Opposition Brief — Curry v. Hensinger (No. 08-190)

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No-687190 NOV 7 - 2008

IN THE

Supreme Court of the United States

JOEL CURRY, a minor by and through his parents

PAUL & MELANIE CURRY,

Petitioners,

IRENE HENSINGER,

Respondent.

ON PETITION FOR A Writ OF CERTIORARI TO THE

UNiTep States Court oF APPEALS

FOR THE SixTu Circuit

BRIEF IN OPPOSITION

—

me ee ee

Mary Massaron Ross

PLUNKETT COONEY

Attorney for Respondent

535 Griswold, Suite 2400

Detroit, MI 48226

(313) 983-4801

219331 g

COUNSEL PRESS

(800) 274-0321 * (800) 359-6859

QUESTIONS PRESENTED

Joel Curry created a candy cane with an explicitly religious

proselytizing message belatedly attached to it after its

approval for selling as a home-made product in a simulated

marketplace open to all elementary schvol students at

Handley School. The school principal declined to allow the

student to attach the religious proselytizing message to

the candy cane.

Did the Sixth Circuit err by holding that a public

elementary school principal’s determination that a

student could not engage in unsolicited religious

proselytizing speech as part of a graded classroom

assignment during instructional time was reasonably

related to legitimate pedagogical concerns and

therefore not violative of the First Amendment?

Did the Sixth Circuit err by holding that a student’s

unsolicited religious proselytizing speech engaged in

as part of a graded classroom assignment during

instructional time is subject to the standards of

Hazelwood School MNistrict v. Kuhlmeier, 484 U.S. 260

(1988), instead of those found in Tinker v. Des Moines

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

TABLE OF CONTENTS

QUESTIONS PRESENTED .......

TABLE OF CONTENTS ..............00000:

TABLE OF CITED AUTHORITIES

DME 80.6 occcnrincnnvececes

REASONS FOR DENYING THE PETITION ...

*enreerteee

I. Curry has not established that these

constitutional issues should be reviewed

SPIE wicdckddes vn skdcunbeedines

A. Contrary to Curry’s argument, no

conflict exists in the lower courts and

the issues should be allowed to

percolate before this Court

intervenes to resolve them. ........

Curry’s claim of per se discrimination

against religious speech was not the

focus of his argument on appeal and

was not directly ruled on below.

“eererevreeeeneneeeneeeneeeneeneeene eeeee eee

Despite Curry’s assertions to this

Court, the court of appeals decision

does not conflict with Department of

Education guidelines and this

argument was not presented or ruled

GE 6 hos hen oan oad toca as Ges

Page

iii

Contents

Page

D. The court of appeals’ decision is

GS dc clensevvnecksdbadadesees 19

E. Contrary to Curry’s argument, the

Hazelwood standard applies to

conduct or speech engaged in during

classroom instructional time when

that conduct or speech is engaged

in as part of a graded classroom

Rb nchavarcusGaateverses 23

FE A reversal in this case would not

change the outcome because

Principal Hensinger’s conduct was

protected with qualified immunity,

and the law was not clearly

EE: 500464 de ds0uy See kaeens 29

PPT CPT TET ETT TTT Teeter 32

Cited Authorities

Page

Federal Cases

Anderson v. Creighton,

a kg aise o's bein oes 29

Bethel School Dist. v. Fraser,

ET Se 13

Boroff v. Van Wert City Board of Educ.,

220 F.3d 465 (6th Cir.2000) ................. 13

Canady v. Bossier Parish School Board,

ae fF og. te % |) eee 13

Capital Square Review & Advisory Bd. uv. Pinette,

ee enc veces cece sees 12, 28

Chandler v. McMinnville School Dist.,

978 F.2d 524 (9th Cir.1992) ...........c000- »

Child Evangelism Fellowship of New Jersey,

Inc. v. Stafford Twp. School Dist.,

SOS Fee GAG Cis BIOG) nn. ccc cccccce 12

Coles v. Cleveland Bd. of Education,

171 F-3d 369 (6th Cir. 1999) ................ 22

Cited Authorities

Page

Curry v. Hensinger,

513 F.3d 570 (6™ Cir. 2008) .......... 11, 13, 14, 15

DeNooyer v. Livonia Public Schools,

799 F.Supp. 744 (E.D. Mich. 1992),

og FO ee Creer rr er 30, 31

DeNooyer v. Merinelli,

Docket No. 92-2080 (6th Cir. 1993) .......... 30

Duran v. Nitsche,

780 F.Supp. 1048 (E.D. Pa. 1991) ........... 31

Edwards v. Aguillard,

EE oc cdenaxeetnawanken 19, 23

Hazelwood School District v. Kuhlmeier,

eer passim

Henerey v. City of St. Charles,

200 F.3d 1128 (8th Cir.1999) ................ 13

Lemon v. Kurtzman,

Pe Sree 27

M.A.L. v. Kinsland,

2008 WL 4471097, 2008 U.S. App. LEXIS

21028, F3d__ (6 Cir. 2008) ............. 13

Morse v. Frederick,

551 U.S. _, 1278S. Ct. 2618 (2007) .......... 12

Cited Authorities

Page

Poling v. Murphy,

S72 F-2a 767 (Gth Cir. 1969) ........ccceces 21, 22

Rosenberger v. Rector & Visitors of the

Univ. of Virginia,

EE occ cuncecedeceececesess 24

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

SS 18

Settle v. Dickson County School Board,

53 F.3d 162 (6th Cir. 1995) ...........cceee. 29

Stone v. Graham,

CE ee 28

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

csc ccucceccceseceses passim

Walz v. Egg Harbor Twp. Bd. of Ed.,

342 F.3d 271 (3d Cir. 2003) ..........cceeee 20, 21

Widmar v. Vincent,

ee es cieredesesete 28

vii

Cited Authorities

Page

Constitutional Provisions

es care ncsstsedvvsececees passim

Fourteenth Amendment ..................... 5

Statutes

ie wedaneeeenesin Mle

Other Authorities

Guidance on Constitutionally Protected Prayer

in Public Elementary and Secondary Schools,

68 Fed. Reg. 9645 (Feb. 28, 2003) .... 16, 17, 18, 19

Rules

POG EEE Soe cevccdcvdcciessuredeses 5

STATEMENT

Joel Curry, a minor through his parents, Paul and

Melanie Curry, (hereinafter “the Student” or “Curry”)

sued the School District of the City of Saginaw and its

then-principal, Irene Hensinger (hereinafter “the

Principal”) claiming that his rights under the First

Amendment had been violated. (R. 1 Complaint). Curry

complained the school district and its principal had

unconstitutionally impeded his religious speech by

preventing him from attaching a religious proselytizing

message to candy canes that had been pre-approved for

sale without the message in a simulated marketplace

created for elementary students as part of a school

curriculum graded assignment. (/d.) Hensinger

contended that Curry’s constitutional rights had not

been violated, and in any event, that she was protected

by qualified immunity because her conduct did not

violate established statutory or constitutional rights

of which a reasonable person would have known.

(R. 22, Motion for Summary Judgment by all

Defendants). The district court ruled that Hensinger

and the School District for the City of Saginaw had

violated Curry’s rights but that Hensinger was

protected with qualified immunity because the law was

not clearly established. Curry appealed. The Court of

Appeals reversed the district court’s finding of a

constitutional violation and held that Hensinger’s

conduct was constitutionally permissible.

When filing their motion for summary judgment,

defendants adopted the joint statement of stipulated

facts submitted to the district court on January 14, 2005.

(R.15 Stipulation, Joint Statement of Facts;

Apx. pg. 59). In addition, they relied upon facts submitted

to the district court that same date a.iong with the

affidavit of Irene Hensinger. (R.18 Statement of

Resolved and Unresolved Issues). Hensinger’s affidavit

is consistent with the stipulated facts. She explained her

involvement as follows:

For several years, the Fifth Grade

curriculum at Handley School included an

event called Classroom City. Classroom City

is a multi-disciplinary project or unit which

involves teaching of literature, marketing,

civics, economics and math.

On the first day of the Classroom City

event in December of 2003, a teacher named

Lisa Sweebe informed me that a student

named Joel Curry was “selling” or distributing

candy cane ornaments with a writing attached

entitled, “The Meaning of the Candy Cane.”

I was given a copy of the writing. When I

reviewed the writing, I found it to be overtly

religious and proselytizing in nature.

Shortly thereafter, the teacher provided

me with a copy of some legal information from

Mrs. Curry which appeared to have been

printed off of the Internet. I reviewed the

information. I did not find the information to

be persuasive, because it did not focus upon

events occurring during instructional time.

I forwarded both the note with the

writing, “The Meaning of the Candy Cane”

and the Internet information to my supervisor,

Dr. John Norwood, Assistant Superintendent

for School Performance. Shortly thereafter, I

discussed the situation with Dr. Norwood.

Ultimately, I decided, with input from Dr.

Norwood, that the student, Joel Curry, would

not be allowed to distribute the writing, “The

Meaning of the Candy Cane” with the candy

cane ornaments he was “selling” at Classroom

City. In making this decision, I was concerned

about offending other students and parents,

actual and potential disruption of the

educational environment, and avoiding a

possible violation of the Establishment Clause.

I do not recall the “selling” or distributing

of overtly religious materials to have been in

issue at Handley School prior to the December

2003 Classroom City event.

In deciding not to allow the writing, “The

Meaning of the Candy Cane” to be distributed

by Joel Curry at the December 2003

Classroom City event, I was not referring to

or relying upon any written or unwritten

policy or custom or practice of the school

district. I am not aware of any policy or custom

or practice of the school district relating to

the distribution of overtly religious materials.

However, as a lawyer and a Principal, | was

very aware of the doctrine of separation of

church and state and wanted to avoid a

violation of the Establishment Clause.

I met with Mrs. Curry to discuss my

decision during the Classroom City event.

When I explained to her that the Classroom

City event was instructional time, she seemed

surprised.

Later, in April of 2004, I met again to

discuss this issue with Mr. and Mrs. Curry, and

a private attorney retained by the school

district, Mr. B.J. Humphreys..Mr. Humphrey’s

statements at the meeting supported my

decision that the distribution of the writing,

“The Meaning of the Candy Cane” was not

appropriate during instructional time.

To the best of my knowledge and

information, the issue of the distribution of

the writing, “The Meaning of the Candy

Cane” with the candy cane ornaments at

Classroom City was never brought to the

attention of either the Superintendent of

Schools or the Board of Education prior to the

filing of the Complaint in this case.

Joel Curry filed a complaint as a civil rights action

under 42 U.S.C. § 1983 seeking to enjoin the

defendants’ purported policy and practice of

discrimination against students who use religious

contents when responding to a class assignment.

(R.1 Complaint, 91; Apx. pg. 9). Curry alleged that he

was prohibited from “selling” candy cane ornaments with

an attached message explaining the religious origin of

the candy cane as part of a “Classroom City” simulation —

designed to teach students in his class how to be

contributing citizens of a town by participating in its

marketplace. (Jd.) In addition, he maintained that

defendants violated his right to freedom of speech by

censoring his candy cane ornament with its attached

religious message and that defendants violated the free

exercise and establishment clauses of the First

Amendment as well as his rights to due process and equal

protection of the law under the Fourteenth Amendment.

Arguing that the Student was unable to demonstrate

a constitutional violation and that she was cloaked with

que'ified immunity, the Principal moved for summary

judgment pursuant to Fed. R. Civ. P 56(c). (R.Z2 Motion

for Summary Judgment by All Defendants). She contended

that none of the actions complained of by the Student led

to the violation of his constitutional rights and that, even

if they did, she was entitled to qualified immunity where

her conduct did not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known (/d.)

Curry filed a cross motion for summary judgment

(R.25 Cross Motion for Summary Judgment by All

Plaintiffs). He challenged defendants’ ability to present a

specific showing of constitutionally valid reasons for the

regulation of his speech. (/d.) Curry also urged that, in

light of the jurisprudence affirming protection for proper

religious expression, censorship of religious speech, simply

because of its content, could not be a legitimate pedagogical

concern as a matter of fixed constitutional principle. (/d.)

In his brief in response to the defendants’ motion for

summary judgment, Curry disputed Hensinger’s assertion

of 4 qualified immunity defense (R.34 Brief in Support of

Motion Opposing Defendants’ Motion for Summary

Judgment).

The district court denied Curry’s cross motion for

summary judgment and granted the defendants’ motion

for summary judgment (R.50 Memorandum, Opinion and

Order; Apx. pg. 87). In so ruling, the district court found

that the defendants did not violate Joel Curry’s rights

under the free exercise clause of the First Amendment;

agreed that defendants abridged Joel Curry’s First

Amendment free speech rights; rejected Joel Curry’s claim

that the School District failed to train its personnel in

dealing with such issues or otherwise establish municipal

liability; and accepted Principal Irene Hensinger’s

argument that she was entitled to qualified immunity. (/d.)

The district court partly based its ruling on plaintiff’s

counsel’s acknowledgment that the main thrust of the case

was the alleged violation of First Amendment speech

rights, not his other theories. (R.50 Memorandum Opinion

and Order, pg. 13; Apx. pg. 99). The district court concluded

that defendants’ restriction of Joel Curry’s speech could

not be justified even under the more generous standard

provided in Hazelwood School Dist. v. Kuhlmeier, 484 U.S.

260 (1988). (R.50 Memorandum Opinion and Order, pg. 15;

Apx. pg. 101). the district court also ruled that the

defendants’ concern over an establishment clause violation

was not a valid reason to curtail Joel Curry’s speech rights.

(R.50 Memorandum Opinion and Order, pg. 24; Apx. pg.

110). For these and other reasons, the district court held

that Curry established a violation of constitutional rights

under the First Amendment’s free speech protection (/d.)

The district court held that the Student had

not proved a violation of the free exercise clause (R.50

Memorandum Opinion and Order, pg. 25; Apx. pg. 111);

had not demonstrated a violation of constitutional rights

based upon the due process clause (R.50 Memorandum

Opinion and Order, pg. 26; Apx. pg. 112); and that the court

need not address the equal protection claim given the

finding that the Student’s free speech rights under the

First Amendment were violated (R.50 Memorandum

Opinion and Order, pg. 25; Apx. pg. 111).

As for the availability of the qualified immunity defense

for the Principal, the district court indicated that it was a

question of whether the constitutional rights were clearly

established. The district court found that they were not

clearly established. Thus, the district court held that the

Principal was entitled to successfully assert a qualified

immunity defense:

In this case, the Court finds that the First

Amendment speech rights of a student to make

religious statements in a quasi-classroom setting

were not clearly established at the time of the

incident. As noted earlier, the Supreme Court

has articulated at least three different tests to

be applied to speech restrictions in the academic

arena. The nature of Classroom City defies an

easy categorization as to the type or form it

created, and therefore, the School administrator

reasonably could not be expected to identify the

subtle distinctions that differentiate one type

of forum that resulted or the appropriate that

should be applied.

(R.50 Memorandum Opinion and Order, pgs. 27-28;

Apx. pgs. 113-114). Observing that this appeared to be

precisely the type of case for which the qualified

immunity defense was intended, the district court

rendered judgment in favor of defendants. (R.50

Memorandum Opinion and Order, pg. 29; Apx. pg. 115;

R.51 Judgment; Apx. pg. 118).

Notably, the district court determined that the

Student’s request for declaratory and injunctive relief

against the School District for the City of Saginaw was

moot because Curry had graduated our of Hadley

Middle School in 2004. (Opinion and Order Granting

Defendants’ Motion for Summary Judgment and

Denying Plaintiffs’ Motion for Summary Judgment, Pet.

Apx. Pg. 38b). The court determined that the Student’s

damage claim saved the lawsuit from the mootness

challenge, but denied his request for declaratory and

injunctive relief. Jd. The district court then evaluated

whether the Student could succeed with his money

damage claim against the School District, and concluded

that he could not because the law of 42 U.S.C. § 1983

required a showing of either an unconstitutional policy

or practice on the school district’s part, or a showing

that the school district could be liable under a failure-

to-train theory. Jd. at 40b. The Student failed to raise a

fact question regarding any of these grounds for

imposing liability under 42 U.S.C. § 1983. The district

court also rejected the Student’s money damage claim

against the Principal because she was entitled to

qualified immunity. /d. at 40b.

The School District for the City of Saginaw did not

pursue an appeal. The Student appealed from the

judgment dismissing his claim against the Principal, and

the sole issue raised on appeal was whether the district

court erred in concluding that she was protected with

qualified immunity. The Principal urged the Court of

Appeals to affirm the judgment, arguing that it could

be supported by both prongs of the qualified immunity

analysis: 1) that she did not violate Curry’s

constitutional rights; and 2) that no clearly established

law would have told a reasonable person that the

complained-of conduct was unconstitutional.

The court of appeals determined that the Student’s

speech was made as part of school activities and thus,

the standard for restricting his speech was to be found

in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

(1988). Noting that the Student had evaded the formal

approval process by submitting the candy canes without

any religious attachment for the market survey and

approval process, the court reasoned that the decision

not to allow the attachment was based on the legitimate

pedagogical concerns. The court recognized a number

of such concerns including that allowing the card in that

setting could offend other children and subject younger

children to an unsolicited religious promotional message

during classroom time. The court emphasized in its

decision that schools have broad discretion to make such

judgments regarding speech in a classroom instructional

setting. Based on this, the court held that the Student’s

rights were not abridged. It therefore affirmed the

district court’s grant of summary judgment in favor of

the Principal.

REASONS FOR DENYING THE PETITION

I. CURRY HAS NOT ESTABLISHED THAT THESE

CONSTITUTIONAL ISSUES SHOULD BE

REVIEWED BY THIS COURT.

Curry, an elementary school student, contends that

this Court should grant review to consider whether the

court of appeals correctly held that a school principal

may exercise her discretion to prevent an elementary

school student from engaging in unsolicited religious

proselytizing speech as part of a classroom assignment

during instructional time because her determination was

reasonably related to legitimate pedagogical concerns.

Curry also urges this Court to consider whether an

elementary school principal’s decision regarding

whether to approve a student’s unsolicited religious

proselytizing speech engaged in as part of a classroom

assignment during instructional time is subject to the

standards of Hazelwood School District v. Kuhlmeier,

484 U.S. 260 (1988), instead of those found in Tinker v.

Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503 (1969).

Curry argues certiorari should be granted because

the decision conflicts with this Court’s decisions, allows

discrimination against religious speech, and deviates

from guidelines of the Department of Education on

students’ constitutional rights of religious speech. This

case was correctly decided below and, in any event, is a

poor candidate for review.

First, the case presents an issue of law that is not

well developed in the circuit courts of appeals. The

question of constitutionally permissible parameters for

school discretion regarding when to permit student

religious proselytizing speech in the classroom setting

should be allowed to percolate in the lower courts before

this Court accepts a case for review. Second, Curry’s

petition for certiorari focuses on a claim of discrimination

against religious speech (Petition for Writ of Certiorari,

pgs. 15-17), which was not the focus of his argument on

appeal and was not directly ruled on below. Curry v

Hensinger, 513 F.3d 570, (6 Cir. 2008) (“On appeal,

Plaintiff claims only a violation of the constitutional right

to freedom of speech”). Third, the Court of Appeals

decision is correct. Fourth, Curry’s effort to suggest the

Sixth Circuit decision conflicts with Department of

Education guidelines ignores the unique circumstance

that the speech at issue involved an unsolicited religious

proselytizing message, which would be presented during

classroom instructional time to early elementary school

students after it had been reviewed and approved by

the school. Fifth, Curry’s argument that the Sixth

Circuit applied the wrong standard in analyzing the

speech at issue here cannot be reconciled with this

Court’s repeated emphasis on preserving discretion for

local educational officials regarding speech in the

classroom setting that the public “might reasonably

perceive to bear the imprimatur of the school.”

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).

Sixth, even if Curry is correct about the legal standard

and constitutional rule of law, the outcome here will be

the same because the Principal would still be entitled

to the protection of qualified immunity because the law

governing speech in a classroom in these circumstances

was not clearly established.

A. Contrary to Curry’s argument, no conflict

exists in the lower courts and the issues

should be allowed to percolate before this

Court intervenes to resolve them.

The constitutionality of a public elementary school

principal’s determination that a student may not engage

in unsolicited religious proselytizing speech as part of a

classroom assignment during instructional time is a

novel and important issue of law. But the intermediate

federal appellate courts and state appellate courts have

not yet grappled with the issue sufficiently to allow this

Court the benefit of their thinking. Absent time for the

issue to percolate, this Court will be in the position of

deciding the issue without the benefit of this process.

Rather than point to conflicting decisions, Curry relies

on a series of decisions involving speech made outside

the context of graded classroom assignments to support

his argument that the court of appeals erred. (Petition

for Writ of Certiorari, pg. 10 citing Capitol Share Review

Advisory Bd. V. Pinette, 505 U.S. 753 (1995) (involving

question of unattended cross on grounds of state capital

and not student conduct or speech in a school setting).

Curry cites some decisions in the school setting, but

they involve public or limited public forums in a school

outside the classroom setting. See, e.g., (Petition for Writ

of Certiorari, pgs. 22-23 citing Morse v Frederick, 551

U.S. _, 127 S. Ct. 2618 (2007) and Child Evangelism

Fellowship of New Jersey, Inc. v. Stafford Twp. School

Dist., 386 F.3d 514 (3 Cir. 2004). Curry’s approach

underscores the absence of a conflict in the decisions of

lower courts or of this Court. And while the parameters

of appropriate school discretion in the context of the

classroom instructional setting arguably remains hazy,

this stems from the fact-based analysis that this Court

has historically applied and the distinctions between

categories of speech regulation in schools, not from a

conflict in the lower courts. The level of scrutiny applied

to regulations of student expression depends on the

substance of the message, the purpose of the regulation,

and the manner in which the message is conveyed. See

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260

(1988); Bethel School Dist. v. Fraser, 478 U.S. 675 (1986);

Tinker v. Des Moines Indep. Community School Dist.,

393 U.S. 503 (1969). See also Boroff v. Van Wert City

Board of Educ., 220 F.3d 465, 467-71 (6th Cir.2000)

(analyzing the Supreme Court’s decisions in Tinker,

Fraser, and Kuhlmeier); Henerey v. City of St. Charles,

200 F.3d 1128, 1132 (8th Cir.1999) (comparing the level

of scrutiny applied Tinker in and Hazelwood); Chandler

v. McMinnville School Dist., 978 F.2d 524, 527-29 (9th

Cir.1992) (analyzing the distinctions between the

Supreme Court’s decisions in Tinker, Fraser, and

Kuhlmeier). Compare Curry v. Hensinger, 315 F.3d 570

(6 Cir. 2008) with M.A.L. v. Kinsland, 2008 WL

4471097, 2008 U.S. App. LEXIS 21028, F.3d

(6" Cir. 2008) and Canady v. Bossier Parish School

Board, 240 F.3d 437 (5" Cir. 2001). No conflict exists. In

addition, this Court will benefit from allowing these

issues to further percolate in the lower courts before it

grapples with them.

B. Curry’s claim of per se discrimination against

religious speech was not the focus of his

argument on appeal and was not directly

ruled on below.

Curry’s petition for a writ of certiorari alters the

focus of his claim. The district court pointed out in its

opinion that “during oral argument on the motion

{for summary judgment], the plaintiffs’ attorney

acknowledged that the main thrust of the case was the

alleged violation of the boy’s First Amendment speech

rights.” (R.50 Memorandum Opinion and Order, pg. 13).

The district court later announced that Curry’s focus

was not religious or viewpoint discrimination but free

speech:

The plaintiffs also de-emphasized their equal

protection claim at oral argument. They have

pointed to no law, regulation, statute,

ordinance, or regulation that was applied

unequally to Joel Curry in this case.

Id. at pg. 25. Not only was this discrimination claim de-

emphasized, but the district court declined to rule on it:

Given the finding that the plaintiffs’ free

speech rights under the First Amendment

were violated, the Court need not address the

Equal Protection claim.

Id. On appeal, Curry challenged the district court’s

determination that the Principal was protected with

qualified immunity. Curry v Hensinger, 513 F.3d 570 (6"

Cir. 2008). Curry did not appeal as to the school district

or challenge the district court’s failure to decide his equal

protection claim. Nor did Curry argue in the Sixth Circuit

that the First Amendment bars the discriminatory

exclusion of religious viewpoints as such. At best, Curry

mentioned the word “discrimination” in passing in the

course of discussing whether the decision not to allow the

religious message served a pedagogical purpose.

(Appellant’s Brief, pgs. 23-26).

But in his petition for a writ of certiorari, Curry’s focus

has changed. He now urges review because it was error to

“hold that a public elementary student’s religious speech

presented in response to, and in compliance with, a class

assignment, may be categorized as per se ‘offensive’

because it is religious. .. .” (Petition for a Writ of Certiorari,

pg. i). And Curry’s argument is squarely predicated on a

claim of the “discriminatory exclusion of religious

viewpoints as such.” /d. at pgs. 15-19.

Not only is this argument newly raised, but it is

inconsistent with a nuanced view of the facts. The parties

stipulated to the fact that Curry was obligated to obtain

approval for his product, and to engage in a market survey.

At the time he did so, he failed to include the card with the

religious message or alert the school that it had been

added to the candy canes before their sale. Curry v

Hensinger, 513 F.3d 570, 574-575 (6 Cir. 2008). Curry’s

per se discrimination argument is not well-developed since

it was never presented below. This case is a poor candidate

for review of that issue given the lack of developed

appellate record, and the fact that Curry’s proposed

speech, the candy cane with the religious card, failed to

meet the school’s standards since he had not done a market

survey with the religious ecard, but added it after-the-fact

contrary to the requirements of the assignment.

C. Despite Curry’s assertions to this Court, the

court of appeals decision does not conflict

with Department of Education guidelines and

this argument was not presented or ruled on

below.

Curry also argues that the court of appeals’ decision

conflicts with the standards of the U.S. Department of

Education, as set forth in Guidance on Constitutionally

Protected Prayer in Public Elementary and Secondary

Schools, 68 Fed. Reg. 9645 (Feb. 28, 2003). Curry reads

the Guidance standards to bar use of pedagogical

concerns to excuse “censorship” of students’ religious

speech. This argument misconstrues both the standards

upon which Curry relies and their application to the facts

of this case. The “Prayer During Noninstructional

Time” standard provides that school authorities may not

structure rules of order and pedagogical restrictions to

discriminate against religious speech in noninstructional

time.

Students may pray when not engaged in

school activities or instruction, subject to the

same rules designed to prevent material

disruption of the educational program that

are applied to other privately initiated

expressive activities. Among other things,

students may read their Bibles or other

scriptures, say grace before meals, and pray

or study religious materials with fellow

students during recess, the lunch hour, or

other non-instructional time to the same

extent that they may engage in nonreligious

activities. While school authorities may

impose rules of order and pedagogical

restrictions on student activities, they may not

discriminate against student prayer or

religious speech in applying such rules and

restrictions.

Guidance, 68 Fed. Reg. at 9647. This standard embodies

the constitutional requirement that student religious

speech must be allowed to the same extent as other

speech during recess, lunch hour, and other non-

instructional time.

This non-instructional-time standard does not apply

to this case. The Classroom City event where the

religious card was presented was indisputably

considered instructional time. (Affidavit of Irene

Hensinger, {1 10-11). Thus, Curry is wrong that the

court of appeals decision conflicts with the standard

insofar as this one is concerned.

Curry also relies upon the “Religious Express and

Prayer in Class Assignments,” standard, which allows a

student to be graded on legitimate pedagogical concerns

identified by the school.

Students may express their beliefs about

religion in homework, artwork, and other

written and oral assignments free from

discrimination based on the religious content

of their submissions. Such home and

classroom work should be judged by ordinary

academic standards of substance and

relevance and against other legitimate

pedagogical concerns identified by the school.

Thus, if a teacher’s assignment involves

writing a poem, the work of a student who

submits a poem in the form of a prayer (for

example a psalm) should be judged on the

basis of academic standards (such as literary

quality) and neither penalized nor rewarded

on account of its religious content.

Guidance, 68 Fed. Reg. at 9647. To be sure, this

standard comes closer to the facts of this case. But the

standard encompasses the requirement that whether

religious content is allowed must be judged “by ordinary

academic standards of substance and relevance and

against other legitimate pedagogical concerns identified

by the school.” /d.

The court of appeals’ opined that the Principal’s

decision to prevent the Student from attaching the cards

to the candy canes was based on a valid pedagogical

concern, namely, to avoid having its curricular event

offend other children or their parents and to avoid

subjecting young children to an unsolicited religious

promotional message while they were essentially a

captive audience participating in a classroom activity.

Compare with Santa Fe Ind. Sch. Dist. v. Jane Doe, 540

U.S. 290, 302-304 (2000). This opinion notes a key factual

difference between the factual posture of this case and

that which the standard addresses — the Classroom City

event was not simply a graded assignment. It was an

instructional, curricular event that required the

student’s work to be exhibited and sold at a school

sponsored marketplace to other students. This factual

difference raises a pedagogical concern of exposing

students, their parents, and other young children to an

unsolicited religious promotional message at a school-

sponsored curricular event, potentially disrupting the

educational environment. This Court has recognized the

validity of these concerns in the context of expressing

religious views in the classroom. See Edwards v.

Aguillard, 482 U.S. 578, 584 (1987) (“Families entrust

public schools with the education of their children, but

condition their trust on the understanding that the

classroom will not purposely be used to advance religious

views that may conflict with the private beliefs of the

Student and his or her family.”).

Curry’s reliance upon the Guidance standard as

creating a conflict with a court of appeals opinion

regarding unsolicited religious messages at a school

sponsored event is, therefore, misplaced.

D. The court of appeals’ decision is correct.

The court of appeals properly concluded that

Principal Hensinger was entitled to qualified immunity

because she did not violate petitioner’s First

Amendment rights under the Hazelwood standard,

which applies to speech by a student in a closed forum

of an elementary school classroom. The court of appeals

properly concluded that the Principal did not violate the

Student’s First Amendment rights when she disallowed

him to belatedly add a religious proselytizing message

to a product to be sold to elementary school students

during classroom time.

The Classroom City exercise was a part of the

curriculum and an elementary school setting is a closed

forum. The closed forum determination rests not only

on the elementary school setting, but also exists by

virtue of the fact that the teacher previewed and

approved all of the products to be sold by the students

during the Classroom City event. In Walz v. Egg Harbor

Twp. Bd. of Ed., 342 F.8d 271 (8d Cir. 2003), an

elementary school student brought a First Amendment

freedom of speech claim after he was prohibited from

distributing candy canes with an attached “religious

story, entitled “A Candy Maker’s Witness.” The story

was similar to the card in the instant case in that it

described the candy cane as Christian symbolism but

the story in Walz had more of a historical context. Mrs.

Walz checked with the school district in advance of the

holiday party and requested that her son, Daniel, be

allowed to distribute the candy canes with story

attached.' Mrs. Walz was “informed that Daniel could

distribute the candy canes and the attached story to

his classmates, but only before school, or after school,

not during the classroom party itself.” 342 F.3d at 274.

The Walzs then filed suit.

The Walz court followed Hazelwood emphasizing the

need to afford leeway to local school officials. 342 F.3d

at 277-278. The court went on to find that a school

district may reasonably act to prevent proselytizing

speech in a classroom setting. The court recognized a

difference between speech as personal expression and

speech to promote religion in the school setting:

Context is essential in evaluating student

speech in the elementary school setting.

1. The Currys, on the other hand, gave the School District

no advance warning regarding the issue, despite the fact that

Mrs. Curry had attended a seminar on the issue and knew that

the distribution of the cards would raise an issue.

It would seem reasonable that student

expression may implicate religion if done out

of personal observance as opposed to outward

promotion. There is a marked difference

between expression that symbolizes individual

religious observance, such as wearing a

cross on a necklace, and expression that

proselytizes a particular view.

Id. at 278-279. The Walz court reiterated its concerns

regarding speech intended to proselytize in the explicit

holding of the case:

In short, Daniel Walz was not attempting to

exercise a right to personal religious

observance in response to a class assignment

or activity. His mother’s stated purpose was

to promote a religious message through the

channel of a benign classroom activity. In the

context of its classroom holiday parties, the

school’s restrictions on this expression were

designed to prevent proselytizing speech that,

if permitted, would be at cross-purposes with

its education goal and could appear to bear

the school’s seal of approval.

Id. at 280-281. Those concerns apply here.

The Sixth Circuit has also applied the Hazelwood

standard in the First Amendment freedom of speech

case of Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989).

In Poling, the court stated that limitations on speech

may be proper in the school context even where they

would be unconstitutional in a non-school setting. The

court observed that school officials retain control of the

public school system including as to speech that would

be protected elsewhere. 872 F.2d at 762. The court went

on to find that the decision of school officials to prohibit

Dean Poling from participation in the school election was

justified by the legitimate pedagogical concern of

teaching civility. The decision was based on the need to

provide “wide latitude” to local school officials. 872 F.2d

at 762-763. Applying the Hazelwood standard, the court

concluded that the decision of school officials to disallow

the speech was reasonably related to a legitimate

educational concern and, therefore, proper. The

Hazelwood standard does not compel defendants to

show actual, material and substantial disruption of the

school environment. Rather, school officials may be

found to have acted reasonably when acting to avoid

disruption of the educational environment, to avoid

offending other students, and to avoid violations of the

establishment clause. Coles v. Cleveland Bd. of

Education, 171 F.3d 369, 377 (6th Cir. 1999).

The Principal sought to prohibit distribution of

overtly religious proselytizing material as part of a

graded curricular assignment during classroom time so

as to avoid disrupting the educational environment,

offending other students, or violating the establishment

clause. She did not regulate speech due to the viewpoint

expressed. Rather, she regulated the speech so as to

avoid disruption of the educational environment and to

protect the rights of all. The Principal’s decision with

input from Mr. Norwood, was reasonably tailored, and

reasonably related to legitimate pedagogical concerns.

The Principal disallowed distribution of religious

literature which was proselytizing in nature during

instructional time because she was concerned about

offending other students, the actual and potential

disruption of the educational environment, and in

avoiding a possible violation of the establishment clause.

As the Sixth Circuit properly pointed out, “the school’s

desire to avoid having its curricular event offend other

children or their parents, and to avoid subjecting young

children to an unsolicited religious promotional message

that might conflict with what they are taught at home

qualifies as a valid educational purpose.” Opinion at 15a-

16a, citing Edwards, 482 U.S. at 584. This evaluation of

a legitimate pedagogical concern falls within the

Principal’s discretion as a school administrator and, as

the Sixth Circuit properly concluded, did not violate any

right the Student enjoyed under the First Amendment.

E. Contrary to Curry’s argument, the Hazelwood

standard applies to conduct or speech

engaged in during classroom instructional

time when that conductor speech is engaged

in as part of a graded classroom assignment.

This Court has recognized a continuum of speech in

or on the premises of a school. Student speech that

happens to occur on the school premises is governed by

this Court’s opinion in Tinker v. Des Moines

Independent School Dist., 393 U.S. 503 (1969). This is

pure student speech. It must be tolerated by the school

“unless schoo] authorities 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, supra, at 266, quoting Tinker,

supra, at 509.

Under Tinker, pure student speech may be

prohibited if it materially and substantially interferes

with the needs of school discipline, substantially

interferes with the work of the school, or impinges upon

the rights of other students, 393 U.S. at 509. In Tinker,

the Court held that a student could wear a black arm

band to school to protest the Vietnam War. Central to

the holding of Tinker was the fact that wearing the arm

band would not substantially interfere with the work of

the school or impinge on the rights of other students.

393 U.S. at 509. The Court specifically limited the reach

of its holding by noting that a school can limit otherwise

protected speech if it does so as part of a prescribed

classroom exercise:

Accordingly, we conclude that the standard

articulated in Tinker for determining when a

school may censor a student expression need

not also be the standard for determining when

a school may refuse to lend its name and

resources to the dissemination of student

expression. Instead, we hold 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. The opposite of student-sponsored speech is

government speech. For example, that occurs when the

principal speaks at a school assembly. When the

government itself is the speaker, it may make viewpoint-

based choices and choose what to say and what not to

say, Rosenberger v. Rector & Visitors of the Univ. of

Virginia, 515 U.S. 819, 833 (1995).

Between pure student speech and government

speech is school-sponsored speech which is governed

by Hazelwood, supra. School-sponsored speech is

student speech that a school affirmatively promotes as

opposed to speech that it tolerates. Hazelwood, at 270-

271. Expressive activities that students, parents, and

members of the public might reasonably perceive to

bear the imprimatur of the school constitute student-

sponsored speech over which the school may exercise

editorial control so long as its actions in doing so are

reasonably related to legitimate pedagogical concerns.

Id. at 273.

This Court has drawn a distinction between

personal expression that happens to occur on school

premises and expressive activities that are sponsored

by the school and may fairly be characterized as part of

the school curriculum. Hazelwood, supra. Speech

sponsored by the school is subject to greater control by

school authorities than speech not so sponsored because

educators have a legitimate interest in assuring that

participants in the sponsored activity “learn whatever

lessons the activity is designed to teach...” Id. As long

as the actions of the educators are reasonably related

to legitimate pedagogical concerns, the Hazelwood court

held that educators do not offend the First Amendment

by exercising editorial control over the style and content

of the student’s speech in school sponsored expressive

activities.

In Hazelwood, this Court ruled that a school could

contro) the style and content of student-authored

articles published in the student newspaper. The Court

first engaged in a forum analysis in order to determine

the level of scrutiny required to evaluate the school’s

actions. There are three types of forums: traditional

public forums, limited public forums, and closed forums.

Traditional public forums include areas, such as

streets and parks, which have been used for purposes

of assembly, communicating thoughts between citizens,

and discussing public questions. Limited public fo-ums

are those created by the state when it opens its property

for expressive activity. The government may only restrict

speech in public forums or limited public forums if the

restriction is necessary to serve a compelling state

interest and is narrowly drawn to achieve that end.

Those state facilities which have not been dedicated to

public use but have instead been reserved for other

purposes are closed forums. The state may impose

reasonable restrictions on speech in closed forums.

Schools are not traditional public forums,

Hazelwood, supra, at 267. However, school officials may

create a limited public forum if, by policy or practice,

they open the school for indiscriminate use by the public.

In Hazelwood, the Court held that school officials did

not intend to open the school newspaper as a public

forum for indiscriminate use by student reporters or

editors or by the school body generally. Following

Hazelwood, other courts have found that classrooms are

not public forums if there is no evidence that school

authorities have opened them for indiscriminate public

expression.

If a student asserts the right to speech in a closed

forum, the school authorities may regulate the content

of the speech in any reasonable manner, //azelwood,

supra, at 270. In addition to holding that speech in the

closed forum of a classroom can be regulated in any

reasonable manner, Hazelwood recognized that school-

sponsored speech that is part of the curriculum may also

be reasonably regulated. On that point, the Hazelwood

Court distinguished the Tinker holding as follows:

The question whether the First Amendment

requires a school to tolerate particular

student speech - the question that we

addressed in Tinker - is different from the

question whether the First Amendment

requires a school affirmatively to promote

particular student speech. The former

question addresses educators’ ability to

silence a student’s personal expression that

happens to occur on the school premises. The

latter question concerns educators’ authority

over 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...

The contours of a student’s activity that are protected

by the First Amendment are defined in the school

context by Tinker and Hazelwood and their progeny.

Courts have struggled over determining the type of

speech involved and the governing test. Tinker and

Hazelwood coexist.

In large part, Ms. Hensinger worried about violating

the establishment clause. In Lemon v. Kurtzman, 403

U.S. 602 (1971), the Supreme Court articulated a three-

part test to decide if a government-sponsored activity

offends the establishment clause. Thereunder, a

government-sponsored activity will not violate the

establishment clause if (1) it has a secular purpose,

(2) its principal or primary effect neither advances nor

inhibits religion, and (3) it does not create an excessive

entanglement of the government with religion. If the

challenged practice fails any part of the three-part test,

it violates the establishment clause, Stone v. Graham,

449 U.S. 39, 40-41 (1980). Whether a particular state

action endorses religion depends upon how a reasonable

observer would interpret the action, Capital Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779-

780 (1995).

This Court has said that, a state interest in avoiding

an establishment clause violation may be characterized

as compelling and, therefore, may justify content-based

discrimination, Widmar v. Vincent, 454 U.S. 263, 27.

(1981). This fact underscores the propriety of the

Principal’s conduct. Allowing religious proselytizing as

part of classroom instructional time in an elementary

school raises serious establishment clause concerns.

Given the approval process, the fact that the speech

would have been engaged in during classroom

instructional time, and the context of it in an elementary

school, the local school principal had discretion to decide

that religious (or anti-religious) messages would not be

permitted.

F. A reversal in this case would not change the

outcome because Principal Hensinger’s

conduct was protected with qualified immunity,

and the law was not clearly established.

Finally, certiorari should be denied because a

reversal in this case will not change the outcome. The -

Principal is protected with qualified immunity, and even

if this Court were to conclude that her decision regarding

the candy canes amounted to a violation of the free

speech clause of the First Amendment, she would still

be cloaked with immunity because the contours of the

right were not clearly established. See Anderson v

Creighton, 483 U.S. 635 (1987).

It is true, to be sure, that students do not shed their

constitutional rights to freedom of speech or expression

at the schoolhouse gate and that school officials do not

possess absolute authority over their students. Tinker,

supra, at 503-506, and 511. That notion was well honored

by the Principal. She acted reasonably and prudently

throughout. But if her exercise of discretion regarding

the candy cane is deemed to give rise to a constitutional

violation, the law on this point was not clearly

established. Curry does not cite decisions from this

Court or the Sixth Circuit or any other circuit deciding

that speech such as this is constitutionally protected in

an elementary school as part of a graded classroom

project.

As evidence of the difficulty in ascertaining the

proper test, there is the discussion in Settle v. Dickson

County School Board, 53 F.3d 152 (6th Cir. 1995). The

issue before that court concerned whether a teacher

violated the free speech rights of one of her ninth grade

students by refusing to accept a research paper entitled

“The Life of Jesus Christ” and by giving the student a

zero for failing to write on another topic. In a concurring

opinion, Judge Batchelder offered that, if there were a

First Amendment issue, it would fall somewhere in

between Hazelwood and Tinker as a form of student

expression allowed under the school curriculum but not