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 parents and next friends,

MICHAEL DUELL and LISA DUELL, and

NOBLESVILLE STUDENTS FOR LIFE,

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

_________________________

BRIEF OF AMICI CURIAE

THE FAMILY FOUNDATION AND

CATHOLICVOTE.ORG EDUCATION FUND

IN SUPPORT OF PETITIONERS

_________________________

SCOTT W. GAYLORD

Counsel of Record

One University Parkway

High Point, NC 27268

(336) 841-2635

sgaylord@highpoint.edu

JOSHUA A. HETZLER

MICHAEL B. SYLVESTER

FOUNDING FREEDOMS

LAW CENTER

707 E. Franklin St.

Richmond, VA 23219

(804) 971-5509

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES…………………………….ii

INTERESTS OF AMICI…………………………………1

SUMMARY OF ARGUMENT… ................................. 2

ARGUMENT…………. ................................................ 5

I. Because NSFL is a student-run group, Hazelwood

does not apply, and NHS can prohibit the pictures

on NSFL’s proposed flyers only if NHS shows that

NSFL’s expression would substantially interfere

with school operations………………………………..5

II. The panel’s reliance on how a third party might

reasonably perceive non-curriculum-based student

speech is inconsistent with Johanns, Capitol

Square, and Shurtleff……………………………….16

CONCLUSION…………………………………………..24

ii

TABLE OF AUTHORITIES

Page

Cases

Am. Legion v. Am. Humanist Ass'n,

588 U.S. 29, 50 (2019)…………………………….18

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

496 U.S. 226, 250 (1990)……………………..17, 23

Bd. of Regents of Univ. of Wis. System v. Southworth,

529 U.S. 217, 229 (2000)……………………………….5

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675, 685-86 (1986)……………………….7

Capitol Square Review and Advisory Bd v. Pinette,

515 U.S. 753 (1995)…………2, 4, 18, 19, 20, 22, 23

Cornelius v. NAACP Legal Defense and Educ. Fund,

Inc., 473 U.S. 788, 799 (1985)………………………..14

E.D. v. Noblesville School District,

151 F.4th 907 (7th Cir. 2025)………………passim

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

2024 WL 1140919………………………8, 11, 13, 16

Good News Club v. Milford Central School,

533 U.S. 98, 119 (2001)……………………………18

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988)………………………….passim

Johanns v. Livestock Marketing Ass’n,

544 U.S. 550, 553 (2005)…………………..5, 19, 23

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507, 510 (2002)…………………..4, 18, 21

Keyishian v. Bd. of Regents,

385 U.S. 589, 603 (1967)………………………….15

Matal v. Tam, 582 U.S. 218, 235 (2017)…………….4, 7

Morse v. Frederick, 551 U.S. 393, 418 (2007)………6, 8

N.J. by Jacob v. Sonnabend,

37 F.4th 412, 423 (7th Cir. 2022)………………..12

iii

Pleasant Grove City v. Summum,

555 U.S. 460, 468 (2009)……………………5, 6, 17

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819, 833 (1995)……………………4, 5, 10

Schneider v. New Jersey, Town of Irvington,

308 U.S. 147, 163 (1939))…………………………14

Shelton v. Tucker, 364 U.S. 479, 487 (1960)…………15

Shurtleff v. City of Boston,

596 U.S. 243 (2022)……….4, 17, 19, 20, 21, 22, 23

Spence v. Washington, 418 U.S. 405, 411 n.4 (1974)..14

Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)..12

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

393 U.S. 503 (1969)…………………………..passim

United States v. Associated Press,

52 F. Supp. 362, 372 (S.D.N.Y. 1943)……………15

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 656 (1995)……………………………3

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

319 U.S. 624, 637 (1943)……………………………2

Walker v. Texas Div., Sons of Confederate Veterans,

Inc., 576 U.S. 200, 222, 232 (2015)……………2, 7, 22

Woolard v. Thurmond,

152 F.4th 1050, 1057 (9th Cir. 2025)…………….5

Rules

Supreme Court Rule 37.2………………………………...1

Supreme Court Rule 37.6………………………………...1

1

INTERESTS OF AMICI1

The Family Foundation (“TFF”) is a non-partisan

Virginia non-profit organization committed to

promoting strong family values in Virginia through its

citizen advocacy and education initiatives. As the

largest pro-family advocacy organization in Virginia,

TFF is committed to protecting and promoting free

speech for all, including students who seek to advance

pro-life and pro-family positions at public schools.

CatholicVote.org Education Fund (“CVEF”) is a

nonpartisan voter education program devoted to

serving the Nation by supporting educational

activities that promote an authentic understanding of

ordered liberty and the common good. CVEF is

committed to, among other things, safeguarding and

supporting student expression, such as the pro-life

flyers of Noblesville Students for Life (“NSFL”).

Given their missions, TFF and CVEF are deeply

concerned about the First Amendment issues

implicated by E.D. v. Noblesville Sch. Dist., 151 F.4th

907 (7th Cir. 2025). The panel’s opinion exacerbates

the three-way split among five other Circuits

regarding the proper scope of Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260 (1988). Aligning itself with

the Fifth and Tenth Circuits, the Seventh Circuit

invokes Hazelwood to divest students of their speech

rights on public school campuses whenever school

Each party received notice of the filing of this amici brief, as

required by Rule 37.2, and pursuant to Rule 37.6, amici state that

no counsel for a party authored this brief in whole or in part, and

no person other than the amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief.

1

2

officials believe certain student expression might

cause disruption or be erroneously attributed to the

school. Because this interpretation allows public

schools to censor passive, non-disruptive speech of

student-run groups whenever a passerby might

misattribute the group’s message to the school, it

directly conflicts with Tinker v. Des Moines Indep.

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

Square Review and Advisory Bd. v. Pinette, 515 U.S.

753 (1995). As a result, amici come forward to support

the right of all students to respectfully participate in

nondisruptive expression on school grounds regarding

important national and political issues even when—or

perhaps

especially

when—those

issues

are

controversial. W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624, 637 (1943) (“That [schools] 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.”).

SUMMARY OF ARGUMENT

The Seventh Circuit’s opinion elides the critical

distinction in the public school context between

student expression (which is subject to Tinker) and

school-sponsored, curriculum-based speech (which

falls under Hazelwood). Hazelwood, 484 U.S. at 271

and n.3 (noting the central distinction “between speech

that is sponsored by the school [as part of the school

curriculum] and speech that is not”); Walker v. Texas

Div., Sons of Confederate Veterans, Inc., 576 U.S. 200,

222, 232 (2015) (Alito, J., dissenting) (discussing the

distinction “between government speech (that is,

speech by the government in furtherance of its

3

programs)

and

governmental

blessing

(or

condemnation) of private speech”). Under the Seventh

Circuit’s capacious view of Hazelwood, school officials

can censor student speech on school property simply

by (i) opening up some portion of its property to

student-run groups (walls in certain parts of the

school), (ii) requiring these student-run groups to

apply to use the property for a temporary period (by

submitting flyers about student group meetings to the

administration for approval), and (iii) exercising

perfunctory review of student expression prior to

posting in the designated area (by having a faulty

member initial each flyer to show school approval).

Why? Because given “where and how E.D. sought to

display her flyers, they could reasonably be perceived

as bearing the school’s imprimatur.” 151 F.4th at 915;

Id. (claiming that the flyers “would naturally (and

perhaps inevitably) be seen by students, parents, and

visitors as reflecting the school’s endorsement”).

This broad reading is inconsistent with Hazelwood

and significantly trenches on the protection afforded

student expression under Tinker.

The schoolsponsored newspaper in Hazelwood was subject to the

school’s editorial control only because it was

“supervised by faculty members and designed to

impart particular knowledge or skills to student

participants and audiences.”

484 U.S. at 271.

Although students engaged in speech (e.g.¸ writing

articles), they did so in a journalism class, which was

part of the school’s overarching curriculum. As a

result, the newspaper was the expression of the school,

not the students. Vernonia Sch. Dist. 47J v. Acton, 515

U.S. 646, 656 (1995) (citing Hazelwood for the

proposition that “public school authorities may censor

4

school-sponsored publications, so long as the

censorship is ‘reasonably related to legitimate

pedagogical concerns’ ”); Rosenberger v. Rector and

Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)

(“When the University determines the content of the

education it provides, it is the University

speaking….”). Given that NSFL is a student-run club,

its speech falls outside Hazelwood and, contrary to the

Seventh Circuit, is fully protected under Tinker.

The panel opinion also is inconsistent with this

Court’s recognition in Capitol Square and Shurtleff v.

City of Boston, 596 U.S. 243 (2022) that the

government cannot bar private expression in a

designated limited or nonpublic forum simply because

some hypothetical viewer might erroneously attribute

that speech to the government.

Id. at 271-72

(“[P]rivate-party expression in any type of forum

recognized by our precedents does not constitute

government speech.”). This Court has rejected the

reasonable observer test in the religion context,

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 510

(2002), and should grant certiorari to prevent the

Seventh Circuit from importing that same ahistorical

standard into the public school speech context.

Erroneous attribution is just that—erroneous. Under

the Court’s forum cases, the non-curriculum-based

expression of a student-run group does not become

school-sponsored whenever an observer might wrongly

attribute the speech to the school. As a result, this

Court should grant certiorari and “exercise great

caution before” allowing the Fifth, Seventh, and Tenth

Circuits to “extend [Hazelwood]” beyond its narrow

protection of school-sponsored, curriculum-based

expression. Matal v. Tam, 582 U.S. 218, 235 (2017).

5

ARGUMENT

I.

Because NSFL is a student-run group,

Hazelwood does not apply, and Noblesville

High School can censor the pictures on

NSFL’s proposed flyers only if that student

expression substantially interferes with

school operations.

Under the government speech doctrine, Noblesville

High School (“NHS”) has the right to “speak for itself,”

Bd. of Regents of Univ. of Wis. System v. Southworth,

529 U.S. 217, 229 (2000), “say what it wishes,”

Rosenberger, 515 U.S. at 833, and “select the views

that it wants to express.” Pleasant Grove City v.

Summum, 555 U.S. 460, 468 (2009). When NHS

engages in its own expression, “the Free Speech

Clause has no application,” id. at 467, and the school

may discriminate based on content or viewpoint to

ensure that its desired message is conveyed. Johanns

v. Livestock Marketing Ass’n, 544 U.S. 550, 553 (2005)

(“[T]he Government’s own speech … is exempt from

First Amendment scrutiny.”). For example, when

school officials adopt NHS’s curriculum, publish

policies, correspond with parents, and post on NHS’s

website, the free speech clause (generally) does not

limit its expression. Woolard v. Thurmond, 152 F.4th

1050, 1057 (9th Cir. 2025) (“”[A] public school’s

curriculum is an ‘expression of its policy,’ and []

‘information and speech … present[ed] to school

children may be deemed to be part of the school’s

curriculum and thus School District speech.’ ”)

(citations omitted).

Hazelwood recognizes that government speech also

includes student expression that occurs within the

6

context of “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,” because “[t]hese activities may fairly be

characterized as part of the school curriculum.” 484

U.S. at 271. Even though students may engage in

expression when participating in school-sponsored,

curriculum-based activities (i.e., those that “are

supervised by faculty members and designed to impart

particular

knowledge

or

skills

to

student

participants”), the speech remains that of the public

school. Morse v. Frederick, 551 U.S. 393, 418 (2007)

(Thomas, J., concurring) (explaining how “the Court

made an exception to Tinker for school-sponsored

activities … creat[ing] a new standard that permitted

school regulations of student speech [in schoolsponsored activities] that are ‘reasonably related to

legitimate pedagogical concerns’ ”); Id. at 423 (Alito, J.,

concurring) (taking Hazelwood to “allow[] a school to

regulate what is in essence the school’s own speech,

that is, articles that appear in a publication that is an

official school organ”).

To fall within Hazelwood, though, the school itself

must be speaking—not merely permitting student

groups to engage in expression on parts of its property

opened for student speech. Summum, 555 U.S. at 469

(“While government speech is not restricted by the

Free Speech Clause, the government does not have a

free hand to regulate private speech on government

property.”). This distinction between school-sponsored

speech and a student’s own expression on school

grounds safeguards a school’s ability to control schoolsponsored speech that it fosters by and through its

7

curriculum while still “protect[ing] the marketplace of

ideas.” Walker, 576 U.S. at 207; Matal, 582 U.S. at 235

(“If private speech could be passed off as government

speech by simply affixing a government seal of

approval, government could silence or muffle the

expression of disfavored viewpoints.”). When the

speech is not part of the curriculum (such as the

expression of student-run groups like NSFL), however,

Tinker governs, protecting the students’ right to

“express[] their personal views on the school

premises,” Hazelwood, 484 U.S. at 266, whether “in

the cafeteria, or on the playing field, or on the campus

during the authorized hours.” Tinker, 393 U.S. at 51213.

This right, of course, must be understood “in light

of the special characteristics of the school

environment.” Id. at 506. But under this Court’s First

Amendment precedents, public schools can bar the

private expression of students in only three limited

circumstances, where (1) officials “have reason to

believe that such expression will ‘substantially

interfere with the work of the school or impinge upon

the rights of other students’,” Hazelwood, 484 U.S. at

266 (quoting Tinker, 393 U.S. at 509); (2) student

expression is “wholly inconsistent with the

‘fundamental values’ of public school education” or the

school’s “basic educational mission,” such as the

“sexually explicit” speech at the student assembly in

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 68586 (1986); or (3) student speech “would [be]

interpret[ed by a reasonable observer] as advocating

illegal drug use and … can[not] plausibly be

interpreted as commenting on any political or social

issue, including speech on issues such as ‘the wisdom

8

of the war on drugs or of legalizing marijuana for

medicinal use.’ ” Morse, 551 U.S. at 422 (Alito, J.,

concurring).

Unlike the school-run newspaper in Hazelwood,

the flyers in this case were the private expression of

NSFL, a student-run club, and were not part of any

school-sponsored, curriculum-based activity. As the

district court confirmed, student interest clubs like

NSFL “are student-driven and student-led” and,

therefore, unlike all other student groups at NHS,

which “are school sponsored and led by a schoolapproved adult who is actively involved in organizing

and running the group.” E.D. v. Noblesville Sch. Dist.,

2024 WL 1140919 at *2 (S.D. Ind. 2024). E.D. started

NSFL “ ‘to educate [NHS students] on the issue of

abortion and empower [them] to volunteer in the local

community with pregnancy-related items.’ ” Id. at *3

(citation omitted). NHS had no role in formulating

NSFL’s mission or its messaging. Moreover, the

proposed flyers included neither sexually explicit

expression nor implicated illegal drug use.

Undeterred, the Seventh Circuit concluded that

NHS had the authority to regulate NSFL’s flyers

because “they could reasonably be perceived as

bearing the school’s imprimatur,” 151 F.4th at 915,

even if that speech did not satisfy Tinker’s “substantial

disruption” standard. Id. at 913 (noting that the

Principal “reiterated that ‘posters cannot contain any

content that is political or that could disrupt the school

environment’ ”). According to the panel, Hazelwood

applies to any “situation[] where student speech might

reasonably be attributed to the school.” Id. at 916.

There are at least two problems with the Seventh

Circuit’s analysis, each of which warrants review.

9

First, the Seventh Circuit squeezes this case within

Hazelwood only by significantly narrowing Tinker. To

sidestep Tinker, the panel asserts that, given “where

and how E.D. sought to display her flyers, they could

reasonably be perceived as bearing the school’s

imprimatur” and that the “risk of mistaken attribution

is precisely the kind of institutional concern

[Hazelwood] addresses.” Id. at 915. But Hazlewood is

concerned only with school-sponsored, curriculumbased student expression being attributed to the

school, not the misattribution of speech by separate

student-run clubs. In drawing a distinction “between

speech that is sponsored by the school and speech that

is not,” 484 U.S. at 271 n.3, Hazelwood explained that

the former “concerns educators’ authority over schoolsponsored 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.” Id. at 271.

Attributing school-sponsored activities to the school is

reasonable because, as Hazelwood further clarified,

such activities “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 skill to student participants

and audiences.” Id.

The contrast with the present case is striking. The

newspaper in Hazelwood was school-sponsored and

school-run, being “part of the educational curriculum

and a ‘regular classroom activit[y]’ ” that “the

journalism teacher … ‘both had the authority to

exercise and in fact exercised a great deal of control

over.’ ” Id. at 268 (citation omitted). The teacher “was

10

the final authority with respect to almost every aspect

of the production and publication of [the newspaper],

including its content.” Id. at 268 (internal punctuation

and citation omitted). Among other things, the

journalism teacher selected the editors, assigned story

ideas, advised student writers, edited articles, chose

and edited letters to the editor, scheduled publication

dates, and dealt with the printing company. Id.

Because the newspaper provided “a supervised

learning experience for journalism students,” “school

officials were entitled to regulate the contents of [the

newspaper] in any reasonable manner.” Id. at 270.

When

implementing

a

school’s

curriculum,

“[e]ducators are entitled to exercise greater control …

to assure that participants learn whatever lessons the

activity is designed to teach, that readers or listeners

are not exposed to material that may be inappropriate

for their level of maturity, and that the views of the

individual speaker are not erroneously attributed to

the school.” Id. at 271.

Consistent with the government-speech doctrine,

school-sponsored,

curriculum-based

student

expression remains the speech of the school that

authorized and approved it. Rosenberger, 515 U.S. at

833 (“When the University determines the content of

the education it provides. … we have permitted [it] to

regulate the content of what is or is not expressed

when it is the speaker or when it enlists private

entities to convey its own message.”). Because such

speech is the school’s, school officials “retain the

authority to refuse to sponsor student speech that

might reasonably be perceived to … associate the

school with any position other than neutrality on

matters of political controversy.”

Id. at 272.

11

Accordingly, the ultimate rule adopted in Hazelwood

is that “educators do not offend the First Amendment

by exercising editorial control over the style and

content of student speech in school-sponsored

expressive activities so long as their actions are

reasonably related to legitimate pedagogical

concerns.” Id. at 273 (emphasis added).

This rule is inconsistent with the Seventh Circuit’s

holding because NSFL’s expressive activity was not

school-sponsored. Whereas all other student groups at

NHS “are school sponsored and led by a schoolapproved adult who is actively involved in organizing

and running the group,” student interest clubs (like

NSFL) “are created by students who want to gather

with other students who hold similar interest in a

particular subject.” E.D., 2024 WL 1140919 at *2.

Unlike their school-sponsored counterparts, student

interest clubs “are student-driven and student-led.”

Id. Although they have a faculty sponsor, “the adult

does not actively participate in the club.” Id. In fact,

the lower court opinions cite nothing in the record

indicating that NSFL’s expression was schoolsponsored or curriculum-based. Consequently, the

expression at issue was the private speech of NSFL

and, therefore, subject to Tinker.

Second, review is necessary to ensure that Tinker

continues to safeguard student expression in the Fifth,

Seventh, and Tenth Circuits. Like the armbands in

Tinker, the proposed flyers were passive,

nondisruptive expressions of NSFL’s views. As the

Seventh

Circuit

has

acknowledged,

Tinker

“[b]alanc[ed] the speech rights of students with the

need for school officials to set standards for student

conduct” and concluded that “restrictions on student

12

speech are constitutionally justified if school

authorities reasonably forecast that the speech in

question ‘would materially and substantially disrupt

the work and discipline of the school’ or invade the

rights of others.” N.J. by Jacob v. Sonnabend, 37 F.4th

412, 423 (7th Cir. 2022) (quoting Tinker, 393 U.S. at

513).

To restrict speech based on “substantial

disruption,” however, a school must ground its

decision on “more than a mere desire to avoid the

discomfort and unpleasantness that always

accompany an unpopular viewpoint” or an

“undifferentiated

fear

or

apprehension

of

disturbance.” Tinker, 393 U.S. at 508-09. Such

amorphous standards severely undermine the free

speech rights of students given that “[a]ny variation

from the majority’s opinion may inspire fear” and

“[a]ny word spoken, in class, in the lunchroom, or on

the campus, that deviates from the views of another

person may start an argument or cause a disturbance.”

Id. at 508; Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949) (“[A] function of free speech under our system

of government is to invite dispute…. It may strike at

prejudices and preconceptions and have profound

unsettling effects as it presses for acceptance of an

idea.”). Accordingly, “where there is no finding and no

showing that engaging in the forbidden [speech] would

‘materially and substantially interfere with the

requirements of appropriate discipline in the

operation of the school,’ the prohibition cannot be

sustained.” Tinker, 393 U.S. at 509.

NHS proffered no evidence that the proposed

pictures of students holding pro-life banners in front of

the Capitol building would substantially interfere with

the school’s operations. All NHS could muster were

13

statements from school officials that the pictures were

“political” and “could disrupt the school environment.”

E.D., 2024 WL 1140919 at *14. The same general

concerns motivated the school officials in Tinker, yet

this Court rejected them. Review is needed, therefore,

because NSFL’s proposed flyers, like the black

armbands in Tinker, were a form of “silent, passive

expression of opinion, unaccompanied by any disorder

or disturbance.” 393 U.S. at 508. As in Tinker, “[i]t is

also relevant that the school authorities did not

purport to prohibit the” expression of political

messages (including pro-life messages) on clothing,

buttons, or stickers on books or computers. Id. at 510.

In fact, “E.D. was permitted to form NSFL, promote it

at the student activities fair, and distribute materials

without limitation on what she could wear, say, or

hand out.” 151 F.4th at 917. Given the lack of any

evidence that such political messages had any effect,

let alone a substantial or material one, on the

functioning of the school, it is difficult to credit the

panel’s claim that “[t]he potential for such

misunderstanding—and for disruption—is greater

here than in” Hazelwood. Id.

The panel apparently took solace in the fact that

E.D. could express her views in other ways, being “free

to express her views and engage in debate during club

meetings and elsewhere on campus.” Id. The school

precluded only one form of expression—“[f]lyers

promoting a polarizing political slogan (‘Defund

Planned Parenthood’) and bearing an administrator’s

initials alongside school-sponsored postings”—that

the panel believed “could mislead observers into

thinking the school endorses that view.” Id.

14

Yet the availability of alternative avenues of

expression does not alleviate the constitutional

violation in this case: “ ‘[O]ne is not to have the

exercise of his liberty of expression in appropriate

places abridged on the pleas that it may be exercised

in some other place.’ ” Spence v. Washington, 418 U.S.

405, 411 n.4 (1974) (quoting Schneider v. New Jersey,

Town of Irvington, 308 U.S. 147, 163 (1939)). The

student protesters in Tinker also had other protected

means of expressing their views—e.g., wearing t-shirts

or meeting in a group to discuss their opposition to

Vietnam—but the Court focused only on the right of

the students to engage in their chosen form of

expression, wearing black armbands. It is small

consolation to NSFL that it can say what it wants

during its meetings when it is precluded from

conveying information about the group and its mission

to generate student interest in attending those

meetings. Cornelius v. NAACP Legal Defense and

Educ. Fund, Inc., 473 U.S. 788, 799 (1985) (“Although

the CFC does not entail direct discourse between the

solicitor and the donor, the CFC literature facilitates

the dissemination of views and ideas by directing

employees to the soliciting agency to obtain more

extensive information.”).

After all, “personal intercommunication among the

students … is also an important part of the

educational process.”

Tinker, 393 U.S. at 512.

Pictures on flyers (like black armbands) convey a

powerful message to a wider audience—all those who

view the flyers (or armbands)—and do so without

interfering with the educational mission of the school.

As a result, the First Amendment protects NSFL’s

expression:

15

In our system, students may not be regarded as

closed-circuit recipients of only that which the

State chooses to communicate. They may not be

confined to the expression of those sentiments

that are officially approved. In the absence of a

specific showing of constitutionally valid

reasons to regulate their speech, students are

entitled to freedom of expression of their views.

Id.; Keyishian v. Bd. of Regents, 385 U.S. 589, 603

(1967) (“ ‘The vigilant protection of constitutional

freedoms is nowhere more vital than in the community

of American schools.’ … The Nation’s future depends

upon leaders trained through wide exposure to that

robust exchange of ideas which discovers truth ‘out of

a multitude of tongues, (rather) than through any kind

of authoritative selection.’ ”) (quoting Shelton v.

Tucker, 364 U.S. 479, 487 (1960) and United States v.

Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y.

1943)).

The Fifth, Seventh, and Tenth Circuits expand the

scope of Hazelwood (and significantly narrow Tinker)

by removing Hazelwood’s requirement that the

regulated expressive activity be curriculum-based.

Under their revised standard, Tinker does not apply to

any student expression at the school—whether

curriculum-based or not—that “could mislead

observers into thinking the school endorses that view.”

151 F.4th at 917.

And the perception can be

reasonable, according to these Circuits, even if the

perception is erroneous, i.e., even if the expression is

that of an entirely student-run club like NSFL. Only

this Court can ensure that public school students

retain Tinker’s protection by confirming that

16

Hazelwood is limited to student speech that occurs as

part of a school-sponsored, curriculum-based activity.

II. The panel’s reliance on how a third party

might reasonably perceive non-curriculumbased student speech is inconsistent with

Johanns, Capitol Square, and Shurtleff.

Although NSFL’s expression was that of a studentrun group, the Seventh Circuit concluded that the

flyers fell within Hazelwood because of the threat of

misattribution: “[Given] where and how E.D. sought to

display her flyers, they could reasonably be perceived

as bearing the school’s imprimatur.” 151 F.4th at 915.

And this perception was reasonable, according to the

lower courts, even though it was erroneous, i.e., even

though the expression was that of an entirely studentrun club. E.D., 2024 WL 1140919 at *15 (“[I]t would

be reasonable for parents and other members of the

public … who observed such flyers displayed on school

walls to erroneously attribute any political messaging

they contained to the school district or the school itself,

despite the clubs[‘] being student-run.”).

This Court should grant certiorari and reverse the

Seventh Circuit’s analysis for at least three reasons.

First, as discussed above, the panel’s opinion directly

conflicts with Hazelwood. Hazelwood is expressly

limited to school-sponsored expressive activities—like

a newspaper created as part of a journalism course—

that are part of the school-approved and schoolcontrolled curriculum. Allowing school officials to

regulate student expression that is part of schoolsponsored curricular activities is meant to ensure that

schools can control their own curricular messages, not

permit schools to leverage the possibility of

17

misattribution to restrict the speech of student-run

groups. 484 U.S. at 271 (“Educators are entitled to

exercise greater control over [school-sponsored]

student expression to assure … that the views of the

individual speaker are not erroneously attributed to

the school.”).

Moreover, given that “secondary school students

are mature enough and are likely to understand that

a school does not endorse or support student speech

that it merely permits on a nondiscriminatory basis,”

parents and school visitors also can understand this

important distinction. Bd. of Educ. of Westside Cmty.

Sch. v. Mergens, 496 U.S. 226, 250 (1990); Id. (“The

proposition that schools do not endorse everything

they fail to censor is not complicated.”). To the extent

NHS is worried about the misattribution of studentsponsored expression, the school can avoid that

problem simply by posting a disclaimer where the

student flyers are displayed or sending a letter to

parents explaining that non-curriculum-based

expression of students and student clubs is not the

expression of NHS. Shurtleff, 596 U.S. at 266 (Alito,

J., concurring) (“The government can always disavow

any messages that might be mistakenly attributed to

it.”).

Second, this Court has never adopted a reasonable

observer standard for government speech in (or out of)

the school context. Justice Souter proposed such a

standard in Summum, but no other Justices joined his

concurrence. 555 U.S. at 487 (Souter, J., concurring)

(“[T]he best approach that occurs to me is to ask

whether a reasonable and fully informed observer

would understand the expression to be government

speech, as distinct from private speech the government

18

chooses to oblige by allowing the monument to be

placed on public land.”). In fact, this Court has now

rejected the long-criticized reasonable observer test in

the

religion

context:

“given

the

apparent

‘shortcomings’ associated with Lemon’s ‘ambitiou[s],’

abstract,

and

ahistorical

approach

to

the

Establishment

Clause—this

Court

long

ago

abandoned Lemon and its endorsement test offshoot.”

Kennedy, 597 U.S. at 534 (citation omitted); Am.

Legion v. Am. Humanist Ass'n, 588 U.S. 29, 50 (2019)

(“The test has been harshly criticized by Members of

this Court, lamented by lower court judges, and

questioned by a diverse roster of scholars.”). The

reasonable observer test “ ‘invited chaos’ in lower

courts, led to ‘differing results’ in materially identical

cases, and created a ‘minefield’ for legislators.”

Kennedy, 597 U.S. at 534 (quoting Capitol Square, 515

U.S. at 768-69 and n.3 (plurality opinion)). Consistent

with Kennedy, Hazelwood does not authorize schools

to wield “a ‘modified heckler’s veto, in which’ ” student

expression “ ‘can be proscribed’ based on ‘perceptions’

or ‘discomfort’,” id. (quoting Good News Club v.

Milford Central School, 533 U.S. 98, 119 (2001))—or,

as in this case, a school’s generic concern that student

speech includes “a polarizing political slogan” and

“would undermine that order and divert attention

from the business of learning.” Noblesville, 151 F.4th

at 917. Contrary to the Fifth, Seventh, and Tenth

Circuits, such student speech is governed by Tinker,

not Hazelwood.

Finally, allowing the government to bar the private

speech of a student group that otherwise has

permission to use a nonpublic forum because a viewer

might erroneously attribute that speech to the

19

government is inconsistent with Johanns, Capitol

Square, and Shurtleff. These cases confirm that

whether an observer views the expression at issue as

the school’s is neither necessary nor sufficient when

deciding if Hazelwood governs. It is not necessary

because, if a public school is speaking through its

curriculum-based activities, the speech is that of the

school regardless of to whom anyone attributes the

student expression. A visitor to Hazelwood East High

School, seeing a pile of Spectrum newspapers at the

entrance to the school, might pick one up and learn

that it is filled with articles that students wrote.

Absent any additional information, the visitor might

reasonably believe that Spectrum was an outlet for a

student-run group and, therefore, constituted student

expression.

But, for the reasons discussed in

Hazelwood, the visitor would be wrong.

The

newspaper was created as part of a journalism class,

being “supervised by faculty members and designed to

impart particular knowledge or skills to student

participants and audiences.” 484 U.S. at 271.

Johanns confirms that government speech

(curriculum-based or otherwise) is not predicated on

attribution. Many (perhaps most) people viewing the

government’s “Beef It’s What’s for Dinner” ad

campaign had no idea that the government created

and promulgated those ads. 544 U.S. at 577 and n.6

(Souter, J., dissenting) (explaining how labeling the

promotions as Funded by America’s Beef Producers

“all but ensures that no one reading the[ ads] will

suspect that the message comes from the” government

and how “even someone generally familiar with the

Beef Act and its taxation mandate might not recognize

the checkoff logo as signifying government

20

involvement”). Yet the Court explained that the

“correct focus is not on whether the ads’ audience

realizes the Government is speaking.” Id. at 564 n.7.

Rather, the expression was that of the government

“whether or not the reasonable observer would identify

the speech as the government’s.” Id.

Similarly,

Capitol

Square

and

Shurtleff

demonstrate that a third-party’s misattribution is not

sufficient to convert private speech into government

speech. If a student-run group posts a flyer in a forum

opened for such speech, an observer cannot transform

that expression into NHS’s speech by erroneously

attributing it to the school. Non-curriculum-based

student expression remains that of the student-run

group, not the school. Capitol Square applied this

principle in the Establishment Clause context. In

Capitol Square, the Court upheld a religious cross

display on a parcel of land next to the statehouse in

Columbus, Ohio that had been opened for public

expression. Those challenging the display adopted the

same argument as the Seventh Circuit in this case

(albeit in the religion context)—“that, because an

observer might mistake private expression for

officially endorsed religious expression, the State’s

content-based restriction is constitutional.” 515 U.S.

at 763 (plurality opinion).

The Court rejected this argument because there

was no threat of an Establishment Clause violation

where “[t]he State did not sponsor respondents’

expression, the expression was made on government

property that had been opened to the public for speech,

and permission was requested through the same

application process and on the same terms required of

other private groups.” Id. The fact that “outsiders or

21

individual members of the community uninformed

about the school’s practice … might leap to the

erroneous conclusion of state endorsement” was not

dispositive because, given a forum open to the kind of

speech at issue and “private sponsorship, erroneous

conclusions do not count.” Id. at 765. The plurality

expressly rejected the view “that the distinction

[between government and private speech] disappears

whenever private speech can be mistaken for

government speech.” Id.; Id. at 768 (“It has radical

implications for our public policy to suggest that

neutral laws are invalid whenever hypothetical

observers

may—even

reasonably—confuse

an

incidental

benefit

to

religion

with

state

endorsement.”); Kennedy, 597 U.S. at 535 (citation

omitted) (explaining that the Establishment Clause

does not “ ‘compel the government to purge from the

public sphere’ anything an objective observer could

reasonably infer endorses or ‘partakes of the

religious’ ”).

In Shurtleff, the Court held that the central inquiry

was the same as that in Hazelwood—“whether the

government intends to speak for itself or to regulate

private expression.” 596 U.S. at 252. In making that

determination, Shurtleff did not take “the public’s

likely perception as to who (the government or a

private person) is speaking” to be dispositive. 596 U.S.

243, 252 (2022). The City of Boston frequently allowed

private groups to raise their own flags on one of three

flagpoles outside Boston City Hall, which otherwise

flew the City’s flag. The City never refused a single

request until a religious group asked to fly the

Christian flag as part of a Constitution Day event at

the flagpole. Whether a viewer might attribute the

22

Christian flag to the government was only one of

several factors bearing on whether the City or the

private group was speaking through the particular

flag. While “the public seem[ed] likely to see the flags

as ‘conveying some message’ on the government’s

behalf,” others seeing “a group of private citizens

conducting a ceremony without the city’s presence

[might] associate the new flag with them, not Boston.”

Id. at 256 (quoting Walker, 576 U.S. at 212). Thus, the

key factor was “the extent to which the government

has actively shaped or controlled the expression.” Id.

at 252. Boston did neither, “lack[ing] … meaningful

involvement in the selection of flags or the crafting of

their messages.” Id at 258. As a result, the Court

concluded the private flags were government speech

even though some might erroneously attribute them to

Boston.

Although the context differs in this case, the free

speech inquiry is the same: who is speaking through

the flyers on NHS’s walls—NHS or the student-run

group? Shurtleff, 596 U.S. at 271-72 (“[P]rivate-party

expression in any type of forum recognized by our

precedents does not constitute government speech.”).

NHS opened part of its nonpublic forum (certain walls

in the school) to student expression (club flyers). NHS

did not sponsor NSFL’s expression; in fact, the

Seventh Circuit acknowledged that student interest

clubs are “student-initiated” and “student-led.” 151

F.4th at 911. Like the groups in Capitol Square and

Shurtleff, NSFL sought to post its flyers only in

locations that NHS opened for student-run groups,

and it sought permission through the normal, schoolestablished channels. That some parents or members

of the public might erroneously believe that NHS

23

sponsored or endorsed NSFL’s expression is irrelevant

because “erroneous conclusions do not count.” Capitol

Square, 515 U.S. at 765 (plurality opinion); Johanns,

544 U.S. at 564 n.7 (explaining that “the correct focus”

when determining whether the government is

speaking “is not on whether the … reasonable viewer

would identify the speech as the government’s.”).

Why? Because, “[u]nless the public is assumed to be

omniscient, public perception cannot be relevant to

whether the government is speaking, as opposed [to]

merely appearing to speak. Focusing on public

perception encourages courts to categorize private

expression as government speech in circumstances in

which the public is liable to misattribute that speech

to the government.” Shurtleff, 596 U.S. at 265-66

(Alito, J., concurring). Consequently, Hazelwood’s

discussion of what the public might “reasonably

perceive” does not authorize school officials to censor

non-curricular-based student expression, like NSFL’s

flyers. Mergens, 496 U.S. at 250 (recognizing “that

secondary school students are mature enough and are

likely to understand that a school does not endorse or

support student speech that it merely permits on a

nondiscriminatory basis”).

24

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari to safeguard the speech of

student-run clubs and to ensure that Hazelwood

remains limited to student expression that is part of

school-sponsored, curriculum-based activities.

Respectfully submitted,

SCOTT W. GAYLORD

Counsel of Record

One University Parkway

High Point, NC 27268

(336) 841-2635

sgaylord@highpoint.edu

Counsel for Amici Curiae

March 4, 2026

JOSHUA A. HETZLER

MICHAEL B. SYLVESTER

FOUNDING FREEDOMS

LAW CENTER

707 E. Franklin St.

Richmond, VA 23219

(804) 971-5509