NO. VU-SUPP 2014
In the
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.
_________
On Writ of Certiorari to
the United States Court of Appeals
for the Thirteenth Circuit
_________
BRIEF FOR RESPONDENT
_________
Team R
Counsel for the Respondent
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
JURISDICTION ............................................................................................................................ vi
STATEMENT OF THE ISSUES.................................................................................................... 1
STATEMENT OF THE CASE....................................................................................................... 2
STATEMENT OF FACTS ............................................................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................................................. 6
ARGUMENT .................................................................................................................................. 8
I. The Student Speech Framework of Tinker is the proper standard to analyze the
District’s ban. ............................................................................................................................ 8
A. Standard of Review ......................................................................................................... 8
The Tinker substantial disruption standard is the appropriate default measure for K.E.’s
B.
student speech. ......................................................................................................................... 8
C. Neither Fraser, nor any other Tinker exception applies to K.E.’s sticker display. ......... 9
1.
Fraser dealt with, and only categorically proscribed, speech that was plainly lewd. 10
2.
Fraser does not categorically exclude ambiguously lewd student speech reasonably
commenting on political or social issues. ......................................................................... 13
a.
Justice Alito’s Morse concurrence controlled evaluations of political speech not
squarely subject to student speech exceptions. ............................................................ 14
b.
The Morse concurrence balances competing speech concerns illustrates the
importance of political speech ...................................................................................... 16
D. The Third Circuit’s Framework for Fraser Analysis Balances the Concerns of the
Student Speech Regime. ........................................................................................................ 18
II. The ban violates the First Amendment under either Fraser or Tinker. ..................... 19
A. Standard of Review ....................................................................................................... 19
B.
The District Court erred when it applied Fraser. .......................................................... 19
1.
2.
The speech at issue is not lewd. ................................................................................. 20
a.
The District Court erred by analyzing the word “screw” out of context ........ 20
b.
The word “screw in this context evolved into a meaning of disparagement. . 21
Political speech that is only arguably lewd cannot be restricted under Fraser. ........ 23
C. The stickers do not violate the Tinker standard. ............................................................ 24
i
1.
The speech did not create a material or substantial disruption. ................................. 24
2.
School administrators could not reasonably forecast a substantial disruption. ......... 25
CONCLUSION ............................................................................................................................. 30
ii
TABLE OF AUTHORITIES
Cases
A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009) ....................................................... 26
Ashcroft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000)................................................................ 16
B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013) ............ 11-15, 17-20, 23
Baldasar v. Illinois, 446 U.S. 222 (1980) ..................................................................................... 16
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) ............... 2, 9-11, 13, 17-18, 20, 23
Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465 (6th Cir. 2000) ............................................ 12
Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) ............................................................ 8, 19
Branzburg v. Hayes, 408 U.S. 665 (1972) .................................................................................... 16
Broussard v. School Board of City of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992) .................... 20
Brown v. Entm't Merchs Ass'n, 131 S. Ct. 2729 (2011).................................................................. 8
Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966) .......................................................................... 29
Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992) ........................................ 13, 17
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ................................................................... 13
Cohen v. California, 403 U.S. 15 (1971) ................................................................................. 12-13
Connick v. Myers, 461 U.S. 138 (1983) ........................................................................................ 16
Dodd v. Rambis, 535 F. Supp. 23 (S.D. Ind. 1981) ................................................................. 26-27
Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) .................................................................... 10, 28
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ............................................................... 11
F.C.C. v. Pacifica Found., 438 U.S. 726 (1978) .......................................................................... 11
Gettler v. Dir. of Revenue, 411 S.W.3d 339 (Mo. Ct. App. 2013) ............................................... 21
Ginsberg v. New York, 390 U.S. 629 (1968) ................................................................................ 10
Gitlow v. New York, 268 U.S. 652 (1925) ...................................................................................... 8
Guiles ex. Rel. Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006) ......................... 11-12, 14, 17, 23
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).............................................................. 9
J.A. v. Fort Wayne Cmty. Sch., No. 1:12-CV-155 JVB, 2013 WL 4479229 (N.D. Ind. Aug. 20,
2013) ......................................................................................................................................... 24
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011).............................. 13
K.E. ex rel. Evergreen v. Capital City Sch. Dist. 12, No. VU-2014-1-DIST, slip op. 1 (D.
Eagleton Mar. 11, 2013). ....................................................................................... 2-5, 25, 27, 29
iii
K.E. ex rel. Evergreen v. Capital City Sch. Dist. 12, No. VU-2014-2-APP, slip op. 1 (13th Cir.
Jan 8, 2014) ..................................................................................................................... 2, 10, 18
K.J. v. Sauk Prairie Sch. Dist., 2012 U.S. Dist. LEXIS 187689 (W.D. Wis. 2012) ..................... 24
Lane v. Franks, 134 S. Ct. 2369 (2014) ........................................................................................ 16
Marks v. United States, 430 U.S. 188 (1977) ............................................................................... 15
McKoy v. North Carolina, 494 U.S. 433 (1990)..................................................................... 15, 16
Morse v. Frederick, 551 U.S. 393 (2007) ................................................... 9, 10, 14, 15, 17, 19, 20
Nichols v. United States, 511 U.S. 738 (1994) ............................................................................. 16
Nuxoll ex rel. Nuxoll v. Indian Prairie School Dist. # 204, 523 F.3d 668 (7th Cir. 2008) ........... 26
Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (5th Cir. 2007) ............................................... 14
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) ............................................. 9, 26
Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246 (11th Cir. 2003) ............................................ 13
Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) ................................................................................ 16
Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir. 2002) ............ 26
Thomas v. Bd. of Educ, Granville Cent. Sch. Dist., 607 F.2d 1043 (2d Cir. 1979) ..................... 20
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). .... 8, 17, 20,
24-26, 29, 30
Towne v. Eisner, 245 U.S. 418 (1918). ......................................................................................... 21
United States v. Johnson, 467 F.3d 56 (1st Cir.2006) .................................................................. 16
Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874 (7th Cir. 2011) ............................. 12
Constituional Provisions
U.S. Const. amend. I ....................................................................................................................... 8
Statutes
28 U.S.C. § 1254 ............................................................................................................................ iv
28 U.S.C. § 1291 ............................................................................................................................ iv
28 U.S.C. § 1331 ............................................................................................................................ iv
42 U.S.C. § 1983 ............................................................................................................................ iv
Other Authorities
Associated Press, As Dust Clears, What’s Next for Sony?, N.Y. Times (Dec. 22, 2014),
http://www.nytimes.com/aponline/2014/12/22/us/ap-us-sony-hack-next-steps.html?_r=1 ..... 22
iv
Sonja R. West, Concurring in Part & Concurring in the Confusion, 104 Mich. L. Rev. 1951
(2006) ........................................................................................................................................ 15
v
JURISDICTION
The United States District Court for the District of Eagleton had proper subject matter
jurisdiction over respondent’s 42 U.S.C. § 1983 action for a violation of civil rights pursuant to
28 U.S.C. § 1331. The United States Court of Appeals for the Thirteenth Circuit asserted
appellate jurisdiction over the district court’s grant of summary judgment under 28 U.S.C. §
1291. The Thirteenth Circuit entered final judgment on the matter, and the petitioner timely
petitioned for a writ of certiorari, which this Court granted on June 20, 2014. This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1254(1).
vi
STATEMENT OF THE ISSUES
1. Whether the Capital City School District 12’s ban of the “Screw Hate, Don’t
Discriminate” stickers should be analyzed under Tinker, Fraser, or an alternate standard.
2. Whether the Capital City School District 12 violated the Free Speech Clause of the First
Amendment by enacting a ban on a high school student’s passive political speech in the
form of the “Screw Hate, Don’t Discriminate” stickers.
1
STATEMENT OF THE CASE
Respondent K.E., a minor brought this 42 U.S.C § 1983 action, through her mother Paula
Evergreen, against Petitioner, the Capital City School District 12, in the United States District
Court for the District of Eagleton, seeking injunction to bar enforcement of District 12’s ban of
certain stickers, in violation of her First Amendment rights to the freedom of speech in public
school. K.E. ex rel. Evergreen v. Capital City Sch. Dist. 12 (Evergreen I), No. VU-2014-1-DIST,
slip op. 1 (D. Eagleton Mar. 11, 2013). Both parties moved for summary judgment pursuant to
Fed. R. Civ. 56(c), with the District Court granting in favor of K.E. on March 11, 2013. Id. The
District Court ruled that K.E.’s stickers were lewd, and that Bethel School District No. 403 v.
Fraser, 478 U.S. 675 (1986) empowered District 12 to ban the stickers from the school. Id. at 1,
17-19.
Respondent timely appealed to the United States Court of Appeals for the Thirteenth
Circuit, seeking reversal of the District Court’s grant of summary judgment in petitioner’s favor.
K.E. ex rel. Evergreen v. Capital City Sch. Dist. 12 (Evergreen II), No. VU-2014-2-APP, slip op.
1 (13th Cir. Jan 8, 2014). On January 8, 2014, the Thirteenth Circuit held that stickers at issue
were both political and not plainly lewd, and they had not caused nor would likely cause a
substantial disruption as necessary for proscription under Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969). Id. at 14-17. The Thirteenth Circuit thus
reversed the District Court and remanded the case, directing the District Court to enter summary
judgment in favor of the respondent. Id. at 1. The District 12 timely filed a petition for writ of
cettiorari, which this Court granted on June 20, 2014.
2
STATEMENT OF FACTS
Background
K.E. resides in Capital City, a municipality in the state of Eagleton, and attends S. Crane
Memorial Public High School. Evergreen I at 2. In 2007, two gay male students attended the
prom together, and Principal Snow issued a statement saying that the school would not stop them
or express support. Id. 2-3. A group small group of people affiliated with a group called
Eagletonians for Family Values (EFV) protested the dance. Id. at 3. Another group, Eagletonians
for Equality (EEE), engaged in a counter protest at the same time. Id. The event went off without
disruption. Id. The incident made news headlines and schools officials spent the next few weeks
frequently fielding requests for interviews. Id.
In April 2012, the Capital City chapter of the EEE collected enough signatures to put a
referendum called “Prop 14” on the 2012 election ballot, which would outlaw discrimination
based on sexual orientation in public accommodations. Id. at 2. Elizabeth Trinkett, Conservative
Mayor of Capital City, strongly opposed Prop 14’s passage. Id
The Stickers come to School
Roughly two months before the election, K.E, then a freshman at S. Crane, collaborated
with four friends to wear stickers at school supporting the passage of Prop 14. Id. at 3. The
stickers, circular with about a 3.5 inch diameter sported a rainbow pattern, and bore the words
“Screw Hate, Don’t Discriminate.” Id. K.E. and her companions wore the stickers to school on
September 3. Id. at 4. There were no incidents and no classes were disturbed. Id. Other students
that day asked for stickers so they may also express their support. Id. The next day K.E. returned
with twenty-five additional stickers and distributed them to classmates, and she got continued
requests for more. Id. At lunch, she and a companion loudly discussed the Prop 14’s merits with
3
students sympathetic to the EFV. Id. A teacher quickly quieted them, and there were no other
events of note. Id.
Over the next two days, K.E. distributed 50 more stickers to others. Id. at 5. Teachers
relayed to the Principal that students were often discussing and debating the stickers and Prop 14
in the halls, and such talk often bookended class discussion. Id. Some teachers reported having to
tell their students to pay attention at the beginning of class. Id. Some students wearing the
stickers were received some heckling, but no one was punished. Id. One student tried to trip
another in class over a sticker, but it did not disrupt the class, and the student was not
reprimanded. Id. Some concerned parents called in over the stickers, and occasionally, calls were
frequent enough for the principal and other officials to field calls. Id.
The Speech and the Ban
On September 7, Mayor Trinkett was scheduled to speak to the students of S. Crane
regarding a new academic initiative that it and its students would take part in. Id. at 6. The
Administration learned, roughly twenty sticker-clad students planned to inform their teachers
that they did not wish to attend because they disagreed with her position on Prop 14. Id. They
planned to ask to remain in the guidance counselor’s office. Id. K.E. and her compatriots were
not among those planning to refuse attendance. Id. In response the Snow collected all the sticker
from students, and District 12 banned them from all schools in the district. Id.at 7. Justifying the
ban, Snow claimed that they stickers were ”clearly” disrupting the school’s educational
environment, and because the stickers were “crude.” Id. Several students, including K.E. and a
friend, refused to take off the stickers and served a Saturday detention. Id. No students without
excused absences missed the speech, and no one asked to remain in the guidance counselor’s
office. Id. Even though Prop 14 passed, measures that were discriminatory towards homosexual
4
continued in Eagleton, and the school district did not lift the ban. Id. at 7-8. Subsequently, K.E.
through her mother Paula, filed this action in the District Court, seeking an injunction lifting the
on stickers bearing the words “Screw Hate, Don’t Discriminate.” Id. at 8.
5
SUMMARY OF THE ARGUMENT
This Court should affirm the Thirteenth Circuit’s decision that District 12 violated K.E.’s
right to free expression. In so doing it should rule that Tinker v. Des Moines Independent
Community School District governs the analysis K.E.’s student speech. However, it should also
find that District 12’s ban violates K.E’s First Amendment rights under any mode of student
speech analysis.
The analysis set forth in Tinker is the bedrock framework by which to analyze the
constitutionality of student speech regulation, all restrictions on which must be justified in light
of the special characteristics of the school environment. Under Tinker’s auspices, a school cannot
normally silence or punish student expression without a showing that it did or would cause a
substantial disruption to the school environment, or invade the rights to fellow students. The
Tinker test is subject to three narrow exceptions, none of which are applicable to K.E., but one of
that number tempts its application, the categorical proscription of offensively lewd and vulgar
speech described in Bethel School District No. 403 v. Fraser.
Fraser indeed permitted schools to bar speech within their halls that is vulgar and
offensive to inculcate social values in children they are charged to educate. But Fraser, it did so
in reference to expression contain content of a character no less strident than that which is
obscene to minors children in school. Fraser permits the automatic screening of such speech, but
not to all speech that meets some definition of offensive, and particularly not when in dealing
with core political speech. Whatever avenues Fraser might have left open for school officials to
define what speech is inappropriate in schools, this Justice Alito’s binding concurrence in Morse
v. Frederick limited Fraser reach in the context of political speech. Per said concurrence, schools
6
cannot justify prohibitions on political speech unless it is so plainly lewd and vulgar that it
offends for the same reason that obscenity offends.
The stickers bearing the slogan “Screw Hate, Don’t Discriminate” do not constitute lewd
speech. In determining the reasonableness of District 12’s restriction, the District Court applied
an acontextual and therefore unreasonable analysis to the speech. Evergreen I examined the word
“screw” alone and stripped it of its larger context within the full phrase, the situation, and the
sophistication of the audience. The District Court fell into the same erroneous trap by focusing
too narrowly on the etymology of a single word in a complex message. In so doing, both courts
deprived the messages of their contextual meanings. Evergreen I compounded the error by
failing to recognize the fluid and ever changing nature of our language.
The slogan is undoubtedly a political statement and cannot be proscribed under the
appropriate Fraser interpretation. The Third Circuit in Easton clarified what the Morse Court
could not identify as a method of analysis. Easton breaks putatively lewd school speech into
three easily identifiable categories: (1) plainly lewd speech; (2) ambiguously lewd speech that
cannot plausibly be interpreted to be commenting on a social or political issue; and (3)
ambiguously lewd speech that is plausibly socio-political as well. The school cannot restrict the
third category of speech. K.E.’s slogan is allegedly lewd. It is not plainly lewd. It indisputably
makes a political or social comment. Thus, the speech falls into the third category and Fraser
cannot restrict it as such.
The stickers did not, nor can they reasonably be expected to, create a substantial
disruption of the school educational or disciplinary environment. The stickers constituted a
silent, passive form of “pure speech’ akin to the armbands of Tinker. The alleged disruptions at
Crane High School do not rise to the level of disruptiveness in the facts of Tinker. Therefore, as
7
this Court found that Tinker did not create a substantial disruption, the disruption at issue cannot
possibly exceed the disruption level of Tinker.
District 12 officials have not produced evidence that would support a reasonable forecast
of a substantial disruption. Nor can they point to any facts that would refute their undifferentiated
fear or apprehension of disturbance. Therefore, the stickers survive the Tinker standard and
cannot be restricted without infringing on the rights of K.E.
ARGUMENT
I. The Student Speech Framework of Tinker is the proper standard to analyze the
District’s ban.
A. Standard of Review
The standard of review is de novo. As this is an “issue[] on appeal implicating the First
Amendment, de novo review is required . . . on conclusions of law. See Bose Corp. v. Consumers
Union, 466 U.S. 485, 508 (1984).
B. The Tinker substantial disruption standard is the appropriate default measure for
K.E.’s student speech.
The First Amendment dictates, in pertinent part, that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. This guarantee is incorporated against
the states. See Gitlow v. New York, 268 U.S. 652, 666 (1925). Minors too enjoy such protection.
Brown v. Entm't Merchs Ass'n, 131 S. Ct. 2729, 2735 (2011). This Court made clear in Tinker v.
Des Moines Independent Community School District, that children do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.” 393 U.S. 503,
506 (1969). Although the rights of students in school are “are not automatically coextensive
8
with the rights of adults in other settings,” Bethel School District No. 403 v. Fraser, 478 U.S.
675, 682 (1986), any restrictions on student speech must be justified in “light of the special
characteristics of the school environment.” Tinker, 393 U.S. at 506.
In Tinker, this Court struck down a school policy prohibiting students from wearing black
armbands in silent protest of the Vietnam War. Id. at 514. The students wearing the armbands
caused no interference with school functions, and did not invade the rights of other students. Id.
at 510. They were expressing their viewpoint on a matter of public concern. See id. at 513. As
per Tinker’s guidance, a school generally may not circumscribe its students’ rights to free
expression unless administrators show, or can reasonably forecast, a “substantial disruption” of
the school’s activities. Id. at 514.
Similar to the events of Tinker, K.E. passively displayed a sticker in silent expression of a
political viewpoint. Accordingly, unless K.E.’s speech meets one of the exceptions to Tinker, the
school must show that her conduct gave rise to a substantial disruption. No such exception is
applicable.
C. Neither Fraser, nor any other Tinker exception applies to K.E.’s sticker display.
Following Tinker, this Court has specified several “narrow categories” of student speech
that a school may sanction or prohibit without regard for disruptive effects. See Saxe v. State
Coll. Area Sch. Dist., 240 F.3d 200, 212 (3d Cir. 2001). Schools may limit student expression in
school-sponsored mediums. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)
(“[W]e hold that educators do not offend the First Amendment by exercising [such control ] so
long as their actions are reasonably related to legitimate pedagogical concerns.”). Administrators
may have the power to punish advocating illegal drug use. See Morse v. Frederick, 551 U.S. 393,
409 (2007). Additionally, schools can condemn student speech that is “lewd,” “vulgar,” or
9
“plainly offensive,” when delivered or expressed within the school environment. See Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
Morse and Kuhlmeier do not apply to K.E., or the District’s ban, as K.E. did not advocate
using illegal narcotics and her expression does not reasonably bear the school’s imprimatur. See
Evergreen II, at 3-4. The dissent below would permit the Fraser exception to encompass any
speech school officials might consider lewd, regardless of its content or message. See id. at 29
(Draper, J., dissenting). That view extends Fraser too far, and into contexts best managed by the
Tinker disruption standard.
1. Fraser dealt with, and only categorically proscribed, speech that was
plainly lewd.
In Fraser, this Court permitted punishing a student for delivering what it termed an
“elaborate, graphic, and explicit sexual metaphor” to his fellow students. 478 U.S. at 678. The
“pervasive sexual innuendo” of the speech at issue was on its face “plainly offensive” to all
present. Id. at 683. The Court reasoned that permitting such a “vulgar and lewd” “sexually
explicit monologue” reasonably ran counter to the school’s educational mission to inculcate
social values. See id. at 681, 685. Reflecting on its holding, this Court has highlighted that “[t]he
mode of analysis employed in Fraser is not entirely clear.” Morse, 551 U.S. at 404. However for
guidance, Fraser’s admonishment of offensive speech “must be understood” in reference to the
vulgar and sexually explicit nature of the language at issue in the case. Doninger v. Niehoff, 527
F.3d 41, 49 (2d Cir. 2008).
The Court did not synthesize this prohibition anew, but rather drew on its prior treatment
of minors’ exposure to “vulgar and offensive” forms of expression. See id. at 684. It noted both
how state’s may restrict minors’ access to non-obscene sexual depictions, Ginsberg v. New York,
390 U.S. 629, 635–37 & nn. 4-5 (1968) (permitting limits on such material “according to the
10
group to whom [it] is directed”), and government’s ability to shield children from vulgar and
indecent spoken words when they might be a captive audience to the expression. See F.C.C. v.
Pacifica Found., 438 U.S. 726, 731 (1978). Such content is “patently offensive,” and though not
rising to the point of general obscenity, does “offend for the same reason that obscenity offends.”
Id. at 746. Given the special needs and considerations present when dealing with children, forms
of speech sufficiently lewd, vulgar, or offensive, may be considered “obscenity as to minors.”
See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 n. 10 (1975).
This Court’s decision in Fraser “did no more” than protect children from obscenity to
minors in “another place where minors are a captive audience—schools.” B.H. ex rel. Hawk v.
Easton Area Sch. Dist., 725 F.3d 293, 305 (3d Cir. 2013) cert. denied, 134 S. Ct. 1515 (2014).
Fraser’s absolute prohibition focused on speech of which the lewd character was immediately
apparent. 478 U.S. at 683. Throughout the opinion, the Court described Matthew Fraser’s words
in a rotating fashion as “offensively lewd and indecent,” “vulgar and lewd,” “plainly offensive,”
and “sexually explicit.” Id. at 683, 685. Rather than fashioning divergent varieties of disfavored
speech, these terms are properly read to encompass one category of expression. See Guiles ex.
Rel. Guiles v. Marineau, 461 F.3d 320, 327 (2d Cir. 2006). That category of speech is that which
is obscene to minors.
This Court’s opinion in Morse supports that construction. There the Court observed that
Fraser’s automatic proscriptions “should not be read to encompass any speech that could fit
under some definition of ‘offensive.’” 551 U.S. at 409; see also Marineau, 461 F.3d at 328
(noting that what speech may be silenced under Fraser is “narrower than the dictionary
definition” of offensive). Such a view matches this Court’s observation that the First Amendment
empowers students in school “to wear Tinker's armband, but not Cohen's [‘Fuck the Draft’]
11
jacket.” Fraser, 478 U.S. at 683 (referencing Cohen v. California, 403 U.S. 15 (1971)); see also
Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 473 (6th Cir. 2000) (Gilman, J., dissenting)
(recognizing that the terms “vulgar” and “offensive” in Fraser “refer to words and phrases that
are themselves coarse and crude, regardless of . . . the overall message”).
Cohen’s expletive was of just the immediately oppressive vulgar nature that rendered it
unfit for the school environment—a characteristic Cohen’s jacket shared with Fraser’s speech.
See id. at 684. The fact that “‘[twenty-five] years of erosion of refinement in the use of
language,’” may have stripped Fraser’s specific words of their “‘shock value’” does not render
the Fraser standard any less stringent. See Easton, 725 F.3d 293, 306 & n.13 (quoting Zamecnik
v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 877 (7th Cir. 2011); cf. id. (noting the
progression of the word “damn” from highly shocking to significantly less offensive).
The Fraser decision focused the essence of the offending speech, and why it was
inappropriate for the school environment. 478 U.S. at 683. This reality undermines applying
Fraser to suppress speech that is by some measure “offensive” to pedagogical objectives. See,
e.g., Boroff, 220 F.3d at 470 (concluding erroneously that Fraser could silence speech for
“promot[ing[ values that are so patently contrary to the school's educational mission”). That
limitation is crucial given that “legitimate and protected speech” may tangentially undermine
“[a]ll sorts of missions” without offending for the same reason obscenity does. Marineau, 461
F.3d at 330 (noting a school’s mission to discourage alcohol would be undermined if students
distributed a “medical study showing less heart disease among moderate drinkers”).
It remains true that deciding the propriety of language is a duty that “properly rests with
the school board.” Id. Yet, applying Fraser “whenever a school decides . . . expression conflicts
with its “educational mission” would “eviscerate Tinker” and strip it of “any effect.” Marineau,
12
461 F.3d at 330. Such a view runs counter to this Court’s continual recognition that Tinker
controls unless the speech at issue falls within one of the narrowly delineated exceptions. See J.S.
ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 927 (3d Cir. 2011). It “remains the job
of judges” to determine if student speech at issue is plainly lewd, and offends for the same reason
obscenity does in the school context. Easton, 725 F.3d at 309. Such is clearly warranted when
“one [teacher]’s vulgarity is another [child]’s lyric,” Cohen, 403 U.S. at 26, and children
themselves can derive different meanings from the same sign word or symbol. Scott v. Sch. Bd.
of Alachua Cnty., 324 F.3d 1246, 1249 (11th Cir. 2003) (noting that children in south often
interpret the confederate flag as symbol of southern heritage, or one of racism and oppression,
depending on who they are).
Accordingly, correct application of Fraser’s absolute prohibition cannot apply unless its
vulgarity or lewdness parallels that which is obscene to minors. See Chandler v. McMinnville
Sch. Dist., 978 F.2d 524, 530 (9th Cir. 1992) (finding that as the word ”scab” was not “per se
vulgar, lewd, obscene, or plainly offensive” it did not fall within the meaning of Fraser”). With
regard to K.E., the District 12 must show that the term “Screw Hate, Don’t Discriminate” is
plainly lewd to warrant automatic application of Fraser.
2. Fraser does not categorically exclude ambiguously lewd student speech
reasonably commenting on political or social issues.
The Fraser decision disposed with speech that was obscene to minors, and schools need
not tolerate such speech, as “the harm” to the school, its objectives, and its students “clearly
outweigh[s]” the value of the underlying message. 478 U.S. at 685 (citing Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942)). Although “[t]he mode of analysis employed in Fraser is
not entirely clear,” a school’s power to proscribe content that is obscene to minors is not in
13
doubt. Marineau, 461 F.3d at 329. Tension lingers, however, between students’ expressive rights
and the power of administrators to excise potentially unsuitable speech that is not akin to the
plain offensiveness and lewdness of Fraser. Morse, 551 U.S. at 393. This Court recognized that
“much political . . . speech might be perceived as offensive to some” and that there is a “marked
distinction between the political message of the armbands in Tinker and the sexual content” in
Fraser. Id. at 401, 404 (internal quotation marks omitted). Uncertainty as to the status of
political student speech under Fraser is best answered by looking to Justice Alito’s concurring
opinion in Morse, and all the more necessary given the matter of public concern K.E.’s stickers
touched on.
a. Justice Alito’s Morse concurrence controlled evaluations of
political speech not squarely subject to student speech exceptions.
This Court’s majority in Morse found that a school may permissibly punish students for
speech that a reasonable observer could interpret as advocacy for illegal drug use. Id. at 410.
Frederick’s banner was plainly not making any kind of political statement. Id. at 402. Justice
Alito, and Justice Kennedy with him, concurred with the majority, but only “expressly
conditioned on their narrower understanding” of the holding. Easton, 725 F.3d at 310. In their
view, the Morse holding was valid only insofar as its automatic prohibition did evince “any
restriction on speech” that was plausibly “commenting on any political or social issue.” Morse,
551 U.S. at 422 (Alito, J., concurring); Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768
(5th Cir. 2007) (noting that Justice Alito’s opinion in Morse sought to “ensur[e] that political
speech will remain protected within the school setting”).
An appropriate reading concludes that the Alito concurrence sets the scope of the
precedent derived from Morse. See, e.g., Easton, 725 F.3d at 310 (finding Justice Alito’s
concurrence is “a binding part of Morse”); Ponce, 508 F.3d at 768 (5th Cir. 2007) (same).
14
Justice Alito’s concurrence implicates the “narrowest grounds” doctrine of Marks v. United
States, 430 U.S. 188 (1977). This principle applies when “no single rationale explaining the
result enjoys the assent of five Justices. Id. at 193. At such times, “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. Marks specifically referred to instances where the Court is fragmented
with pluralities rather than majorities. Id. However, refusing to seek the narrowest grounds of a
ruling if the Court technically issued a majority opinion is improper, as it would not “explain the
result” of the case. Easton, 725 F.3d at 310.
Justice Alito explained the grounds on which he joined the majority, a majority he
created with his assent to its reasoning, as limited by his understanding. See Morse, 551 U.S. at
422. (Alito, J., concurring). Consequently, that majority “is not a majority opinion except to the
extent that it accords with his views” as the lynchpin Justice of the judgment. McKoy v. North
Carolina, 494 U.S. 433, 462 n. 3 (1990) (Scalia, J., dissenting). Therefore, Justice Alito’s
reasoning is not a “gloss” on a self-contained majority opinion, but rather “the least common
denominator” of the justices, the narrowest rationale. Id. see also Sonja R. West, Concurring in
Part & Concurring in the Confusion, 104 Mich. L. Rev. 1951, 1958-60 (2006) (demonstrating
this approach is consistent with methods of determining precedent from this Court’s opinions).
Indeed, had the majority opinion gone further, and encompassed political speech, it would have
ceased to be a majority. It would then be three-justice plurality, where the concurrence would
control under “an uncontroversial application of the Marks doctrine.” Easton, 725 F.3d at 312.
Reticence to heed the logic of a lynchpin vote “elevates formalism over substance at the expense
of ignoring the very conditions” necessary to create a majority. Id. at 313. Moreover, ignoring
15
the limitations of a lynchpin concurrence “fabricate[s] a majority” when a necessary fifth justice
“writes separately to explain his own more narrow understanding.” McKoy, 494 U.S. at 462 n. 3.
Eschewing rigid adherence to Marks procedural posture in favor of pragmatic evaluations
of meaning is neither novel nor radical. See United States v. Johnson, 467 F.3d 56, 65 (1st
Cir.2006) (noting that this Court has “moved away” from adhering to the strict circumstances in
Marks). In the past, this Court has aggregated the views of concurring and dissenting judges to
seek a coherent majority holding. E.g., Nichols v. United States, 511 U.S. 738, 746 (1994)
(drawing on Justice Stewart’s concurrence and the views of the four dissenters in Baldasar v.
Illinois, 446 U.S. 222 (1980), to glean its true precedent). Numerous circuit courts of appeal read
Justice Powell’s concurrence in Branzburg v. Hayes, 408 U.S. 665 (1972) to limit the reach of
the five member majority opinion that Powell joined. See e.g., Ashcroft v. Conoco, Inc., 218 F.3d
282, 287 (4th Cir. 2000); Shoen v. Shoen, 5 F.3d 1289, 1292 & n.5 (9th Cir. 1993). The
appropriate consideration of lynchpin concurrences such as is in Morse does not dissolve the
famed “Rule of 5” but instead examines what logic upon which five Justices actually agreed.
Accordingly, Justice Alito’s concurrence is the controlling interpretation of Morse in the student
speech realm, and therefore significantly informs the analysis of District 12’s prohibition.
b. The Morse concurrence balances competing speech concerns
illustrates the importance of political speech.
Even should Justice Alito’s concurrence not bind precedent under Marks, its rationale
still demonstrates the appropriate treatment of political student speech under Fraser. Political
speech, on matters of public concern, rests at the very “heart of to the First Amendment.” Lane
v. Franks, 134 S. Ct. 2369, 2377 (2014). Such spech occupies the “highest rung [in] the
hierarchy of First Amendment values.” Connick v. Myers, 461 U.S. 138, 145 (1983). Children in
school must have significant free speech rights, lest schoolhouses risk becoming “enclaves of
16
totalitarianism.” Tinker, 393 U.S. at 511. In contrast, the prohibition of pro drug speech in
Morse “stand[s] at the far reaches of what the First Amendment permits.” That limitation was
sustainable only because of the “unique” and “grave” danger that illegal drugs pose to children in
school. 551 U.S. at 422 (Alito, J., concurring) (noting the threats to physical safety attendant to
drug use). Yet even the “immediately obvious” threat of drug use could not justify sacrificing
political and social speech on that issue. Id.
By logical extension, core political speech also forestalls suppressing ambiguously lewd
speech that does not reach the same vulgar heights of Fraser. Easton, 725 F.3d at 314 (“It would
make no sense to afford [speech advocating drug use] protection . . . while declaring that
[ambiguously lewd speech] is unprotected” as the risk of harm from drugs is “far graver”); see
Marineau, 461 F.3d at 328 (noting that regardless of political message, plainly lewd speech
could not escape Fraser’s exception to Tinker). Justice Alito warned that attempts to chill core
political speech merely in the name of an “educational mission” would “strike very heart of the
First Amendment” where such political speech lies. Morse, 551 U.S. at 423 (Alito, J.,
concurring) (cautioning of the dangers if the “educational mission” approach could justify
silencing political expression).
Notwithstanding the school board’s power to determine what speech is “inappropriate” in
the scope of their mission, Fraser, 478 U.S. at 683, unless plainly proscribable under Fraser,
administrators my not flatly exclude such speech when it contains a political element. Chandler,
978 F.2d at 532 n.2 (Goodwin, J., concurring) (concluding that Fraser does not apply because
“this case clearly involves political speech,” and was not “per se vulgar”). District 12’s sticker
ban must also harmonize with these principles to satisfy constitutional muster.
17
D. The Third Circuit’s Framework for Fraser Analysis Balances the Concerns of the
Student Speech Regime.
In Easton, the Third Circuit formulated three varied standards to implement the effect of
Morse on Fraser, 725 F.3d at, 298, which the Thirteenth Circuit adopted below. Evergreen II, at
No. VU-2014-2-APP, at *12. It provided that, first, speech which is plainly lewd, offending for
the same reason obscenity does, may be categorically excluded from the school environment,
regardless of political content. Easton, 725 F.3d 298. Next, that schools may also exclude speech
which is ambiguously lewd, but lacking in a plausible political message. Id. Finally, that speech
plausibly could be interpreted as commenting on a political or social issues could not be
categorically excluded from the school, and must substantially disrupt under the Tinker standard
to warrant punishment. Id. This methodology is appropriate.
The harm that speech “obscene as to minors” inflicts on the school environment “clearly
outweighs” the value of a student’s message—political or otherwise. Fraser, 478 U.S. at 685.
Such speech must be of the instant vulgarity of Cohen’s jacket, or carry the offensively lewd
message in context it is conveyed. Easton, 725 F.3d at 309 (“A reasonable observer would not
adopt an acontextual interpretation” just to construe something as vulgar or lewd).Therefore, the
first approach is not constitutionally problematic, so long as it remains up to judges to determine
what is plainly lewd, rather than relying on a school to define what is obscene to minors. Id. at
316 (“In [the other three student speech cases] the Supreme Court independently evaluated the
meaning of the student's speech and the reasonableness of the school's interpretation and actions.
here is no reason the school's authority under Fraser should receive special treatment.”)
Moreover, permitting school officials to punish and exclude ambiguously lewd speech
with no political nature finds some support in Fraser, even though that case dealt with the
plainly lewd. Fraser reminded that school officials are generally best situated to determine what
18
material is appropriate for school environments. Id. at 683. Indeed, “[t]his makes sense,” as
“[s]chool officials know the age, maturity, and other characteristics of their students far better
than judges do.,” Easton, 725 F.3d at 308, and Morse counsels that speech which may be
inappropriate may be subject to hirer restrictions, only when it does not plausibly comment on a
political issue. Morse, 551 U.S. at 422 (Alito, J., concurring).
Finally, per the logic of Morse, the final avenue of the Third circuit’s reasoning is correct
to insulate speech with a plausible political message from categorical exclusion unless it is
plainly lewd. Id. at 298. However, it bears noting that it properly remains the Court’s function to
determine if a political message is reasonably plausible, just as it is the court’s role to evaluate if
speech is itself plainly lewd. Id. at 309. Therefore, given the propriety of its logic in considering
the balance of concerns in the school environment, the Third Circuit standard properly equips
this Court to evaluate the validity of District 12’s actions.
II. The ban violates the First Amendment under either Fraser or Tinker.
A. Standard of Review
The standard of review is de novo. When issues on appeal implicate the First
Amendment, de novo review is required on findings of constitutional fact, conclusions of law,
and a grant or denial of summary judgment. See Bose Corp., 466 U.S. at 508.
B. The District Court erred when it applied Fraser.
For the reasons stated in Part I above, Fraser is not the proper standard to apply to the
facts of this case. However, the ban would not survive even the amorphous Fraser standard on
the facts at bar.
19
1. The speech at issue is not lewd.
A reading of the phrase “Screw Hate, Don’t Discriminate” that introduces sexual
innuendo or lewd connotations is unreasonable. The determination of what manner of speech in
the classroom or in school assembly is inappropriate properly rests with the school board.
Fraser, 478 U.S. at 683. However, the school officials do not have unbridled discretion to
regulate to regulate such speech by high school. Tinker, 393 U.S. at 511; see also Id. at 689
(Brennan, J., concurring) (citing Thomas v. Bd. of Educ, Granville Cent. Sch. Dist., 607 F.2d
1043, 1057 (2d Cir. 1979) (Newman, J., concurring in result) (“[S]chool officials . . . do [not]
have limitless discretion to apply their own notions of indecency. Courts have a First
Amendment responsibility to insure that robust rhetoric . . . is not suppressed by prudish failures
to distinguish the vigorous from the vulgar”)). As noted, judges must determine whether a
reasonable observer could interpret student speech as lewd, profane, vulgar, or offensive. Easton,
725 F.3d at 308 (citing Morse, 551 U.S. at 402 (taking the same approach with respect to the
message of drug advocacy on Frederick's banner).
a. The District Court erred by analyzing the word “screw” out of
context.
“A reasonable observer would not adopt an acontextual interpretation” of highly
contextual speech. Easton, 725 F.3d at 309. The Oxford English Dictionary contains twenty-four
separate definitions for the word “screw.” It follows that the school—which is assigning an
acontextual meaning to the word “screw”—unreasonably and unconstitutionally banned the
entire phrase.
The same error befell the court in Broussard v. School Board of City of Norfolk, 801 F.
Supp. 1526 (E.D. Va. 1992), when interpreting the meaning of the slogan “Drugs Suck!” In
1991, a seventh grade girl wore a T-shirt to her school with the phrase “Drugs suck!”
20
emblazoned on her chest. Id at 1528. Several teachers and the school principal concluded that
the word “suck” carried predominantly sexual connotations and gave her the option to change the
shirt or be suspended. Id. at 1528-29. The plaintiff’s language expert testified that the word
“suck” in that context indicated that drugs are bad or deplorable. Id. at 1534. Further, the expert
noted that the context of the word and the sophistication of the listener are factors in the word’s
meaning. Id. The student even testified that this meaning of deplorability is the meaning ascribed
to the phrase by her contemporaries. Id. Finally, the expert testified, “the word is in a state of
amelioration in that its recent meaning of disapproval is” gaining predominance and acceptance.
Id. Nevertheless, the court could not escape the word’s more lurid etymology. Id. (“Although the
anti-drug message itself admittedly makes no sexual statement, the use of the word ‘suck’ and its
likely derivation from a sexual meaning, is objectionable.”) For support, the court found comfort
in the fact that reputable media outlets, especially The New York Times, had not, to that point,
used the phrase “X sucks” in print. Id. But words take on new meaning depending on
circumstances and the passage of time.
b. The word “screw in this context evolved into a meaning of
disparagement.
It is axiomatic in Constitutional law that “[a] word is not a crystal, transparent and
unchanged, it is the skin of a living thought and may vary greatly in color and content according
to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425
(1918). Time and circumstances have now changed the accepted meaning of the word “suck.”
Gettler v. Dir. of Revenue, 411 S.W.3d 339, 347 (Mo. Ct. App. 2013). Almost a quarter of a
century after Broussard, the Missouri Court of Appeals vindicated the meaning the plaintiff and
understood in 1991. Id. Gettler centered on a vehicle license plate that contained the phrase
“MZU SUX.” Id. The record established that Gettler was a University of Kansas fan and that he
21
chose the configuration “MZU SUX” in support of the University of Kansas in its rivalry with
the University of Missouri and his belief that the University of Missouri's athletic program was
inadequate and inferior to the University of Kansas's athletic program. Id. at 344.
The Missouri Director of Revenue had the authority to revoke license plates that, in his
determination, were obscene. Id. An administrative panel concluded, “although the word ‘sucks’
may have ‘a sexual origin,’ Gettler's personalized license plate ‘does not describe a sexual act,
make a lewd reference to sexual organs, or appeal to prurient interests.’” Id. at 341. The appeals
court affirmed the decision while noting the passage of time. Id. at 347.
To the contemporary adolescent, “screw X” is a phrase that denotes AND connotes the
disparagement of X and not the etymological origin of the singular word. Though modern
dictionaries have yet to include this version of the word when used as a transitive verb, its
prevalence in pop culture is instructive. For example, the Broussard court based its
determination that “sucks” was vulgar at least in part on the fact that the New York Times had
not used the phrase in print. 801 F. Supp. at 1534. As evidence of the increasingly disparaging,
rather than lewd, meaning of the phrase, The New York Times recently published “Screw you.”
Associated Press, As Dust Clears, What’s Next for Sony?, N.Y. Times (Dec. 22, 2014),
http://www.nytimes.com/aponline/2014/12/22/us/ap-us-sony-hack-next-steps.html?_r=1. The
Times quoted veteran publicist Howard Braggman, speaking about the Sony Media computer
hacking scandal that occurred in December, 2014, “That will empower [Sony] a little bit, so they
can say (to North Korea) 'Screw you, we got this out despite of these threats and heinous things
you did to us.” Thus, the venerable news outlet that gives us “All the news that’s fit to print”
decided that the phrase “Screw you” is fit for printing. If one is to rely on the rationale of the
Broussard court, then “screw” in this context is not lewd.
22
2. Political speech that is only arguably lewd cannot be restricted under
Fraser.
The Third Circuit held that a school can only limit student speech under Fraser if the
speech can reasonably be interpreted as either: (1) plainly lewd, or (2) ambiguously lewd and
cannot “plausibly be interpreted as commenting on political or social issues.” Easton, 725 F.3d at
308. The “Screw Hate, Don’t Discriminate” sticker is not plainly lewd on its face. The Pacifica
decision guides the analysis on that front: Plainly lewd speech “offends for the same reasons
obscenity offends” because the speech in that category is “no essential part of any exposition of
ideas” and thus carries very “slight social value.” Fraser, 478 U.S. at 683 (quoting Pacifica
Found., 438 U.S. at 746 (plurality opinion)) (discussing the infamous “Seven Dirty Words”).
Those words offend because of the powerfully visceral, emotive force that they carry. In
situations like this one, where “screw” may have dozens of meanings depending on the context,
the appropriate step is to determine whether it has any political message behind it. Undoubtedly,
the stickers pack a political punch; they squarely address an ongoing political and social issue in
this country.
Furthermore, the Fraser court distinguished its holding from Tinker in part on the
absence of any political message in Fraser's speech. Marineau, 461 F.3d at 330 (making the
reverse distinction to apply Tinker to a T-shirt that had political themes); see Fraser, 478 U.S. at
685 (refusing to apply Tinker because Fraser's speech did not involve political viewpoint).
Fraser cannot prohibit ambiguously lewd speech that can be plausibly interpreted as
commenting on social or political issues. The Third Circuit in Easton held: because the “I ♥
boobies! (KEEP A BREAST)” bracelets are not plainly lewd and express support for a national
breast-cancer-awareness campaign—unquestionably an important social issue—they may not be
23
categorically restricted under Fraser. 725 F.3d at 302. The bracelets in question served to raise
awareness of breast cancer and to foster conversation of an otherwise difficult subject to discuss.
Id. at 298. All the bracelets contained the website for the “Keep A Breast” Foundation, which
provides information on breast cancer prevention and detection. Id. Additionally, many media
outlets reported on the bracelets and their content, which speaks to the innocuous meaning of the
word “Boobies.” Id. The campaign is directed at teenage girls to foster discussion, and it worked.
Id. Finally, the record shows that the administration did not consider Boobies to be vulgar or
lewd. Id. For if they did, they certainly would not have allowed the use of the word over the
public address system when announcing the restriction. Id. at 320. Under different facts, or in a
different locality, the “Keep A Breast” bracelets might indeed be found vulgar. See, e.g., J.A. v.
Fort Wayne Cmty. Sch., No. 1:12-CV-155 JVB, 2013 WL 4479229, at *2 (N.D. Ind. Aug. 20,
2013) ( holding same bracelet was reasonably determined to be vulgar); K.J. v. Sauk Prairie Sch.
Dist., 2012 U.S. Dist. LEXIS 187689 at *13 (W.D. Wis. 2012) (same).
C. The stickers do not violate the Tinker standard.
The record does not support a finding that the events at Steven S. Crane High School rose
to, or could reasonably be forecast to rise to, the substantial disruption standard under Tinker. In
Tinker, this Court held that the prohibition of speech “without evidence that it is necessary to
avoid material and substantial interference with schoolwork or discipline is not constitutionally
permissible.” 393 U.S. at 511. The “robust exchange of political ideas is essential in a vibrant,
progressive society and is precisely the type of speech that is sacrosanct under the First
Amendment.” Id. at 1375.
1. The speech did not create a material or substantial disruption.
24
This Court in Tinker, found that the events at issue there did not rise to a level that would
justify the suppression of free speech. 393 U.S. at 505. The Court held that “the wearing of
armbands in the circumstances of this case was entirely divorced from actually or potentially
disruptive conduct by those participating in it.” Id. Rather, “[i]t was closely akin to ‘pure speech’
which, we have repeatedly held, is entitled to comprehensive protection under the First
Amendment.” Id. (citations omitted). The Tinker armbands caused comments and warnings by
other students, the poking of fun at the protesters, and “a warning by an older football player that
other, nonprotesting students had better let them alone.” Id. at 517 (Black, J. dissenting). Further,
“a teacher of mathematics had his lesson period practically ‘wrecked’ chiefly by disputes” over
the armbands, and that “talk, comments, etc., made John Tinker ‘self-conscious' in attending
school with his armband.” Id. at 517-18. These events notwithstanding, the Court held that the
disruptions did not rise to the level of material or substantial. Id. at 514.
The stickers at issue did not even rise to the disturbance level of Tinker, and, thus, could
not possibly exceed the Tinker disruption standard. The stickers caused “loud debate” in the
lunchroom, Evergreen I at 4, some hallway discussions, id. at 5, and teachers settling the
students down before class. Id. Additionally, one sticker-wearing student received negative
heckling. Id. Finally, school officials answered phone calls about the stickers three times. Id.
These events are preposterously offered as justification for infringing on the First
Amendment rights of K.E. to engage in passive political speech. Students in every high school in
the country can be heard engaging in loud debates and loud hallway discussions over which
football team is best or which movie or singer is better than another.
2. School administrators could not reasonably forecast a substantial
disruption.
25
It is true that “school officials are not required to wait and allow a disruption of their
school environment to occur before taking action.” Nuxoll ex rel. Nuxoll v. Indian Prairie School
Dist. # 204, 523 F.3d 668, 673 (7th Cir. 2008). However, “undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom of expression.” Tinker, 393 U.S. at
508. “If a school can point to a well-founded expectation of disruption—especially one based on
past incidents arising out of similar speech—the restriction may pass constitutional muster.”
Saxe, 240 F.3d at 211.
School officials can reasonably predict a disruption where similar speech has caused
disruptions in the past or where the underlying tension in the school is palpable. One trend in this
area is prohibiting the display of the Confederate flag in light of past racial hostility and tension
at their schools. See, e.g., A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 222 (5th Cir. 2009)
(upholding a ban on the display of the Confederate flag based on a showing of racial tension and
a history of race-related violence at the school); Sypniewski v. Warren Hills Regional Board of
Education, 307 F.3d 243 (3d Cir. 2002) (“[t]he history of racial difficulties [at the school]
provide a substantial basis for legitimately fearing disruptions from the kind of speech prohibited
by the policy.”). Thus, real physical violence or threats of violence that are closely related to the
speech are evidence that would support a forecast of disruption. The only tension evident in the
record is a “loud debate” about the positions on each side of the political issue.
Moreover, the stickers did not pose a legitimate threat of disruption to any educational
mission of the school. For instance, the students in Dodd v. Rambis distributed flyers that
encouraged a “walkout” from instructional class time scheduled for Friday. 535 F. Supp. 23, 28
(S.D. Ind. 1981). This walkout was scheduled to take place merely two days after a walkout of
54 students actually occurred on Wednesday to protest school disciplinary rules. Id. In effect, a
26
walkout from classes is a boycott on classes that materially disrupts the educational process. Id.
The school preemptively suspended the two leaders prior to Friday. Id. Justifying the reasonable
forecast, the school cited the Wednesday walkout that physically disrupted classes and distracted
the remaining students from the educational task at hand. Id. The school administrators also
picked up on the palpable excitement and elevated exuberance evidenced by rowdy and noisy
passing periods and increased number of students marked tardy for class. Id. Finally, the
information on the flyers was so detailed and descriptive about the time and manner of the
planned walkout that the principal could reasonably determine that the Friday walkout was
likely. Id. The court upheld the suspensions in favor of the school’s reasonable forecast. Id.
However, Dodd is distinguishable from this case. First, the record does not indicate any
prior boycott, “sit-out,” or other protest occurred at Crane High School prior to the day of the
Mayor’s speech. Second, whereas the students in Dodd did walkout and planned to walkout of
instructional periods to make a scene and express a point, the students at Crane High School
planned to request the ability to quietly complete school work rather than attend the speech.
Finally, the Dodd students walked out of class periods where the core educational mission of the
school occurred. The students desiring to sit out the Mayor’s speech would not miss any
educational periods.
There is no merit in the conclusion that the Mayor’s speech was essential to the
educational mission of the school. The speech occurred in early September, 2012, and it
introduced a policy to be implemented during the following school year, nearly a full year in the
future. See Evergreen I, at 6. Any information these students did not acquire at the speech would
surely be disseminated many more times before an overhaul of the curriculum. This is especially
27
true given the fact that there were likely a number of students with excused absences who would
also miss the speech. See id. at 7.
Moreover, the amount of phone calls received by the school officials at Crane do not
substantiate any claims of potential disruptions in the future. The Second Circuit found that a
“deluge” of phone calls that serve to remove an official from his ordinary duties might be
substantially disruptive. Doninger, 642 F.3d at 341. The student, Doninger, sent an email from
her father’s account to various parents, students and other connected with the high school. Id.
The email deliberately misinformed the recipients that the widely-anticipated “Jamfest” student
concert would be cancelled that year. Id. The mass email included the district office's phone
number and urged recipients to call that office and forward the email “to as many people as you
can.” Id. Both the superintendent and the principal received an influx of telephone calls and
emails regarding Jamfest. Id. As a result, the principal was called back to her office from a
planned in-service training day. Id. That evening, Ms. Doninger reposted the email on her blog
and urged students, alumni, and other members of the community to call or visit the principal
and superintendent. Id. The following morning, the officials continued to receive phone calls and
emails regarding Jamfest, as well as personal visits from students. In addition, during the day, a
group of students gathered outside the administration office. The two officials testified that they
were forced to miss or arrived late to several school-related activities as a result of the
controversy, including a health seminar, an observation of a non-tenured teacher, and a
superintendents' meeting. Id. at 341.
The present case does not begin to approach the disruption of Doninger. The Doninger
disruption, an affirmative result of the actions of the student, dragged on for nearly two full days.
As a result, the officials missed several important pedagogical appointments and generally could
28
not complete their tasks. Conversely, through no direct act of K.E. Principal Snow or other
officials may have had to answer three phone calls as a result of the stickers. Additionally, no
students convened on the office to meet with the officials in person. No students protested
outside the office doors. And, most significantly, Snow or the other officials did not miss
meetings or pedagogical appointments as a result of the minimal number of phone calls received.
Thus, the phone calls did not portend a reasonable likelihood of disruption absent the ban on the
stickers.
The only other prior “disruption” related to this issue in the past was five years ago. The
school allowed a same-sex couple to attend the school prom, while remaining neutral on the
issue of homosexuality as a whole. Some members of the outside community gathered at the
prom to show their disapproval of the same-sex couple. Other members of the outside
community arrived to show support for the couple, and to protest the anti-gay protesters. The
situation did not escalate—there were no physical altercations, the volume of the chants were
kept to a reasonable level, and the students entered the dance with little fanfare. Evergreen I, at
3.
A peaceful demonstration of political ideas outside of school grounds by members of the
general public is not sufficient to warrant a ban on the stickers. The fact remains that the school
district cannot demonstrate that its action was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Tinker,
393 U.S. at 509. “Certainly where there is no finding and no showing that engaging in the
forbidden conduct would ‘materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.” Id.
(citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
29
The school district has not demonstrated a reason beyond the mere apprehension of
unpleasantness to justify the ban on the stickers. The Tinker Court presciently advised against
just this sort of ban. “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.” Tinker,
393 U.S. at 508. But the Constitution says we must take this risk. Id. “[O]ur history says that it is
this sort of hazardous freedom—this kind of openness—that is the basis of our national strength
and of the independence and vigor of Americans who grow up and live in this relatively
permissive, often disputatious, society.”
CONCLUSION
For the foregoing reasons, Respondent respectfully requests that the Court affirm the
decision of the Thirteenth Circuit and find that the restriction imposed by Capital City School
District 12 violated the Free Speech Clause of the First Amendment.
30