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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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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,
v,
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

i

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.

1.

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)?

li

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

10

10

12

16

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

iv

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

v

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

vi

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

1
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;

2

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.

3

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.

4

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

5

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).

6

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

7

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

8

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

9

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.

10
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

11

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.

12

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

13

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.

14

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

15

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.

16

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

17

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.

18

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

19

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

20

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.

a

21

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

22

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

23

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.

24

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).

25

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

26

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,

27

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-

28

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.

29

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

30

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
sponsored or endorsed by the school.

Further, while Curry argues that a Tinker analysis
or a limited forum analysis should apply to censorship
of student expression within the Classroom City
exercise, the United States, in its amicus brief urged
that the Hazelwood analysis governs. (R.32 Amicus
Curiae Brief). Had the Principal undertaken to research
the issue herself, the most analogous decision she would
have found would have been the case of DeNooyer v.
Livonia Public Schools, 799 F-Supp. 744 (E.D. Mich.
1992), aff’ d. sub. nom. DeNooyer v. Merinelli, Docket
No. 92-2080 (6th Cir. 1993). In DeNooyer, the plaintiff,
an elementary school student, wanted to use a video tape
of her singing a proselytizing song about accepting
Jesus as her Savior. The DeNooyer court began its First
Amendment analysis by finding that an elementary
classroom is a closed forum in which school authorities
may limit speech for reasons related to legitimate
educational concerns. In discussing the legitimate
concerns of the school district, the DeNooyer court said
as follows:

The Supreme Court gave examples of
permissible concerns. A school may ensure
that the participants learn the lesson that the

31

activity is required to teach, that students are
not presented with material inappropriate
with their level of maturity, and that students’
views are not mistakenly attributed to the
school.

Id. at 750. The DeNooyer court then cited the case of
Duran v. Nitsche, 780 F. Supp. 1048 (E.D. Pa. 1991) and
made the following point:

Further, in Duran, the court found that the
actions of the school authorities were based
upon reasonable pedagogical concerns, i.e.,
that the religious nature of the speech was
inappropriate for the level of maturity
students have reached in fifth grade. The
court held that it was reasonable for the school
not to want to take the substantial risk that
the student’s views would be erroneously
attributed to the school.

799 F. Supp. at 75).

The Student’s argument is premised upon the
standard articulated by the court in Tinker, supra. The
Principal took the position that the Hazelwood standard
applies . The Student also attempted to apply a forum
analysis “independent of the Tinker or Hazelwood analysis”
(R.34 Brief in Support of Motion Opposing Defendants’
Motion for Summary Judgment, Argument IV).

This Court has articulated at least three different
tests to be used in considering speech restrictions in
the academic arena. By its nature, Classroom City defied

“3

32

easy categorization as to the type of forum it created.
Therefore, a reasonable school administrator could not
be expected to identify the subtle distinctions that
differentiate one type of forum from another in
determining that result with the appropriate standard
that should be applied. According to the district court,
reasonable persons could view the nature of the
Classroom City environment in different ways. (R.50
Memorandum Opinion and Order, pg. 20; Apx. pg. 106).

In response to the Principal’s motion for summary
judgment based upon qualified immunity, the Student
simply made conclusory allegations that the law was
clearly established. He failed to point to decisional
authority that would have put the Principal on notice
that her conduct was unconstitutional.

CONCLUSION
For these reasons, this Court should deny review.

Respectfully submitted,

Mary Massaron Ross
PLUNKETT COONEY
Attorney for Respondent
535 Griswold, Suite 2400
Detroit, MI 48226

(313) 983-4801

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0181%3A2. Public record. Not legal advice.