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

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,

v.

NOBLESVILLE SCHOOL DISTRICT, ET AL.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh

Circuit

__________________________________

AMICUS CURIAE BRIEF OF

NC VALUES INSTITUTE

IN SUPPORT OF PETITIONERS

TAMI FITZGERALD

NC VALUES INSTITUTE

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

DEBORAH J. DEWART

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ..............................................i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT....................................................... 1

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

I.

THE

CONSTITUTIONALITY

OF

THE

SCHOOL’S RESTRICTION SHOULD NOT BE

DRIVEN BY SPECULATION ABOUT THE

REACTION OF AN IMAGINARY OBSERVER

................................................................... ………2

A. The speech at issue is private student

speech

protected

by

the

First

Amendment—not government speech. ......... 3

B. No reasonable observer would attribute

the flyer’s content to the School. ................... 5

C. The School’s restriction should not be

affirmed based on an observer’s erroneous

perception. ..................................................... 8

D. This Court should eschew the “offended

observer” analysis that has crept in to

replace the “reasonable observer” test. ....... 11

ii

II. THE

RESTRICTION

HAS

NO

VALID

EDUCATIONAL PURPOSE ........................…..12

A. The restriction undercuts respect for the

beliefs of others—a fundamental civic

virtue that public schools can and should

cultivate. ...................................................... 14

B. Public school students must learn to

tolerate diverse viewpoints. ........................ 16

CONCLUSION ......................................................... 18

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Legion v. Am. Humanist Assn.,

588 U.S. 29 (2019) ........................................... 6, 12

Bethel School District No. 403 v. Fraser,

478 U.S. 675 (1986) ............................................. 13

Bd. of Educ. of Westside Cmty. Sch. v. Mergens,

496 U.S. 226 (1990) ........................................... 3, 5

Bd. of Educ., Island Trees Union Free Sch. Dist. v.

Pico,

457 U.S. 853 (1982) ............................................. 15

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ....................................... 3, 7, 8

County of Allegheny v. ACLU,

492 U.S. 573 (1989) ......................................... 7, 10

Diamond v. Charles,

476 U.S. 54 (1986) ............................................... 12

E.D. v. Noblesville Sch. Dist.,

151 F.4th 907 (7th Cir. 2025) ............ 1-5, 7, 13, 16

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ............................................. 8, 16

iv

Griswold v. Connecticut,

381 U.S. 479 (1965) ............................................. 15

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ................................... 2, 12, 13

Janus v. Am. Fed'n of State, Cnty. & Mun. Emps.,

Council 31,

585 U.S. 878 (2018) ............................................... 4

Kennedy v. Bremerton Sch. Dist. (Kennedy I),

869 F.3d 813 (9th Cir. 2017) ........................... 9, 15

Kennedy v. Bremerton Sch. Dist. (Kennedy III),

991 F.3d 1004 (9th Cir. 2021) ................................ 9

Kennedy v. Bremerton Sch. Dist. (Kennedy IV),

4 F.4th 910 (9th Cir. 2021) ................. 5, 6, 8, 9, 15

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................... 6, 8, 10, 11

Keyishian v. Board of Regents,

385 U.S. 589 (1967) ....................................... 15, 17

Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384 (1993) ............................................... 6

Lee v. Weisman,

505 U.S. 577 (1992) ....................................... 14, 18

Lemon v. Kurtzman,

403 U.S. 602 (1971) ........................... 2, 6, 7, 10, 11

v

Mahanoy Area Sch. Dist. v. B. L.,

594 U.S. 180 (2021) ....................................... 16, 17

Matal v. Tam,

582 U.S. 218 (2017) ......................................... 5, 16

Morgan v. Swanson,

659 F.3d 359 (6th Cir. 2011) ............................... 14

Rubin v. City of Lancaster,

710 F.3d 1087 (9th Cir. 2013) ............................... 3

Santa Fe Ind. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ......................................... 8, 10

Shelton v. Tucker,

364 U.S. 479 (1960) ............................................. 14

Shurtleff v. City of Boston,

596 U.S. 243 (2022) ............................. 4, 5, 6, 8, 10

Snyder v. Phelps,

562 U.S. 443 (2011) ............................................... 4

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ....................................... 15, 16

Town of Greece v. Galloway,

572 U.S. 565 (2014) ......................................... 6, 10

United States v. Schwimmer,

279 U.S. 644 (1929) ............................................. 16

vi

Utah Highway Patrol Ass’n v. Am. Atheists, Inc.,

565 U.S. 994 (2011) ............................................... 8

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943) ....................................... 14, 17

Other Authorities

David E. Bernstein, Defending the First Amendment

From Antidiscrimination,

82 N.C. L. Rev. 223 (2003) ................................. 17

Patrick M. Garry, The Supreme Court Corrects a

Seventy-Five-Year Distortion in

Establishment Clause Jurisprudence,

56 Ind. L. Rev. 95 (2022).................................... 11

Erica Goldberg, “Good Orthodoxy” and the Legacy of

Barnette,

13 FIU L. Rev. 639 (2019).................................. 17

1

INTEREST OF AMICUS CURIAE 1

Amicus curiae respectfully urges this Court to

grant the Petition and reverse the Seventh Circuit

ruling.

NC Values Institute, formerly known as the

Institute for Faith and Family, is a North Carolina

nonprofit corporation that works in various arenas of

public policy to protect faith, family, and freedom. See

https://ncvi.org.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Noblesville School District has created a program

allowing students to form extracurricular studentinterest clubs, initiated and led by the students

themselves with minimal faculty involvement. A

group of Noblesville High School students, led by

Petitioner E.D., launched the Noblesville Students for

Life (“NSFL”) to raise awareness and engage in

activities that would help spread the group’s pro-life

message. When NSFL commenced, the School “had no

formal written policy governing the content of flyers

for student interest clubs.” E.D. v. Noblesville Sch.

Dist., 151 F.4th 907, 911 (7th Cir. 2025). But “in

practice” school officials expected the flyers “to

1 Counsel of record for all parties received notice at least 10 days

prior to the due date of amicus curiae's intention to file this brief.

Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than

amicus, its members, or its counsel, has made a monetary

contribution to its preparation or submission.

2

exclude any ‘disruptive’ or ‘political’ content.” Id. at

912. NSFL’s flyers displayed “images of young

protestors holding signs reading ‘Defund Planned

Parenthood.’” Id. at 911. Administrators objected to

this “political image” (id. at 912), fearing the message

might be erroneously attributed to the School, which

“was already walking ‘on eggshells’" (id. at 912-913).

There is no school-sponsored curricular activity or

other government speech involved in this case, but

only the private speech of students who voluntarily

participate in NSFL, an extracurricular, student-led

club. The School’s censorship violates the free speech

rights of these students. But the Seventh Circuit

upholds the suppression, relying on the outdated

“reasonable observer” analysis derived from the longcriticized, now-defunct test from Lemon v. Kurzman,

403 U.S. 602 (1971).

ARGUMENT

I.

THE

CONSTITUTIONALITY

OF

THE

SCHOOL’S RESTRICTION SHOULD NOT

BE DRIVEN BY SPECULATION ABOUT

THE REACTION OF AN IMAGINARY

OBSERVER.

It is neither reasonable nor even likely that

observers would erroneously attribute the words on

NSFL’s flyer – specifically, on the photograph shown

on the flyer – to the School. But the Seventh Circuit

concluded that onlookers “might reasonably perceive

[the picture] to bear the imprimatur of the school."

E.D., 151 F.4th at 915 quoting Hazelwood Sch. Dist.

v. Kuhlmeier, 484 U.S. 260, 271 (1988).

3

A. The speech at issue is private student

speech

protected

by

the

First

Amendment—not government speech.

The Seventh Circuit ruling reveals a glaring

inconsistency. The court affirms the School’s

censorship of student speech spoken by a “student

interest club” that is by definition “student-initiated”

and “student-led” with minimal faculty involvement

“to supervise the use of school facilities and provide

logistical support.” E.D., 151 F.4th at 911 (emphasis

added). The court does an end-run around this

inconsistency by speculating about the response of an

imaginary, hypothetical, presumably “reasonable”

observer.

The

First

Amendment

protects

private

individuals, not the government. In Establishment

Clause cases, this Court has stressed the element of

private choice, "holding time and time again that

when a neutral government policy or program merely

allows or enables private religious acts, those acts do

not necessarily bear the state's imprimatur." Rubin v.

City of Lancaster, 710 F.3d 1087, 1099 (9th Cir. 2013)

(emphasis added). The same principle applies here.

The speech of a student-initiated group does not bear

the School’s imprimatur merely because the School

policy “allows or enables” the group to speak. Just as

"[t]here is a crucial difference between government

speech endorsing religion” and “private speech

endorsing religion,” there is a “crucial difference”

between government and private speech more

generally. Capitol Square Review and Advisory Bd. v.

Pinette, 515 U.S. 753, 765 (1995), citing Bd. of Educ.

of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250

4

(1990) (emphasis added). The Free Speech Clause

does not protect government censorship.

Matter of public concern. Speech on matters of

public concern merits heightened constitutional

protection. The student speech here centers on a

matter of contentious public debate. There has hardly

ever been a more divisive matter of public concern

than abortion, “a controversial [and] sensitive

political topic[] . . . of profound value and concern to

the public.” Janus v. AFSCME, Council 31, 585 U.S.

878, 914 (2018) (cleaned up). Such speech “occupies

the highest rung of the hierarchy of First Amendment

values.” Snyder v. Phelps, 562 U.S. 443, 452 (2011).

Every person has a right to speak on this matter. The

Noblesville Students for Life (NSFL) exists to educate

other students about abortion and promote pro-life

events. E.D., 151 F.4th at 911. The School asserts a

“pedagogical goal of maintaining neutrality on

matters of political controversy.” Id. at 917. Its

censorship of NSFL’s flyer is anything but neutral.

Masking censorship. Recasting the student-led

group’s flyer as “school sponsored” government speech

easily masks censorship and potential viewpoint

discrimination, notwithstanding “the school's central

role in facilitating the flyers' placement on its walls.”

Id. at 915. There is a heightened risk of censorship or

mixed messages when private speech occurs in a

context involving the government, including public

education. The government may be subject to the First

Amendment even if – although literally “speaking” –

it infringes on private expression. Shurtleff v. City of

Boston, 596 U.S. 243, 269 (2022) (Alito, Gorsuch,

Thomas, J.J., concurring in the judgment). As these

5

concurring Justices warned in Shurtleff, “courts must

be very careful when a government claims that speech

by one or more private speakers is actually

government speech.” Id. at 262 (2022) (emphasis

added). The government speech doctrine becomes

“susceptible to dangerous misuse.” Ibid., citing Matal

v. Tam, 582 U.S. 218, 235 (2017). The government

speech doctrine must be restrained to prevent the

power and machinery of a government-run public

school from being used to stifle private student

expression. That is precisely what occurred here.

B. No reasonable observer would attribute

the flyer’s content to the school.

Officials feared that NSFL’s pro-life viewpoint

might be mistakenly attributed to the School: “Flyers

promoting a polarizing political slogan (Defund

Planned Parenthood) and bearing an administrator's

initials alongside school-sponsored postings could

mislead observers into thinking the school endorses

that view.” E.D., 151 F.4th at 917. But "[t]he

proposition that schools do not endorse everything

they fail to censor is not complicated." Kennedy v.

Bremerton Sch. Dist. (Kennedy IV), 4 F.4th 910, 941

(9th Cir. 2021) (O’Scannlain, J., dissenting from

denial of rehearing en banc), quoting Mergens, 496

U.S. at 250. Even “secondary school students”

themselves are “mature enough” and “likely to

understand” that the school “does not endorse or

support student speech that it merely permits . . . .”

Ibid. If students can understand this principle, public

school officials and federal judges should, too.

6

The court’s flawed reasoning relies on the

“reasonable observer,” an integral aspect of the

endorsement test that stems from the purpose and

effect prongs of the now-discredited Lemon test.

Lemon was “an ahistorical, atextual, and failed

attempt to define Establishment Clause violations.”

Kennedy IV, 4 F.4th at 945 (Nelson, J., dissenting

from denial of rehearing en banc). This Court “long

ago abandoned Lemon and its endorsement test

offshoot.” Kennedy v. Bremerton Sch. Dist., 597 U.S.

507, 534-535 (2022); see also Town of Greece v.

Galloway, 572 U.S. 565, 576-577 (2014) (declining an

invitation to use Lemon test); Am. Legion v. Am.

Humanist Assn, 588 U.S. 29, 84 (2019) (describing

Lemon as a “misadventure”); Shurtleff, 596 U.S. at

283 (Gorsuch, Thomas, J.J., concurring) (“Recognizing

Lemon’s flaws, this Court has not applied its test for

nearly two decades.”). This Court “no longer applies

the old test articulated in Lemon.” Am. Legion, 588

U.S. at 84 (Kavanaugh, J., concurring). A majority of

this Court’s Justices have "personally driven pencils

through the creature's heart." Lamb's Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 398

(1993) (Scalia, J., concurring in the judgment). A

multitude of exceptions have finally swallowed the

Lemon rule. But many courts, including the Seventh

Circuit panel, failed to get the memo.

Petitioners’ case is not about the Establishment

Clause, but Lemon’s endorsement test has been

imported into its analysis of student speech in a public

school. The Seventh Circuit emphasized the

placement of the flyers “alongside official schoolsponsored communications in high-traffic common

7

areas throughout the school” and concluded that “a

reasonable observer could easily conclude that the

flyers reflected the school's endorsement.” E.D., 151

F.4th at 916. But who are those observers? Most

would be students or faculty, presumably aware of

their school’s student-interest groups and related

policies. The club meetings occurred “during school

hours, on school property, and under the supervision

of a faculty advisor.” Ibid. The court noted these

factors to support its conclusion, yet that is exactly

why observers would be school “insiders” familiar

with the student-driven nature of the clubs—not

passerby members of the public lacking that

knowledge.

The now-defunct endorsement test is not the

proper analytic avenue for this case. Like the Lemon

test from which it derives, it is a failed modern

experiment. In the Establishment Clause context, this

highly subjective test requires fine tuning to apply

and has spawned lawsuits over trivial offenses, based

on an imaginary "reasonable" observer’s disapproval.

But the test is qualified — a reasonable observer is

presumed to be well informed. That observer is not—

or at least should not be—"any person who could find

an endorsement of religion” or “some reasonable

person” who might be offended or “might think the

State endorses religion.” Pinette, 515 U.S. at 780

(O'Connor, J., concurring) (internal quotation marks

omitted). In Establishment Clause cases, the

“reasonable observer” looks through the lens of

“history and ubiquity.” County of Allegheny v. ACLU,

492 U.S. 573, 630 (1989) (O'Connor, concurring). The

consequences would be overwhelming if the test were

8

read to encompass even the slightest offense and thus

allow a "heckler's veto" to rule the outcome. Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 35 (2004)

(O'Connor, J., concurring), citing Pinette, 515 U.S. at

780 ("There is always someone who, with a particular

quantum of knowledge, reasonably might perceive a

particular action as an endorsement of religion.").

C. The School’s restriction should not be

affirmed based on an observer’s

erroneous perception.

It is troubling whenever an observer’s erroneous

perception of government action leads to a violation of

individual liberty. An Establishment Clause violation

should not hinge on “an observer's potentially

mistaken belief that the government has violated the

Constitution, rather than on whether the government

has in fact done so.” Utah Highway Patrol Ass’n v. Am.

Atheists, Inc., 565 U.S. 994, 1004 n. 7 (2011) (Thomas,

J., dissenting from denial of certiorari). The focus on

“perception” or “endorsement” easily morphs into the

phantom constitutional violations that arose in cases

like Santa Fe, Shurtleff, and others. These imaginary

concerns do not “justify actual violations of an

individual’s First Amendment rights.” Bremerton, 597

U.S. at 543. In Bremerton, the School District reverted

to an “objective observer” analysis “because someone

might mistakenly attribute Kennedy's prayer to the

District.” Kennedy IV, 4 F.4th at 941 (O’Scannlain, J.,

dissenting from denial of rehearing en banc). The

Ninth Circuit reasoned that “an objective student

observer” would see Kennedy “perform a distinctively

Christian religious act on a secured portion of school

9

property while supervising students”—“something no

ordinary citizen could do.” Kennedy v. Bremerton Sch.

Dist. (Kennedy I), 869 F.3d 813, 836 (9th Cir. 2017)

(Smith, J., specially concurring). After this Court

remanded the case, the Ninth Circuit doubled down

and manufactured a “mandate” to silence Kennedy,

based on the possible misperception of endorsement.

See Kennedy v. Bremerton Sch. Dist. (Kennedy III),

991 F.3d 1004, 1016-19 (9th Cir. 2021); Kennedy IV, 4

F.4th at 929 (Christen, J., concurring in denial of

rehearing en banc) (“Had BSD abandoned its

opposition to Coach Kennedy's on-field prayers after

his multiple interviews with local and national media,

an objective observer would have perceived that BSD

endorsed his speech.”)

A similar principle applies here. An observer

might mistakenly attribute the flyer’s content to the

School. Based on that potential misunderstanding,

the Seventh Circuit allowed the School to censor

student speech protected by the First Amendment.

But it is patently unreasonable to attribute the flyer’s

content to the School. The flyer contains a picture of

students holding signs. Those signs have words that

express a viewpoint. The School had zero involvement

in designing the flyer apart from its efforts at

suppression. Only by ignoring that censorship could

anyone think (though mistakenly) that the School

itself endorsed the message displayed on the picture.

The mere possibility of mistaken attribution does not

convert private speech into government endorsement.

Three current Justices of this Court have warned

against the focus on public perception, because it

“encourages courts to categorize private expression as

10

government speech in circumstances in which the

public is liable to misattribute that speech to the

government,” thus “allow[ing] governments to exploit

public expectations to mask censorship.” Shurtleff,

596 at 265-266 (Alito, Gorsuch, Thomas, J.J.,

concurring in the judgment). Only a few years after

Lemon, “[f]our dissenting Justices” of this Court

“disputed that endorsement could be the proper test”

because it condemns many time-honored practices

that date back to the founding. Town of Greece, 572

U.S. at 579-580, citing Allegheny, 492 U.S. at 670-671

(Kennedy, J., concurring in the judgment in part and

dissenting in part).

Misunderstanding persists, as demonstrated by

cases over the years. School officials in Santa Fe Ind.

Sch. Dist. v. Doe, denied students the right to

voluntarily pray, fearing the perception of government

approval. 530 U.S. 290, 308-309 (2000). Not only the

Santa Fe ruling itself but “the tone of the Court’s

opinion . . . bristles with hostility to all things religious

in public life.” Id. at 318 (Rehnquist, J., dissenting).

That hostility arose from an irrational fear that some

unknown observer might believe the school endorsed

the students’ prayers. Boston officials in Shurtleff

were convinced the Constitution prohibited them from

allowing private parties to “fly a religious flag on

public property.” 596 U.S. at 273-274. The City

admitted to denying Shurtleff’s request “because it

believed flying a religious flag at City Hall could

violate the Establishment Clause.” Id. at 258. In

Bremerton, the School District “issued an ultimatum”

against “any overt actions” that might even appear to

endorse Coach Kennedy’s prayer (597 U.S. at 517518), allowing his prayers only at a “private location”

11

(id. at 519) and reasoning that his suspension “was

essential to avoid a violation of the Establishment

Clause” (id. at 532). This Court rejected that paranoid

approach to the First Amendment.

These

recurring

misunderstandings

are

unnecessary now that Bremerton has demonstrated

how much “our Establishment Clause jurisprudence

ha[s] gone off the rails.” 597 U.S. at 540. The School

District asserted that it not only “may prohibit” its

employees’ private prayers “but that it must do so in

order to conform to the Constitution.” Ibid. Officials

contended they had a “duty to ferret out and suppress

religious observances.” Id. at 543-544. But this Court

found “no historically sound understanding” of the

Establishment Clause that would require that hostile

approach. Id. at 541. On the contrary, “[t]he

Constitution neither mandates nor tolerates that kind

of discrimination.” Id. at 544.

D. This Court should eschew the “offended

observer” analysis that has crept in to

replace the “reasonable observer” test.

Lemon created a monster, wielding the

Establishment Clause as a “reverse Free Exercise

Clause” weapon to protect offended observers from

exposure to religion. Patrick M. Garry, The Supreme

Court Corrects a Seventy-Five-Year Distortion in

Establishment Clause Jurisprudence, 56 Ind. L. Rev.

95, 118 (2022). Lemon’s monster has escaped from its

cage, attacking First Amendment rights in other

contexts, including the student speech in this case.

12

The “offended observer” theory is even further off

base constitutionally than the “reasonable observer.”

As Justice Gorsuch emphasized in Am. Legion, this

“theory of standing has no basis in law,” as it fails to

articulate a “concrete and particularized” injury. 588

U.S. at 80 (Gorsuch, J., concurring). The mere

presence of a disagreement, “however sharp and

acrimonious it may be, is insufficient by itself to meet

Art. III’s requirements.” Id., quoting Diamond v.

Charles, 476 U.S. 54, 62 (1986).

The malleable imaginary observer is easily

manipulated to reach desired results. The

combination of “offended” and “reasonable” observers

is lethal. In Establishment Clause cases it leads to

blatant hostility to all things religious in the public

square—a result never contemplated by the

Constitution’s Framers. In other contexts, like this

case, it breeds unrestrained censorship. This chaotic

jurisprudence jeopardizes liberty. In some cases,

courts dare to ground their conclusion on what a

poorly defined observer might mistakenly think. That

approach should be jettisoned and replaced with a

return to reality.

II. THE RESTRICTION HAS

EDUCATIONAL PURPOSE.

NO

VALID

In Hazelwood, this Court held that educators may

exercise “editorial control over the style and content

of student speech in school-sponsored expressive

activities,” provided their conduct is “reasonably

related to legitimate pedagogical concerns.” 484 U.S.

at 273. Hazelwood allowed school officials to regulate

13

what was essentially “the school's own speech, that is,

articles that appear[ed] in a publication that is an

official school organ." Morse v. Frederick, 551 U.S.

393, 423 (2007) (Alito, J., concurring). In Hazelwood,

a “high school newspaper [was] produced as part of

the school's journalism curriculum” (484 U.S. at 262),

a “supervised learning experience for journalism

students” (id. at 270). Similarly, in Bethel School

District No. 403 v. Fraser, “[t]he assembly was part of

a school-sponsored educational program in selfgovernment." 478 U.S. 675, 677 (1986) (emphasis

added). These cases clearly implicate classroom

activity that was part of the curriculum, in contrast to

the extra-curricular student-led, student-interest

groups at issue in this Petition.

This Court concluded in Hazelwood that “[i]t is

only when the decision to censor a . . . vehicle of

student expression has no valid educational purpose

that judicial intervention is required to protect

student rights.” Hazelwood, 484 U.S. at 273

(emphasis added). Noblesville’s student-driven clubs

are not part of the school curriculum. Their purpose,

the Seventh Circuit explains, “is to facilitate

extracurricular opportunities that are entirely

student-led and student-run,” thus “foster[ing] student

initiative” and directing school resources “toward

student-driven activities.” E.D., 151 F.4th at 919

(emphasis added). The School’s censorship serves “no

valid educational purpose” but tends to defeat these

stated goals instead of serving them. Judicial

intervention is needed to protect the rights of the

students.

14

A. The restriction undercuts respect for the

beliefs of others—a fundamental civic

virtue that public schools can and should

cultivate.

Public education plays a critical role in preparing

young minds to exercise their own constitutional

rights and respect the rights of others. Rigorous

protection of constitutional liberties is essential to

preparing young people for citizenship, so that we do

not “strangle the free mind at its source and teach

youth to discount important principles of our

government as mere platitudes." W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 637 (1943). “The

vigilant protection of constitutional freedoms is

nowhere more vital than in the community of

American schools.” Shelton v. Tucker, 364 U.S. 479,

487 (1960).

This principle is nowhere more evident than in the

legal battles over religious expression in public

schools. As students learn how to implement First

Amendment principles, respect for others includes

"maintaining respect for the religious observances of

others,” “a fundamental civic virtue that government

(including the public schools) can and should

cultivate." Lee v. Weisman, 505 U.S. 577, 638 (1992)

(Scalia, J., dissenting). “At the core of the First

Amendment's right to free speech is the right of one

student to express a religious viewpoint to another

student without fear.” Morgan v. Swanson, 659 F.3d

359, 396 (6th Cir. 2011) (Elrod, J., dissenting)

(distribution of “candy cane pens” by elementary

schoolchildren to their classmates at holiday party).

An absolute ban on references to religion

15

misrepresents American history, truncates the

education provided to students, and “corrodes the civic

virtues that underlie the First Amendment.” Kennedy

IV, 4 F.4th at 936 (O’Scannlain, J., dissenting from

denial of rehearing en banc).

This case is not explicitly about religious speech,

although the pro-life movement implicates core

religious convictions about the sanctity of human life.

But the First Amendment broadly facilitates the free

flow of information and ideas. “The Nation’s future

depends upon leaders trained through wide exposure”

to a “robust exchange of ideas” that “discovers truth

out of a multitude of tongues” rather than

“authoritative selection.” Keyishian v. Board of

Regents, 385 U.S. 589, 603 (1967). The government

may not “contract the spectrum of available

knowledge." Bd. of Educ., Island Trees Union Free

Sch. Dist. v. Pico, 457 U.S. 853, 866 (1982), quoting

Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

This is particularly true in education, where students

are exposed to a broad range of subjects. Public

schools are not “enclaves of totalitarianism” and

“students may not be regarded as closed-circuit

recipients of only that which the State chooses to

communicate." Pico, 457 U.S. at 877 (Blackmun, J.,

concurring), quoting Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 511 (1969).

As one Ninth Circuit judge acknowledged in the

Bremerton proceedings, schools should “teach

[students] about the first amendment, about the

difference between private and public action, [and]

about why we tolerate divergent views.” Kennedy I,

869 F.3d at 837 n. 5 (Smith, J., concurring). Schools

16

can best accomplish that task by declining to censor

the private speech of students in an explicitly studentdriven extracurricular club.

B. Public school students must learn to

tolerate diverse viewpoints.

The School asserts a “pedagogical duty to create a

stable, neutral educational environment.” E.D., 151

F.4th at 917. But as Petitioners correctly argue,

suppression of core political speech shuts down “the

very kind of robust debate secondary schools should

encourage.” Ibid. Schools prepare students to live in a

free society, where no one can escape offense:

[T]he Constitution does not guarantee citizens

a right entirely to avoid ideas with which they

disagree. It would betray its own principles if

it did; no robust democracy insulates its

citizens from views that they might find novel

or even inflammatory.

Elk Grove v. Newdow, 542 U.S. at 44 (O'Connor, J.,

concurring). Even in public schools, the “prohibition of

a particular expression of opinion” demands “more

than a mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular

viewpoint.” Mahanoy Area School District v. B.L. 594

U.S. 180, 193 (2021), quoting Tinker, 393 U.S. at 509.

The “proudest boast” of American “free speech

jurisprudence” is its protection for “the freedom to

express ‘the thought we hate.’” Matal v. Tam, 582 U.S.

at 246, quoting United States v. Schwimmer, 279 U.S.

644, 655 (1929) (Holmes, J., dissenting). Exposure to

unwelcome ideas is the price of preserving American

17

freedoms. Americans must "develop thicker skin."

David E. Bernstein, Defending the First Amendment

From Antidiscrimination, 82 N.C. L. Rev. 223, 245

(2003). The School’s allegedly “neutral” atmosphere,

coupled with its blatant censorship on a matter of

urgent public concern, creates an unacceptable risk of

viewpoint discrimination.

“America’s public schools are the nurseries of

democracy,” where the free exchange of ideas “must

include the protection of unpopular ideas,” ensuring

that students understand “the well-known aphorism,

‘I disapprove of what you say, but I will defend to the

death your right to say it.’” Mahanoy, 594 U.S. at 190.

The extracurricular student-interest groups can

contribute to the free exchange of ideas, but only if the

School does not censor student speech. Rigorous

protection of constitutional liberties prepares young

persons for citizenship, so as not to “strangle the free

mind at its source and teach youth to discount

important principles of our government as mere

platitudes.” Barnette, 319 U.S. at 637. The First

Amendment will not tolerate “laws that cast a pall of

orthodoxy over the classroom.” Keyishian , 385 U.S. at

603.

It is a “critical part of a [teacher’s] job” to “affirm[]

the equal dignity of every student,” so as to create an

optimal learning environment. Erica Goldberg, “Good

Orthodoxy” and the Legacy of Barnette, 13 FIU L. Rev.

639, 666 (2019). But “students need to tolerate views

that upset them, or even disturb them to their core,

especially from other students, and perhaps even from

professors.” Ibid. Students must learn to endure

speech that is offensive or even false as “part of

18

learning how to live in a pluralistic society, a society

which insists upon open discourse towards the end of

a tolerant citizenry.” Lee v. Weisman, 505 U.S. at 590.

Students attending public school are exposed to “ideas

they find distasteful or immoral or absurd or all of

these.” Id. at 591. Students participating in NSFL

must be able to disseminate their pro-life views and

interact freely with others in the public school system.

CONCLUSION

This Court should grant the Petition and reverse

the Seventh Circuit ruling.

Respectfully submitted,

Deborah J. Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Tami Fitzgerald

NC Values Institute

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615