Amicus Curiae Brief — Morse v. Frederick

TH & & 7X

No. 06-278

In The

Supreme Court of the Anited States

¢

DEBORAH MORSE, et a/.,

Petitioners,

v.

JOSEPH FREDERICK,

Respondent.

+

On Writ of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

ee

BRIEF OF THE LIBERTY LEGAL

INSTITUTE AS AMICUS CURIAE IN

SUPPORT OF RESPONDENT

— +

DOUGLAS LAYvCOCK KELLY J. SHACKELFORD

UNIVERSITY OF MICHIGAN Counsel of Record

H25 S. State St. HikAM S. SASSER, [TI

Ann Arbor, ME 18109 LIBERTY LEGAL INSTITUTE

(734) 647-9715 903 BE. 18th St.. Suite 250

Plano, TX 75070

ROBERT A, DeESTRO (972) 423-3131

COLUMBUS SCHOOL OF LAW

The CATHOLIC UNIVERSITY

OF AMERICA

Washington, DC 20064

(P02) 319-5202

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

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

TE iiclictninnsciinibeltniiieabiiinininintiiiiniiaimasaininiianesiin 3

I. If the Court cannot confidently divine the

meaning of the sign at issue, and if it thinks that

some possible meanings are not constitutionally

protected, the writ should be dismissed..............

Il. The “basic educational mission” of the school

; eannot be to instill religious or political

conformity or to suppress speech with which

Fe III: ciscenincitsicitelinaacuiizctianadenitecminiihindibalamniiin

A. Petitioner’s proposed standard would confer

essentially standardless discretion to define

a school’s mission and then suppress all

speech inconsistent with that mission........

B. Suppression of speech inconsistent with a

school’s mission, if tolerated at all, must be

confined to uncontroversial parts of the

I CIE snccettnstcicnnsccetnceneecintemniics

I—The reasons why the Court might permit

suppression of speech promoting drugs have

nothing to do with suppression of religious or

IE TIED snnccesctnssecisnnnicuntacussneisennbniiines

IV. Tinker is an essential and independent

protection for student speech; no other

doctrine can safely substitute ...................:000

V. Public schools have repeatedly shown that

they will use their discretion to censor

I cicciniescsecndusinatinininciucniienniniiinenons

GRATE concscnsortnicessnciasenteterenstenineninnnnntenannsiine

14

16

if

TABLE OF AUTHORITIES

Page

CASES

Ambach v. Norwich, 441 U.S. 68 (1979)............000 11, 12, 13

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)........ 2,6, 14

Board of Airport Comm’rs v. Jews for Jesus, Inc.,

Ee es ee ee erretenteciccctcmnnscnieneinuaiasaniinsiintsenssiia 17, 18

Board of Educ. v. Mergens, 496 U.S. 226 (1990).............. 20

Board of Trustees of State Univ. of N.Y. v. Fox, 492

Tae MEET IITTTE i iciidcsinnicecenanbneinttciicigeiadtbanenieiiiiniadeantaisnabeniinies 8

Chalifoux v. New Caney Ind. Sch. Dist., 976 F. Supp.

a ME HEE annincsenianradestnnintneeiiinamictidmcsiadie 2,21

Child Evangelism Fellowship, Inc. v. Montgomery

County Public Schools, 457 F.3d 376 (4th Cir.

iia ncicciesnetinnstiinininidtinnamemehumesctabaniuisebibitntiisimibidiscmnneniines 17

City of Lakewood v. Plain Dealer Pbl’g Co., 486 U.S.

Pane Uae bsicstccnidicsiincsesisibiuacisheetaatsiaainieipeitdidiibdbaddiaanisigtmneaaiagi 19

Edenfield v. Fane, 507 U.S. 761 (1993).............:scceseesereeeeees 8

Edwards v. Aguillard, 482 U.S. 578 (1987)..........::ceeceee 20

Forsyth County v. Nationalist Movement, 505 U.S.

Se et csessssccniceicinoredhiecieatiulientinbtedievesienestaiensininitapicianliinteinaeieiiie 6,7

Good News Club v. Milford Cent. Sch. Dist.. 533

U.S. 98 (2001)......0... Si ET REE ie: 3, 6, 15, 20

Good News/Good Sports Club v. School Dist., 28

Ce GEE EE, I iicteninneninninanincnincnetnnedmandianinesinies 17

Greater New Orleans Broadcasting Assn., Inc. v.

United States, 527 U.S. 173 (1999)..............ccssecceeseeseeeees 8

Lamb’s Chapel v. Center Moriches Union Free Sch.

eg a ED ctcernensennnsensitenisnieneimnsinn 20

ill

TABLE OF AUTHORITIES — Continued

Page

Leyla Sahin v. Turkey, App. No. 44774/98, Eur. Ct.

cies Se Ca RUD Ti iP bcncesccenccnenscennncensnccusnnvsensnssosnce 7,8

Morgan v. Plano Ind. Sch. Dist., 2007 U.S. Dist.

LEXIS 7375 (E.D. Tex., Feb. 1, 2007)............ 2, 20, 21, 22

Pounds v. Katy Ind. Sch. Dist., 4:06-cv-00527 (S.D.

Til cnichintatditnipnramiedianetmineindanbiaiapibantipesinniiaiinieetiinaiid 20, 21

Reno v. ACLU, 521 U.S. 844 (1997)............ccssescsscessessreseeees 8

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

ere vtnnidaicccisavenscteniianinninnitnnnetumubiigtiitidinainiinddinaniibaenseines 11

Saxe v. State College Area Sch. Dist., 240 F.3d 200

SEE TETIIIT ccconnianniniietetestienanbibiciiasitieatinienbinasinasnineemuniin 21

School Dist. v. Schempp, 374 U.S. 203 (1968)................04. 11

Shuttlesworth v. City of Birmingham, 394 U.S. 147

STII s Cocnsitdetdhinsiencinnngsnenbimncéiiingansibsutapiaibabinniamaimmatdineduideuenetiin 19

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

ee Cees CH ID ceccscintintiienseiicinistntniciestitansgannniitiiqnneiiniaians passim

Wallace v. Jaffree, 472 U.S. 38 (1985) ....... ee eceeeeeeteeeeee 20

West Virginia State Bd. of Ed. v. Barnette, 319 U.S.

TIE cciehsdesdinseinrnseniiisidssimtianadinhndneianinnaninaiinipemaseunieeeeniads 10

Widmar v. Vincent, 454 U.S. 263 (1981) ..........ccceececeeeeeeees 20

CONSTITUTION

Sy i. MIE, ©... essnsenneniesedsennesateneninte 3, 5, 16, 20, 23

lv

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Douglas Laycock, Equal Access and Moments of

Silence: The Equal Status of Religious Speech by

Private Speakers, 81 Nw. U.L. Rev. 1 (1987) ..........:006 18

INTEREST OF AMICUS CURIAE'

The Liberty Legal Institute is a non-profit law firm

dedicated to the preservation of First Amendment rights

and religious freedom. In its commitment to the protection

of religious liberties of all faiths, the Institute represents

religious institutions and individuals across the country.

The Institute is gravely concerned that the religious

freedom of students in public schools will be damaged if

the Court reverses the Court of Appeals decision in the

present case. The Institute and its counsel have been

involved in significant litigation nationwide in the area of

student religious speech.

Amicus believes very strongly that the Court’s ap-

proach in Tinker v. Des Moines Indep. Commun. Sch. Dist.,

393 U.S. 503 (1969), is the best protection for freedom of

religious speech. The Court should be very cautious when

granting the government broad powers to ban speech.

Amicus is unwilling to trade the protections Tinker affords

religious speech for some marginal “victory” over the

ambiguous message at issue in this case.

¢

SUMMARY OF ARGUMENT

The cryptic message at issue in this case is not cause

for diminishing Tinker and derailing almost forty years of

' The parties have consented to the filing of this brief. Their

general letters of consent have been filed with the Clerk of this Court.

Pursuant to this Court’s Rule 37.6, none of the counsel for the parties

authored this brief in whole or in part and no one other than amicus or

their counsel contributed money or services to the preparation and

submission of this brief.

jurisprudence protecting the political and religious speech

of students. Petitioner and her amici propose a dangerous

test, seeking to recast Tinker as a subjective test satisfied

by a school official’s pronouncement that the school’s “basic

educational mission” requires suppression of the student

speech at issue. This standardless discretion to censor

student speech would destroy the fundamental protections

in Tinker and sanction political and religious viewpoint

discrimination. The Court cannot assume that other

existing doctrines would protect student speech if Tinker

were undermined in this way.

Public schools continue to enact broad, sweeping

“neutral” speech policies without any objective evidence to

support the necessity of their enactment. Public schools

claim Tinker has no application to broad “neutral” speech

censorship policies. See, e.g., Chalifoux v. New Caney Ind.

Sch. Dist., 976 F. Supp. 659 (S.D. Tex. 1997); Morgan v.

Plano Ind. Sch. Dist., 2007 U.S. Dist. LEXIS 7375 (E.D.

Tex., Feb. 1, 2007). If the Court adopts Petitioner’s pro-

posed subjective test, religious speech would be censored

by public schools seeking to establish “neutrality,” espe-

cially given religious speech is always contrary to the

“basic educational mission” because no school may adopt

the advancement of religion as its mission.

If the Court wishes to reverse in this case, it could carve

out an explicit exception for advocacy of the use of illegal

drugs and add that explicit exception to the sexually explicit

speech identified in Bethel Sch. Dist. v. Fraser, 478 U.S. 675

(1986). But it must be very clear about the basis for that

exception. It is no part of the mission of schools to indoctri-

nate students on issues that are controversial among Ameri-

can adults. Any power to instill values in students, and any

power of censorship derived from such a power to instill

3

values, must be confined to fundamental values necessary to

preservation of a democratic system, or to specific skills and

behaviors necessary to success in adult life. If schools are

given a blank check to define their own missions, and then

power to censor any student speech inconsistent with that

mission, there will be nothing left of this Court’s cases

protecting freedom of speech in the public schools.

¢

ARGUMENT

I. If the Court cannot confidently divine the mean-

ing of the sign at issue, and if it thinks that some

possible meanings are not constitutionally pro-

tected, the writ should be dismissed.

Under most of the meanings that might plausibly be

attributed to it, the cryptic sign at issue in this case is

clearly protected by the Constitution, even in a public

school.

The sign is most plausibly understood as anti-

religious, ridiculing or satirizing the basic Christian

message, making fun of such commonly displayed signs as

“Jesus Saves,” or “John 3:16.” If this is the meaning of the

sign, it must be protected. Religious speech is at the very

core of the First Amendment, clearly protected in public

schools so long as it is not school-sponsored. See Good

News Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001).

If public schools have power to ban anti-religious speech,

that same power would extend to bans on positive reli-

gious speech.

Alternatively, the sign may. have been a nonsense

phrase, conveying no intelligible meaning. If the Court

understands the sign in this way, it is protected simply

4

because there is no sufficient reason to prohibit or punish

it. Ameaningless nonsense sign does not convey one of the

few messages a school is entitled to prohibit.

Third, somewhat less plausibly, the sign may be

understood as suggesting a position on the existing public

debate in Alaska, which has led to repeated referenda and

to litigation in the state supreme court, over private use of

marijuana. If the Court understands the sign in this way,

it is a protected comment on an ongoing political debate.

Finally, the petitioner school principal, and dubitante,

the Court of Appeals, Pet. App. 3a; J.A. 25, understood the

sign as promoting drug use among students in violation of

the school’s strong policy prohibiting student drug use. If

the Court attributes this meaning to the sign, then the

argument that the sign is protected in a public school

context becomes much closer. Still, it is clear that the

school’s undoubted power to prohibit drug use does not

include power to prohibit all criticism of that policy. A

student presentation to the school board, arguing for a

change in the school’s drug policy, would undoubtedly be

protected political speech, even if its very purpose was to

undermine what the school defined as part of its basic

mission. Even in speech addressed to other students, it is

hard to imagine that every student remark, however brief,

however humorous, however ambiguous, is subject to

punishment if it can in anyway be construed as criticizing

the school’s drug policy. It is far more likely that the

respondent student was punished so severely because his

sign was the last straw for a principal already irritated by

thrown Cokes and snowball fights, J.A. 24, 29, 36, 38, than

because the sign had any real tendency to promote drug use.

5

If the Court thinks that one of the sign’s possible mean-

ings is unprotected, then the broad range of possible meanings

suggests that this case turns on a factual issue of no particular

importance — the meaning of the sign. That issue plainly does

not require resolution in this Court. In the quite likely event

that the Court can make no confident judgment about the

meaning of the sign, the legal issues are presented only in a

hypothetical and alternative way. In that event, the proper

course is to dismiss the writ as improvidently granted.

What amicus fears most is that a loosely worded opinion,

holding that students have no First Amendment right to

promote drug use, will fatally undermine protection for core

religious and political speech in public schools. The vague and

deferential standard proposed by Petitioner and her amici

invites this consequence. Any holding that Respondent’s sign

is unprotected must be very carefully stated to avoid sending

an unintended signal that would do serious damage to the free

speech rights of all students, including religious students.

II. The “basic educational mission” of the school

cannot be to instill religious or political con-

formity or to suppress speech with which it

disagrees.

A. Petitioner’s proposed standard would con-

fer essentially standardless discretion to

define a school’s mission and then suppress

all speech inconsistent with that mission.

However the Court interprets the particular sign at

issue in this case, and however it resolves the dispute over

that sign, it is critical that the opinion reaffirm students’

fundamental right to free speech on religious and political

issues. The Court must clearly state that that right still

6

has broad reach and effectually protective content as

applied to students in public schools. Public school officials

plainly doubt the continuing vitality of that protection,

and many of them would take a win in this case as a green

light to censorship, unless the opinion forcefully reminds

them of the yellow and red lights that still control most

disputes over school censorship.

Petitioner devotes a paragraph to praising Justice

Black’s dissent in Tinker v. Des Moines Indep. Commun.

Sch. Dist., 393 U.S. 503 (1969). This paragraph reveals the

aspiration to a general power of censorship and the hope

that this case may be the decisive step in restoring that

power.

To that end, Petitioner and her amici propose a

dangerous test that goes well beyond what is necessary to

decide this case. Their proposed test, unless clarified,

threatens to seriously undermine landmark decisions of

this Court, including Tinker and Good News Club v.

Milford Cent. Sch. Dist., 533 U.S. 98 (2001). It is true, as

this Court said in Bethel Sch. Dist. v. Fraser, 478 U.S. 675,

685 (1986), that a public school need not permit student

speech that directly subverts the school’s “basic educa-

tional mission.” But it is equally true, as the Court of

Appeals said below, that in the administration of this test,

the school “is not entitled to suppress speech that under-

mines whatever missions it defines for itself.” Pet. App.

12a. That approach would confer on school officials a

standardless discretion to censor student speech. Cf.

Forsyth County v. Nationalist Movement, 505 U.S. 123

(1992).

In Bethel, the Court’s comment about undermining

the “basic educational mission” took meaning from the

gratuitous sexual content of the student’s speech and from

the school’s interest in maintaining civility and protecting

younger children from offensive and age-inappropriate

content. The student reaction to the speech in Bethel

demonstrated that the speech had in fact been disruptive.

Neither the student reaction nor the school’s disciplinary

action in Bethel was based on viewpoint discrimination;

the student was using sexual innuendo to attract attention

to his candidacy, not to express views on any issue con-

cerning sex. He could easily have promoted his candidacy

and expressed any viewpoint relevant to that candidacy

without the sexual innuendo. Nothing in the holding or

opinion in Bethel suggested any broad power to punish

speech simply because the school disagreed with the views

expressed.

But here the school expressly claims power to punish

speech it disagrees with. Petitioner insists that the reason

for censorship is precisely the communicative impact of

the message expressed. She interprets Respondent’s sign

to promote drug use; she interprets the school’s “basic

educational mission” to include prevention of drug use;

and therefore, she says, the student can be severely

punished for displaying the sign. This is dangerous doc-

trine, requiring careful confinement if it is to be accepted

at all. Petitioner and her amici seek to recast Tinker as a

subjective test satisfied by a school official’s pronounce-

ment that the school’s “basic educational mission” requires

suppression of the student speech at issue.

Petitioner’s proposed subjective standard is consistent

with a recent approach by the European Court of Human

Rights, but roundly rejected in American jurisprudence.

See Leyla Sahin v. Turkey, App. No. 44774/98, Eur. Ct.

8

H.R. 299 paras. 112-21 (29 June 2004), http://www.echr.coe.

int/ECHR (search by application number under HUDOC)

(requiring no evidence that banning students from wear-

ing the traditional Muslim headscarf at a University is

necessary to protect a real government interest independ-

ent of Turkey’s subjective assertion that banning the scarf

was in the best interest of the government). The Sahin

case is remarkably similar to the legal proposal of Peti-

tioner and her amici. The government, or the school, gets

to define its mission on terms of its own choosing, and

then to prohibit all expression inconsistent with that self-

defined mission.

With all due respect to the European Court of Human

Rights, amicus prefers the American jurisprudence on this

issue, which holds government to a heavy burden of

justifying suppression of speech. See Greater New Orleans

Broadcasting Assn., Inc. v. United States, 527 U.S. 173,

183 (1999) (“The Government bears the burden of identify-

ing a substantial interest and justifying the challenged

restriction”); Reno v. ACLU, 521 U.S. 844, 879 (1997) (“The

breadth of this content-based restriction of speech imposes

an especially heavy burden on the Government to explain

why a less restrictive provision would not be as effective

... "); Edenfield v. Fane, 507 U.S. 761, 770-771 (1993)

(“burden is not satisfied by mere speculation or conjecture;

rather, a governmental body seeking to sustain a restric-

tion on commercial speech must demonstrate that the

harms it recites are real and that its restriction will in fact

alleviate them to a material degree”); Board of Trustees of

State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (“The

State bears the burden of justifying its restrictions ... ”);

Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S.

503, 509 (1969) (“In order for the State in the person of

9

school officials to justify prohibition of a particular expres-

sion of opinion, it must be able to show that its action was

caused by something more than a mere desire to avoid the

discomfort and unpleasantness that always accompany an

unpopular viewpoint”).

B. Suppression of speech inconsistent with a

school’s mission, if tolerated at all, must

be confined to uncontroversial parts of

the school’s mission.

If the Court is willing to accept some version of

Petitioner’s proposed doctrine with respect to messages

thought to promote drugs, then it must be very careful to

state what is special about drugs, and to draw clear

boundaries between those few student messages that can

be suppressed and the student speech that retains consti-

tutional protection. Any viewpoint standard so vague as

undermining “the basic educational mission” requires

judicial clarification at the inception.

The school’s capacity to adopt a viewpoint as part of

its educational mission, and to suppress speech inconsis-

tent with that viewpoint, is necessarily quite narrow. The

school cannot suppress a student viewpoint as inconsistent

with its educational mission unless the school is free,

under our Constitution and under the political norms of a

free society, to attempt to indoctrinate students into a

viewpoint contrary to the student speech that is sup-

pressed. Parents entrust the public schools with their

children for important but particular purposes. Parents

may expect the school to teach skills and values conducive

to success in later life, and they may expect the schools to

teach fundamental democratic values. But they do not

expect the schools to indoctrinate their children on current

10

political or religious questions that may be the subject of

substantial disagreement among the parents themselves,

either locally or nationally. Indoctrination on that sort of

question is no part of the school’s “basic educational

mission,” and the schools have no power to censor nondis-

ruptive student speech on such questions.

American political norms certainly, and the Constitu-

tion at least with respect to means, prevent the public

schools from propagandizing students on controversial

political or religious issues. The school cannot prohibit

Republican speech, or Democratic speech, or anti-war

speech, or pro-war speech, or define such speech as incon-

sistent with the school’s mission. No set of American

parents accepts it as part of the public school’s role to

indoctrinate their children on controversial political

issues, and no set of American taxpayers accepts such

partisan indoctrination as a legitimate expenditure of

education funds. As this Court has long recognized, nei-

ther political nor religious indoctrination is part of any

school’s basic educational! mission:

Probably no deeper division of our people could

proceed from any provocation than from finding

it necessary to choose what doctrine and whose

program public educational officials shall compel

youth to unite in embracing.

West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624,

641 (1943). If the Court is to permit viewpoint-based

censorship on the basis of any such amorphous test as

inconsistency with the school’s “basic educational mission,”

it must emphatically reaffirm Barnette’s insight that

inducing political conformity cannot be any part of the

school’s mission.

11

The point is more frequently litigated with respect to

religion than with respect to politics. This Court has

repeatedly held for nearly half a century that it is no part

of the mission of public schools to inculcate religion among

students. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290 (2000); School Dist. v. Schempp, 374 U.S. 203 (1963).

Because religious instruction is not part of a school’s basic

educational mission, speech on religious questions does

nothing to undermine a school’s educational mission. There-

fore, voluntary religious speech and voluntary anti-religious

speech is fully protected in public schools.

Nor can the school prohibit all political speech, or all

pro-religious and all anti-religious speech, and claim that

even-handed suppression is part of its basic educational

mission. It is no part of the school’s basic mission to stamp

out student interest in political or religious controversies

or to suppress student participation in such controversies.

Tinker flatly prohibits such a “neutral” ban. Tinker is

expressly not limited to viewpoint discrimination. “If a

regulation were adopted by school officials forbidding

discussion of the Vietnam conflict, OR the expression by

any student of opposition to it anywhere on school prop-

erty except as part of a prescribed classroom exercise, it

would be obvious that the regulation would violate the

constitutional rights of students, at least if it could not be

justified by a showing that the students’ activities would

materially and substantially disrupt the work and disci-

pline of the school.” Tinker, 393 U.S. at 513 (emphasis

added).

Petitioner and her amici place much reliance on

Ambach v. Norwich and its paean to “the importance of

public schools in the preparation of individuals for partici-

pation as citizens, and in the preservation of the values on

12

which our society rests.” 441 U.S. 68, 76 (1979). But of

course one of the central roles of citizens in our system is

to participate actively and intelligently in political de-

bates. The people are sovereign in our system, and the

people are ultimately responsible for the choice of their

political leaders and for the policy choices made by those

leaders. It is an essential part of a public school’s mission

to prepare students for this responsibility. It can never be

part of a school’s “basic educational mission” to suppress

student interest or participation in political or religious

discussion.

Ambach also describes public schools “as an ‘assimila-

tive force’ by which diverse and conflicting elements in our

society are brought together on a broad but common

ground,” and “as inculcating fundamental values neces-

sary to the maintenance of a democratic political system.”

Id. at 77. Of course, freedom of speech is precisely one of

these fundamental values “necessary to the maintenance

of a democratic political system.”

More generally, this “assimilative” function of public

schools is necessarily confined, as the Court said in Am-

bach, to values that are “fundamental” and “necessary” to

a democratic system, and to a “broad .. . common ground.”

Let this “assimilative” function expand to values that are

less fundamental, less essential to a democratic system,

narrow rather than broad, and the public schools would

become an engine for instilling conformity and for sup-

pressing discussion of public issues. Representative

government, majority rule (subject to protection for indi-

vidual and minority rights), nondiscrimination and equal

protection of the laws, freedom of speech, religion, and

assembly, tolerance of dissenting views and of personal

and group differences, due process of law, innocent until

13

proven guilty — these are the kinds of values that may be

fairly described as “fundamental” and (the most important

of the Ambach criteria, because it provides the most real

guidance) as “necessary to the maintenance of a democ-

ratic political system.” And these are not values that

provoke much disagreement in principle among American

adults, however great the disagreements over particular

applications. It is indeed part of the “basic educational

mission” of public schools to instill these broad values in

each succeeding generation. How far a school may go in

suppressing student dissent from one or more of these

values is a much closer question, but that question is not

presented in this case.

It cannot be part of the school’s mission to go beyond

such broad and fundamental principles to instill agree-

ment on, or suppress dissent on, more particular social,

political, or religious issues. The school cannot define

suppression of dissent as part of its educational mission. It

cannot justify suppression of dissent by defining its basic

educational mission to include instilling support of par-

ticular or current government policies or administrations.

Nor can it justify suppression of all religious speech, pro

and con, because the school’s mission does not involve

religious speech of its own. And this Court should say so.

A school may also seek to instill uncontroversial

personal virtues that have the overwhelming support of

the American people and that are often as important as

academic skills to success in adult life: honesty, diligence,

personal responsibility, obedience to law, tolerance for

dissenting views. The Court may conclude that avoidance

of drugs is such a virtue. That sort of socialization into

responsible adulthood is consistent with American political

14

norms. But again, this sort of socialization is no justifica-

tion for suppressing controversial religious or political

speech on contemporary issues, even if both sides are

equally suppressed.

Ifl. The reasons why the Court might permit

suppression of speech promoting drugs have

nothing to do with suppression of religious or

political speech.

If the Court wishes to reverse in this case, it could

carve out an explicit exception for advocacy of the use of

illegal drugs and add that explicit exception to the sexu-

ally explicit speech identified in Bethel Sch. Dist. v. Fraser,

478 U.S. 675 (1986). But it must be very clear about the

basis for that exception.

If a school can prohibit the speech at issue in this

case, it is because the school has a valid rule prohibiting

students from using drugs, and because Respondent’s sign

might be interpreted as encouraging student violations of

the valid rule of conduct. The use of drugs is a criminal

offense, and whatever disagreement there may be about

the efficacy of the drug laws, or about the need for laws

against adult use of the less dangerous illegal drugs, there

is overwhelming consensus in the polity that adults should

discourage children from using drugs. As a corollary of its

power to regulate serious misconduct, the schools may

plausibly have power to prohibit student speech urging

serious misconduct.

Of course this corollary does not follow in the adult

world. But if the Court thinks the corollary does follow in

public schools, it must state clear and objective reasons that

confine the decision. The school is engaged in educating

15

children, and it may seek to educate them about the

reasons for its conduct rules. Assuming the conduct rules

themselves are not politically or religiously controversial,

the Court may conclude that the school may seek to

persuade students to believe in these rules and to accept

them as norms of behavior. And because children are

younger and on average have less impulse control than

adults, the school may believe that urging violations is

more likely to lead to violations, and that the speaker who

persuades a child to violate a rule bears more responsibil-

ity for the resulting violation than a speaker who per-

suades an adult to violate a rule.

These are reasons why the Court might conclude that

the age of the students and the educational context may

justify restrictions on advocacy of prohibited conduct in

public schools. But if the Court so rules, it must clearly

distinguish this case from Tinker and Good News and from

political and religious speech. Nothing in these reasons for

restricting advocacy of student misconduct justifies re-

strictions on advocacy of controversial political or religious

views.

The Court of Appeals said that no government mission

is more important than war, so if anti-war speech is

protected, pro-drug speech must also be protected. Pet.

App. 8a. But that is not the right basis for comparison. If

there is a difference between drugs and war, it is that war

is not part of the school’s mission. The decision to go to

war, like most other disputed political decisions, is en-

trusted to government institutions other than schools.

Education of children, and protecting children from self-

destructive behavior, is at the core of the mission en-

trusted to schools. A decision permitting the schools to

censor student speech promoting the use of drugs implies

16

nothing about the schools’ power to censor student speech

on political issues entrusted to other organs of govern-

ment, or on religious issues entrusted to churches and

synagogues, families, and individual conscience.

IV. Tinker is an essential and independent protec-

tion for student speech; no other doctrine can

safely substitute.

Within the confines of Tinker, school officials bear the

burden of demonstrating that suppression of student

speech is necessary to prevent a material and substantial

disruption. See Tinker v. Des Moines Indep. Commun. Sch.

Dist., 393 U.S. 503, 509 (1969). This is a wise balance,

protecting student exchange of ideas as part of their

education in a democratic society, but permitting govern-

ment intervention for conduct and that occasional speech

that actually disrupts the school. Petitioner seeks to

overturn this burden and eviscerate decades of First

Amendment jurisprudence following Tinker by asking this

Court to grant unfettered discretion to school officials to

ban speech that the school subjectively determines is

inconsistent with its educational mission.

At its heart, Petitioner’s proposal is to substitute her

basic-educational-mission standard for the substantial-

disruption standard of Tinker. For the reasons already

stated, the basic-educational-mission standard would,

unless carefully confined by this Court, give school officials

broad discretion to censor student speech. The Court

cannot assume that other existing doctrines would protect

student speech if 7inker were undermined in this way.

The rules against viewpoint discrimination are no

protection against rules that simply seek to eliminate

17

controversy by suppressing all speech on any side of an

issue. The infamous resolution banning all “First Amend-

ment activities” in the airport was adopted precisely

because of its viewpoint neutrality. See Board of Airport

Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987)

(striking down the resolution as overbroad). A rule ban-

ning student discussion of politics, or of religion, or of

particular political or religious issues, could be viewpoint

neutral and not so flagrantly overbroad.

More fundamentally, Petitioner’s proposed rule can

only be understood as overriding the rule against view-

point discrimination. A ban on speech promoting drug use

is a ban on a particular viewpoint. Petitioner’s claim is

precisely that she can engage in viewpoint discrimination

whenever her school rejects a viewpoint in pursuit of its

“basic educational mission.”

Nor will public forum doctrine fill the gap. Public

forum rules are no help in those parts of the school that

are not a part of a public forum, and schools fiercely deny

that even their student activity periods are a public forum,

let alone the rest of the campus and the rest of the school

day. Public forum doctrine is no help when schools close

their forum to avoid permitting religious speech, as hap-

pened in Child Evangelism Fellowship, Inc. v. Montgomery

County Public Schools, 457 F.3d 376 (4th Cir. 2006).* One

of the reasons Tinker is so important is that it is not

entangled in public forum doctrine:

* Another example is Good News/Good Sports Club v. School Dist.,

28 F.3d 1501 (8th Cir 1994). Events on remand are not reported, but

there the school board succeeded in its strategy of closing the forum.

18

Tinker did not involve a question of access to

public property. When citizens claim a right to

enter government property for the particular

purpose of speaking, it is relevant to ask whether

other speakers have been allowed the same privi-

lege, or whether the property is especially appro-

priate for speech. The various versions of the

public forum doctrine address these questions.

But public forum analysis is irrelevant when ac-

cess is not at issue. When citizens are going

about their business in a place they are entitled

to be, they are presumptively entitled to speak.

Because students were indisputably entitled to

be on the school grounds, the only question in

Tinker was whether the school had a constitu-

tionally sufficient reason to suppress their

speech. The Court’s requirement that the school

show a material and substantial interference

with the educational function is addressed to

that question.

Douglas Laycock, Equal Access and Moments of Silence:

The Equal Status of Religious Speech by Private Speakers,

81 Nw. U.L. Rev. 1, 48 (1987); see Jews for Jesus, 482 US.

at 573 (recognizing that Tinker might apply without

regard to property’s status as a public forum).

Petitioner proposes to eviscerate Tinker. If a vague

educational-mission test is substituted for the material-

disruption test, without firm guidance from this Court

about the limited nature of the educational missions

intended, student speech will be at the mercy of unre-

strained school administrators.

19

Vv. Public schools have repeatedly shown that

they will use their discretion to censor student

speech.

If the Court weakens Tinker and gives government

school officials the power to censor speech “contrary to the

educational mission,” schools may define broad missions

and enact correspondingly broad prohibitions on speech,

inevitably including content-based and viewpoint-based

discrimination. This unfettered discretion in the hands of

school officials creates two dangers, in addition to contro-

verting any purpose to prepare students to live in a

democratic society where the exchange of ideas is the

country’s lifeblood. First, broad discretion to enact speech

regulations “intimidate{s] parties into censoring their own

speech, even if the discretion and power are never actually

abused.” City of Lakewood v. Plain Dealer Pbl’g Co., 486

U.S. 750, 757 (1988). Second, unfettered discretion permits

government officials “to roam essentially at will, dispens-

ing or withholding permission to speak ... according to

their own opinions regarding the potential effect of the

activity in question on the ‘welfare’ of the community.”

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153

(1969). A school official accused of viewpoint discrimina-

tion will easily avoid judicia! scrutiny by claiming that the

speech censored was contrary to the educational mission of

the school as defined in the context of its local community.

Rampant viewpoint discrimination will be the result, and

it will occur without any possibility of a remedy.

Religious speech would be among the first banned as

out of compliance with the school’s mission. Schools con-

tinue to claim that the Establishment Clause requires or

justifies them in censoring religious speech, on grounds

derived from their own confused definition of their mission.

20

No school may adopt as part of its mission the advance-

ment of religion. See, e.g., Edwards v. Aguillard, 482 U.S.

578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985). That

would violate the Establishment Clause. This leads many

schools to conclude that any student religious speech is

therefore inherently inconsistent with the educational

mission of the school and should just be done elsewhere. If

this Court accepts an “educational mission” standard,

without clearly reaffirming the limits on how schools may

define that mission, student religious speech will be an

immediate target.

The fears expressed in this brief are not hypothetical.

We know from experience that if this Court permits

censorship based on a broad discretionary standard like

that proposed by Petitioner and her amici, public schools

will invoke that standard to censor religious and political

speech at the core of the First Amendment.

Many schools have persistently sought to suppress

student religious speech in violation of this Court’s deci-

sions. See, e.g., Good News Club v. Milford Cent. Sch. Dist.,

533 U.S. 98 (2001); Lamb’s Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384 (1993); Board of Educ.

v. Mergens, 496 U.S. 226 (1990); cf. Widmar v. Vincent, 454

U.S. 263 (1981) (same problem at university level). There

is a litany of cases in every circuit enforcing these deci-

sions against resistance by public schools.

Amicus has handled a legion of cases where schools

ban student religious speech under allegedly “neutral”

anti-speech policies that can only be stopped by Tinker.

Currently pending examples include Morgan v. Plano Ind.

Sch. Dist., 2007 U.S. Dist. LEXIS 7375 (E.D. Tex., Feb. 1,

2007), and Pounds v. Katy Ind. Sch. Dist., 4:06-cv-00527

21

(S.D. Tex.). In Plano, students were told they could not

share candy canes with their friends, they could not write

“Merry Christmas” in “holiday cards” to military troops

serving in Iraq, and they could not share pencils with their

friends that bore a religious message. In Katy, a student

was told she could not talk about Jesus during recess.

During a class discussion led by the teacher asking stu-

dents to say what comes to mind when the teacher says

the word “Easter,” students responded with words such as

“bunnies,” “eggs” and “jelly beans.” One student responded

with the word “Jesus.” The teacher told her that such an

answer was inappropriate at school.

All of these bans were justified under allegedly “neu-

tral” policies banning speech — policies that can best be

overcome with Tinker, and perhaps only with Tinker.

These schools plainly think it part of their “basic educa-

tional mission” to preserve a religion-free zone. A deferen-

tial standard, permitting censorship on the basis of

whatever schools declare to be their mission, would go far

to validate such policies. If protecting the mission justifies

viewpoint discrimination, it would no longer matter

whether these schools can plausibly claim that their

policies are neutral.

Counsel for Amicus also participated extensively in

Chalifoux v. New Caney Ind. Sch. Dist., 976 F. Supp. 659

(S.D. Tex. 1997) (discussed favorably in Saxe v. State

College Area Sch. Dist., 240 F.3d 200, 211-12 (3rd Cir.

2001) (Alito, J.)). In Chalifoux, the school district insti-

tuted a policy prohibiting rosary beads. The school district

believed rosary beads to be a symbol used to identify gang

affiliation. The Catholic plaintiffs in Chalifoux certainly

would find no refuge in either viewpoint or public forum

jurisprudence, because the ban on rosaries allegedly had

22

nothing to do with their religious significance, and because

the plaintiffs possessed their rosaries wherever they went,

including in the classroom, which courts are reluctant to

describe as a public forum.

Without Tinker, the students would have been banned

from possessing rosaries. If Tinker were circumscribed to

allow schools to censor any speech inconsistent with its

educational mission, the school could ban rosaries or any

other religious symbols or expression as inherently incon-

sistent with the school’s secular mission. Only a strong

Tinker fully protects religious speech in schools.

Tragically, a federal judge, refusing to apply Tinker,

recently opined that Tinker is limited to viewpoint dis-

crimination cases, which he defined narrowly, en route to

upholding a broad sweeping ban on student religious

speech. See Morgan v. Plano Ind. Sch. Dist., 2007 U.S.

Dist. LEXIS 7375 (E.D. Tex., Feb. 1, 2007). Far worse

would follow if this Court authorizes school districts to

suppress any speech they define as inconsistent with their

mission. It is critical that this Court reaffirm that the

fundamental right to free speech on religious and political

issues still has broad reach and protection.

¢

23

CONCLUSION

Amicus urges the Court to be very careful and explicit

in its decision, which could have enormous implications,

intended or not, for religious and political speech. If the

Court accepts any form of Petitioner’s proposed basic-

educational-mission standard, the Court must expressly

state the First Amendment limits on a school’s capacity to

define its own mission for purposes of censoring speech

inconsistent with that purpose. The Court should reaffirm

Tinker, and any exception to Tinker should be narrowly

confined.

Respectfully submitted,

DOUGLAS LAYCOCK KELLY J. SHACKELFORD

UNIVERSITY OF MICHIGAN Counsel of Record

625 S. State St. HIRAM S. SASSER, III

Ann Arbor, MI 48109 LIBERTY LEGAL INSTITUTE

(734) 647-9713 903 E. 18th St., Suite 230

Plano, TX 75070

ROBERT A. DESTRO (972) 423-3131

COLUMBUS SCHOOL OF LAW

THE CATHOLIC UNIVERSITY

OF AMERICA

Washington, DC 20064

(202) 319-5202

Counsel for Amicus Curiae