Amicus Curiae Brief — E. D., a Minor, By Her Parent and Next Friend, Lisa Duell, et al., Petitioners v. Noblesville School District, et al.

Supreme Court briefFeb 23, 2026

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Text

No. 25-906

IN THE

Supreme Court of the United States

————

E.D., A MINOR, BY HER PARENT AND NEXT FRIEND, LISA

DUELL, ET AL.,

Petitioners,

NOBLESVILLE SCHOOL DISTRICT, ET AL,

Respondents.

____________________________________________________________________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

February 23, 2026

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICUS CURIAE .......................................1

SUMMARY OF ARGUMENT .............................................. 1

ARGUMENT.................................................................... 2

THE TINKER STANDARD SHOULD NOT BE

SWALLOWED BY THE HAZELWOOD EXCEPTION. ......2

The Narrow Hazelwood Exception is Only

Workable When Coupled with the School’s

Pedagogical Function. ......................................3

Under Tinker, There is No Disruption. ...........8

II. “IT IS THE RIGHT OF THE SUBJECTS TO PETITION

THE KING.” ........................................................... 12

Characterizing a Request for Reconsideration

as Insubordination Is Not Sufficient to Bypass

the First Amendment. .................................... 15

The Ignoble Attempt to Teach Submission

Should be Resisted.......................................... 17

CONCLUSION ............................................................... 21

TABLE OF AUTHORITIES

Page(s)

Cases

Adderley v. State of Fla.,

385 U.S. 39 (1966) ............................................. 15

Ambach v. Norwick,

441 U.S. 68 (1979) ............................................. 20

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ............................................. 12

Board of Education v. Pico,

457 U.S. 853 (1982) ........................................... 20

Brown v. Board of Education,

347 U.S. 483 (1954) ........................................... 19

California Motor Transp. Co. v. Trucking

Unlimited,

404 U.S. 508 (1972) ........................................... 14

Hazelwood School Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ....... 1, 2, 3, 4, 5, 6, 19, 20, 21

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ............................................. 1

Lehman v. City of Shaker Heights,

418 U.S. 298 (1974) ............................................. 7

iii

Mahanoy Area School District v. B. L. by

and through Levy,

594 U.S. 180 (2021) ....................................... 3, 18

Matal v. Tam,

582 U.S. 218 (2017) ............................................. 7

McDonald v. Smith,

472 U.S. 479 (1985) ........................................... 13

Members of City Council of City of Los

Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984) ............................................. 7

Shelton v. Tucker,

364 U.S. 479 (1960) ........................................... 17

Schenck v United States,

249 U.S. 47 (1919) ....................................... 15, 16

Tinker v. Des Moines Independent

Community School Dist.,

393 U.S. 503 (1969) .. 1, 2, 3, 8, 9, 10, 11, 12, 17,

18, 19, 20

United Mine Workers of Am., Dist. 12 v.

Illinois State Bar Ass'n,

389 U.S. 217 (1967) ........................................... 14

W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................... 12, 16, 17, 18, 20

Constitutions

U.S. Const. Amend. I .. 1, 2, 12, 11, 13, 15, 16, 17, 18

Statutes

Espionage Act of 1917, 40 Stat. 217 ...................... 15

Stamp Act, 5 Geo. 3. c. 12 ...................................... 14

Other Authorities

1 B. Schwartz, The Bill of Rights—A

Documentary History 198 (1971) ..................... 14

English Bill of Rights 1689, available at:

https://avalon.law.yale.edu/17th_century

/england.asp ...................................................... 12

John W. Johnson, Behind the Scenes in

Iowa’s Greatest Case: What is Not in the

Official Record of Tinker v. Des Moines

Independent Community School District,

Drake Law Review, Vol. 48 (2000) ................. 8, 9

Judge Learned Hand, The Spirit of Liberty,

1944, Digital History,

http://bit.ly/3raLZQN ........................................ 17

Pennsylvania Declaration of Rights (1776) ........... 14

Sophie Hayssen, Students’ Right to Protest

at School Was Affirmed by Tinker v. Des

Moines, teenVOGUE, December 16,

2021, available at:

https://www.teenvogue.com/story/supre

me-court-student-free-speech-tinker................ 10

We Mourn, protest organization letter

available at:

https://www.docsteach.org/documents/do

cument/we-mourn; .............................................. 9

INTEREST OF AMICUS CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because ensuring the freedoms

of speech and assembly guaranteed by the First

Amendment is essential for all Americans, including

students. Campuses are not just a place where free

expression should be protected; it is vital to their

mission. And they are uniquely positioned to instill an

appreciation for free speech in the next generation.

This is why “the vigilant protection of constitutional

freedoms is nowhere more vital than in the

community of American schools.” Keyishian v. Bd. of

Regents, 385 U.S. 589, 603 (1967) (cleaned up).

SUMMARY OF ARGUMENT

This Court has been clear that students do not

“shed their constitutional rights to freedom of speech

or expression at the schoolhouse gate.” Tinker v. Des

Moines Independent Community School Dist., 393

U.S. 503, 506 (1969). Nevertheless, the search for

exceptions to Tinker persists. Here, the narrow

exception the Court recognized in Hazelwood School

Dist. v. Kuhlmeier, 484 U.S. 260 (1988), relating to a

newspaper published by the school as part of the

1 No counsel for a party authored this brief in whole or in part

and no person other than amicus or its counsel made any

monetary contributions to fund the preparation or submission of

this brief. AFPF timely notified all counsel of its intent to file.

journalism curriculum, has been read so broadly that

the Tinker material-disruption standard has been

displaced. Instead, a hypothetical listener, who is

envisioned to perceive “the imprimatur of the school,”

is deemed the standard for defeating First

Amendment protection. Unlike the solitary

newspaper published by the school in Hazelwood,

here, the school has a laudable array of over 70

student organizations, Pet. at 5 (Doc. 101 ¶ 347; Doc.

158-30 at 1–3), that could not all simultaneously

represent the views of the school. But even that robust

plurality was not enough to protect E.D. from

speculation that among those 70 voices her speech

stood out as bearing the school’s imprimatur.

Moreover, when E.D. advocated for her position

with the school administration, she found that her

right to petition for redress was also chimerical. She

was reckoned insubordinate and punished by having

her club kicked off campus—even though the record

contains no evidence of disruptive behavior that might

surmount Tinker.

Although it is clear student speech is protected

under Tinker, an expansive reading of Hazelwood is

imperiling the Tinker standard. The Court should

take this case to solidify the primacy of Tinker in all

but very narrow circumstances in which the

curriculum requires application of Hazelwood.

ARGUMENT

THE TINKER STANDARD SHOULD NOT BE

SWALLOWED BY THE HAZELWOOD EXCEPTION.

Tinker was decided against the backdrop of the

Vietnam War in which differences in viewpoint were

often expressed vehemently and could trigger strong

adverse reactions. But the Court protected the right

of students to silently protest. Tinker has remained

controlling precedent for the speech of public-school

students, providing robust protection for even

provocative and vulgar speech unless special

circumstances apply. See, e.g., Mahanoy Area School

District v. B. L., 594 U.S. 180, 187 (2021).

The exception to Tinker set forth in Hazelwood was

based on the tight connection between the school

newspaper, the school curriculum, and the school’s

role as publisher of the paper. That relationship, while

applicable to scenarios in which the school’s curricular

duties could require limits on student speech, should

not be read broadly to subsume extracurricular

speech—or even all curricular speech—unless it poses

an actual threat to the school’s pedagogical function.

Otherwise, any speech that occurs in public school

could be interpreted to bear the imprimatur of the

school simply because the school did not stop it. That

is not what Tinker stands for.

The Narrow Hazelwood Exception is

Only Workable When Coupled with

the School’s Pedagogical Function.

Hazelwood created an exception to Tinker based on

facts that do not apply here and that should be limited

to curriculum-based speech where “curriculum” is

read narrowly to apply to pedagogical activity with a

standard of performance.

Hazelwood dealt with a school newspaper

produced by the Journalism II class, which was part

of the school curriculum and governed by the School

Board Policy and the Hazelwood East Curriculum

Guide. Hazelwood, 484 U.S. at 268. The Policy

provided that “[s]chool sponsored publications are

developed within the adopted curriculum and its

educational implications in regular classroom

activities.” Id. (citing Hazelwood School Board Policy

348.51). The Hazelwood East Curriculum Guide

described the course as a “laboratory situation in

which the students publish the school newspaper

applying skills they have learned in Journalism I.” Id.

(citing Hazelwood East Curriculum Guide).

Journalism II was taught by a faculty member during

regular class hours and students received grades and

academic credit for their performance in the course,

which included development of journalistic skills

under deadline pressure, “the legal, moral, and ethical

restrictions imposed upon journalists within the

school community,” and “responsibility and

acceptance of criticism for articles of opinion.” Id.

(citing Hazelwood East Curriculum Guide). Thus,

production of the newspaper was part of the formal

curriculum—not

extracurricular

activity

accommodated by the school.

Indeed, the class’s teacher was directly involved in

production of the paper as part of his pedagogical

duties, in which he “selected the editors of the

newspaper, scheduled publication dates, decided the

number of pages for each issue, assigned story ideas

to class members, advised students on the

development of their stories, reviewed the use of

quotations, edited stories, selected and edited the

letters to the editor, and dealt with the printing

company.” Hazelwood, 484 U.S. at 268. “Many of these

decisions were made without consultation with the

Journalism II students.” Id. The rubric and process

required editing by the teacher as part of his official

duties to achieve the standards in the Curriculum

Guide, following which the edition was reviewed by

the principal prior to publication. Id. at 268–69.

Thus final responsibility to ensure school

community standards had been met prior to

publication fell upon the principal, who, as the Court

noted, “could reasonably have concluded that the

students who had written and edited these articles

had not sufficiently mastered those portions of the

Journalism II curriculum that pertained to the

treatment of controversial issues and personal

attacks, the need to protect the privacy of individuals

whose most intimate concerns are to be revealed in

the newspaper, and ‘the legal, moral, and ethical

restrictions imposed upon journalists within [a] school

community’”. Hazelwood, 484 U.S. at 276.

Accordingly, the school may censor student speechbased activities that may “fairly be characterized as

part of the school curriculum, whether or not they

occur in a traditional classroom setting, so long as

they are supervised by faculty members and designed

to impart particular knowledge or skills to student

participants and audiences.” Id. at 271.

But even this exception to Tinker drew a scathing

dissent from three justices who would have limited

the school’s ability to censor student speech to

expression that “directly prevent[s] the school from

pursuing its pedagogical mission” such as when the

“young polemic who stands on a soapbox during

calculus class to deliver an eloquent political diatribe

interferes with the legitimate teaching of calculus,”

but not “merely by expressing a message that conflicts

with the school’s, without directly interfering with the

school’s expression of its message” such as when a

“student who responds to a political science teacher’s

question with the retort, ‘socialism is good,’ subverts

the school’s inculcation of the message that capitalism

is better.” Hazelwood, 484 U.S. at 279–80 (Brennan,

J. dissenting).

Moreover, the tight timeframe in Hazelwood in

which the principal was forced to decide which

sections of the newspaper to send to the printer was

clearly material to his choice. 484 U.S. at 263–64.

(“Reynolds believed that there was no time to make

the necessary changes in the stories before the

scheduled press run and that the newspaper would

not appear before the end of the school year if printing

were delayed to any significant extent.”). Had the

decision-making timeframe been longer, options for

accommodating the articles may have been developed.

None of those factors apply here. There is no

assertion that E.D.’s flyer was classwork for a grade,

that she interfered with any other classroom activity,

that there is any curricular relationship between her

club and a class, or even that the administration faced

time pressure that precluded a nuanced approach.

Instead, a new and expansive interpretation of

Hazelwood was introduced, enabling the lower court

to hold that the flyers “could reasonably be perceived

as bearing the school’s imprimatur.” App. 11a.

Because the flyers “would have appeared on school

walls alongside announcements for school sponsored

events and remained in common areas for days,” a

hypothetical set of students, parents, and visitors was

presumed to “naturally” see them as reflecting the

school’s endorsement. App.11a. But the notion that

readers “naturally” equate handbills with the owner

of the structure on which they are posted flies in the

face of the extensive body of precedent relating to

posting of bills on public property or government fora,

which requires government’s motivation to remove

them to be “unrelated to the suppression of free

expression.” Members of City Council of City of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 792,

805 (1984) (posting signs on public property); Lehman

v. City of Shaker Heights, 418 U.S. 298, 299, 303

(1974) (signs on city buses, collecting cases). Thus,

whether the school flyer-posting areas were “literally

its walls,” App. 12a, is not the standard for concluding

that speech is subject to government censorship.

Second, and somewhat ironically, the Opinion

deemed that because “all flyers for non–schoolsponsored events must receive prior administrative

approval, regardless of the views expressed”

(emphasis added), the flyers have “a literal stamp of

the school’s authority.” App. 12a, 17a–18a. How a rule

that applies only to non-school-sponsored events could

create a “risk of mistaken attribution” is a mystery.

Moreover, the notion that the speech of over 70

approved noncurricular student interest groups could

be attributed to the school is akin to the argument in

Matal v. Tam, 582 U.S. 218, 238 (2017) that somehow

trademarks represent federal government speech.

And, like that argument, if the initials of the

reviewing faculty indicate that flyers from 70+ groups

express the schools’ perspective, then the school “is

babbling prodigiously and incoherently”. Matal, 582

U.S. at 238.

Creating a standard that relies on an imaginary

witness who draws the least plausible inferences from

a flyer’s context, such as the express intent of the

speaker to communicate an extracurricular event, the

nature of the content to which the faculty-initials-rule

applies (“non-school-sponsored”), and the existence of

70+ distinct voices who could not simultaneously

express the school’s perspective, would overwhelm the

Tinker material disruption standard with speculation

based on the most implausible interpretation.

Under

Disruption.

Tinker,

There

Applying the Tinker material-disruption standard

E.D.’s flyer is fully protected. The Tinker standard is

rigorous and requires “substantial disruption of or

material interference with school activities” to justify

censorship of passive expression. 393 U.S. at 514.

Whatever “substantial” and “material” mean, it’s

more than the mere potential that political messaging

in school hallways may divert attention from learning.

By way of background, thirty years after Tinker

was decided, Professor John W. Johnson2 discussed

some facts of Tinker that were not included in the

official record.3 He first focused on the oftenoverlooked, third named plaintiff, Christopher

Eckhardt, and his experiences leading up to the

litigation. Chris Eckhardt was fifteen and a

sophomore at Roosevelt high school in 1965. Id. at

475. “On the day before the December 1965 armband

demonstration, word circulated in various Des Moines

schools that a protest of some sort was imminent.” Id.

Professor and Head of the Department of History at the

University of Northern Iowa, Cedar Falls, Iowa.

3 John W. Johnon, Behind the Scenes in Iowa’s Greatest Case:

What is Not in the Official Record of Tinker v. Des Moines

Independent Community School District, Drake Law Review,

Vol. 48, p. 473 (2000), https://drakelawreview.org/wpontent/uploads/2016/09/johnson.pdf (internal citations omitted).

at 477. The protest organization letter summarized

the concerns of the organizers surrounding the 12hour truce proposed by the “National Liberation Front

(Vietcong)” and Senator Robert Kennedy’s suggestion

to extend the truce.4 The letter proposed wearing

black armbands and fasting over the holiday season

as well as foregoing New Year’s Eve celebrations to

gather and discuss the “complex war and possible

ways of ending the killing of Vietnamese and

Americans.” Id. It was a matter of life and death that

engaged prospective protesters to make personal

sacrifice to make their point.

On the other hand, gym teachers and coaches at

Roosevelt were upset about the possibility of a protest

against the Vietnam War.5 “Instead of conducting

calisthenics to the chant of ‘Beat East High’—as was

usually the case” . . . “gym teachers on that day

encouraged students to substitute the phrase ‘Beat

the Vietcong.’” Johnson at 477. “However, the phrase

may also have sprung from the students themselves.”

Id. at n 32. The prevailing sentiment was hostile to

the protestors’ viewpoint.

“The coaches at Roosevelt also made it known that

students wearing armbands to class were communist

sympathizers and that they, as coaches and teachers,

could not be held responsible for what might happen

to students who demonstrated such a lack of

patriotism.” Id. at 477. Chris was personally

confronted by “a group of angry male students who

screamed at them: ‘If you [wear armbands tomorrow]

We Mourn, protest organization letter available

https://www.docsteach.org/documents/document/we-mourn;

5 Johnson, at p. 477.

at:

. . . you’ll find our fists in your face and our foot up

your ass.’” Id. at 477. And the following day, while

walking to the principal’s office to turn himself in for

wearing the armband in defiance of school policy, “the

captain of the football team” . . . “attempted to rip the

armband off his jacket. After a brief scuffle, the

football player left Eckhardt with words to the effect

that he had better take the armband off in the

principal’s office or he would come looking for him.”

Id. at 478. And even after Chris arrived at the

principal’s office, “students filed by the glass enclosed

office and taunted him with caustic remarks like

‘you’re dead.’” Id. at 478. There was confrontation and

the potential for further trouble.

In a recent interview, Mary Beth Tinker discussed

the schools banning the armbands “because of the

‘intense feelings’ they might inspire”6 as well as the

Tinker family’s experience. “The Tinkers were . . .

subject to a barrage of hate and harassment. Red

paint was tossed on their driveway; they were called

communists; and they even received death threats.”

Id.

The disruption standard from Tinker was

developed against fraught circumstances in which the

point of the armbands was to promote dissent and a

call to action—and succeeded in doing so. Violence

was both a risk and a reality, and members of the

school community from students to teachers to the

administration were acutely aware of the dispute.

Sophie Hayssen, Students’ Right to Protest at School Was

Affirmed by Tinker v. Des Moines, teenVOGUE, December 16,

2021, available at: https://www.teenvogue.com/story/supremecourt-student-free-speech-tinker

Nevertheless, the disruption was not substantial

enough and did not materially interfere with school

activities sufficient to justify censorship.

By contrast, the alleged provocation here is hard to

discern. Two flyers present photographs of cheerful

individuals (not students) who were clearly

photographed somewhere other than at the school.

The flyers give every indication of being professionally

produced boilerplate meeting announcements. The

photographs include images of signs, some of which

say, “Defund Planned Parenthood”. App. 4a–5a. There

is no evidence of any actual disruption or that anyone

misunderstood the flyers as being something other

than what they were. Nevertheless, the lower courts

concluded that flyers “promoting a polarizing political

slogan” could reasonably support the conclusion that

order would be undermined and attention diverted

from the business of learning. App. 15a. The anodyne

messaging of the flyers here does not even approach

the environment in which Tinker was decided.

Moreover, under Tinker,—indeed under general

First Amendment jurisprudence—timing matters.

Tinker focused on contemporaneous harm, protecting

student speech except where the “conduct by the

student, in class or out of it, which for any reason—

whether it stems from time, place, or type of

behavior—materially disrupts classwork or involves

substantial disorder or invasion of the rights of

others.” Tinker, 393 U.S. at 513 (emphasis added).

This is not a conditional standard and does not depend

on speculation or inference. Indeed, in Tinker, the

Court cautioned against regulating based on

“undifferentiated

fear

apprehension

disturbance,” instead, limiting the school’s authority

over student speech to identified disruption of school

operations. Id. at 508.

It is commonplace that “censorship or suppression

of expression of opinion is tolerated by our

Constitution only when the expression presents a

clear and present danger of action of a kind the State

is empowered to prevent and punish.” W. Virginia

State Bd. of Educ. v. Barnette, 319 U.S. 624, 633

(1943) (emphasis added). And, that “[a]ny system of

prior restraints of expression comes to this Court

bearing a

heavy presumption

against its

constitutional validity.” Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 70 (1963) (collecting cases).

Consistent with these principles, Tinker precludes

school intervention where “[t]here is . . . no evidence

whatever of petitioners’ interference, actual or

nascent, with the schools’ work or of collision with the

rights of other students to be secure and to be let

alone.” Tinker 393 U.S at 508. Here, the record is

bereft of evidence of interference with the school’s

work or the rights of other students. Had Tinker been

applied, this would be an easy case.

II.

“IT IS THE RIGHT OF

PETITION THE KING.”7

THE

SUBJECTS

The final clause of the First Amendment protects

the right of the people to petition the government for

redress of grievances. When E.D.’s club was kicked off

campus, it was in response to her seeking redress for

7 “and all commitments and prosecutions for such petitioning are

illegal.” English Bill of Rights 1689, available

https://avalon.law.yale.edu/17th_century/england.asp

at:

the perceived infringement of her speech rights—not

for the speech itself.

When E.D. submitted her proposed flyers to

Assistant Principal Mobley, “Mobley emailed NSFL’s

faculty sponsor, Brian McCauley, and asked him to

work with E.D. to revise the flyer.” App. 5a. E.D. and

McCauley exchanged emails about the flyers and

“McCauley . . . advised her to contact Dean of Students

Jeremy Luna to schedule NSFL’s first meeting.” App.

6a. “A couple days later, E.D. met with Luna,

accompanied again by her mother.” At that time “E.D.

re-raised the issue of the flyer.” App. 6a.

There’s no indication that the meeting with Luna

was contentious, that Luna had objected to the

mother’s presence, or that the presence of a parent

with a fourteen-year-old at a meeting with the Dean

of Students was out of the ordinary.

Nevertheless, following the meeting between the

Dean of Students, E.D., and her mother, Luna,

Mobley, and Principal McCaffrey decided that by reraising the issue of the flyer, E.D.’s request for review

was an “attempt at insubordination,” and therefore

“warranted discipline”. App.6a–7a. That rationale is

not an exception to the First Amendment. Indeed, if

merely asking for reconsideration of a previous

decision were a punishable offense, then the right to

petition for redress would be an empty promise and

we would not have courts of appeals.

This Court has made clear that the “right to

petition is cut from the same cloth as the other

guarantees of [the First] Amendment, and is an

assurance of a particular freedom of expression.”

McDonald v. Smith, 472 U.S. 479, 482 (1985). Indeed,

the “historical roots of the Petition Clause long

antedate the Constitution.” Id. at 482 (citing the 1689

English Bill Rights). The “Stamp Act Congress of 1765

included a right to petition the King and Parliament

in its Declaration of Rights and Grievances.” Id.

(citing 1 B. Schwartz, The Bill of Rights—A

Documentary History 198 (1971)). And “the

Declarations of Rights enacted by many state

conventions contained a right to petition for redress of

grievances. See, e.g., Pennsylvania Declaration of

Rights (1776).” Id. at 482–83. Freedom of Petition goes

hand in hand with speech rights and is not a lesser

right that can be minimalized to undermine both.

Moreover, the “the right to petition extends to all

departments of the Government” California Motor

Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510,

(1972)”, including among other locales, “[t]he

jailhouse,” “an executive mansion,” “a legislative

chamber,” “a courthouse,” or “the statehouse.”

Adderley v. State of Fla., 385 U.S. 39, 49 (1966). There

would thus be no reason to preclude its exercise by

E.D. at school. Moreover, the “methods [of its exercise]

should not be condemned as tactics of obstruction and

harassment as long as the assembly and petition are

peaceable.” 385 U.S. at 51. Instead, the public school

must “start with the premise that the rights to

assemble peaceably and to petition for a redress of

grievances are among the most precious of the

liberties safeguarded by the Bill of Rights.” United

Mine Workers of Am., Dist. 12 v. Illinois State Bar

Ass'n, 389 U.S. 217, 222 (1967).

Characterizing

Request

for

Reconsideration as Insubordination

Is Not Sufficient to Bypass the First

Amendment.

Characterizing a student’s orderly request for

reconsideration of an administrative decision as

insubordination to nullify the right to petition has no

precedential support. Instead, precedent regarding

“insubordination,” tends to focus on fraught cases

from the time of the world wars in which protestors

sought to interfere with the military draft. E.g.,

Schenck v United States, 249 U.S. 47 (1919). Schenk

was charged with “a conspiracy to violate the

Espionage Act of June 15, 1917, c. 30, tit. 1, § 3, 40

Stat. 217, 219 (Comp. St. 1918, § 10212c), by causing

and attempting to cause insubordination . . . in the

military and naval forces of the United States, and to

obstruct the recruiting and enlistment service of the

United States, when the United States was at war

with the German Empire,” by conspiring “to have

printed and circulated to men who had been called

and accepted for military service”

a document

“calculated to cause . . .insubordination and

obstruction.” Schenck, 249 U.S. at 48–49. His defense

was that distribution of the circulars was protected by

the First Amendment. Id. at 51.

The Court applied the “clear and present danger”

test to consider whether the circumstances allowed for

limitations of his speech, holding that the “question in

every case is whether the words used are used in such

circumstances and are of such a nature as to create a

clear and present danger that they will bring about

the substantive evils that Congress has a right to

prevent.” Schenck, 249 U.S. at 52. In this way the

Schenck insubordination test mirrors the Tinker

material-disruption test, but writ large and with a

higher standard for imminent danger before

insubordination may excuse abridgment of First

Amendment rights.

The same could hardly be said to apply here, where

a fourteen-year-old sought and was granted a meeting

with school personnel to discuss her flyers. App. 6a.

To overcome Schenk, the difference between

insubordination

the

wider

world

and

insubordination in public school must be so wide and

deep that even a request for a higher administrator to

review the decision of a faculty member is beyond the

pale. Such a standard would be no standard at all,

much less reflective of what is required to render a

public-school student insubordinate and subject to

discipline.

Fortunately, this Court has held otherwise. In

Barnette, for example, the West Virginia Board of

Education adopted a resolution that provided that

“refusal to salute the Flag be regarded as an Act of

insubordination, and shall be dealt with accordingly.”

Barnette, 319 U.S. at 626, 629 (“Failure to conform is

‘insubordination’ dealt with by expulsion.”). This

Court

rejected

outright

the

notion

that

“insubordination” as the professed basis for

compelling speech in school was sufficient to overcome

the students’ right to not speak and to create a

punishable offense. Id. at 642. Like Schenck, the

dispute in Barnette arose in wartime when feelings

ran high. But “National unity as an end which officials

may foster by persuasion and example is not in

question. The problem is whether under our

Constitution compulsion as here employed is a

permissible means for its achievement.” Id. at 640.

The Court held it was not. Barnette, 319 U.S. at 642.

Here, the act of alleged “insubordination” involved

no such national security rationale, nor was it in

defiance of school process or authority. Rather, E.D.

followed the direction of her faculty advisor and set a

meeting with the Dean of Students, who evidently

allowed E.D.’s mother to attend the meeting. While in

that meeting, E.D. advocated for her position. Only

after the fact did the administration convince itself

that this was punishable behavior. In addition to

being a disproportionate response, it fundamentally

misunderstands that bypassing the First Amendment

requires more than mislabeling vexation as

insubordination.

The Ignoble Attempt to

Submission Should be Resisted.

Teach

“Liberty lies in the hearts of men and women;

when it dies there, no constitution, no law, no court

can even do much to help it.”

—Judge Learned Hand8

The ignoble attempt of the Noblesville School

District to condition students to unthinking

submission should be resisted if the students are to

develop the talent for self-governance. This Court has

consistently recognized that “[t]he vigilant protection

of constitutional freedoms is nowhere more vital than

in the community of American schools.” Tinker, 393

U.S. at 512 citing Shelton v. Tucker, 364 U.S. 479, 487

(1960). Regarding boards of education, the Court has

8 Judge Learned Hand, The Spirit of Liberty, 1944, available at

Digital History, http://bit.ly/3raLZQN.

said that they have “important, delicate, and highly

discretionary functions, but none that they may not

perform within the limits of the Bill of Rights. That

they are educating the young for citizenship is reason

for scrupulous protection of Constitutional freedoms

of the individual, if we are not to strangle the free

mind at its source and teach youth to discount

important principles of our government as mere

platitudes.” Tinker, 393 U.S. at 507 (citing Barnette,

319 U.S. at 637). And schools themselves have “an

interest in protecting a student’s unpopular

expression,” because “America’s public schools are the

nurseries of democracy”. Mahanoy, 594 U.S. at 190.

“Thus, schools have a strong interest in ensuring that

future generations understand the workings in

practice of the well-known aphorism, ‘I disapprove of

what you say, but I will defend to the death your right

to say it.’” Id. at 190 (citation omitted). These

stouthearted statements depart from ad hoc

justification by public schools for crushing student

advocacy of their own First Amendment rights,

notwithstanding precedent to the contrary.

Facile excuses for bypassing the First Amendment,

educate students in misunderstanding of the

American system that is anathema to the rights

secured by the Constitution and educates the next

generation that this is the kind of relationship citizens

should expect with their government. Consistent with

Barnette and Tinker, schools should teach students to

carry with them the understanding that government

must respect constitutional freedoms.

The expansion of Hazelwood, raises troubling

possibilities. First, that this case may remove the

limiting principle from Hazelwood, which allowed an

exception to Tinker only for “school-sponsored

publications, theatrical productions, and other

expressive activities that students, parents, and

members of the public might reasonably perceive to

bear the imprimatur of the school;” Hazelwood, 484

U.S. at 271, and be read instead to encompass a vague

and ill-defined universe of student speech that is

neither part of the curriculum, published by the

school, nor even visible to the public. Second, that this

case may come to stand for the proposition that

advocating for student rights is a second-order

offense, punishable by delisting the organization

whose rights were under debate in the first place.

Tinker did not address the first of those scenarios.

But the bulk of Tinker did focus on the second, for it

was the persistent wearing of the armband despite

school demands to stop the speech that prompted the

punishment. Tinker, 393 U.S. at 504 (discussing

ramifications of refusal to remove arm band). The

Court should resist any extension of school authority

to simultaneously claim sponsorship of a plurality of

student speech while silencing that speech.

As Justice Brennan proclaimed in his dissent to

Hazelwood,

Public education serves vital national

interests in preparing the Nation’s youth

for life in our increasingly complex society

and for the duties of citizenship in our

democratic Republic. See Brown v. Board

of Education, 347 U.S. 483, 493 (1954).

The public school conveys to our young the

information and tools required not merely

to survive in, but to contribute to, civilized

society. It also inculcates in tomorrow’s

leaders

the

“fundamental

values

necessary to the maintenance of a

democratic political system....” Ambach v.

Norwick, 441 U.S. 68, 77 (1979). All the

while, the public educator nurtures

students’ social and moral development by

transmitting to them an official dogma of

“‘community values.’” Board of Education

v. Pico, 457 U.S. 853, 864 (1982) (plurality

opinion) (citation omitted).

Hazelwood, 484 U.S. at 278 (Brennan, J. dissenting).

While Justice Brennan’s exhortation may be

aspirational, at a minimum, public schools must resist

the urge to go a step beyond Hazelwood to quash the

exercise of student speech rights and teach students

they are mere subjects who must obey.

If mere incompatibility with the school’s unwritten

expectations9 were a constitutionally sufficient

justification for the suppression of student speech,

then school officials could censor students at their

discretion, converting our public schools into

“enclaves of totalitarianism,” that “strangle the free

mind at its source.” Hazelwood, 484 U.S. at 280

(Brennan, J. dissenting (quoting Tinker, 393 U.S. at

511; Barnette, 319 U.S. at 637). Such an approach

should be rejected.

9 “At the time, NHS had no formal written policy governing the

content of flyers for student interest clubs, beyond the general

guidance in the 2021–2022 . . . NHS officials testified that, in

practice, administrators expected student club flyers to include

only the club’s name and the meeting’s time, date, and location,

and to exclude any ‘disruptive’ or ‘political’ content.” App. at 4a.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

Respectfully submitted,