin their analysis by
turning to dictionaries to ascertain the common meaning of the word or phrase at issue. See
Fort Wayne, 2013 WL 4479229, at *5 (citing Webster’s definition of “booby” as “a term for
breast that is sometimes vulgar”); Sauk, 2012 U.S. Dist. LEXIS 187689, at *17 (same);
Broussard, 801 F. Supp. at 1534 (referencing the Oxford English Dictionary for the definition of
“suck”).
As K.E. points out, the primary definition for the verb form of “screw” in Webster’s
Dictionary is “to attach or fasten by means of a screw.” Screw Definition, MERRIAMWEBSTER.COM, http://unabridged.merriam-webster.com/unabridged/screw (last visited February
10, 2013). However, in the same entry, Webster’s also lists a possible definition of “screw” as
“to copulate with” and indicates that “screw” used in that meaning is “vulgar.” Id. This
situation is similar to that in Broussard, in which the plaintiff argued that the word “suck” in the
phrase “drugs suck” is intended to convey the message “drugs are bad,” even though the plaintiff
admitted that “suck” also carries sexual connotations. 801 F. Supp. at 1533. In holding that the
school could ban the speech under Fraser, the Broussard court concluded that even if students at
the school would interpret the phrase “drugs suck” as “drugs are bad,” the phrase still derives its
meaning from a sexual connotation. Id. at 1534. This Court finds the logic of the Broussard
court to be very persuasive and directly applicable to this case. Even though the students may
have been attempting to convey the socially admirable message that “hate is bad,” the school
may restrict speech under Fraser when the speech’s meaning is based on a lewd sexual
connotation.
18
Moreover, at least one court has used evidence of “taunting” or teasing based on the lewd
meaning of the speech to indicate that the school can ban the speech under Fraser. In Fort
Wayne, middle school students wore breast cancer awareness bracelets with the phrase “I (heart)
boobies!” written on them. 2013 WL 4479229, at *1. In determining whether the phrase was
vulgar, the court found relevant that other students had “taunted” students wearing the bracelets,
and that the taunting presumably involved the word “boobies.” Id. at *6. In this case, teachers
reported instances of statements of “screw you” directed at students wearing the stickers. Thus,
if there was any question that the dictionary definitions did not already indicate that “screw hate”
is lewd, this heckling further demonstrates that the word “screw” on the stickers was intended to
convey its vulgar definition and therefore can be banned under Fraser.
C.
Overbreadth and Vagueness
As a separate basis for challenging the School District’s ban on the stickers, K.E.
contends that the S. Crane Memorial High School’s dress code is both facially overbroad and
unconstitutionally vague. However, because the dress code only prohibits dress that the School
District can categorically ban under Fraser and because a reasonable student can understand the
limits of the dress code, this Court holds that the dress code is neither unconstitutionally
overbroad nor unconstitutionally vague.
i.
Overbreadth
Laws that sweep too broadly and prohibit otherwise protected speech are facially invalid
on overbreadth grounds. See, e.g., Bd. of Airport Comm’rs of the City of Los Angeles v. Jews for
Jesus, 482 U.S. 569 (1987); Gooding v. Wilson, 405 U.S. 518 (1972). As the Supreme Court
explained, “[t]he overbreadth doctrine prohibits the Government from banning unprotected
speech if a substantial amount of protected speech is prohibited or chilled in the process.”
19
Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002). However, the overbreadth doctrine
“warrants a more hesitant application in the [public school] setting than in other contexts.”
Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 258 (4th Cir. 2003) (quoting
Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 259 (3d Cir. 2002)). Instead, dress
codes will only be found overbroad if they may have a chilling effect on constitutionally
protected speech. West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1367 (10th Cir.
2000).
In this case, the dress code is not overbroad because it only limits speech that the School
District would be able to categorically ban under Fraser even if no dress code was in place. The
dress code bans clothing that depicts “nudity, vulgarity, obscenity, profanity and double entendre
pictures or slogans.” These categories of dress clearly fall within Fraser’s prohibition on speech
that is “lewd, indecent, or offensive.” 478 U.S. at 683; see also Saxe v. State Coll. Area Sch.
Dist., 240 F.3d 200, 213 (3d Cir. 2001) (quoting Fraser, 478 U.S. at 685) (“Fraser permits a
school to prohibit words that ‘offend for the same reasons that obscenity offends.’ ”). Therefore,
because the dress code only prohibits speech that could be banned under Fraser, it cannot be
argued that the dress code prohibits or chills a “substantial amount of protected speech.” Free
Speech Coal., 535 U.S. at 255.
ii.
Vagueness
Under the void for vagueness doctrine, a government regulation is unconstitutional if it
does not “provide a fair warning,” if it fails to “provide explicit standards for those who apply
them,” or if its operation inhibits the exercise of First Amendment freedoms. Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972). In a public school, a school policy is unconstitutionally
vague “if a reasonable student of ordinary intelligence who read the policy could not understand
20
what conduct it prohibited.” West, 206 F.3d at 1368 (citing Broadrick v. Oklahoma, 413 U.S.
601, 608 (1973)).
In this case, there is no evidence that K.E. did not read or understand the dress code
policy. Nor does K.E. even argue that the stickers do not violate the dress code. Accordingly,
K.E. does not truly argue that she was confused about the dress code or whether the stickers
would violate the prohibition on “nudity, vulgarity, obscenity, profanity and double entendre
pictures or slogans.” Additionally, this Court thinks that a reasonable student would surely
understand that “Screw Hate, Don’t Discriminate” would qualify as a “double entendre,” which
is clearly banned under the policy. Thus, this Court holds that S. Crane Memorial High School’s
dress code is not unconstitutionally vague.
IV.
Conclusion
For the foregoing reasons, Plaintiff’s motion for summary judgment is hereby DENIED
and summary judgment is GRANTED in favor of Defendant.
21
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
K.E., a Minor, by and through her
Mother, Paula EVERGREEN
)
)
)
Appellant,
)
)
v.
)
)
CAPITAL CITY SCHOOL DISTRICT 12, )
)
Appellee.
)
No. VU-2014-2-APP
Memorandum and Order
October 6, 2013, Argued
January 8, 2014, Decided
BEFORE: Calhoun, Chief Judge, Ollie, sitting by designation, Judge, D. Conn., and Draper,
Circuit Judge. Calhoun, C.J., delivered the Opinion of the Court, in which Ollie, J., joined.
Draper, J., filed a dissenting opinion.
This Court addresses whether a ban on stickers containing the phrase “Screw Hate, Don’t
Discriminate” in a public school violates students’ First Amendment rights to free speech. This
Court finds that such restrictions, which prohibit political speech on the basis that they contain
“lewdness,” cannot withstand constitutional scrutiny. The First Amendment has been violated.
Upon review of the entire record and after hearing oral arguments on October 6, 2013,
this Court REVERSES the decision of the District Court and REMANDS the case to the District
Court with instructions to grant Appellant’s Motion for Summary Judgment.
I.
Case History
This Court receives the case from the District Court of Eagleton pursuant to the timely
appeal of Appellant K.E., a minor, by and through her mother, Paula Evergreen. Appellant seeks
1
a reversal of the District Court’s ruling and argues as a matter of law that the Court should grant
Appellant’s Motion for Summary Judgment. This Court exercises subject-matter jurisdiction
pursuant to 28 U.S.C. § 1291.
This Court does not challenge the validity or credibility of the undisputed facts as
described by the District Court. Based on those facts, the District Court concluded that the
School District was within its constitutional powers in banning students from wearing stickers
bearing the phrase “Screw Hate, Don’t Discriminate.”
The District Court relied on the notion that the rule announced in Bethel School District
No. 403 v. Fraser, 478 U.S. 675 (1986), applies when student speech contains any level of
lewdness, without regard to whether the speech is also of a political nature. The District Court
held that “Screw Hate, Don’t Discriminate” contained lewd speech, and consequently ruled that
the School District acted constitutionally when it banned the stickers. This Court disagrees with
the District Court. Instead, this Court finds that Fraser only applies to student speech that is
“plainly lewd.” An entirely different analysis should apply to a restriction on student speech that
does not rise to the level of “plainly lewd” and that also carries a political message.
II.
Standard of Review
Summary judgment is appropriate when there is no genuine issue of material fact and the
issue may be resolved as a matter of law. FED. R. CIV. P. 56(c). In granting a motion for
summary judgment, the Court must examine all evidence and draw all inferences “in the light
most favorable to the nonmoving party.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
Furthermore, this Court does not defer to the legal conclusions of the District Court and reviews
the ruling de novo. See, e.g., Wilson v. Moreau, 492 F.3d 50, 52 (1st Cir. 2007); Harrison v.
United Auto Grp., 492 F.3d 972, 974 (8th Cir. 2007). The issue for this Court is “whether the
2
District Court correctly applied the substantive law.” Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004).
III.
Issues on Appeal
Our issue today is whether student speech that is both lewd and political should be
analyzed under the more restrictive Fraser test or the more permissive Tinker “substantial
disruption” analysis. Some of our sister circuits have already had occasion to rule on similar
issues. See e.g., B.H. ex. rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 315 (3d Cir. 2013)
(en banc), cert. denied, 134 S. Ct. 1515 (2014); Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist.
No. 204, 523 F.3d 668, 672 (7th Cir. 2008); Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765,
768-69 (5th Cir. 2007). In the Thirteenth Circuit, this is an issue of first impression.
K.E. has not raised or pursued her overbreadth and vagueness arguments on appeal;
therefore, those claims are waived. This Court will not address arguments abandoned by the
Appellant. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 339 n.2 (2006).
A. Standard to Apply
Public school students do not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 506 (1969). Despite the Dissent’s protestations, the Supreme Court has not overruled
Tinker nor have its subsequent decisions eviscerated the protections it affords our Nation’s
public school students. Even if “the day of its demise may soon be at hand,” Tinker remains
binding precedent upon this Court. Post, at *27 (Draper, J., dissenting).
Nevertheless, it is clear that we cannot decide the student speech issue without giving due
care to the effect that more recent cases such as Fraser and Morse v. Frederick, 551 U.S. 393
(2007), have on the entire analysis. Though their arguments may be colorable, we read Fraser
and Morse in a very different manner than the Dissent and District Court. Instead of reading
3
those cases to overrule Tinker, we find that they coexist well. See Easton, 725 F.3d at 298
(creating a framework that harmonizes Tinker, Fraser, and Morse). Fraser and Morse have their
utility—there are some instances in which the unique characteristics of the school setting require
that school officials have broad power to restrict speech that is harmful to students, such as
speech that is plainly lewd or that promotes illegal drug use. Morse, 551 U.S. at 425 (Alito, J.,
concurring) (explaining that the “special features of the school environment” give school
officials greater authority to restrict speech in certain circumstances). But the sweeping extent to
which the Dissent and District Court apply Fraser gives administrators far too much authority to
categorically restrict speech they plausibly believe is “lewd.”
Finally, we cannot forget the importance of core political speech. Eu v. S.F. Cnty.
Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (internal quotation marks omitted) (stating
that “the First Amendment has its fullest and most urgent application” in the context of political
speech). The “marketplace of ideas” is alive and well in the schoolhouse and we must afford it
the protection it deserves. Gillman ex rel. Gillman v. Sch. Bd. for Holmes Cnty., Fla., 567 F.
Supp. 2d 1359, 1376 (N.D. Fla. 2008) (quoting Tinker, 393 U.S. at 512) (“In a school setting, the
silencing of a political message because of disagreement with that message, is particularly
offensive to the Constitution because ‘[t]he classroom is peculiarly the marketplace of ideas.’ ”).
Because this speech does not cleanly fall into any of the categories laid out in Tinker, Fraser, or
Morse, our inquiry requires that we reconcile the cases in a way that protects students’ ability to
engage in political discourse while respecting the authority of school officials to maintain a safe
and effective learning environment.
i. Fraser Only Applies to Plainly Lewd Speech
4
Fraser only allows categorical restrictions on speech that is plainly lewd or offensive as a
matter of law. See Morse, 551 U.S. at 409 (“[Fraser] should not be read to encompass any
speech that could fit under some definition of ‘offensive.’ ”); see also Chandler v. McMinnville
Sch. Dist., 978 F.2d 524, 530 (9th Cir. 1992) (interpreting Fraser as limited to “per se vulgar,
lewd, obscene, or plainly offensive” school speech). Although it is true that the majority opinion
in Fraser only uses the word “plainly” in the phrase “plainly offensive,” various similar terms
are used interchangeably throughout the case. See Doninger v. Niehoff, 527 F.3d 41, 49 (2d Cir.
2008) (“[Fraser’s] reference to ‘plainly offensive speech’ must be understood in light of the
vulgar, lewd, and sexually explicit language that was at issue in that case.”). For instance, when
describing the nature of Matthew Fraser’s speech, Chief Justice Burger wrote: “The pervasive
sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students—indeed
to any mature person. By glorifying male sexuality, and in its verbal content, the speech was
acutely insulting to teenage girl students.” 478 U.S. at 683 (emphasis added).
To wit, there is no difference between speech that is vulgar and speech that is plainly
offensive. See Guiles ex. Rel. Guiles v. Marineau, 461 F.3d 320, 327 (2d Cir. 2006) (reading the
terms “lewd,” “vulgar,” “indecent,” and “plainly offensive” together). Fraser stands for the
proposition that vulgar speech is plainly offensive, and that plainly offensive speech may be
categorically regulated by school administrators. 478 U.S. at 683 (describing Fraser’s speech as
“plainly offensive”). Finally, we find support that this determination must be made as a matter
of law. See Marineau, 471 F.3d at 327 (“While what is plainly offensive is not susceptible to a
precise definition, we hold that the images depicted . . . are not plainly offensive as a matter of
law.”).
5
The District Court argues that it would be too difficult for school administrators to
determine what is and is not plainly lewd. K.E. ex rel. Evergreen v. Capital City Sch. Dist. 12,
No. VU-2014-1-DIST, at *16-17 (D. Eagleton Mar. 11, 2013). However, this assertion does not
hold water. The entire point of plainly lewd is that it is obvious on its face—the vulgarity of
Matthew Fraser’s speech needed no explanation—and that any observer, reasonable or
unreasonable, would have found it to be of lewd character. Easton, 725 F.3d at 306 (“Fraser
addressed only a school’s power over speech that was plainly lewd—not speech that a reasonable
observer could interpret as either lewd or non-lewd.”). Plainly lewd speech is thus speech that is
immediately apparent to be such.
Further supporting our determination here is the lack of clarity as to the actual test that is
used in Fraser. The Supreme Court itself was unable to determine the exact test to apply as
“[t]he mode of analysis employed in Fraser is not entirely clear.” Morse, 551 U.S. at 404. It
would be imprudent to expand a case that lacks a clear standard to cover such a wide swath of
speech.
This litigation shows how unworkable Fraser is when applied to any level of lewdness,
rather than only being reserved for speech that is plainly lewd. Despite claiming to simplify the
standard, both the District Court and Dissent still engage in tortured analyses of the word
“screw”—a word which, as we explain below, is not plainly lewd in this context—in order to
attempt to fit it into their conception of Fraser’s prohibition. The Fraser test is greatly
simplified if schools may only categorically ban “the most obvious expletives or sexual
metaphors similar to the speech in Fraser itself.” Evergreen, No. VU-2014-1-DIST, at *16.
Thus, to be eligible for Fraser’s extreme deference, any person should be able to recognize that
the speech is “highly offensive” or vulgar at first sight.
6
ii. Political Speech by Students Deserves Heightened Protection
In our analysis of the stickers worn by K.E. and other students at S. Crane Memorial
High School, we must not fail to appreciate the importance of the political dimension of the
students’ speech. Although we do not yet have direct precedent that affords additional protection
to student political speech, it is clear that in Morse v. Frederick, the Supreme Court intended to
do just that. 551 U.S. at 403.
Morse’s majority introduced into law the dangerous argument that a school may restrict
speech solely because it does not comport with a school’s “educational mission.” See id. at 399.
Read broadly, the majority’s holding could even suggest that the Court is moving towards a
standard where school administrators may categorically restrict any speech that conflicts with its
self-defined “educational mission”—including the very type of political speech that was present
in Tinker. See Morse, 551 U.S. at 423 (Alito, J., concurring) (noting that the argument that the
First Amendment allows school officials to prohibit “any student speech that interferes with a
school’s ‘educational mission’ ” could “easily be manipulated in dangerous ways”).
Instead, to limit this potentially broad and worrisome result, Justice Alito (joined by
Justice Kennedy) clarified in his concurrence that he joined the majority opinion “on the
understanding” that “it provides no support for any restriction of speech that can plausibly be
interpreted as commenting on any political or social issue.” Id. at 422. To counteract the
sweeping language of the majority, Justice Alito’s concurrence explicitly narrows the scope of
Morse and, by extension, Fraser as well. Id. at 422-23. We believe, as some of our sister
circuits do, that Justice Alito’s concurring opinion constrains Morse nearly to its facts and
provides the precedent necessary to protect student political speech from being categorically
eliminated from the schoolhouse. See Easton, 725 F.3d at 309-10; Ponce, 508 F.3d at 769-70.
7
Justice Alito’s explicit disavowal of the “educational mission” theory provides further
clarity not only to the reasoning behind Morse, but Fraser as well. See Ponce, 508 F.3d at 770;
see also Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 Fla. L. Rev. 1027,
1088-89 (2008). Student speech rights are not circumscribed merely because they are students,
but because there are “special danger[s]” present in the schoolhouse that school administrators
must be allowed to defend against. Morse, 551 U.S. at 424 (Alito, J., concurring) (“[A]ny
argument for altering the usual free speech rules in the public schools cannot rest on a theory of
delegation but must instead be based on some special characteristic of the school setting . . . .
Experience shows that schools can be places of special danger.”). We see in Morse the special
danger of physical harm to the students from smoking marijuana cigarettes. Id. at 407-08
(majority opinion). In Fraser, we see a special danger to the rights of other students not to be
confronted by plainly lewd or offensive speech. 478 U.S. at 683 (“[Fraser’s] speech could well
be seriously damaging to its less mature audience . . . .”). These potential harms are so great
“that requiring a school administrator to evaluate their disruptive potential is unnecessary.”
Ponce, 508 F.3d at 770. But what “special danger” does the introduction of political speech
present to children? We can think of none. See Tinker, 393 U.S. at 512 (quoting Keyishian v.
Bd. of Regents, 385 U.S. 589, 603 (1967)) (“The classroom is peculiarly the ‘marketplace of
ideas.’ ”). Thus, the effect that Morse had on Fraser cannot be ignored.
Finally, we believe that Justice Alito’s concurring opinion in Morse is in fact binding on
this Court as required by the narrowest-grounds doctrine. See 551 U.S. at 425 (Alito J.,
concurring). It is a well-settled principle that when no majority supports the rationale of any
opinion, the Court’s holding is the “position taken by those Members who concurred in the
judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977)
8
(quoting Gregg v. Georgia, 428 U.S. 153, 159 n.15 (1976)) (internal quotation marks omitted).
Justice Alito clearly states that he does not support the rationale of the majority unless it excepts
political speech from categorical restriction; without his vote there is no five-Justice majority.
See Morse, 551 U.S. at 422 (Alito J. concurring). The Dissent would have this Court ignore
what is written by Justice Alito’s own hand because he “joined” Morse’s majority opinion. Post,
at *22-24 (Draper, J., dissenting). The Dissent’s rote devotion to technicality embodies the type
of “gotcha” adjudication that the Court has long sought to eliminate. Justice Alito’s concluding
words say without ambiguity, “I join the opinion of the Court with the understanding that the
opinion does not endorse any further extension” beyond banning speech that advocates illegal
drug use. Morse, 551 U.S. at 425 (Alito, J., concurring) (emphasis added).
It is quite apparent that the Court in Morse rests its decision on the fact that the speech
had no political dimension. The Morse majority takes special care to distinguish the nonpolitical
speech at issue in that case from the highly political speech involved in Tinker:
The essential facts of Tinker are quite stark, implicating concerns at the heart of
the First Amendment. The students sought to engage in political speech, using
the armbands to express their ‘disapproval of the Vietnam hostilities and their
advocacy of a truce, to make their views known, and, by their example, to
influence others to adopt them.’
Id. at 403 (majority opinion) (quoting Tinker, 551 U.S. at 514). Furthermore, the Morse majority
suggested that the outcome of Morse would have been different had the speech actually been
political in nature when it stated that “the dissent emphasizes the importance of political speech
and the need to foster ‘national debate about a serious issue,’ as if to suggest that the banner is
political speech.” Id. (citation omitted). Finally, no less of an authority than the Supreme Court
itself has confirmed that Morse has at least something to do with political speech. See Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 329 (2010) (citing Morse, 551 U.S. at 403)
(“[T]he Court cannot resolve this case on a narrower ground without chilling political speech,
9
speech that is central to the meaning and purpose of the First Amendment.”). Given that both the
majority and Justice Alito’s controlling concurrence repeatedly state the importance of political
speech in the schoolhouse context, we have no choice but to afford such speech the constitutional
protection it deserves.
The direction of the Court clearly indicates a desire to provide heightened protection to
student speech. The Dissent drones on about the Court’s move towards a “meanings-based”
view of student speech. Post, at *24-29 (Draper, J., dissenting). This argument, however,
undermines the Dissent’s own view of this case. Even if speech has a lewd meaning, its
potential to have political meaning as well cannot be ignored. See Morse, 551 U.S. at 403
(“[N]ot even Frederick argues that the banner conveys any sort of political or religious message .
. . this is plainly not a case about political debate . . . .”); Fraser, 478 U.S. at 685 (determining
that the speech at issue did not have a political component). A complete ignorance of political
meanings not only goes against clear Supreme Court precedent, but disregards the First
Amendment’s raison d’etre. See Holder v. Humanitarian Law Project, 561 U.S. 1, 42 (2010)
(Breyer, J., dissenting) (“That this speech and association for political purposes is the kind of
activity to which the First Amendment ordinarily offers its strongest protection is elementary.”).
Even if the Dissent is correct in saying we are not bound by precedent to provide
additional protection to student political speech, not providing additional protection would shock
our judicial conscience. Political speech is unquestionably at the core of what the First
Amendment is designed to protect. Virginia v. Black, 538 U.S. 343, 365 (2003) (“[P]olitical
speech [is] at the core of what the First Amendment is designed to protect.”); R.A.V. v. City of St.
Paul, Minn., 505 U.S. 377, 422 (1992) (Stevens J., concurring) (“Core political speech occupies
the highest, most protected position . . . .”); Buckley v. Valeo, 424 U.S. 1, 39 (1976) (quoting
10
Williams v. Rhodes, 393 U.S. 23, 32 (1968)) (“Political expression [is] ‘at the core of our
electoral process and of the First Amendment freedoms.’ ”).
We cannot find any other scenario where the judiciary has circumscribed the heightened
protections afforded to core political speech. This type of speech is regarded as so fundamental
that it even extends beyond individuals to corporate entities. Citizens United, 558 U.S. at 392
(Scalia, J., concurring) (“A documentary film critical of a potential Presidential candidate is core
political speech, and its nature as such does not change simply because it was funded by a
corporation.”). Fraser, for its part, extolls the schoolhouse as a place where the “fundamental
values necessary to maintenance of a democratic political system” are instilled in our youth. 478
U.S. at 681 (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979)); see also Shelton v. Tucker,
364 U.S. 479, 487 (1960) (“The vigilant protection of constitutional freedoms is nowhere more
vital than in the community of American schools.”); see also Sweezy v. New Hampshire, 354
U.S. 234, 250 (1957) (“Teachers and students must always remain free to inquire, to study, and
to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and
die.”). If the schoolhouse is indeed the cradle of democracy, we find it difficult to believe that
core political speech is of less importance in a public school than in a corporate boardroom.
Of course, naysayers may say that “the constitutional rights of students in public school
are not automatically coextensive with the rights of adults in other settings.” Fraser, 478 U.S. at
682. It takes a colossal leap to contort “not automatically coextensive” into “entirely
nonexistent.” But if we were to treat core political speech without additional care, we would be
doing exactly that. In such a world, the First Amendment would be all but inapplicable to
students attending public schools. Accordingly, we hold that restrictions on student speech that
have political elements must be scrutinized with additional care.
11
iii. This Court Adopts the Third Circuit’s Student Speech Framework
Having determined that restrictions on student political speech require extra scrutiny, we
must adopt a workable test under which to adjudicate these disputes.
It is clear that prior to Morse two plausible, relevant standards existed: whether the
speech was offensive or lewd (Fraser) and whether it caused a substantial disruption (Tinker).
After Morse, we are left with a third, narrow exception for pro-drug speech, which is irrelevant
here. See Morse, 551 U.S. at 425 (Alito J., concurring) (“I therefore conclude that the public
schools may ban speech advocating illegal drug use.”). Furthermore, it is clear to us that Morse
requires us to give heightened protection to political speech.
Recently, the Third Circuit announced a reconciliation of these varied standards, which
aptly articulates the test we adopt today:
(1) plainly lewd speech, which offends for the same reasons obscenity offends,
may be categorically restricted regardless of whether it comments on political or
social issues, (2) speech that does not rise to the level of plainly lewd but that a
reasonable observer could interpret as lewd may be categorically restricted as
long as it cannot plausibly be interpreted as commenting on political or social
issues, and (3) speech that does not rise to the level of plainly lewd and that could
plausibly be interpreted as commenting on political or social issues may not be
categorically restricted.
Easton, 725 F.3d at 298. First, a school administrator may categorically restrict speech that is
plainly lewd or highly offensive. Id. The standard to apply is not whether a reasonable
administrator would consider the speech lewd, but whether the speech is plainly lewd as a matter
of law. See Morse, 551 U.S. at 409 (declaring that Fraser “should not be read to encompass any
speech that could fit under some definition of ‘offensive.’ ”); Marineau, 461 F.3d at 330
(describing the type of speech that Fraser limits as being “per se offensive”); Chandler, 978
F.2d at 530 (finding buttons to be “per se vulgar, lewd, obscene, or plainly offensive within the
meaning of Fraser”) (emphasis added). Rare is the speech that is plainly lewd—to be so it must
12
offend our sensitivities so obviously that there cannot be any question as to its nature. Both the
language used and context of the speech are relevant in this analysis.
Speech that is not plainly lewd or that is reasonably lewd, but that has a political element,
must withstand the higher degree of scrutiny called for in Tinker. Easton, 725 F.3d at 321. In
order to pass muster under Tinker, the school must “demonstrate . . . facts which might
reasonably have led school authorities to forecast substantial disruption of or material
interference with school activities.” 393 U.S. at 514. Although the burden is on school
authorities to meet Tinker’s requirements, the School District “need not prove with absolute
certainty that substantial disruption will occur.” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,
650 F.3d 915, 928 (3d Cir. 2011); see also Doninger, 527 F.3d at 51. Said another way, the
School District must show that they had “reason to anticipate” that the display of the stickers
“would substantially interfere with the work of the school or impinge upon the rights of other
students.” Tinker, 393 U.S. at 509.
B. Application of Law
i. “Screw Hate, Don’t Discriminate” Is Not Plainly Lewd
First, we must determine if the phrase “Screw Hate, Don’t Discriminate” is plainly lewd
or vulgar as a matter of law. The Dissent argues that the phrase is plainly lewd because the word
“screw” has a potentially sexual connotation. Post, at *30-31 (Draper, J., dissenting). We
disagree.
a.
“Screw” Must Be Read in Context
The phrase consists of four words put together, with a comma separating two different,
but related ideas. Although such an explanation may seem superfluous to most, we think it may
be beneficial for the Dissent to undergo a lesson in reading comprehension. The Dissent defined
13
the first word in the series, “screw,” as meaning to “have sexual intercourse with.” By ascribing
that definition to the word “screw,” the Dissent incorrectly muses about what the word could
mean, rather than focusing on what it does mean. Read alone, of course, any definition a word
has may potentially apply.
Broussard v. School Board of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992), a case upon
which the District Court heavily relied on below, is poorly reasoned and twenty years old.
Broussard is confused in the way it ascribed meaning to “suck.” See Clay Calvert, Mixed
Messages, Muddled Meanings, Drunk Dicks, and Boobies Bracelets: Sexually Suggestive Student
Speech and the Need to Overrule or Radically Refashion Fraser, 90 Denv. U. L. Rev. 131, 152
(2012) (internal quotation omitted) (“[C]ases like Broussard highlight . . . [a] ‘level of confusion
among the courts on both linguistics and the legal standard of vulgar and offensive speech.’ ”).
Instead of examining the entire phrase at issue, “Drugs Suck!”, the Broussard court merely
looked at “suck” as if it were standing alone—it gave no credence to the fact that the entire
phrase had no sexual meaning. 801 F. Supp. at 1534 (“Although the anti-drug message itself
admittedly makes no sexual statement . . . .”). The Broussard court chose to credit the meaning
from which the phrase derived, rather than the word’s actual and obvious meaning in context. In
a vacuum, speech cannot occur. Why then should the judiciary analyze it as if it does?
b. Read in Context, It Is Clear that the Phrase Is Not Plainly Lewd
The absence of sexual connotation in this speech is clarified by a simple thought
experiment. If the Dissent’s definition of “screw” is applied, the phrase as a whole becomes
nonsensical. “Hate” is an abstract concept; it causes quite the struggle to imagine how one could
have sexual intercourse with hate. For example, if the language in question had been “Screw
14
Who You Want,” the sexual connotations would be clear. In that phrase, we have a concrete
noun upon whom you can “screw.” But these are not the facts at bar.
First, we take the student’s phrase in its entirety to mean something such as “Stop Hate”
or “End Hate.” Second, we find that vulgarity requires a certain crudeness in construction. This
speech was crafted with precision and wit, suggesting sophistication rather than crudeness—we
note that few individuals would possess the cleverness that these enterprising 14-year olds
appear to have. Further supporting our conclusion here is the age of the students. Unlike the
middle school students in Easton and K.J. v. Sauk, No. 11-cv-622-bbc, 2012 U.S. Dist. LEXIS
187689 (W.D. Wis. Feb. 6, 2012), the students in the present case are in high school, suggesting
a higher degree of maturity and sophistication. Perhaps it is true that an elementary or middle
school student would not be able to separate the meaning of “screw” in this context from the
sexual meaning it could be assigned, but this case involves high school students. Therefore, we
find that in this context the word “screw” is not plainly lewd as a matter of law.
c. The Phrase Is Not Highly Offensive
Next, in the absence of an obvious sexual connotation, we look to see if the phrase could
have been considered “highly offensive.” We can easily distinguish these stickers from the
highly offensive speech in Fraser. Matthew Fraser’s speech was brought upon “an unsuspecting
audience of teenage students.” 478 U.S. at 685. In contrast, many students at S. Crane
Memorial High School solicited and sought to wear the stickers themselves. The speech sparked
a lively, spirited, and rich schoolhouse debate. It encouraged students to become actively
involved in their community. We struggle to see how this speech would “undermine the school’s
basic educational mission.” Id. In fact, it may promote the school’s basic educational mission,
insofar as students became active citizens by engaging in political debate.
15
Additionally, the school administrators took no steps to restrict the speech prior to the
school assembly. The stickers were widely distributed among the students. One bold, solitary
individual performed the speech in Fraser. Id. It seems unlikely to us that so many students
would engage in “highly offensive” speech. Of course, any speech may be liable to offend
someone, but this is not the standard we use. Tinker, 393 U.S. at 508 (“Any word spoken, in
class, in the lunchroom, or on the campus, that deviates from the views of another person may
start an argument or cause a disturbance. But our Constitution says we must take this risk . . . .”).
Rather, the speech must be highly offensive. It is made clear from our discussion that this is not
one of those situations.
ii. The Speech Has a Political Element
There is little doubt that this speech is political in nature. Issues such as the upcoming
referendum in Capital City as well as the Eagleton Supreme Court’s controversial decision in
Stein v. Ratford make it clear that the buttons are advocating for LGBT rights. Therefore, under
the test we have now adopted, the burden is on the School District to show that the stickers
would have caused a substantial disruption.
iii. The Speech Would Not Have Caused a Substantial Disruption
Having determined that this speech is neither plainly lewd nor highly offensive and that it
also has a political element, the speech cannot be categorically restricted under Fraser. Easton,
725 F.3d at 298. Accordingly, we must apply the “substantial disruption” test to completion.
Tinker, 393 U.S. at 514.
To prevail, the school must “demonstrate . . . facts which might reasonably have led
school authorities to forecast substantial disruption of or material interference with school
activities.” Id. The “substantial disruption” test is not an exception to the “foundational tenet of
16
First Amendment law that the government cannot silence a speaker because of how an audience
might react to the speech.” Dariano v. Morgan Hill Unified Sch. Dist., No. 11–17858, 2014 WL
4627973, at *1 (9th Cir. Sept. 17, 2014) (O’Scannlain, J., dissenting) (order denying petition for
rehearing en banc). Thus, mild verbal harassment, shouting, or nonviolent disruptions caused by
those of an opposing viewpoint cannot be considered substantial disruptions. The “heckler’s
veto,” as it is called, does not exist in our jurisprudence. Id.
Rarely has the test been met unless there is a significant likelihood that physical violence
is likely to occur because of the speech. For instance, several school districts have validly
restricted students from bringing Confederate battle flags into school. See, e.g., West v. Derby
Unified Sch. Dist. No. 260, 206 F.3d 1358, 1365 (10th Cir. 2000). In Derby, the Tenth Circuit
upheld a seventh grade student’s suspension for drawing “a Confederate flag on a piece of paper
during math class.” Id. at 1361. The artwork violated the school’s policy against racial
harassment, which had been adopted in response to several instances of racially motivated
violence. Id. at 1362. As explained by the Tenth Circuit:
Some white students wore shirts bearing the image of the Confederate flag, while
some black students wore shirts with an “X”, denoting support for the teachings
of Malcolm X. Members of the Aryan Nation and Ku Klux Klan became active
off campus circulating materials to students encouraging racism. Around the
same time, graffiti stating such things as “KKK” (Ku Klux Klan), “KKKK” (Ku
Klux Klan Killer), and “Die Nigger” appeared on campus in bathrooms and on
walls and sidewalks. School officials received reports of racial incidents on
school buses and at football games. At least one fight broke out as a result of a
student wearing a Confederate flag headband. The Derby Middle School was not
immune from the racial tensions. Although the tensions were not widespread and
involved relatively few students at the middle school, incidents occurred
involving the Confederate flag. These included students drawing the Confederate
flag on their notebooks and arms.
Id. In School District 12, however, there is no history whatsoever of violence between
supporters and nonsupporters of the LGBT community. The most “hateful” thing shouted at a
17
pro-LGBT student was “Screw you!”—a statement that is a far cry from the racially motivated
death threats of Derby.
The minor controversy over a homosexual couple attending prom together several years
prior to this case is certainly not a substantial disruption. A tepid debate cannot be a substantial
disruption without more. Even if this mild kerfuffle had any articulable effect on current
students it would be of no concern. Cf. Tinker, 393 U.S. at 509 n.3 ( “A former student of one
of our high schools was killed in Viet Nam. Some of his friends are still in school and it was felt
that if any kind of demonstration existed, it might evolve into something which would be
difficult to control.”) (internal quotation marks omitted). Further, unlike the Confederate flag
cases, there is no evidence in the record of any violence towards either side of this debate.
All incidents regarding the speech in question were de minimis, with the exception of the
proposed boycott of Mayor Trinkett’s speech. This is not the first time the courts have been
confronted with public school student protests. E.g. Karp v. Becken, 477 F.2d 171 (9th Cir.
1973); Dodd v. Rambis, 535 F. Supp. 23 (S.D. Ind. 1981).
These cases are easily distinguishable from the record here, even if the idea of a
“boycott” and a “walkout” can be equated. For instance, in Karp, there were facts beyond the
mere plan of a walkout that led to the Ninth Circuit’s conclusion that a substantial disruption was
likely. 477 F.3d at 175-76. Most important was the fact that “the school athletes had threatened
to stop the proposed demonstration.” Id. at 175. This gave school administrators reasonable
apprehension to fear that “a walkout might provoke violence.” Id. at 175. Here, there was no
threat of violence from members of the school community opposing the proposed boycott.
Rambis is also easily distinguished. The students in that case had previously left their
classes in protest—as clear a sign as any that the educational environment would be disrupted by
18
the subsequent circulation of leaflets advocating for a similar walkout. Rambis, 535 F.Supp. at
29-30. The boycott planned here had little to do with the educational environment and did not
involve truancy as in Rambis. The students involved merely desired to not attend the speech as a
bona fide political protest. They did not seek to leave school grounds nor wander the forests
surrounding S. Crane Memorial High School unsupervised.
Additionally, it is clear from the record that the boycott was not a result of the speech
being challenged here. Instead, it was the result of the students’ political opposition to the
Mayor’s stance on LGBT rights. As further indication of the truth of this, K.E. had no
involvement in planning the boycott on Mayor Trinkett’s speech. In contrast, the “walkouts”
described above were planned by the student challenging the restriction. E.g. Karp, 477 F.2d at
173 (“Several students, including appellant, planned a chant and ‘walkout’ at an athletic awards
ceremony.”). Furthermore, the underlying speech being challenged in those cases was either the
walkouts themselves or speech directly advocating for a walkout, rather than speech that was at
best tangentially associated with the walkouts.
Even if the boycott and the stickers were more than tangentially connected, it cannot be
said with certainty that the disruption of the boycott would have been substantial. Only a few
students planned to participate and their absence would not have affected their or anyone else’s
educational experience. The only thing the boycott had potential to do was cause embarrassment
to Principal Snow in front of the Mayor. His overreaction to the potential disturbances is not
evidence of their substantiality.
The Ninth Circuit recently upheld a ban on bringing American flags to a school during
Cinco de Mayo festivities. Dariano v. Morgan Hill Unified Sch. Dist., 745 F.3d 354, 356 (9th
19
Cir. 2014). Although such a sweeping ban may seem extreme, it was nonetheless valid primarily
because of a history of racially motivated violence at those schools:
The minimal restrictions on the students were not conceived of as an “urgent wish
to avoid the controversy,” as in Tinker, or as a trumped-up excuse to tamp down
student expression. The controversy and tension remained, but the school's
actions presciently avoided an altercation.
Id. at 359 (citations omitted). Unlike Dariano and Derby, where there was clear evidence to
school administrators that severe disturbances would be created as a result of the speech, it
appears that the School District’s administration merely sought to avoid any controversy in the
school system, no matter how minor. “But, in our system, undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom of expression.” Tinker, 393 U.S.
at 508. Although this Court desires a peaceful and harmonious society, conflict is in human
nature. The school that shields its students from harsh societal realities unleashes upon the world
graduates unable to cope with the raw, unfiltered world we live in today. Accordingly, we hold
that no substantial disruption occurred or was reasonably forecasted to occur as a result of the
“Screw Hate, Don’t Discriminate” stickers.
IV.
Conclusion
The School District has not carried its burden under Fraser or Tinker, and thus the
decision of the District Court of Eagleton is REVERSED and this case is REMANDED to the
District Court with instructions to grant Appellant’s Motion for Summary Judgment.
20
Draper, J., dissenting
Today, the Majority holds that high school students have a constitutional right to wear
stickers prominently featuring the phrase “screw,” a well-known and well-documented term
referring to sexual intercourse. For reasons that are illustrated below, I believe this conclusion to
be in error, and therefore respectfully dissent from the Majority’s ruling reversing the decision of
the District Court.
I.
The Appellant’s Speech Should Be Analyzed Under Fraser
First, contrary to the Majority’s assertions, K.E.’s speech at issue in this case is most
appropriately analyzed under the Supreme Court’s decision in Bethel School District No. 403 v.
Fraser, 478 U.S. 675 (1986). In concluding otherwise, and in adopting a test premised largely
on the “effects” of the speech at issue, the Majority makes two errors: (1) misreading Morse v.
Frederick, 551 U.S. 393 (2007), and in so doing concluding that Justice Alito’s concurrence is
the “controlling” opinion of the Court; and (2) failing to recognize the Supreme Court’s
persistent shift away from the “effects-based” analysis it employed in Tinker v. Des Moines
Independent School District, 393 U.S. 503 (1969).
A. The Majority Misreads the Supreme Court’s Decision in Morse.
Sadly, the Majority greatly misreads the Supreme Court’s decision in Morse by holding
Justice Alito’s opinion to be controlling. First, this conclusion misconceives the contexts in
which the “narrowest grounds” doctrine applies. As the Supreme Court dictated in Marks v.
United States, 430 U.S. 188 (1977), “[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be
viewed as that position taken by those members who concurred in the judgments on the
narrowest grounds . . . .’ ” Id. at 193 (emphasis added) (quoting Gregg v. Georgia, 428 U.S. 153,
21
169 n.15 (1976)). In no case has the Supreme Court dictated that the concurring opinion of
another Justice may override a clear majority opinion that has commanded five votes. See B.H.
ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 326 (3d Cir. 2013) (en banc), cert. denied,
134 S. Ct. 1515 (2014) (Hardiman, J., dissenting). Quite to the contrary, the Court has instead
made clear that a “statement of legal opinion” joined by five Justices carries “the force of law.”
Vasquez v. Hillery, 474 U.S. 254, 261 n.4 (1986).
In a similar vein, the Supreme Court has soundly rejected the proposition that a
concurring Justice may shape the contours of a majority opinion, joined by five Justices, merely
by addressing an issue that the majority did not see fit to reach. See Alexander v. Sandoval, 532
U.S. 275, 283–85 (2001). In Alexander, the Court specifically rejected the argument that the
Court’s decision in Lau v. Nichols, 414 U.S. 563 (1974), could be read to have relied upon
grounds not specifically mentioned in the majority’s opinion, though not also “expressly”
precluded. See Alexander, 532 U.S. at 285, 285 n.5. The Supreme Court “would be in an odd
predicament if a concurring minority of the Justices could force the majority to address a point
they found it unnecessary (and did not wish) to address . . . .” Id. at 285 n.5. Indeed, Justice
Brennan himself would rue the day when his famed “Rule of 5” gave way to a “Rule of 5,
perhaps, depending on what the other Justices said.”
Though Justice Alito and Justice Kennedy joined the opinion of the Court in Morse “on
the understanding” that it “provides no support for any restriction of speech that can plausibly be
interpreted as commenting on any political or social issue,” 551 U.S. at 422, the Justices joined a
majority opinion, not merely a plurality. See Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist.
No. 204, 523 F.3d 668, 673 (7th Cir. 2008). While Justices Kennedy’s and Alito’s votes may
have been crucial to the five-vote Majority in Morse, the Justices concurred in the opinion, and
22
not merely the decision. Id. Simply because the other members of the Morse majority felt it was
not necessary to address the issue of how their opinion applied to “political speech,” such silence
cannot be read as expressing tacit acceptance. See Morse, 551 U.S. at 403 (“[T]his is plainly not
a case about political debate . . . .”). Justice Alito’s opinion, persuasive as it may be, cannot
overcome the majority opinion joined by five Justices.
Finally, it should also be noted that the conclusion that Chief Justice Roberts’s majority
opinion in Morse is the controlling opinion rendered by the Court has been warmly received by
nearly all of our sister circuits. See Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 36 n.9 (10th
Cir. 2013); Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 435 (4th Cir. 2013); Zamecnik
v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 877 (7th Cir. 2011); Doninger v. Niehoff, 642
F.3d 334, 345 (2d Cir. 2011); D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d
754, 761 (8th Cir. 2011); Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 332–33 (6th Cir. 2010);
Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071, 1094 (9th Cir. 2008), rev’d on other
grounds, 557 U.S. 364 (2009); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 984 (11th Cir.
2007); see also Easton, 725 F.3d at 328 n.1 (Hardiman, J., dissenting) (collecting cases).
The Fifth Circuit’s decision in Ponce v. Socorro Independent School District, 508 F.3d
765 (5th Cir. 2007), is not inapposite. The Fifth Circuit in Ponce faced the question of whether
student speech regarding “mass, systematic school-shootings” could be prohibited––without
engaging in a Tinker analysis––under Morse’s “compelling interest” standard. See id. at 769,
771. While noting that Justice Alito’s opinion was “controlling,” the Fifth Circuit did not hold
that this concurrence carved an exception within Morse for political speech. Id. at 678. Rather,
the court noted that Justice Alito’s concurrence “provides the specificity necessary” for
determining the “harms” which, according to the Morse majority, are sufficiently serious to
23
warrant bypassing a Tinker analysis. See id. at 770. Specifically, the Fifth Circuit relied on
Justice Alito’s concurrence in concluding that “speech advocating a harm that is demonstrably
grave and that derives that gravity from the ‘special danger’ to the physical safety of students
arising from the school environment is unprotected,” such that speech regarding school shootings
could be barred under Morse without inquiring as to whether the speech gave rise to a
“substantial disruption” under Tinker. Id. at 770–71. In the face of such analysis, any reference
to “political speech” in Ponce must be considered pure dicta.
For these reasons, I believe the Majority greatly misconstrues the Court’s opinion in
Morse by concluding that Justice Alito’s concurring opinion is controlling. Rather, I would hold
that Chief Justice Roberts’s majority opinion, which carves no exception for political speech,
provides the precedential opinion this Court is bound to follow.
B. Supreme Court Precedent Dictates that a Meanings-Based Analysis Is Proper
Beyond the Majority’s error in concluding that Justice Alito’s opinion in Morse is
“controlling,” the Majority also errs by failing to recognize the persistent analytical shift the
Supreme Court has embarked on through the course of its student-speech jurisprudence. Though
the Majority appears to climb aboard the “effects-based” train, the Court’s more recent case law
makes clear that engine has long since left the station. See Morse, 551 U.S. at 418 (Thomas, J.,
concurring) (noting that the Supreme Court “continue[s] to distance [itself] from Tinker”).
Under Tinker, school officials may restrict student speech if there is a showing that the
speech has, or can be expected to, either “materially and substantially disrupt the work and
discipline of the school,” or “impinge upon the rights of other students.” 393 U.S. at 509, 513.
The Court’s analysis of the speech at issue in Tinker––students wearing black armbands in
protest of the ongoing Vietnam War––makes clear that the Court was chiefly concerned with the
24
“effects” of the students’ speech at issue. See id. at 508 (“There is no indication that the work of
the schools or any class was disrupted.”). As the Court’s later decisions demonstrate however,
this focus upon the effects such speech may have on the school environment has receded. Since
the Supreme Court’s decision in Tinker, the Court has consistently moved away from an
“effects-based” approach to determining whether restrictions on student speech are permissible
towards an approach couched more upon the “meaning” or “content” of the student speech in
question. See Clay Calvert, Mixed Messages, Muddled Meanings, Drunk Dicks, and Boobies
Bracelets: Sexually Suggestive Student Speech and the Need to Overrule or Radically Refashion
Fraser, 90 Denv. U. L. Rev. 131, 138 (2012).1
The first shot across Tinker’s bow came in Fraser, the case that “established that the
mode of analysis set forth in Tinker is not absolute.” Morse, 551 U.S. at 405; see also
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 n.4 (1988) (“The decision in Fraser
rested on the ‘vulgar,’ ‘lewd,’ and ‘plainly offensive’ character of a speech delivered at an
official school assembly rather than on any propensity of the speech to ‘materially disrupt[t]
classwork . . . .”) (alteration in original) (emphasis added). In Fraser, the Court carved out its
first exception within the “substantial disruption” framework, holding that school officials are
entitled to restrict “offensively lewd and indecent speech” even absent any showing of a material
interference with the school environment. 478 U.S. at 685. Refocusing its inquiry upon the lewd
content of the speech at issue, rather than the effect the speech had upon the school, the Court
noted that “[n]othing in the Constitution prohibits the states from insisting that certain modes of
expression are inappropriate and subject to sanctions.” Id. at 683; see also Morse, 551 U.S. at
1
While Professor Calvert presents an excellent account of the Supreme Court’s steady movement away from the
effects-based inquiry of Tinker, he proposes that the Supreme Court’s decision in Fraser be overruled. Based on my
reading of current precedent however, I would instead advocate that Tinker is the Court’s decision most deserving of
abandonment. See also Morse, 551 U.S. at 410-22 (Thomas, J., concurring) (arguing that Tinker should be
overruled).
25
404 (“The Court [in Fraser] was plainly attuned to the content of Fraser’s speech . . . .”)
(emphasis added).
The Court’s gradual refocus upon the content of speech progressed even further two
years later in Hazelwood, where the Court sought again to limit Tinker’s applicability. See
Morse, 551 U.S. at 406 (“[L]ike Fraser, [Hazelwood] confirms that the rule of Tinker is not the
only basis for restricting student speech.”). Carving out an exception within Tinker for “schoolsponsored” speech, the Court concluded “the standard articulated in Tinker for determining when
a school may punish student expression need not also be the standard for determining when a
school may refuse to lend its name and resources to the dissemination of student expression.”
Hazelwood, 484 U.S. at 272–73. Rather, the Court held that irrespective of any potential for
“substantial interference,” a school may, “in its capacity as publisher of a school newspaper or
producer of a school play ‘dissociate itself’ . . . from speech that is, for example, ungrammatical,
poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for
immature audiences.” Id. at 271. In other words, the Court made clear that the content of speech
distributed under a school’s auspices may warrant restriction, independent of any effect such
speech may have.
The most recent assault upon Tinker’s fortress arrived in 2007, when the Supreme Court
rendered its decision in Morse. Yet again the Court inserted an exception within its studentspeech framework, holding that school officials may “restrict student speech at a school event,
when that speech is reasonably viewed as promoting illegal drug use.” Morse, 551 U.S. at 403.
The Court’s reasoning in Morse again evinced a focus primarily upon the meaning of the student
speech in question, which the court characterized as “advocat[ing] the use of illegal drugs.” Id.
at 402. According to the Court, school officials have a greater need to restrict speech conveying
26
such a message due to the “compelling” interest in “deterring drug use by schoolchildren,” an
activity that “can cause severe and permanent damage to the health and well-being of young
people.” Id. at 407.
In holding that school officials could restrict speech advocating the use of drugs without
regard to whether the speech actually disrupted the school environment, the Court relied on the
effects of pro-drug speech in the abstract, rather than in the given case. See id. at 408 (noting
that since “students are more likely to use drugs when the norms in school appear to tolerate such
behavior,” pro-drug student speech poses a “particular challenge for school officials”). As such,
the Court viewed the content of the student’s speech as the necessary trigger warranting school
restriction, rather than any actual impact that such speech may have on the school environment in
the given case.
As noted by Justice Thomas in his Morse concurrence, by carving out yet another
meanings-based “exception” to Tinker, the Court further dissociated itself from Tinker’s effectsbased approach, though it failed to either “overrule it” or “offer an explanation of when it
operates and when it does not.” Id. at 418 (Thomas, J., concurring). Fraser, Hazelwood, and
Morse each represent notable departures from Tinker’s analysis, affirming the notion that the
preeminent factor in determining whether student speech can be prohibited is not the effect that it
may have, but rather whether the content is sufficiently detrimental to the school environment
(such as pro-drug or lewd speech) to warrant prohibition in and of itself. In light of the Court’s
marked departure from Tinker, the day of its demise may soon be at hand.
Beyond the judicial “chipping away” at Tinker, its flaws are demonstrated by the many
issues involved in applying the case itself. See Clay Calvert, Tinker’s Midlife Crisis: Tattered
and Transgressed But Still Standing, 58 Am. U. L. Rev. 1167, 1174, 1188 (2009). For one, the
27
Supreme Court has yet to clarify what constitutes a “substantial disruption,” a fact that has
frequently vexed lower courts. See, e.g., Nuxoll, 523 F.3d at 674 (“[W]hat is ‘substantial
disruption’? Must it amount to ‘disorder or disturbance’?”); Guiles ex re. Guiles v. Marineau,
461 F.3d 320, 326 (2d Cir. 2006) (“Nor is Tinker entirely clear as to what constitutes ‘substantial
disorder’ or ‘substantial disruption’ of or ‘material interference’ with school activities”). In
addition, the flexibility afforded to courts in determining when a “substantial disruption” exists
may permit judges to unduly inject their own “personal ideologies and persuasions” when
concluding that a student’s First Amendment freedoms have been violated. See Mark Yudof,
Tinker Tailored: Good Faith, Civility, and Student Expression, 69 St. John’s L. Rev. 365, 367
(1995) (noting that Tinker’s “mixed fact-law rule” renders “Tinker’s application treacherous,
difficult, and unpredictable”).
Finally, the inconsistent nature of the Court’s current student speech jurisprudence
militates towards overruling Tinker. As commentators have illuminated, lower court cases
treating student speech “follow no consistent pattern.” Erwin Chemerinsky, Students Do Leave
Their First Amendment Rights at the Schoolhouse Gates: What’s Left of Tinker?, 48 Drake L.
Rev. 527, 542 (2000). This result is relatively easy to understand, as “[r]econciling Tinker and
Fraser is no easy task.” Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1193 n.1 (9th Cir.
2006) (Kozinski, J., dissenting). In light of such inconsistency, I believe that the Supreme Court
should either recognize that the meanings-based analysis it endorsed in Tinker has been largely
abandoned by overruling Tinker or otherwise clarify the circumstances under which the case
should apply. For the purposes of this case however, it is sufficient to note that the Majority
places insufficient emphasis on the content of the student speech at issue, prior to determining
28
that Tinker should apply. The Court’s precedents make clear that the content of student speech is
the overriding factor, yet the Majority in this case appears to pay it little mind.
C. The Appellant’s Lewd Speech Is Best Analyzed Under Fraser
In light of the “lewd” nature of K.E.’s speech, I believe it clear that Fraser is sufficient to
resolve the case at bar. While K.E. and the Majority may argue that Fraser is inapplicable due to
the “political” nature of the stickers, I echo the District Court’s conclusion that such a distinction
is not dispositive. K.E. ex rel. Evergreen v. Capital City Sch. Dist. 12, No. VU-2014-1-DIST, at
*15 (D. Eagleton Mar. 11, 2013). Lewd speech cannot become “sanitized” due to the presence
of some plausibly laudable undercurrent. See K.J. v. Sauk Prairie Sch. Dist., No. 11-cv-622-bbc,
2012 U.S. Dist. LEXIS 187689, at *19–20 (W.D. Wis. Feb. 6, 2012) (noting that while “I [heart]
boobies” bracelets “promote a worthy cause, that does not make their slogan innocuous”).
Moreover, the fact that “screw” may be classified as being merely “ambiguously” lewd is of no
moment. Rather, a review of both Fraser and cases applying its holding reveal that no such
qualification exists. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir.
2001) (Alito, J.) (“Under Fraser, a school may categorically prohibit lewd, vulgar or profane
language.”). Consequently, I would affirm the District Court’s holding that the Appellant’s
speech is most properly analyzed under Fraser.
The Appellant’s First Amendment Rights Have Not Been Violated Under Either
Fraser or Tinker
II.
Not only does the Majority mangle the Supreme Court’s student-speech jurisprudence in
determining that Fraser is inapplicable, it also errs greatly when applying such standard to the
facts at hand. Moreover, though I believe that Tinker’s demise is (and should be) nigh, I would
also find that even under this standard, K.E.’s First Amendment rights have not been violated.
A.
The School’s Prohibition of Stickers Bearing a Lewd Message Was Proper
Under Fraser
29
Applying Fraser requires courts to determine whether the student’s speech rises to the
level of “lewd and indecent speech.” 478 U.S. at 685. Since “vulgar speech and lewd conduct is
wholly inconsistent with the ‘fundamental values’ of public school education,” the court need not
delve into whether the speech at issue has caused any “disruption” within the school environment
in order to uphold the school’s restriction. Id. at 685–86. Lewd speech, “by definition, may well
‘impinge[] upon the rights of other students’ . . . and therefore its suppression is ‘reasonably
related to legitimate pedagogical concerns.’ ” Chandler v. McMinnville Sch. Dist., 978 F.2d 524,
529 (9th Cir. 1992) (quoting Tinker, 393 U.S. at 509; Hazelwood, 484 U.S. at 272–73). Thus, if
the phrase contained on the stickers at issue––“Screw Hate, Don’t Discriminate”––can be
classified as “lewd and indecent,” the Court must look no further in upholding the School
District’s actions.
Unlike the Majority, I wholeheartedly agree with the District Court’s classification of
“screw” as “lewd and indecent speech” under Fraser. Evergreen, No. VU-2014-1-DIST, at *1719. As thoroughly illustrated by Judge Calipari below, dictionary definitions demonstrate that
“screw” carries a lewd connotation. Id.; see also Screw Definition, OxfordDictionaries.com,
http://www.oxforddictionaries.com/us/definition/american_english/screw (last visited Dec. 15,
2013) (defining “screw,” when used as a noun, as possibly meaning “an act of sexual
intercourse,” and, when used as a verb, as to “have sexual intercourse with”). Moreover, I would
also point out that the use of the phrase within “common parlance” suggests a similar conclusion.
Cf. Chandler, 978 F.2d at 530 (examining the common usage of the word “scab” while
conducting a Fraser analysis).
“Screw,” as many of us know, is often invoked as a more sanitized stand-in for one of the
“seven dirty words,” which would certainly come within the ambit of Fraser’s prohibition on
30
lewd speech in virtually all instances. Cf. BOB WOODWARD & SCOTT ARMSTRONG, THE
BRETHREN: INSIDE THE SUPREME COURT 128, 130 (1979) (describing how Chief Justice Burger,
in order to avoid using expletives, referred to Cohen v. California, 403 U.S. 15 (1971), a case
involving a defendant jailed for “wearing a jacket with the words ‘Fuck the Draft’ inscribed on
the back,” as the “ ‘screw the draft’ case”). Other courts have reached a similar conclusion in
other legal contexts, dictating that “the words ‘Do you want to screw’ are generally understood
as referring to sexual intercourse.” See Mayberry v. State, 603 P.2d 1150, 1153 (Okla. Crim.
App. 1979). As we can all agree, “screw” is a term many speakers of the English language use
while self-editing in times of frustration. Though it is unlikely this word could be
constitutionally prohibited beyond the “schoolhouse gates,” I would hold that school officials
have every right to prohibit the word, used in the manner it is here, within them.
Though K.E. and her fellow students chose a phrase with less immediately apparent
lewdness to use on their stickers, the meaning of the phrase was nevertheless the same. Much
like with Matthew Fraser’s prohibited speech, which contained “pervasive sexual innuendo” that
was “plainly offensive to both teachers and students,” the fact that sexual phraseology was
merely alluded to by the stickers does not immunize them from school oversight. Fraser, 478
U.S. at 683 (emphasis added); see also Harper, 445 F.3d at 1193 n.1 (Kozinski, J., dissenting)
(discussing how “Fraser used no dirty words, so his speech could only have been offensive on
account of the ideas he conveyed”).
For these reasons, I would conclude that the phrase “Screw Hate, Don’t Discriminate” is
lewd, such that school officials can constitutionally prohibit its display on a sticker under Fraser.
Therefore, I would affirm the decision of the District Court that K.E.’s First Amendment rights
have not been violated.
31
B.
Even Applying Tinker, There Is Sufficient Evidence of “Disruption” to
Conclude that Appellant’s First Amendment Rights Have Not Been
Abridged
Though I agree, for reasons set forth in Part I.B of this opinion, that the Supreme Court’s
decision in Tinker should be either overruled or significantly clarified, I also write to illustrate
the many flaws in the Majority’s application of this rapidly aging and amorphous standard. Even
assuming arguendo that Tinker’s “substantial disruption” standard should apply in this context,
there is more than sufficient evidence of the potential for a “substantial disruption” within S.
Crane Memorial High School to warrant the administration’s prohibition of the stickers at issue.
Under Tinker, the critical inquiry in determining whether a student’s First Amendment
rights have been impermissibly abridged is whether school officials have demonstrated that the
student’s speech would either “substantially interfere with the work of the school or impinge
upon the rights of other students.” Tinker, 393 U.S. at 509. Schools do not need to “wait until
disruption actually occurs” to act, but instead may prohibit student speech if, in light of all the
circumstances, they “reasonably portend disruption.” LaVine v. Blaine Sch. Dist., 257 F.3d 981,
989 (9th Cir. 2001). However, as made clear in Tinker, an “undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom of expression.” 393 U.S. at 508.
Since the School District does not seek to justify the restriction under Tinker’s
impingement-of-rights prong, the only issue relevant for our purposes is whether the wearing of
the “Screw Hate, Don’t Discriminate” stickers either has caused, or will cause, a “substantial
disruption” of school activities. As explained below, I believe that the Majority has erroneously
concluded that the school has not satisfied its burden under Tinker.
As discussed thoroughly in Part I.B of this opinion, supra, determining what constitutes a
“substantial disruption” is far from an exact science. Rather, “the substantial disruption inquiry
is highly fact-intensive.” J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d
32
1094, 1111 (C.D. Cal. 2010). “Perhaps for that reason, existing case law has not provided clear
guidelines as to when a substantial disruption is reasonably foreseeable.” Id. However, a review
of relevant cases applying Tinker reveals several consistent factors governing when a
“substantial disruption” is likely to exist, with several militating towards the conclusion that a
“substantial disruption” is reasonably likely to occur at S. Crane Memorial High in the future.
For one, a “substantial disruption” is more likely to have occurred if both students and
school officials were “pulled away from their ordinary tasks to respond to or mitigate” the effects
of the speech at issue. Id. at 1113–14; see also Boucher v. Sch. Bd. of the Sch. Dist. of
Greenfield, 134 F.3d 821, 827 (7th Cir. 1998) (holding that there was “some evidence of past
disruption” caused by the publication of instructions regarding how to hack a school computer
system due to the need for computer experts to conduct several hours of diagnostic tests and for
school officials to change computer passwords). For example, in Doninger, the Second Circuit
found that a “substantial disruption” existed after several school officials were required to
respond to a wave of inquiries instigated by a mass email sent by a dissatisfied member of the
school’s student council. 527 F.3d at 44. In holding that the email, as well as a later blog post
reproducing it for others to see, posed a foreseeable risk of creating further disruption, the court
cited both how “[the plaintiff] and the other students who participated in writing the mass email
were called away either from class or other activities,” and how the “deluge of calls and emails”
caused two administrators to “miss or be late to school-related activities.” Id. at 45, 51.
Secondly, and perhaps more importantly, courts have also found that if a school is able to
point to past disruptive incidents “arising out of similar speech,” a restriction upon related forms
of speech is more likely to be constitutional. See Saxe, 240 F.3d at 212 (Alito, J.); Beverly Hills,
711 F. Supp. 2d at 1116. Such past incidents do not have to have taken place within the actual
33
school in question; rather, other incidents within a close geographic area are sufficient. See, e.g.,
Defoe, 625 F.3d at 327–29 (looking to disruptive incidents within a particular school district);
West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1366–67 (10th Cir. 2000) (same). In a
particularly relevant line of cases to our inquiry, many of our sister circuits have found that
school officials can prohibit the wearing of Confederate flags due to the prevalence of “past
racially charged incidents” which have allowed officials to reasonably predict that further
disruptions would arise from such flags. Hardwick, 711 F.3d at 436; see also Defoe, 625 F.3d
324; A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R–7
Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v.
Sch. Bd. of Alachua Cnty., 324 F.3d 1246 (11th Cir. 2003); West, 206 F.3d 1358; Melton v.
Young, 465 F.2d 1332 (6th Cir. 1972). In a similar fashion, if the School District can point to
past “concrete” examples of disruption arising from “similar speech” in the past, it should easily
be able to sustain its burden under Tinker.
Turning to the case at bar, the wearing of the stickers as S. Crane Memorial High School
posed a significant risk of creating similar disruptions to those found to exist in Doninger. Had it
not been for Principal Snow’s prospective ban, several teachers and administrators would have
necessarily been called away from their respective posts on the day of Mayor Trinkett’s speech
in order to keep watch over the protesting students, each of whom bore the stickers at issue
today. Moreover, these students would have forgone attendance at an address outlining crucial
curricular changes that would have impacted these very students the following year. Surely, it
cannot be said that S. Crane’s administrators were under an obligation to sit back and let such a
disruption take place. To the contrary, Principal Snow had a duty to prevent such interference
within the school environment, for requiring him to “wait until disruption actually occurred”
34
would eviscerate his “ability to maintain order.” Lowery v. Euverard, 497 F.3d 584, 596 (6th
Cir. 2007).
Moreover, and perhaps most critically, Principal Snow and his fellow administrators at S.
Crane Memorial High School had concrete evidence of several past disruptions at S. Crane
Memorial High School stemming from similar forms of speech, indicating that their forecast of
future disruptions was reasonable. Much like the administrators whose bans on Confederate
flags have been persistently upheld––who were armed with a litany of past disruptive incidents
stemming from the wearing of Confederate flags–––Principal Snow was likewise justified in
barring the stickers at issue both due to the significant disruption which occurred merely five
years prior at the school’s prom and due to the gradual surge of tensions at S. Crane during the
week leading up to the ban. The protests (conducted by both Eagletonians for Equality and
Eagletonians for Family Values) arising as a result of a gay couple’s attendance at S. Crane’s
prom certainly qualifies as a past disruption. See Hardwick, 711 F.3d at 432 (citing a “racial
incident” in which “a white student and an African-American student attended the prom together,
causing ‘small groups of whites and blacks [] to stir up trouble’ ” as justification for a school
district’s ban on the Confederate flag). As the record reveals, these protests led to considerable
disruption, as both the national and local media descended upon the prom, whose specter S.
Crane did not escape for several days. Cf. S.J.W. ex rel. Wilson v. Lee’s Summit R–7 Sch. Dist.,
696 F.3d 771, 774, 778 (8th Cir. 2012) (concluding that a student blog post, the posting of which
caused the media to arrive at a school and question school officials, likely caused a sufficient
disruption for a defendant school district to prevail under Tinker).
Similarly, due to the gradual rise of contentious incidents at the school preceding the ban,
Principal Snow and other administrators possessed strong reason to conclude that the continued
35
wearing of the stickers would lead to further interference with the school environment. Much
like the school districts at issue in numerous Confederate flag cases cited above, past incidents at
S. Crane––including a lunch-room argument that necessitated faculty intervention and the
repeated “heckling” of students in the hallways––suggest that tension at the school was
mounting, such that further display of the stickers, a root cause of the strife, would likely cause a
substantial disruption. See, e.g., Hardwick, 711 F.3d at 433 (citing an “incident involving a
Confederate flag that led to a disruption of a classroom” requiring a teacher “to calm the class
down” while upholding a school district’s ban on wearing the Confederate flag); Defoe, 625 F.3d
at 329, 336 (recounting an incident in which a student was heckled at a district vocational school
as a basis upon which school officials could “reasonably forecast that permitting displays of the
Confederate flag would result in substantial disruption”).
As elaborated above, it would be an odd rule for Principal Snow and his fellow
administrators to first wait until these incidents boiled over before taking action to defuse the
source of strife at their school. It should be acknowledged that those students wearing the antidiscrimination stickers at S. Crane Memorial High School clearly possessed more laudable goals
than the students who saw fit to wear the Confederate flag in the cases discussed above.
However, this does not change the fundamental fact that the presence of such stickers was
inextricably tied to an increase in tension that threatened to materially interfere with the school
environment.
In conclusion, I would hold that since the School District could “reasonably forecast” that
the continuing display of stickers proclaiming “Screw Hate, Don’t Discriminate” would cause
“material and substantial interference with schoolwork or discipline,” its prospective bar on the
36
wearing of such stickers does not violate the First Amendment to the Constitution of the United
States. Tinker, 393 U.S. at 511.
III.
Conclusion
For the reasons outlined above, I respectfully dissent from the Majority’s holdings that
the Supreme Court’s decision in Fraser is inapplicable to this case, and that, under Tinker, the
School District lacked grounds for “reasonably forecasting” future substantial disruptions within
the school environment. Instead, I would find that the stickers borne by K.E. and her
compatriots were plainly lewd and offensive, warranting censure under Fraser.
Today, the Majority takes steps towards further unscrewing the proverbial lid on student
speech that is a necessary component of an effective public education system. Because I firmly
believe that the Majority turns the screw in the opposite direction of ensuring a safe and effective
educational environment, I dissent.
37
SUPREME COURT OF THE UNITED STATES
CAPITAL CITY SCHOOL DISTRICT 12,
Petitioner,
v.
K.E., a Minor, by and through her Mother, Paula EVERGREEN,
Respondent.
No. VU-SUPP 2014
June 20, 2014
Cases Below:
____F.3d____ (13th Cir. 2014)
____F. Supp. 3d____ (D. Eagleton 2013)
Petition of Certiorari to the United States Court of Appeals for the Thirteenth Circuit GRANTED
The only two issues before the Court are:
1. What is the proper legal standard under which Capital City School District 12’s ban of the
“Screw Hate, Don’t Discriminate” stickers should be analyzed?
2. Does Capital City School District 12’s ban of the “Screw Hate, Don’t Discriminate” stickers
violate the Free Speech Clause of the First Amendment?
The Petitioner, Capital City School District 12, shall present argument first.
RELEVANT SOURCES
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1
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2
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3
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4