No. 10-12139
IN THE
Supreme Court of the United States
___________
NEW VAN ZANDT SCHOOL, INC.
Defendant-Petitioner,
v.
RILEY CYPRUS, a minor, through her parent, CHARLINE McMAINS
Plaintiff-Respondent
___________
On Writ Of Certiorari From The United States Court Of Appeals
For The Thirteenth Circuit
Brief for the Respondent
___________
Northwestern University School of Law Julius H. Miner Moot Court
Competition Attorneys for the Respondent:
Team Number:
8
QUESTIONS PRESENTED
1. Whether an ostensibly private entity, declared “public” by
state law, that provides free, public education as a part
of the state’s public school system can be held liable
under section 42
U.S.C. § 1983 as acting
under color of
state law for its discipline policy.
2. Whether a school authority may, consistent with the First
Amendment, prohibit a student’s speech that was created
entirely outside of the school setting, did not come into
the school through any actions of the student, and did not
result in any physical altercations or severe
confrontations between students, when there is no history
of incidents at the school based on the same content found
in the student’s speech?
2
INDEX
QUESTIONS PRESENTED
2
INDEX
3
TABLE OF AUTHORITIES
4
OPINIONS BELOW
6
RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS
6
STATEMENT OF THE CASE
6
SUMMARY OF ARGUMENT
11
ARGUMENT
14
I.
THIS COURT SHOULD UPHOLD THE LOWER COURT’S RULING THAT
THE RESPONDENT ACTED UNDER THE COLOR OF LAW BECAUSE IT
MEETS TWO DISTINCT SUPREME COURT STANDARDS THAT DEFINE
THAT TERM.
14
A. Respondent acted under the color of state law because it
occupies a public function that has historically been
the exclusive province of the state of Wigmore
15
1. Free, public education is historically a state
function of which discipline is an essential
component
15
2. Petitioner school is public
19
B. Petitioner’s actions are under the color of law because
it is entwined with the State of Wigmore
20
1. Wigmore’s designation of NVZS as public shows
entwinement
20
2. Petitioner’s relationship with Wigmore embodies
entwinement
22
C. This Court’s 1983 tests sufficiently protect private
actors from liability
25
II. THIS COURT SHOULD UPHOLD THE CIRCUIT COURT’S RULING THAT
THE PETITIONER VIOLATED RESPONDENT’S FIRST AMENDMENT
RIGHTS BECAUSE RESPONDENT’S SPEECH WAS WHOLLY OFF-CAMPUS
AND WAS NOT LIKELY TO CAUSE A SUBSTANTIAL AND MATERIAL
DISRUPTION
25
A. The Court should find that school authorities may not
constitutionally regulate speech wholly unconnected with
the school, merely because the speaker happens to be a
student
27
B. Riley’s off-campus speech did not intend, risk, or
result in a substantial and material disruption to NVZS
and cannot be justified under Tinker
28
1. Riley’s speech is not threatening and did not urge
action from the audience.
29
2. Riley’s speech neither created a serious risk of
nor resulted in substantial and material disruption
of the school.
31
C. Fraser was not intended to apply to speech that occurs
3
outside of the school setting
4
35
TABLE OF AUTHORITIES
Cases
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)....... 24
Ambach v. Norwick, 441 U.S. 68 (1979)......................... 15
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)...... 26
Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D.
Mo. 1998) ............................................... 32, 33
Blum v. Yaretsky, 457 U.S. 991 (1982)......................... 16
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.
288 (2001) .................................................. 15
Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806 (9th
Cir. 2010) .................................................. 17
Cyprus v. New Van Zandt School, 509 F. Supp. 4th 3 (2009)...... 8
Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008)............... 29
Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088 (W.D.
Wash. 2000) ..................................... 27, 28, 31, 35
Graham v. TSAA, No. 1:95-CV-044, 1995 WL 115890 (E.D. Tenn.
1995) ....................................................... 21
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988)................... 27
Jackson v. Metro Edison Co., 419 U.S. 345 (1974).............. 15
Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446 (W.D.
Pa. 2001) ........................................... 30, 33, 35
Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (W.D. Pa.
2007) ............................................... 29, 30, 33
Layshock, 496 F. Supp..................................... 33, 34
Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995)
............................................................ 21
Lugar v. Edmonson Oil Co., 457 U.S. 922(1982)................. 14
Marsh v. Ala., 326 U.S. 501, 504 (1946)................... 17, 19
Morse v. Frederick, 551 U.S. 393 (2007)....................... 27
Rendell-Baker v. Kohn, 457 U.S. 830 (1982).................... 16
Riester v. Riverside Cmty. Sch., 257 F. Supp. 2d 968 (S.D. Ohio
2002) ....................................................... 16
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001)
............................................................ 31
Scaggs v. N.Y. Dep’t of Educ., No. 06-CV-0799, 2007 WL 1456221
(E.D.N.Y 2007) .............................................. 18
Tancredi v. Metro. Life. Ins. Co., 378 F.3d 220 (2d Cir. 2004) 20
Thomas v. Bd. of Educ, Granville Cent. Sch. Dist., 607 F.2d 1043
5
(2d Cir. 1979) .............................................. 27
Thomas, 607 F.2d.............................................. 27
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503
(1969) ...................................................... 26
West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th
Cir. 2000) .................................................. 32
Wisniewski v. Board of Educ. of Weedsport Cent. Sch. Dist., 494
F.3d 34 (2d Cir. 2007) ...................................... 29
Statutes
Wig. State § 357 (2003)........................................ 6
Other Authorities
Erwin Chemerinsky, Federal Jurisdiction (5th Ed. 2007)........ 24
6
No. 10-12139
IN THE
Supreme Court of the United States
Spring term, 2010
New Van Zandt School, Inc.
Petitioner
v.
Riley Cyprus, a minor through her parent, Charline McMains
Respondent
ON WRIT OF CERTIORARI FROM THE THIRTEENTH CIRCUIT
___________
Brief for the Respondent
Julius H. Minor Moot Court Competition:
Attorneys for the Respondent; Team Number 8
OPINIONS BELOW
The opinion below are reported as Cyprus v. New Van Zandt
School, 170 F.4th 14 (13th Cir. 2010), and Cyprus v. New Van
Zandt School, 509 F. Supp. 4th 3 (N.D. Wig. 2009)
RELEVANT STATUTES AND CONSTITUTIONAL PROVISIONS
The relevant provisions are set forth in the Appendix.
STATEMENT OF THE CASE
In 2003, the State of Wigmore enacted the Charter School
Enabling Act (“CSEA”).
Wig. State § 357 (2003).
The Act sought
to improve the state’s public school system by allowing the
creation of charter schools that offer alternatives to the
standard public school curriculum.
Cyprus v. New Van Zandt
School, 509 F. Supp. 4th 3, 3-4 (N.D. Wig. 2009).
7
Subsection
(a) of the Act explicitly states that all schools that are
established pursuant to this Act are “public” schools.
3.
Id. at
It further provides that any entity wishing to create a
school must submit a charter to the school boards from which it
seeks to take students.
Id. at 3-4.
Van Zandt Enterprises
(“VZE”) is a Wigmore not-for-profit corporation that applied and
was granted a charter to provide education to Wigmore students.
Id. at 4.
VZE opened the New Van Zandt School (“NVZS”), one of
these public schools, the following fall.
Id.
The Act aims to provide flexible alternatives to
traditional public schools.
Id. at 3.
In conjunction with this
goal, subsection (b) waives state regulation and some local
regulations. Id. at 4.
Similarly, the Act provides that “all
charter schools shall be exempt from any state or local mandate
affecting school discipline, classroom management, or student
regulation.”
Id.
Accordingly, NVZS adopted a progressive view
on discipline, which includes an explicit anti-bullying policy.
Id. at 5.
Pursuant to the Act’s requirements, NVZS has a five-member
board of trustees that oversees the school’s operations.
at 4.
Id.
The school is located in a public library in the city of
Rahl, a low-income part of Wigmore.
Id.
Students from Rahl and
the neighboring communities of Green and Ruder can elect to
enroll at NVZS.
Id.
If they do, NVZS receives an increase in
8
funding from Wigmore equal to the per pupil allotment given to
the states other public schools.
Id.
In all, ninety percent of
the school’s funding comes from the state.
Id. at 5.
The teachers of NVZS as a group opted to remain a part of
the district-wide collective bargaining agreement, and they
participate in the state retirement system.
Id. at 4.
However,
pursuant to the Act, a few of its teachers opted out of the
state retirement system.
Id.
The challenged suspension currently before the Court
involves respondent Riley Cyprus, and a parody of a popular
magazine cover that she created at her home in the fall of 2008.
Id. at 6.
At all times relevant to this complaint, Riley was a
senior at NVZS.
Id.
Earlier that year, three NVZS students became pregnant and
went public with news of their pregnancies to the NVZS student
body.
Id. at 5.
Although rumors about details of the
pregnancies circulated around the school, there was no
indication that any incidents occurred as a result of the girls’
disclosure.
See id.
Simultaneously, three cast members from a popular reality
television show about teen mothers, Kids Raising Kids (“KRK”),
appeared on the cover of a November 1, 2008, issue of a popular
entertainment magazine, WE Bi-Weekly.
Id.
The issue featured a
picture of the mothers and their children, with a caption that
9
read “KRK Moms in Luck.”
Id. at 5-6.
Also featured on the
cover were three smaller pictures, featuring:
(1) two musicians
smoking cigarettes in a park, (2) a celebrity driving her car
away from a nightclub where she reportedly had been drinking,
and (3) a popular child star dancing on the table of a seaside
café in a bikini.
Id. at 6.
On November 3, 2008, Riley parodied the magazine cover and
uploaded the altered image onto her web log (“blog”).
Id.
In
so doing, yearbook photos of the pregnant NVZS students were
pasted over the KRK mothers’ faces (with a new caption, “NVZS
Moms Suck”), images of the musicians were replaced with stock
photos of newborns (entitled “This iz ur brain on dirty
flirts”), the celebrity behind the wheel was replaced with a
picture of one of the pregnant students and a stroller was
inserted into the picture to simulate a car collision (captioned
“Jennie luvs her Henny”), and the child star’s photo was recaptioned “Future Sluts of Wigmore.”
Id.
Along with the parodied magazine cover, Riley included
several permanent links to external websites, one to a religious
site promoting abstinence, and another to a political site
advocating for the removal of sexual education classes.
Id.
Riley forwarded the URL address of her blog to four students on
the evening of November 3.
Id.
Just five days later, she
permanently removed the post from her blog.
10
Id. at 8.
Although Riley never opened the blog post at school nor
brought a copy of its contents to school, copies of the
satirical cover appeared at school two days later and one
student, J. David Straub, was caught accessing the blog during
class.
Id. at 6-7.
Straub was punished and administrators
altered access to the school’s Internet to prevent any further
access to the blog.
Id. at 7.
While some teachers reported
delays in classes and some administrators reported that they
missed meetings to discuss the magazine cover, no physical
altercations or heated confrontations resulted from the
magazine’s presence in the school.
Id.
Mack Elroy, who dates
one of the pregnant students, became angry after seeing one of
the covers with a derogatory message written across it, but hall
monitors were able to alert staff to the situation.
Id.
NVZS’ health teacher, modified her lesson plans to discuss
teen pregnancy with the NVZS student body that week, but there
is no indication that this was coerced.
Id.
The only major
loss of instruction time occurred when one teacher elected to
leave her classroom to report the incident to Principal Zajac,
and asked another teacher to oversee her classroom as well.
Id.
Three days after the blog entry was posted, the
administration decided to suspend Riley for creating the post in
violation of the school’s anti-bullying policy.
Id.
Riley’s
suspension was ten days, due in part to a previous infraction
11
where she made a derogatory comment to a classmate.
Id. at 8.
SUMMARY OF ARGUMENT
This Court should uphold the lower court’s ruling that the
petitioner acted under the color of law because it meets two
distinct Supreme Court standards that satisfy 1983’s
requirement.
First, it exercises powers traditionally
exclusively reserved to the Sate.
Free, public education is
historically a state function, exclusively provided by the
state.
The discipline policy central to this case is an
essential component of that state function.
Notwithstanding,
NVZS is also a public school because it is designated as such by
Wigmore statute and its existence is a creature of state
legislative action, which can be revoked at an y moment unlike a
contractor competing for services in a market.
NVZS further acted under the color of law because it is
pervasively entwined with the state.
For one, the designation
of the school as public is dispositive—it is entwine because the
state itself declared it to be.
Moreover, the relationship
between the state and the school-which includes state retirement
and collective bargaining, the use of public facilities, and
students completely reliant on state-taxpayer tuition paymentsembodies entwinement.
Second, the Court should create a bright-line rule that
where a student’s speech takes place entirely off campus and has
12
no connection to any school-related activity, students should
enjoy the full protections of the First Amendment adults do in a
public forum.
Alternatively, if the Court declines to find such a rule,
it should nevertheless uphold the decision of the Circuit Court
that the speech at issue does not meet the standard articulated
by Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
509 (1969).
The Tinker Court required that in order for a
school to regulate student speech, it must find the speech
presents a sufficient risk of causing substantial and material
disruption to the school.
Riley’s speech did not contain any
threats or calls to action, and she did not therefore intend for
her speech to reach campus.
Additionally, Riley’s speech did not pose the risk of nor
had the effect of created a substantial and material disruption
at NVZS.
Because there was no past history of incidents
relating the to content of Riley’s speech about teen pregnancy,
and because any reaction by the administration and student body
was de minimis and allowed teachers and administrators
sufficient control over the school, Riley’s speech does not meet
the standards articulated by Tinker for speech that can
constitutionally be regulated.
Regardless of whether the Court decides to hold a brightline rule or whether it decides to subject the speech at issue
13
to an analysis under Tinker, the Court should nevertheless
uphold the Circuit Court’s holding that Bethel Sch. Dist. No.
403 v. Fraser does not apply to cases where the student’s speech
occurs off campus.
This holding has been explicitly reached by
multiple district and circuit courts, and has been implied by
the Supreme Court’s cases subsequent to Fraser.
478 U.S. 675,
685 (1986).
ARGUMENT
I. THIS COURT SHOULD UPHOLD THE LOWER COURT’S RULING THAT THE
RESPONDENT ACTED UNDER THE COLOR OF LAW BECAUSE IT MEETS TWO
DISTINCT SUPREME COURT STANDARDS THAT DEFINE THAT TERM.
To succeed on a section 1983 action, a plaintiff must prove
that 1) there was a deprivation of a right secured by United
States laws or Constitution, and 2)that the deprivation was
occasioned by a person acting under the color of state law.
Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982).
NVZS meets
two of the existing standards by which an ostensibly private
actor can act under the color of law:1 1) it performs a “public
function” that has “traditionally exclusively [been] reserved to
the State,” See Jackson v. Metro Edison Co., 419 U.S. 345, 352
(1974); and 2) its activities have become so entwined with the
state of Wigmore as to implicate the protections of 1983.
See
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.
1
“State actions” under the 14th Amendment satisfy “under the
color of law” standard for 1983. Lugar, 457 U.S. at 935.
14
288, 303 (2001).
A. Respondent acted under the color of state law because it
occupies a public function that has historically been the
exclusive province of the state of Wigmore.
This Court has held that a private entity acts under the
color of law when it “exercise[s] . . . powers traditionally
exclusively reserved to the State.”
Jackson, 419 U.S. 345, 352.
NVZS meets this standard, and therefore, acted under the color
of law when it disciplined Riley Cyrus.
1. Free, public education is historically a state
function of which discipline is an essential
component
Free, public education is one of the most essential tasks
performed by our state governments.
68, 77 (1979).
Ambach v. Norwick, 441 U.S.
In contradistinction to education generally,
“free, public education, whether provided by public or private
actors, is an historical, exclusive, and traditional state
function” because it has been the exclusively provided by state
and local governments.
Riester v. Riverside Cmty. Sch., 257 F.
Supp. 2d 968, 972 (S.D. Ohio 2002).
The specific action complained about by the plaintiff—the
school’s disciplinary policy—is directly attributable to the
exercise of these powers.
See generally Blum v. Yaretsky, 457
U.S. 991, 1003 (1982) (noting the gravamen of the plaintiff’s
complaint is important in determining state action).
A school
discipline policy is one of the many components of free, public
15
education.
As such, NVZS’s policy, which is central to this
case, existed by virtue of its position as a provider of this
historical state function.
This requirement explains why this Court reached the
opposite conclusion in Rendell-Baker v. Kohn, 457 U.S. 830, 843
(1982).
In that case, former teachers and a counselor at a
nonprofit, privately operated school for maladjusted high school
students filed suit under section 1983 for their wrongful
discharge.
Id. at 832.
Neighboring cities referred students to
the school and paid for their tuition.
Id.
In holding that the
employees’ discharge was not under the color of law, the
majority noted the state simply showed little “interest in the
school’s personnel matters.”
Id. at 841.
Indeed, the majority
“would apparently concede that actions directly affecting the
students could be treated as under color of state law.”
851 (Blackmun, J. Dissenting).
Id. at
Thus, for the purposes of 1983,
there is a distinction between administrative matters, which are
ancillary to the traditional state function, and those matters,
like a public-education disciplinary policy, which are
inextricably linked with that function.
See id.
This conclusion is consistent with other Supreme Court
cases finding that ostensibly private entities acted under the
color of law because an entity may be a state actor with respect
to certain conduct and a private actor with respect to other
16
conduct.
See Caviness v. Horizon Cmty. Learning Ctr., Inc., 590
F.3d 806, 813 (9th Cir. 2010).
In Marsh v. Alabama this Court
held that a private corporation that promulgated a rule
prohibiting the distribution of religious literature in its
company-owned town acted under the color of law because it
occupied the role of a municipal government-an historic state
function.
326 U.S. 501, 504, 509 (1946).
Conversely, an
internal decision by the company to fire one of its employees in
charge of making similar decisions would not have implicated
section 1983.
In other words, running a town is an historic
state function of which promulgating laws is a necessary
incident, but administrative decisions are ancillary and not
subject 1983 liability.
By analogy, providing education is a
state function of which a discipline policy is a necessary
incident, but employment decisions are ancillary.
Hence, the
lower court opinions are consistent with Marsh.
Moreover, the incident leading to the 1983 suit cannot be
viewed in isolation.
Rather, “only by sifting facts and
weighing circumstances can it be determined whether the” conduct
is under the color of law.
Evans v. Newton, 382 U.S. 296, 300–
01 (1966) (internal citations omitted).
Practically speaking,
student discipline is at the heart of free, public education,
while employment decisions are hidden in the background.
This
holding is precisely the one reached by the Eastern District of
17
New York in Scaggs v. N.Y. Dep’t of Educ., No. 06-CV-0799, 2007
WL 1456221, at *13 (E.D.N.Y 2007).
Scaggs held that a private
corporation that “operat[ed] as a management company for
educational institutions,
including charter schools” acted
under the color of law for claims relating to the provision of
education to disabled students.
Id. at 12.
Unlike Rendell-
Baker, where the “employment action with regard to a single
teacher [was] only minimally or tangentially involved” claims
related to the provision of free, public education brought by
students fall under 1983.
Id. at 13 (citing six district courts
that reached the same conclusion since Rendell-Baker was
decided).
This holistic approach demonstrates the error in the
dissenting lower court opinion.
There, the Chief Judge analyzed
whether “[t]he discipline of a student for disrupting a
classroom is” an exclusive state function.
Cyprus, 170 F.4th 14
at 21 (Lochner, C.J. Dissenting). Over compartmentalizing
actors’ actions in this manner would surely turn the exclusive
state function test on its head.
If this were the case, the
state action in Marsh could be characterized as preventing
Jehovah’s Witnesses from entering one’s property—surely, not a
historic, exclusive state action.
See Marsh, 326 U.S. at 503.
Thus, even though the plaintiff must prove that more than the
decision to establish the private entity was a state action,
18
Marsh requires a broader view than the lower court dissent gave
this case.
2. Petitioner school is public
Notwithstanding the above analysis, the Rendell-Baker court
would have held NVZS is public.
Foremost among the distinctions
is NVZS’s designation as “public” by the state, Cyprus, 509 F.
Supp. at 9, whereas the schools in Rendell-Baker called
“contractors” by the state.
Rendell-Baker, 457 U.S. at 833.
That opinion also repeatedly compared the Ohio school to the
“many corporations whose business depends primarily on
contracts” in that their vitality depends on the government’s
continuing approval.
Rendell-Baker, 457 U.S. 840–41.
contrast, NVZS has no independent existence.
By
Its creation was
the result of a state act granting it a charter, and the State
reserved the right to revoke that charter at any time.
509 F. Supp. at 4.
Cyprus,
Additionally, unlike the private students
that attended the school in Rendell-Baker, where approximately
one half of the students paid for their own tuition, every NVZS
student used state tax dollars for tuition.
Simply put, the
Rendell-Baker school was a contractor in the education market
that competed for customers, while NVZS was an integral part of
the state public school system.
Thus, Petitioner is a state
actor unlike the Ohio school.
Even more telling, however, is Rendell-Baker’s conclusion
19
that the function of the Ohio school was not one historically
occupied by the state because the education of maladjusted high
school students is not the exclusive function of the state, in
part, because the state did not undertake this task until
recently.
Rendell-Baker, 457 U.S. at 842.
On the other hand,
the State of Wigmore has always undertook the task of educating
its citizens.
Thus, Rendell-Baker is distinguishable.
B. Petitioner’s actions are under the color of law because
it is entwined with the State of Wigmore
NVZS acts under the color of law because it is pervasively
entwined with Wigmore.
See Brentwood, 531 U.S. at 302.
This
standard “effectively broadened the state action test” by
creating “flexibility” to find state action “even though the
facts would not have supported a finding” under the previous
tests.
Tancredi v. Metro. Life. Ins. Co., 378 F.3d 220, 230 (2d
Cir. 2004) (quoting id. at 305 (Thomas, J. Dissenting)).
1. Wigmore’s designation of NVZS as public shows
entwinement
Foremost among the indicators of entwinement is Wigmore’s
declaration that NVZS is a “public school[].”
F. Supp. 4th at 3.
See Cyrpus, 509
Nothing is more indicative of entwinement,
and thus, “Wigmore has already resolved this inquiry.”
9.
Id. at
This conclusion is supported by the facts of Brentwood.
Although the athletic association in that case was no longer
designated as the public regulator of interscholastic athletics
20
by Tennessee statute, this Court implied the official
“delegation of authority to [the private body] is sufficient to
make [it] a state actor.”
Brentwood, 531 U.S. at 300 n.3
(quoting Graham v. TSAA, No. 1:95-CV-044, 1995 WL 115890, at *5
(E.D. Tenn. 1995)).
Moreover, statutory designations such as this one should be
given dispositive weight when it increases the protections
afforded to citizens.
This rule contrasts with Lebron v.
National Railroad Passenger Corp., where this Court held that
Congress’ designation of Amtrak as a private actor did not allow
it to escape a ruling that its conduct was state action.
U.S. 374, 391, 400 (1995).
513
While ruling the other way in Lebron
would “allow[] states to contract around the requirements of the
Constitution, the Bill of Rights, and the Fourteenth Amendment
while still retaining control of private entities,” Cyprus, 170
F.4th at 15, Wigmore’s designation of NVZS as public reflects
its intention to afford those students who chose the different
curricula of charter schools the substantive protections of
1983.
See Rendell-Baker, 457 U.S. at 842 n.7.
It would be
unjust to prohibit Student 1 to recover from Charter School A
for violating her right, while allowing Student 2 to recover
from School B when both students are
consuming the same product
(education) provided by the same entity (tax dollars from the
state).
21
2. Petitioner’s relationship with Wigmore embodies
entwinement
The relationship between Wigmore and NVZS evidences
pervasive entwinement between the state and the school.
In
Brentwood, this Court found the Tennessee School Athletic
Association (“TSAA”), which regulated interscholastic sports
between its private- and public-school members, was entwined
with the state of Tennessee.
531 U.S. at 291.
This Court based
its ruling, inter alia, on a state statute that created the
association and reserved power to revoke it.
Id. at 292.
Further, eighty-six percent of the association was comprised of
public schools, it rented public facilities for its events, and
the association’s employees could opt into the state’s
retirement program.
Id. at 291.
The Court held “there would be
no recognizable Association” without the public participation in
the program.
Id. at 300.
This holding went further than the
mere financial reliance present in Rendell-Baker.
841.
457 U.S. at
Instead, the TSAA functioned as the facilitator of the
state’s public, interscholastic athletic competitions.
NVZS similarly satisfies this “necessarily . . . fact-based
inquiry.”
Id. at 298.
Wigmore enacted the CSEA so charter
schools could operate within its existing public school system.
Cyprus, 509 F. Supp. 4th at 3.
Like the association in
Brentwood, the state passed the act enabling the schools, and
22
“[u]nlike the mere public buyers of contract services, whose
payments for services rendered do not convert the service
providers into public actors, Rendell-Baker, 457 U.S. at 839–43,
Wigmore reserves the right to pull the rug out from under a
charter school if it is not functioning as an effective
component of the state’s school system.
4th at 4.
Cyprus, 509 F. Supp.
The school rents its building from the state, most of
its teachers are a part of the district-wide collective
bargaining agreement and participate in the state retirement
system, and each one of its students use public tax revenues
dedicated to public education.
Baker, 457 U.S. at 841.
See id. at 4, 10; cf. Rendell-
Simply put, NVSZ functions as one
school among the many government-run, public schools in a system
of public education.
See Cyprus, 509 F. Supp. 4th at 10.
There
is no better description for NVZS’s role in this system than
entwined with the state’s public educators.
The lower court dissent appears to concede entwinement
exists but argues that the relevant question is whether there is
entwinement between the disciplining of Riley and the state.
See Cyprus, 170 F.4th at 21-22 (Lochner, C.J. Dissenting).
She
would hold that there is no entwinement because Wigmore exempted
NVZS from regulations concerning discipline.
Id. at 22.
However, this argument conflates the coercion test, which is met
when the “State ‘has exercised coercive power or has provided
23
such significant encouragement’” to the action in question that
“it must be deemed to be that of the State.”
Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).
While analyzing
the individual action is material under this test, it is
distinct from entwinement.
See Rendell-Baker, 457 U.S. at 841.
The entwinement test only requires that the state and private
actors are entwined.
See Brentwood, 531 U.S. at 298.
Otherwise, the TSAA or NVZS could effectively control private
actors’ actions but avoid liability by writing exemptions into
the enabling legislation.
Such an outcome would severely
undercut the federal protections 1983 affords citizens of those
states that are unable or unwilling to enforce federal rights.
C. This Court’s 1983 tests sufficiently protect private
actors from liability.
The lower court dissent’s federalism concerns are without
merit.
Chief Judge Lochner’s concerns are real, but federalism
does not establish an additional protection from 1983 liability.
Rather, the public function and entwinement tests serve that
function.
We do not contend that all “[p]rivate companies” that
“provide vital services” should be subject to suit. Cf. Cyprus,
170 F.4th at 22 (Lochner, C.J. Dissenting).
To the contrary,
this Court’s established tests define the line at which an
ostensibly private company’s actions become “attributable to the
state.”
Brentwood, 531 U.S. at 297.
24
It is the tests, and not
the extra barrier of federalism, that provides private actors
protection.
Without these tests, states could contract around
1983 ability by delegating its tasks to “private” companies.
This outcome is inconsistent with the goals of 1983, which
provides a mechanism by which the federal government can protect
federal rights against unwilling state actors.
Erwin
Chemerinsky, Federal Jurisdiction 486 (5th Ed. 2007).
II. THIS COURT SHOULD UPHOLD THE CIRCUIT COURT’S RULING THAT THE
PETITIONER VIOLATED RESPONDENT’S FIRST AMENDMENT RIGHTS
BECAUSE RESPONDENT’S SPEECH WAS WHOLLY OFF-CAMPUS AND WAS NOT
LIKELY TO CAUSE A SUBSTANTIAL AND MATERIAL DISRUPTION
This Court should uphold the ruling of the Thirteenth
Circuit Court of Appeals and find that petitioner’s actions
violated respondent Cyprus’ First Amendment rights under the
Constitution.
The First Amendment directs that “Congress shall
make no law . . . abridging the freedom of speech, or of the
press.” U.S. CONST. AMEND. I.
In the school setting, although the
Court has recognized that students’ rights within school “are
not automatically coextensive with the rights of adults in other
settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,
682 (1986), neither do students “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).
However, in the present case, the Court must
decide school authorities’ reach over students’ speech
25
altogether outside the schoolhouse gates.
The Court should find that students enjoy the fullest
protections of the First Amendment when not on school grounds or
taking part in a school-sponsored event.
Alternatively, if the
Court is unwilling to articulate a such a bright-line rule, it
should nevertheless uphold the Circuit Court’s ruling that the
speech at issue in the present case does not satisfy the Tinker
requirement of a sufficient risk of “substantial and material
disruption” in order to be constitutionally prohibited by school
authorities.
A. The Court should find that school authorities may not
constitutionally regulate speech wholly unconnected with
the school, merely because the speaker happens to be a
student.
The Supreme Court has never directly ruled on the question
of whether school authorities may ever discipline a student for
speech created off-campus.
U.S. 393, 400 (2007).
See, e.g., Morse v. Frederick, 551
However, the Supreme Court has repeatedly
justified limits on in-school speech by noting that the same
speech would not be constitutionally regulated outside the
school context.
Morse, 551 U.S. at 405; Hazelwood v. Kuhlmeier,
484 U.S. 260, 266 (1988).
As Justice Brennan noted in his
concurrence in Fraser, “[i]f respondent had given the same
speech outside of the school environment, he could not have been
penalized simply because government officials considered his
26
language to be inappropriate.”
Fraser, 478 U.S. at 688
(Brennan, J., concurring) (quoted in Morse, 551 U.S. at 405).
Lower courts have explicitly recognized that school
authorities’ ability to regulate speech that occurs off campus
is severely limited.
E.g. Thomas v. Bd. of Educ, Granville
Cent. Sch. Dist., 607 F.2d 1043, 1044-45 (2d Cir. 1979); Emmett
v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088, 1090 (W.D.
Wash. 2000).
Because of this limit on school authority, “the
community is not deprived of the salutary effects of expression,
and educational authorities are free to establish an academic
environment in which the teaching and learning process can
proceed free of disruption.”
Thomas, 607 F.2d at 1052.
Indeed,
the Thomas court further reasoned that it is because schools’
authority is limited that we have such a “willingness to grant
school officials substantial autonomy within their academic
domain.”
Id.
In Emmett, the court found that where the
student’s speech did not contain any threats and occurred
“entirely outside of the school’s supervision or control,” it
could not be constitutionally regulated by the school.”
Supp. 2d at 1090.
92 F.
Like Emmett, Riley’s blog contained no
threats, and her conduct in creating and sharing the blog
occurred wholly off campus and outside any school-sponsored
activity.
Cyprus, 509 F. Supp. 4th at 6.
Thus, previous
Supreme Court jurisprudence, as well as lower court holdings,
27
support a bright-line rule prohibiting school authorities from
exercising control over speech completely unconnected with the
school itself, merely because a student is the speaker.
B. Riley’s off-campus speech did not intend, risk, or result
in a substantial and material disruption to NVZS and cannot
be justified under Tinker.
If the Court declines to find a bright-line rule
prohibiting a school’s regulation of off-campus speech, it
should still uphold the Circuit Court’s ruling that the Riley’s
speech did not create a “foreseeable risk of a substantial and
material disruption of school activities.”
17.
Cyprus, 170 F.4th at
The Tinker Court first articulated this standard, requiring
more than “undifferentiated fear” or “mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular
viewpoint.”
Tinker, 393 U.S. at 508-09.
In the present case before the Court, respondent’s online
blog does not fall within the Tinker exception, because Riley
herself did not include any threatening language or call her
audience to action, and no past history at the school would
reasonably lead school officials to predict a substantial and
material disruption.
1. Riley’s speech is not threatening and did not urge
action from the audience.
In conducting an analysis under the Tinker material and
substantial disruption standard, courts look to whether the
28
speech itself included a call to action that would likely result
in such a disruption.
Compare Doninger v. Niehoff, 527 F.3d 41,
50 (2d Cir. 2008), with Layshock v. Hermitage Sch. Dist., 496 F.
Supp. 2d 587, 600 (W.D. Pa. 2007).
In Doninger, the court found
it irrelevant that the speech occurred off campus because the
student purposely intended it “to encourage her fellow students
to read and respond,” thus rendering it clearly foreseeable and
even intentional that her speech would reach campus.
at 50.
527 F.3d
Likewise, in Wisniewski v. Board of Educ. of Weedsport
Cent. Sch. Dist., the court held that a student’s off-campus
speech “reasonably understood as urging violent conduct” could
be prohibited by the school.
494 F.3d 34, 38 (2d Cir. 2007).
The court based its finding on three main factors:
the
threatening content of the speech, the extensive distribution of
it (to 15 recipients, including classmates), and the lengthy
circulation period (the speech was circulated for three weeks).
Id. at 39-40.
In contrast, the court in Killion v. Franklin Reg’l Sch.
Dist., refused to uphold a student’s suspension for off-campus
speech involving a “Top Ten list” that contained derogatory
statements about a teacher’s appearance.
448 (W.D. Pa. 2001).
136 F. Supp. 2d 446,
In striking down the suspension, the court
noted that the student played no part in the speech’s arrival on
campus and stressed that the speech in question “was not
29
threatening.” Id. at 455.
The Layshock court also noted that
the student in question displayed only “de minimis” in-school
conduct, which itself did not create any material and
substantial disruption.
496 F. Supp. 2d at 600-01.
The case currently before the Court is more similar to
Layshock than Doninger.
As the Circuit Court properly
concluded, Riley’s blog urged no one to take action.
170 Fd.4th at 18.
Cyprus,
At most, her blog may be regarded as a call
for inaction, advocating abstinence through a permanent link to
a religious site.
Cyprus, 509 F. Supp. 4th at 6.
Wholly absent
from the cover is language which students might construe as
requesting they take some action, either against the female
students depicted or the school at large.
Furthermore, Riley’s circulation of the speech is
distinguishable from the excessive circulation present in
Wisniewski.
Riley sent the URL address of her blog post to only
four of the nearly 200 students that attend high school at NVZS.
Id.
Moreover, Riley’s blog post was accessible for a mere five
days and was available for just three days before she was
suspended.
Id. at 7-8.
Although Riley’s audience was
“undoubtedly connected” to NVZS, “the speech was entirely
outside of the school’s supervision or control.”
Emmett, 92 F.
Supp. 2d at 1090.
2. Riley’s speech neither created a serious risk of nor
30
resulted in substantial and material disruption of
the school.
The Court should uphold the Circuit Court’s decision that
Riley’s speech did not result in “substantial and material
disruption,” as required by the Court in Tinker.
F.4th at 18.
Cyprus, 170
The Tinker standard requires “specificity and
concreteness” when a school seeks to silence student speech.
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 212 (3d Cir.
2001).
It is only when the 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.”
Id.
What passes muster under the Tinker standard is exemplified
in West v. Derby Unified Sch. Dist. No. 260.
(10th Cir. 2000).
206 F.3d 1358
In West, the court found that the school
could reasonably conclude a student’s display of a Confederate
flag might cause substantial disruption based on a “series of
racial incidents,” confrontations, and at least one fight, “some
of which were related to the Confederate flag.”
Id. at 1366.
Unlike West, the present case presents no past history of
confrontations, physical or otherwise, sufficient to justify a
reasonable prediction of disruption.
The District Court
incorrectly found that Mack Elroy’s past violent behavior and
Riley’s past interaction with a fellow classmate constituted a
31
history of past incidents sufficient to regulate the speech at
issue here.
Cyprus, 509 F. Supp. 4th at 12.
Instead, these two
isolated interactions, previously unconnected in any way, do not
rise to the level articulated by the court in West.
The past
incident involving Riley involves purely on-campus (and inperson) conduct and is not sufficiently connected to the conduct
currently before the Court.
Id. at 8.
As to the pregnancies,
when news of the pregnancies spread to the NVZS student body,
only harmless rumors circulated, without any record of incident.
Id. at 5.
Elroy’s individual past violent behavior is also not
sufficient to constitute a reasonable risk of disruption.
As
the court articulated in Beussink v. Woodland R-IV Sch. Dist.,
“[d]isliking or being upset by the content of a student’s speech
is not an acceptable justification for limiting student speech
under Tinker.”
30 F. Supp. 2d 1175, 1180 (E.D. Mo. 1998).
Moreover, the court in Beussink explicitly found that where
there is no finding that the conduct in question would interfere
with “the requirements of appropriate discipline in the
operation of the school,” the regulation on speech is
unconstitutional.
Id.
In the present case, not only was the
school aptly able to deal with Elroy’s threats and conduct, it
was likewise able to discipline any students who sought to
access the blog on campus, as exemplified by its swift
discipline of J. David Straub, who accessed the blog at school.
32
Cyprus, 509 F. Supp. 4th at 7.
The school likewise is unable to show that any substantial
and material disruption actually resulted from Riley’s blog
post.
Courts require a sufficient causal nexus between the
student’s speech and any alleged disruption of the school
environment.
Layshock, 496 F. Supp. 2d at 600; Killion, 136 F.
Supp. 2d. at 455.
Riley’s satirical magazine cover may have
generated discussions before and in-between classes, but there
was “no evidence that teachers were incapable of teaching or
controlling their classes” because of Riley’s post.
Layshock,
496 F. Supp. 2d at 600.
Here, the disruptions that occurred following Riley’s blog
post were minimal and did not substantially disrupt any classes
or the school’s basic order.
Tinker, 363 U.S. at 513.
As the
Circuit Court noted, “[c]lassroom chatter and delays,” and
occasional teacher meetings cannot reasonably be considered a
substantial and material disruption.
Cyprus, 170 F.4th at 18.
Nothing in the record suggests that the school’s decision to
block some Internet access had any disruptive effect on
students’ learning.
Cyprus, 509 F. Supp. 4th at 7.
With
respect to the two teachers whose lessons plans changed after
this incident, their actions were not compelled by a loss of
control or incapability.
Supp. 2d at 600.
See id.; see also Layshock, 496 F.
Rather, one teacher chose to abandon her class
33
in order to meet with Principal Zajac to discuss the incident.
Cyprus, 509 F. Supp. 4th at 7.
Nothing mandated that she report
this incident immediately, rather than teach her class and
report the situation in between classes.
Id.
NVZS’s health
teacher likewise made the rational choice to abandon an
unrelated unit she had planned to present during that week,
turning instead to teen pregnancy.
Id.
Nothing suggests that
she was required to approach this topic or risk disorder in his
classroom.
See id.
Because the record suggests no past history of incidents
that would lead school officials to reasonably predict that
Riley’s off-campus speech would create a substantial and
material disruption, and because none occurred, NVZS’s
suspension of Riley cannot satisfy the requirements of Tinker
and is therefore unconstitutional under the auspices of the
First Amendment.
C. Fraser was not intended to apply to speech that
outside of the school setting.
occurs
Regardless of which test the Court decides to use in
analyzing whether NVZS violated Riley’s First Amendment rights,
the Circuit Court correctly determined that the Supreme Court’s
decision in Fraser is inapplicable to the current case.
170 F.4th at 16.
Cyprus,
In Fraser, the Court held that where a student
delivers a sexually explicit speech during a school assembly,
34
the decision to punish that student “properly rests with the
school board.”
478 U.S. at 683.
The Court implied that this
speech would be constitutionally protected if given outside of
the school setting, Id. at 682.
Justice Brennan noted the
contrast explicitly, in a statement quoted by the Morse majority
twenty-one years later.
551 U.S. at 405 (quoting Fraser, 478 at
688 (Brennan, J., concurring)).
Subsequent cases have likewise found that Fraser is
strictly limited to speech that occurs on school property.
Killion, 136 F. Supp. 2d at 453; Emmett, 92 F. Supp. 2d at 1090.
Like in Emmett, respondent’s speech at issue did not originate
at school and was not “produced in connection with any class or
school project.”
Id.
Under these precedents, the Circuit Court
appropriately declined to employ a Fraser analysis when
analyzing respondent’s First Amendment protections.
F.4th at 17.
CONCLUSION
For these reasons, this Court should affirm.
35
Cyprus, 170
APPENDIX
Constitutional Provisions
U.S. CONST. amend. I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
U.S. CONST. amend. XIV
1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
2. Representatives shall be apportioned among the several
States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians
not taxed. But when the right to vote at any election for
the choice of electors for President and Vice-President of
the United States, Representatives in Congress, the
36
Executive and Judicial officers of a State, or the members
of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age,
and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the
basis of representation therein shall be reduced in the
proportion which the number of such male citizens shall
bear to the whole number of male citizens twenty-one years
of age in such State.
3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice-President, or
hold any office, civil or military, under the United
States, or under any State, who, having previously taken an
oath, as a member of Congress, or as an officer of the
United States, or as a member of any State legislature, or
as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress
may by a vote of two-thirds of each House, remove such
disability.
4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing
37
insurrection or rebellion, shall not be questioned. But
neither the United States nor any State shall assume or pay
any debt or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for the
loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
Civil Action for Deprivation of Rights, 42 U.S.C. § 1983
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of
this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a
38
statute of the District of Columbia.
39