Opposition Brief — Bannon v. School District

No. 04-1207

In the

Supreme Court of the United States

+

SHELDA HARRIS BANNON,

as parent and natural guardian of her daughters

Sharah Harris and Brittni Harris,

Petitioner,

4 iP

SCHOOL DISTRICT OF PALM BEACH COUNTY,

a body corporate, and ED HARRIS, individually

and in his capacity as principal of

Boca Raton Community High School,

Respondents.

¢

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

+

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

RANDALL D. BURKS

Office of the Chief Counsel

The School Board of Palm Beach County

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, FL 33406-5813

(561) 434-8500

Counsel for Respondents

i

QUESTION PRESENTED

As shown in this brief, the Court should deny the

Petition as to all questions presented. Respondents

additionally object to the content of Petitioner’s questions

because they impliedly mischaracterize the Eleventh

Circuit’s holding and they ignore important facts. Respon-

dents submit the following replacement question, includ-

ing relevant unique facts:

Did the Eleventh Circuit correctly decide that the

Constitution, as interpreted in Hazelwood School District

v. Kuhlmeier, 484 U.S. 260 (1988), permits a public high

school principal to restore order to the school’s disrupted

learning environment by requiring minor edits to

religious speech that a student had painted on large

murals (upon semi-permanent construction-barrier panels

owned by the school) near the main office and other high-

traffic walkways for constant viewing by a captive audi-

ence of students for up to four years during reconstruction

(as part of a school-sponsored beautification project

coordinated by the student government/leadership class,

approved by school administration, advertised by the

school, regulated by the principal, and supervised by a

teacher), when the religious speech was suggested or

encouraged by two faculty members to be included

without advance notice to the principal or supervising

teacher, and these murals became the only ones to include

verbal messages, when the project was intended for

decoration sather than a forum for viewpoints; and

disruption arose due to Establishment Clause concerns

about the proselytizing sectarian religious speech bearing

the imprimatur of the school?

ii

TABLE OF CONTENTS

QUESTION PREGIITTED osiscccsisisscssesnssasitensreseansinsediinsatainsinsasts i

TABLE OF CITED AUTHORITIES ........ssssssssssssesssesssecssecssecen iv |

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI ............0000+ 1 |

PACTUAL FRACTIGIUIID a inciccissenscakussnsshamandimbidapebaniaindasnions 1

REASONS FOR DENYING THE PETITION ..............csecceseeseeeeees 7

I. THE ELEVENTH CIRCUIT CORRECTLY APPLIED

THIS COURT’S DECISION IN HAZELWOOD .........00..00++ 7

A. The Project Was a Scholastic Nonpublic

PORWR ..n0asinscikssinnesncigubeeibatbandasmiascmasdenenediadaedetsd 8

B. The Murals Were School-Sponsored Speech

Bearing the Imprimatur of the School ............ 10

C. The Mural Project Was a Curricular Activity.. 11

D. Bannon Is Consistent with the Viewpoint

Doctrines of Lamb’s Chapel, Good News

Cissd, ata TOI vcisiinasisinsindcinasbeivbinsennecces 13

E. The Editorial Control Was Based on

Legitimate Pedagogical Concerns .................. 17

F. Bannon Clearly Supports and Requires

Viewpoint Neutrality ....ccccsccsesccsorossovcscsscnscosecse 19

G. This Court Recently Denied Certiorari in @

Similar Case, Even Though It Expressly

Allowed Viewpoint Discrimination................... 21

II. No “SPLIT” EXISTS WHEN THE CIRCUITS HAVE

UNANIMOUSLY REACHED THE SAME RESULTS

UNDER HAZELWOOD AND THIS COURT HAS

DENIED ANY PETITIONS FOR CERTIORARI ............+. 22

RR NE eae

IiI. THE ELEVENTH CIRCUIT COURT COULD HAVE

AFFIRMED ON SEVERAL OTHER GROUNDS .............. 24

A. Disruption and Interference .......................006+5 25

Ti GADWNMNOINE TIBOEIR ocscccsscrrensscsncccsscosescesscsessces 26

C. Establishment Clause Neutrality .................... 26

I TE I aos catsendinannendammannondnnns 29

E. The School Board’s Non-Liability .................... 29

IV. THIS CASE IS UNIQUE AND COMPLEX, NOT

CONDUCIVE TO CERTIORARI REVIEW ..............000000 29

I an aa aliad cs ceinanelianaDnagiccaenehnnnieiabnaine 30

lv

TABLE OF CITED AUTHORITIES

CASES

American Jewish Congress v. City of Chicago,

Re ae Sa FN) ED vsitnceticsiantiindntinsaseiamamsins 28

Bannon v. School District of Palm Beach County,

387 F.3d 1208 (11th Cir. 2004) ............ eee passim

Bethel School District No. 403 v. Fraser,

Ee siisnskbchabbihscntastiscncbedaainadncdliiaaceonsens 17

Capitol Square Review and Advisory Board v.

Pinette,

Fe es PE IE iistaiciiccnkicinkccacicncinsandshschscneciiientacais 28

C.H.ex rel. Z.H. v. Oliva,

NE ee re EE tances hsceancedbiecsipecenenss 23

Chandler v. James,

Re eee Br Ua We CI, BO inns cccssccernetacircsenains 17

Cole v. Oroville Union High School District,

SOB Fe BOGE GOT GAR, BOD cicecccnicccescsccncaccsnescrsscesns 27

Cornelius v. NAACP Legal Defense and Educational

Fund, Inc.,

473 U.S. 788 (1985) ...... sieiacebetilatls Mice Sibieaiilea anette 9, 17, 25

County of Allegheny v. ACLU Greater Pittsburgh

Chapter,

ee Re incites cbiainiencca innstieniniccdetoneiatinis 27, 28

Denno v. School Board of Volusia County, Florida,

yi' 9 Pe Bl ~ fet Te | RR tenuenennUnmrnNenenrE 29

DiLoreto v. Downey Unified School District Board of

Education,

196 F.3d 958 (9th Cir. 1999) ............... 13, 15-16, 17, 23

Downs v. Los Angeles Unified School District,

ee ee Be Ce Gs BOO inecicciicscsninn ssetorcssniacindes 26

East High Gay/ Straight Alliance v. Board of

Education of Salt Lake City School District,

81 F. Supp. 2d 1199 (D.Utah 1999) ........... eee 20

Edwards v. Aguillard,

I TE: DH IED vatnnscttesinccbubintiiennana 27

Engel v. Vitale,

SPO CE Os (IG iii ccc ccneneeinnne 27

Epperson v. Arkansas,

BG TE Oe CAD icctsccscncanscrcscinnceppeenaneaien 26-27

Fleming v. Jefferson County School District R-1,

298 F.3d 918 (10th Cir. 2002) ........ ee. sessseesDASSIM

Gernetzke v. Kenosha Unified School District No. 1,

B74 FBG OBE CT els Cle, BOA) hin ssisiccesirniiasssncsvinvlaiicrvnes 18

Good News Club v. Milford Central School, e

BBD EEE, DB COED: eckiiccssesscanessnasspiseiehion 13, 14, 16, 18, 28

Good News/Good Sports Club v. School District of

City of Ladue,

DE FBG BGG) CORR Cie, LODE) ais sc cicncsaccscscrccsisiicvessanicns 28

Grattan v. Board of School Commissioners of

Baltimore City,

OT Ee RM CI Ca Fe vee letiesccscnicestaccencnscctnceess 8

Hazelwood School District v. Kuhlmeier,

ARTI. Fer CE i ctissdbcccienscnmuedsandiann passim

Hills v. Scottsdale Unified School District No. 48,

329 F.3d 1044 (9th Cir. 2003) ................cccccssssssees 18, 28

vi

Illinois ex rel. McCollum v. Board of Education of

School District No. 71,

SBS UB. BUS CEDGG) ..ccsnenceessserccscesencssnnsssnseonssiatpnesasens 25

Joki v. Board of Education of Schuylerville Central

School District,

745 F. Supp. 823 (N.D.N.Y. 1990) ..............ssccccccseseee 27

Kincaid v. Gibson,

191 F.3d 719 (Gti Cle. TGBG) nccccccssccesssosccassoscccsssosescecs 23

Lamb’s Chapel v. Center Moriches Union Free

School District,

508 U.S. 384 (1993) ..........ccccccccsereerereeeeeees 13, 15, 16, 28

Lemon v. Kurtzman,

GBB UE. GR AGT ED ccccccctsciittesdeistectsesssttieicseseiatiasaaiiies 27

May v. Evansville-Vanderburgh School Corporation,

TOT FBG 1IGS CPs COs, TIDE ccsccssenssssscnsoccsovesscccetents 28

Mesa v. White,

197 F.3d 1041 (10th Cir. 1999) .........cc.cccccccscsssssssessees 20

Monell v. Department of Social Services,

BOB UB; GED CRF cnsntncctaincintiailicepevitctniaciaaitiiialiiiies 29

Perry Education Association v. Perry Local Educators’

Association,

GBD CURR. SF CHGGED eciccscccsiasebnincttecestitaiaicudeinddeiaiinasii 18

Planned Parenthood of Southern Nevada, Inc. v.

Clark County School District,

IRA Fug Ys S| pee 8, 23

Rosenberger v. Rector & Visitors of the University of

Virginia,

GAG WB, GRD CUBBIE cciciicscctcacersittnsnticightanes 1, 14, 15, 16, 20

Santa Fe Independent School District v. Doe,

GOD UR, Te CD ccdttnviednictnalnicbbcnaaktnitenadsiunstitignnit 27

ere ee

vii

Scott v. School Board of Alachua County,

$24 F.3d 1246 (11th Cir. 2008) .............00.......0..cccseees 26

Searcey v. Harris,

888 F.2d 1314 (11th Cir. 1989) ........................000 19, 24

Smith v. County of Albemarle, Va.,

OD FF ee ee Ce Ce Ba eccrcccncscscecscsaccccssanssecssonson 28

Tinker v. Des Moines Independent Community

School District,

Se SEs Ne GRD o ccseesssinssnsnnanccnessnsenninn 8, 9, 10, 25, 26

Walz v. Egg Harbor Township Board of Education,

G8 re eG Ge, BID crttcctciccsnsnnssnstictscncasnsnensions 16

Ward v. Hickey,

996 F.2d 448, 454 (1st Cir. 1993)...........................0000 22

Washegesic v. Bloomingdale Public Schools,

BS FAI SiO Ge CRE. BD ccccsccccntscresccsnnsccsvescnsetencones 27

STATUTES

CPi OIE, FINE, Fr ccsccnccsiiccccccctnnosntnscccnistcicencsances passim

Sa AD hkeientketcdncidncaitsiasctiininnisntdninséingentanneinion 30

es Oe EE taint scisiainhbhasbatiastbiinsdenteiininenneiabeitenienite 7,29

OTHER AUTHORITIES

School Board of Palm Beach County, Florida

a eee es GD cbbticctisithcantactnsccncsnsncsniccneioass 30

1

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents, School District of Palm Beach

County, Florida, and Ed Harris, request that the Court

deny the petition for writ of certiorari seeking review of

the opinion entered by the United States Court of Appeals

for the Eleventh Circuit in this case on October 12, 2004.

+

FACTUAL BACKGROUND

Respondents object to Petitioner’s statement of the

case, as it ignores details that militate against

Petitioner’s claim that principal Ed Harris—who in his

private life was a Christian lay minister and Sunday

School teacher (PD 95)\—censored school-sponsored

proselytizing Christian messages based on his alleged

“individual . . . disapprov(al]” of their Christian point of

view. Pet. 13. In scholastic First Amendment cases the

“hard task of judging . . . requires courts to draw lines,

sometimes quite fine, based on the particular facts of each

case.” Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819, 847 (1995) (O’Connor, J., concurring)

(emphasis added). The details are set forth here, consis-

tent with the statements of facts in the opinions below:

Disruption. — The principal of Boca Raton Com-

munity High School in Palm Beach County, Florida,

encountered disruption on his campus on the morning of

February 11, 2002. First he noticed a commotion involved

several students and teachers in a walkway. Addition-

ally, many phone calls were coming in to the principal.

The source of the disruption was featured on the news

that morning, with three television stations and the

1 The notation “PD” refers to the principal’s deposition in the record on

file with the Eleventh Circuit.

2

newspaper having sent reporters. (PD 80, 81, 97.) The

disruption took time away from “the productivity of the

school in itself and the . . . principal’s time, the assistant

principal’s time[, and] the student’s time away [from] the

main focus of the school... .” (PD 83.) There was much

student discussion about the source of the commotion; it

was distracting to the students and to the school’s mission

of educating the students. (PD 97-98.) Principal Harris

heard rumors of other concerns from the students, faculty,

and the public, and he took all of the debate as an

indication that there was a controversy that would be

disruptive to the school. (PD 48, 49, 51, 52, 83.)

Source of the Disruption. — There was substantial

concern about an apparent Establishment Clause

violation through bold proselytizing sectarian messages

that had been painted over the weekend on several

construction-divider panels in prominent locations near

the main office and other high-traffic areas of the school.

The school was undergoing a long-term recon-

struction project, and the contractors had erected about

sixty (60) 4-foot by 8-foot flat-white plywood construction-

divider panels in interior and exterior walkways

throughout the school. (PD 31, 39; SD Ex. 2.)? Feeling

that some colorful paintings would make the school more

aesthetically pleasing, (PD 31), the student govern-

ment/leadership class sponsored a beautification project,

inviting students and teachers to paint 8-foot by 8-foot

murals (each mural occupying two of the construction

panels owned by the school), and the project was also a

school fundraiser. (PD 40.) Petitioner described student

government as a leadership class that students join by

going “to the guidance counselor and ask[ing] for the

class.” (SD 9.)

2 The notation “SD” refers to Sharah Harris’ deposition in the record on

file with the Eleventh Circuit, and “Ex. 2” refers to Exhibit 2 of that

deposition.

3

To seek approval of the project concept, the

teacher/class sponsor Ms. Roberts first discussed it with

Principal Harris, who advised that the school must “be

careful what we do on the walls, because .. . you can’t

offend people by putting things on the wall” with anything

“like gang-related information,” or “discriminating

against someone.” (PD 31, 33, 41.) Ms. Roberts submitted

an activities pre-approval form, which was approved by

an assistant principal and Mr. Harris, and it was Ms.

Roberts’ responsibility to have the appropriate-content

guidelines announced to the students. (PD 31-32; SD 7.)

Petitioner saw school announcements about the

beautification project, inviting any student to assist the

leadership class in painting the panels. (SD 6.) She was a

member of the Fellowship of Christian Athletes (“FCA”), a

student-initiated club that met before school once a week.

(SD 10, 62.) Petitioner apparently invited fellow FCA

members to participate with her. Petitioner personally

painted two of the murals on a Saturday, February 9,

2002, and some other FCA members painted also. (SD 29,

41-48.) The panels themselves remained school property,

under the ownership and dominion of the school before,

during, and after the painting. (SD 108, 112.)

The beautification project was simply intended to

supply artwork to decorate the plain white plywood

panels. (PD 31.) But unlike other students’ paintings, the

murals painted by Petitioner? included verbal messages.

(SD 78.) Petitioner conceded that her murals reflected

more than artwork; they also exhibited a religious verbal

message. (SD 139.) The FCA had devised this plan

without notifying the administration. (SD 17-23.)

3 For convenience, the term “Petitioner” in this brief is used to refer to

Sharah Harris (on whose behalf her mother Shelda Harris Bannon

sued) and, unless the context requires otherwise, the term also

encompasses some murals painted by other FCA members who joined

or assisted Sharah in painting religious messages.

4

Suggested and Encouraged by Faculty Members. —

Although the Petition characterizes the religious

messages as student-initiated expression, such claim is

vitiated by the fact that two faculty members had been

involved with the selection of the religious messages; the

FCA faculty sponsors had discussed the religious-message

plans with Petitioner, and later the plan was presented to

the FCA club, (SD 56), where one of the faculty sponsors

encouraged them to carry out the plan with the intent of

painting the religious messages on several murals in

different areas in order to “have them all the way around

the school.” (SD 14, 17, 21.)

Further, Petitioner selected some of the messages

from a document received from a faculty member at

school. (SD 49-54.) A faculty member handed the list of

suggested religious messages to Petitioner in the school

hallway, suggesting she might find some of them useful

for her mural. (SD 54.) The messages on the list named

God, and Petitioner also added a suggestion using the

name “Jesus.” (SD 59.) The other FCA sponsor knew

exactly what Petitioner was planning to paint and

encouraged her to do so. (SD 17.)

Proselytizing Sectarian Messages. — Petitioner’s

first mural stated, “Because He loved, He Gave,”

paraphrasing John 3:16. The background had a cross in

the middle, and the word “loved” was represented by a

heart plus the letters “-ed.” (SD 30.) Petitioner’s second

painting boldly proclaimed, “Jesus has time for you; do

you have time for Him?” (SD 31.) Paintings by other FCA

members (also referred to here as Petitioner’s murals)

included overt religious messages such as “God Loves

You. What Part of Thou Shalt Not Didn’t You

Understand? God,” selected from the Petitioner’s list. (SD

42-44.) In all, Petitioner’s large murals used about eight

instances of the word “God;” one instance of the name

“Jesus,” and three crosses, (SD 114); but none of the other

murals in the project used any verbal messages.

5

Immediate Establishment Clause Concerns. — Ms.

Roberts, the teacher who supervised the mural painting

project, immediately became concerned about the appro-

priateness of Petitioner’s unexpected content, apparently

because of Establishment Clause concerns about the

proselytizing religious messages, Pet. App. A-27, and she

reported the issue to the principal that evening. (PL ‘“—

45.) Ms. Roberts felt that an FCA faculty sponsor |. d

“sort of pushed the issue” of including religious messages

on the murals. (PD 88.) In response, the principal

suggested that they review the appropriateness of the

murals together on Monday (the next school day). (PD 45.)

That is when the principal discovered the disruption.

Effects of Disruption. — With all the controversy

and commotion, less academic work got done that day

than usual. (PD 85.) For example, in Petitioner’s third-

period math class, a substantial discussion ensued. “[I]t

took a few [minutes] — ’cause some like wanted to say

what they believe, and then a few other [students] wanted

to say what they believed, and then [it] just kind of went

on from there.” When students posed questions to the

teacher, “maybe he would try to answer it, and then he

would come back to me... and have me answer it,”

Petitioner revealed. (SD 88-90.)

The principal recalled, “Every time I walked down

the halls I had kids and teachers and all [saying], ‘What’s

going on here,’ you know... . It was related to the panels

....” (PD 96.) The principal clearly was concerned about

the order and educational mission of the school if he had

allowed the murals to remain unedited. He did not mind

the messages personally, but “when it affects the entire

school, . . . the institution that I am working in and have a

responsibility for, I must uphold the rights of that

institution” to a conducive learning environment. (PD 99.)

After a morning of commotion, the principal finally

visited the student’s fourth (last) period class to confer

6

discreetly with the teacher, Ms. Roberts, who had

supervised the painting project. Although Principal

Harris—as a devout Christian—had no personal distaste

for the sectarian proselytizing religious messages, he was

concerned about an apparent Establishment Clause

violation; he mentioned to Ms. Roberts the requirement of

“separation of church and school” (PD 68) and left it up to

Ms. Roberts, as the project sponsor, to determine precisely

which parts should be painted over. (PD 56-57.)

Reasonable, Least-Restrictive Editorial Control. —

After Mr. Harris left, Ms. Roberts asked Petitioner to step

outside for a moment, where Ms. Roberts explained the

need to paint over the overt religious words and sectarian

symbol (“Jesus,” “God,” and the cross) because of Estab-

lishment Clause concerns; but the remainder of the mural

content (non-sectarian, non-proselytizing portions and

pictures) was appropriately allowed to remain. (SD 92-

93.) Ms. Roberts suggested reasonable, minor alterations

to Petitioner, such as altering “Jesus has time for you; do

you have time for Him” to the non-sectarian, “He has time

for you; do you have time for Him.” (SD 93.)

Petitioner performed the re-painting after school.

(SD 129.) The re-painting apparently involved mostly

other FCA-member students’ murals; Petitioner was

asked to do the repainting on them because she had been

the FCA painting coordinator. (SD 41-48; 131.) (Notably,

the principal had also directed the removal of several

gang symbols, some satanic symbols, and some after-

added profanity that had been painted on murals, (PD

47).) Although Petitioner was initially upset about having

to modify a few portions of the murals, she admitted she

was glad the principal had directed other students’

satanic symbols to be removed, and she would be in favor

of removing anything like drug-related speech, hate

symbols, and gang symbols. (SD 80, 101.) Petitioner

conceded the principal had no invidious motive in

removing any of the religious expression. (SD 101-104.)

7

Before the summary judgment hearing in the

district court, Petitioner had already graduated from high

school and her claims for injunctive and declaratory relief

were moot. The parties stipulated at the hearing that her

remaining claims were limited to money damages under

42 U.S.C. § 1983. Pet. App. A-28 n. 10. The district court

granted summary judgment for Respondents, finding that

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

271-73 (1988) allows schools to exercise editorial control

over school-sponsored religious speech, with the “legiti-

mate goal of preventing disruptive religious debate in the

school corridors” and disassociating the school from a

position other than neutrality on matters of religion. (Pet.

App. A-31, 32.)

The Eleventh Circuit affirmed, finding the murals

were curricular school-sponsored speech bearing the im-

primatur of the school, over which substantial viewpoint-

neutral content-based editorial control is allowed when

reasonably related to legitimate pedagogical concerns

under Hazelwood. The court recognized one of the

legitimate pedagogical concerns was ending “the

disruption to the school’s learning environment caused by

[Petitioner’s] murals,” and the editorial control was

reasonably related to that goal “because it ended the

disruption.” Bannon v. Sch. Dist. of Palm Beach County,

387 F.3d 1208, 1217 (11th Cir. 2004).

+

REASONS FOR DENYING THE PETITION

I. THE ELEVENTH CIRCUIT CORRECTLY APPLIED

THIS COURT’S DECISION IN HAZELWOOD

Contradicting the courts below, Petitioner asserts

that the beautification project was not school-sponsored

speech under Hazelwood School District v. Kuhlmeier, 484

8

U.S. 260, 271 (1988). This assertion rests upon three

erroneous arguments: 1) that the project was a public

forum for unfettered expression of viewpoints; 2) that the

Tinker disruption/interference standard should apply; and

3) that the beautification project was not “curricular.”

However, Hazelwood is the correct standard.

A. The Project Was a Scholastic Nonpublic

Forum

The Eleventh Circuit analyzed the three kinds of

government property and systematically rejected two of

the three possibilities for the school’s mural project:

schools do not possess the qualities of traditional public

fora; and the school had not intentionally opened a

designated or limited public forum for indiscriminate

discourse. Bannon, 387 F.3d at 1212-13, citing Hazel-

wood, 484 U.S. at 267, 270. The forum was therefore a

nonpublic forum, consistent with the general rule that

schools are nonpublic fora unless they have intentionally

designated a public forum. See, e.g., Grattan v. Bd. of Sch.

Com’rs of Baltimore City, 805 F.2d 1160, 1162-63 (4th

Cir. 1986) (even a public school parking lot, after hours, is

a nonpublic forum in which schools can regulate content).

The courts have interpreted Hazelwood as “con-

strain[ing] the [forum] analysis by requiring that courts

focus on unique attributes of the school environment and

recognize broadly articulated purposes for which high

school facilities may properly be reserved.” Planned

Parenthood of Southern Nevada, Inc. v. Clark County Sch.

Dist., 941 F.2d 817, 825 (9th Cir. 1991) (citing Hazelwood,

484 U.S. at 270-73). The analysis must consider the

school’s “pedagogical concerns, such as . . . disassociating

itself from speech inconsistent with its educational

mission and avoiding the appearance of endorsing views,

no matter who the speaker is.” Planned Parenthood, 941

F.2d at 827 (emphasis added).

9

Nonpublic fora are not transformed into limited

public fora when expressive activity simply happens to

occur therein. Cornelius v. NAACP Legal Defense and

Educational Fund, Inc., 473 U.S. 788, 805 (1985). Nor do

school-sponsored projects become limited public fora

simply “by permitting limited discourse, but only by

intentionally opening a nonpublic forum for public

discourse.” Hazelwood, 484 U.S. at 267 (emphasis added).

Here, the school’s mural project—planned by the

student government/leadership class, approved and regu-

lated by principal, advertised by the school, and super-

vised by a teacher—was intended to benefit the school by

raising funds and making the construction panels

bearable. There was no “clear intent to create a [limited]

public forum” by “open[ing] the [panels] . . . to indis-

criminate use... by the student body. . . . Instead, they

reserved the [nonpublic] forum for its intended purpose”

by seeking colorful art, by providing guidelines, and by

supervising the project. See Hazelwood, 484 U.S. at 270

(citations a..ji internal quotations omitted). As the

Bannon court pointed out, the principal had never “said

the murals were a forum for expressing [students]

political or religious views.” 387 F.3d at 1213. Out of the

many murals in the project, only Petitioner’s used the

opportunity to proclaim verbal messages. Such incidental

expression did not transform the school-sponsored art

project into a limited public forum. Cf. Cornelius, 473 U.S.

at 805. The school’s beautification project remained a

scholastic nonpublic forum.

Of the several kinds of expression that may occur

in a scholastic nonpublic forum, it is important to

distinguish between two kinds for this case: school-

sponsored speech versus pure student expression.

Petitioner argues that the pure-student-expression

standard should apply under Tinker v. Des Moines

Independent Community School District, 393 U.S. 503

(1969). This Court, however, has explained the difference:

10

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 Hazelwood

school-sponsored speech standard]. The

former question [in Tinker] addresses

educators’ ability to silence a student’s

personal expression that happens to occur

on the school premises [and may cause

disruption, interference, or disorder]. The

latter question [in Hazelwood] 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.

Hazelwood, 484 U.S. at 270—71 (emphasis added).

Here, the school-sponsored mural project plainly

was not merely personal, private expression that just

happened to occur on campus like a slogan on a student’s

shirt or a conversation between two students over lunch,

subject to the Tinker standards. Rather, the school had

organized, regulated, and supervised the project resulting

in murals that would be part of the school for years.

B. The Murals Were School-Sponsored Speech

Bearing the Imprimatur of the School

In spite of causing disruption like that which can be

quelled even under the heightened Tinker standard as

discussed in Fart III.A below, the murals actually fit

squarely within the Hazelwood framework of school-

sponsored speech bearing the imprimatur of the school.

an! PN Ben, it

11

[T]here is no question students, parents,

and other members of the public might

reasonably believe [Petitioner’s] murals

bear the imprimatur of the school. The

murals appear in prominent locations in the

school . . . [and] a reasonable observer

would likely perceive that the school had a

role in setting guidelines for, and ultimately

approving, the [murals] it allowed to

become a part of the school itself. . . .

Bannon, 387 F.3d at 1214 (citation and internal quotes

omitted).

C. The Mural Project Was a Curricular

Activity

As relates to the curricular application of

Hazelwood, two interpretations would appear valid: either

school-sponsored speech includes any expression impli-

cating pedagogical concerns and bearing the imprimatur

of the school, or the term refers to a broadly-defined

gamut of curricular activities.

The Tenth Circuit has held that “school-sponsored”

speech . .. mean|s] [any] activities that might reasonably

be perceived to bear the imprimatur of the school and that

involve pedagogical concerns.” Fleming, 298 F.3d at 924.

Hazelwood spoke of activities that “may fairly be

characterized as part of the school curriculum.” 484 U.S.

at 271. Hazelwood emphasizes controlling “expressive

activities that students, parents, and members of the

public might reasonably perceive to bear the imprimatur

of the school” or other “vehicle of student expression,” so

that “views of the individual speaker are not erroneously

attributed to the school.” 484 U.S. at 271, 273. “Further,

the environment in which learning takes place, such as

the school’s hallways, can be a pedagogical concern, as it

affects the learning process.” Fleming, 298 F.3d at 931

12

(emphasis added). The Tenth Circuit interprets

Hazelwood’s_ curricular language (“designed to impart

particular knowledge or skills to student participants and

audiences”) to mean any “activities that affect learning, or

in other words, affect pedagogical concerns,” such as “the

school district’s desire to avoid controversy within a school

environment.” Id. 298 F.3d at 925-26 (emphasis added;

citations omitted).

The Eleventh Circuit has taken a conservative

approach, holding that school-sponsored speech refers to

curricular activities, which are to be broadly de.ined.

Bannon, 387 F.3d at 1214. Under either approach, the

results are generally the same: the activity in question

will often be subject to control under Hazelwood,

regardless of whether it occurs in a classroom. Having

taken the conservative view, the Bannon court explained:

To be considered curricular, expressive

activities need not occur in a “traditional

classroom setting.” Hazelwood, 484 U.S. at

271. Instead, expressive activities are cur-

ricular so long as they are merely (1)

“supervised by faculty members,” and (2)

“designed to impart particular knowledge or

skills to student participants and

audiences.” Jd. In contrast to Appellant’s

position, Hazelwood never defined curricu-

lar activity in terms of whether student

participation was required, earned grades

or credit, occurred during regular school

hours, or did not require a fee.

Bannon, 387 F.3d at 1214. Petitioner's expression

certainly occurred in the context of a curricular activity:

The first prong is met because Principal

Harris and Ms. Roberts were faculty

members who supervised the beautification

project. Likewise, the second prong is

i ee

|

a re

13

satisfied because the beautification project

was designed to impart particular

knowledge and skills to student

participants and audiences; it allowed

student participants to express themselves

artistically [similar to skills in art classes},

allowed student audiences to appreciate

their fellow students’ artwork, and promoted

school spirit, among other things.

Bannon, 387 F.3d at 1214-15 (emphasis added).

Additionally, the mural project was initiated and

coordinated by a class (the student government/leadership

class) and directly affected the learning environment.

This project was one of Hazelwood’s “other expressive

activities that students, parents, and members of the

public might reasonably perceive to bear the imprimatur

of the school.” See 484 U.S. at 271. It certainly was not

merely extracurricular speech like discourse at a baseball

game. Yet, Hazelwood has even been applied to a ball

field fence. DiLoreto v. Downey Unified Sch. Dist. Bd. of

Educ., 196 F.3d 958, 968 (9th Cir. 1999), cert. denied, 529

U.S. 1067 (2000). Hazelwood plainly said such activities

need not occur in a classroom setting. 484 U.S. at 271.

There can be no doubt that “curricular activities” must be

construed broadly under Hazelwood.

D. Bannon Is Consistent with the Viewpoint

Doctrines of Lamb’s Chapel, Good News

Club, and Rosenberger

Contrary to Petitioner’s claim that the Eleventh

Circuit “did not even consider” Good News Club v. Milford

Central School, 533 U.S. 98 (2001), that decision was

discussed in the district court’s opinion and was briefed

for the Eleventh Circuit by both parties. In both Good

News Club and Lamb’s Chapel v. Center Moriches Union

Free School Dist., 508 U.S. 384 (1993), the schools had

14

intentionally opened a limited public forum for

temporary, after-school private use of meeting facilities by

outside groups or extracurricular student clubs, which

were not initated or coordinated by the school. In contrast

to the private, temporary, extracurricular, after-school

use of meeting facilities in Good News Club, the murals in

Bannon were school-sponsored and became a semi-

permanent part of the fabric of the building, to be seen

daily by a captive audience during school hours. The Good

News Club sought “to address a subject otherwise

permitted under the rule, the teaching of morals and

character, from a religious standpoint.” 533 U.S. at 109.

By contrast, the school in Bannon did not open a public

forum for any viewpoints and had not made any topics

includable; the project was for aesthetic beautification.

Bannon is also fully consistent with Rosenberger v.

University of Virginia, 515 U.S. 819 (1995), which

involved a “limited public forum .. . of [the university’s]

own creation,” id. at 829, in which the university

expressly solicited the views of a diversity of students in

an extracurricular program that was separate and

independent from the university, id. at 824, “to encourage

a diversity of views from private speakers.” Id. at 834.

The university had intended to “open a forum for speech

and to support various student enterprises, including the

publication of newspapers, in recognition of the diversity

. of student life,” id. at 840. Thus, the University’s

extracurricular student activity fund should have pro-

vided newspaper printing funds from the extracurricular

student activity-fees fund on a “religion-blind basis.” Id.

at 845. By contrast, the beautification project in Bannon

was school-sponsored speech in a nonpublic forum, and

the school had not solicited student’s viewpoints. The

project was simply intended to decorate the plain

construction-barrier panels; and none of the murals

included verbal messages, religious or otherwise, besides

the few panels painted by Petitioner.

ee et Ee eet

15

The Rosenberger Court, at page 830, directly based

its reasoning on Lamb’s Chapel, 508 U.S. at 393, which

held that schools that open a limited public forum by

allowing private community groups to use school facilities

after hours should provide the facilities (for private, extra-

curricular, after-school use) without regard to the group’s

religious perspective on permissible topics; it would be

viewpoint discrimination to allow “all views about family

issues and childrearing except those dealing with [that]

subject matter from a religious standpoint” (emphasis

added). By contrast, in Bannon there were no permissible

topics to be discussed from a religious standpoint; the

murals were simply intended for beautification of the

panels, and Petitioner’s murals were the only ones that

included viewpoints. Bannon, 387 F.3d at 1211.

The Petition mischaracterizes Rosenberger as

treating any exclusion of religious speech as viewpoint

discrimination. However, Rosenberger itself recognized

that “[t]he necessities of confining a forum to the limited

and legitimate purposes for which it was created may

justify . . . reserving it for . . . certain topics.” 515 U.S. at

829. Rosenberger plainly distinguished between subject-

based restrictions and viewpoint discrimination:

When the government targets not subject

matter, but particular views taken by

speakers on a subject, the violation of the

First Amendment is all the more blatant.

Viewpoint discrimination is thus an

egregious form of content discrimination.

The government must abstain from regu-

lating speech when the specific motivating

ideology or the opinion or perspective of the

speaker is the rationale for the restriction.

Id. at 829 (emphasis added). Thus, Rosenberger “merely

held that refusing to fund only religious viewpoints on

otherwise-permissible subjects (i.e. pregnancy or homo-

sexuality) was viewpoint discrimination.” DiLoreto v.

eaneeneneaaneeneteneeetieeeeememmianeneaanmnnanemenmtnnneneneemen

16

Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 970

(9th Cir. 1999) cert. denied, 529 U.S. 1067 (2000). The

rationale for the restriction in Bannon was not to

suppress any “specific motivating ideology.” The principal

only desired to restore order to the learning environment,

avoid further disruptive controversy, and avoid an Estab-

lishment Clause vivlation.

In sum, the Good News Club Court specifically

found a club was discussing the permissible (secular)

subjects of “morals and character development... from a

particular [religious] viewpoint.” 533 U.S. at 111-12. The

Court went on to emphasize that its holding in that case

and in Lamb’s Chapel and Rosenberger were all the same:

that “speech discussing otherwise permissible subjects

cannot be excluded from a limited public forum on the

ground that the subject is discussed from a religious

viewpoint.” Good News Club, 533 U.S. at 111-12

(emphasis added). Bannon is consistent with those cases

because all three of those decisions clearly distinguished

between permissible subject-matter restrictions as

opposed to invidious viewpoint-based discrimination

against certain perspectives on an allowable subject.

Bannon is also wholly distinguishable from those

cases, however, because they involved an intentional

public forum (and extracurricular activities), rather than

Bannon’s curricular, scholastic nonpublic forum. Because

the beautification project was not intended to be a forum

for expression or debate of various viewpoints, Petitioner’s

painting proselytizing verbal messages amounted to

“controvert[ing] the rules of a structured [school] activity

with the intention of promoting an unsolicited message,” |

cf. Walz v. Egg Harbor Tp. Bd. of Educ., 342 F.3d 271, 280 |

(3d Cir. 2003), cert. denied, 541 U.S. 936 (2004) (as a

means of sharing her faith—a conclusion supported by

statements in the deposition. (SD 14, 17, 21, 64-65, 72-

73, and 81-83.)) However, “a student’s right to express

fher] personal religious beliefs does not extend to using

erential ia ial

rena,

17

the machinery of the state as a vehicle for converting [the]

audience.” Chandler v. James, 180 F.3d 1254, 1265 (11th

Cir. 1999), cert. granted and j. vacated, 530 U.S. 1256

(2000), op. reinstated, 230 F.3d 1313, cert. deniex, 533

U.S. 916 (2001). :

E. The Editorial Control Was Based on

Legitimate Pedagogical Concerns

This Court has held that “control over access to a

nonpublic forum can be based on subject matter . . . so long

as the distinctions drawn are reasonable in light of the

purpose served by the forum and are viewpoint neutral.”

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473

U.S. 788, 806, (1985). “Permissible content-based

restrictions exclude speech based on tcpic, such as politics

or religion, regardless of the particular stand the speaker

takes on the topic.” DiLoreto v. Downey Unified School

Dist. Bd. of Educ., 196 F.3d 958, 969 (9th Cir. 1999), cert.

denied, 529 U.S. 1067 (2000). The principal in Bannon

responded to an objective realization that the large, overt

religious verbal messages and cross were of doubtful

constitutional validity on a public school’s walls and were

causing a palpable disruption in the learning envi-

ronment. Changing a few items (the words “God” and

“Jesus” and the cross), was a narrowly-tailored way to

render the religious messages non-sectarian and non-

divisive. For example, “He has time for you” does not

carry the sectarian impact of “Jesus has time for you.”

The murals’ potential for litigation and controversy

was a valid concern justifying a response by the principal,

especially given that the “constitutional rights of students

in public school are not automatically coextensive with

the rights of adults in other settings.” Bethel School Dist.

No. 403 v. Fraser, 478 U.S. 675, 682 (1986). In a case

strikingly similar to Bannon, a school invited student

clubs to paint murals in school hallways, but the principal

|

s

18

rejected certain designs, including a Latin cross and a

swastika. The Seventh Circuit upheld the restrictions,

noting that the principal’s “reaction to the swastika, and

to the naming of the brand of beer, in proposed secular

murals shows that he was discriminating not against

religion but merely against displays, religious or secular,

that lead to litigation or disorder” or “might also require

him to approve murals of a Satanic or neo-Nazi character,

which would cause an uproar.” Gernetzke v. Kenosha

Unified Sch. Dist. No. 1, 274 F.3d 464, 466 (7th Cir. 2001),

cert. denied, 535 U.S. 1017 (2002) (emphasis added).

Likewise, in Bannon the principal removed

several kinds of symbols, both secular and religious,

indicating that the principal was not discriminating

against a Christian viewpoint, but rather against

“displays . . . that lead to litigation and disorder.” See

Gernetzke, 274 F.3d at 466. Both the Satanic and

Christian symbols were instances of the subject-content

known as “proselytizing speech,” which can be regulated

more than other types of religious speech. See Good News

Club v. Milford Central School, 533 U.S. 98, 130-34

(2001) (Stevens, J., dissenting); Hills v. Scottsdale Unified

Sch. Dist., 329 F.3d 1044, 1053 (9th Cir. 2003), cert.

denied, 540 U.S. 1149 (2004).

Moreover, the project never was intended as a

forum for expression or debate of various viewpoints

about anything, much less politics or religion.

Implicit in the concept of the nonpublic

forum is the right to make distinctions in

access on the basis of subject matter... .

The touchstone for evaluating these

distinctions is whether they are reasonable

in light of the purpose which the forum at

issue serves.

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 49 (1983) (emphasis added). In light of the

a SSSSStS:C~CS

19

purpose of the project (artistic beautification in a

nonpublic forum), the principal’s concern with restoring

the learning environment and avoiding an Establishment

Clause violation was consistent with a reasonable and

permissible content/subject-matter distinction.

F. Bannon Clearly Supports and Requires

Viewpoint Neutrality

Petitioner's claim of conflict rests upon the

unfounded factual argument that the principal engaged in

invidious viewpoint discrimination against Petitioner’s

religious speech—a contention plainly rejected by the

court below. See Bannon, 387 F.3d at 1216-17. Moreover,

Petitioner mischaracterizes the holding of Bannon by

claiming that “the Court of Appeals . . . h[eld] that this

viewpoint discrimination was justified,” and that the

decision will be used “as justification for further acts of

viewpoint discrimination.” Pet. 19. Petitioner claims

certiorari is needed to “make plain that viewpoint

discrimination is prohibited .. . .” Pet. 11.

Yet, the Bannon decision itself expressly prohibits

viewpoint discrimination: “. .. Hazelwood does not allow a

school to censor school-sponsored speech based on

viewpoint.” Id. at 1215. This decision is consistent with

the earlier holding in Searcey v. Harris, 888 F.2d 1314,

1325 (11th Cir. 1989) (“Although Hazelwood provides

reasons for allowing a school official to discriminate based

on content, we do not believe it offers any justification for

allowing educators to discriminate based on viewpoint.”).

Petitioner is patently wrong in claiming that “censor[ship]

. . . because [of] the noint of view . . . of [which] .. .

individual officials disapprove” was “precisely th[e] kind

of censorship that occurred in this case.” Pet. 13. This

allegation contradicts the evidence and the courts below.

Where, as here, a _ defendant asserts a

content/subject-matter viewpoint-neutral basis for its

20

decision, the burden rests with the plaintiff to

demonstrate that the asserted basis is a pretext for

viewpoint discrimination. See Mesa v. White, 197 F.3d

1041, 1047-48 (10th Cir. 1999). However, Petitioner

conceded that the principal had no invidious motive in

removing any of the symbols or messages deemed

offensive. (SD 101-104.) The Eleventh Circuit implicitly

recognized that the record provides no evidence of pretext,

correctly finding that the editorial control was validly

subject-matter/content-based. Pet. App. A-31 (finding a

“permissible exercise of control”); Bannon, 387 F.3d at

1216-17 (the school “restricted speech on basis of the

content, not viewpoint,” in order to cure the “disruption to

the school’s learning environment caused by [Petitioner’s]

murals” (and, the district court found, in order to avoid

“endorsement of religious views.” Pet. App. A-31.)).

Petitioner's bare assertions of discriminatory

motive “do[ ] not suffice to allege impermissible viewpoint

discrimination. Plaintiffs must identify the particular

subject matter as to which expression is permissible .

but as to which plaintiffs’ viewpoint has been wrongfully

excluded.” East High Gay/Straight Alliance v. Board of

Educ. of Salt Lake City School Dist., 81 F.Supp.2d 1199,

1202 (D.Utah 1999). There is no record evidence to

support the claim that the “rationale for the restriction”

was “targetling] not subject matter, but particular views

taken by speakers on a subject,” based on “the specific

motivating ideology or the opinion or perspective of the

speaker [on that subject].” See Rosenberger v. Rector and

Visitors of University of Virginia, 515 U.S. 819, 829 (1995)

(citations omitted). Nor is there any evidence that the

murals were intended for expression of viewpoints on any

subject, much less potentially-divisive subjects such as

politics or religion, which Petitioner admitted can be

controversial. (SD 139-140).

The project’s faculty sponsor, Mrs. Roberts,

apparently had immediate concerns about the legality of

21

the paintings under the Establishment Clause, which she

brought to the principal’s attention the very evening of

the painting; record evidence shows the principal and

Mrs. Roberts were not personally opposed to the

perspective of the messages; additionally, profanity, gang

symbols, and all the overt religious speech—including

Satanism—was removed, not only messages from a

Christian perspective; and the principal had substantial

pedagogical concerns about the disruption that had

already begun to occur in the hallways and in the

classrooms. The principal’s editorial control was plainly

viewpoint-neutral, as Bannon expressly requires.

G. This Court Recently Denied Certiorari in

a Similar Case, Even Though It Expressly

Allowed Viewpoint Discrimination

The Tenth Circuit recently decided a case similar

to Bannon. See Fleming v. Jefferson County Sch. Dist. R-

1, 298 F.3d 918 (10th Cir. 2002), cert. denied, 537 US.

1110 (2003). Although the facts and results were similar,

the rationale was different. Bannon plainly prohibits

viewpoint-based discrimination against school-sponsored

expression under Hazelwood, whereas Fleming expressly

decided that Hazelwood allows viewpoint discrimination,

based on language in Hazelwood:

“A school must... retain... neutrality on

matters of political controversy.” Hazelwood,

484 U.S. at 272. No doubt the school could

promote student speech advocating against

drug use, without being obligated to

sponsor speech with the opposing view-

point. Hazelwood entrusts to educators

these decisions that require judgments

based on viewpoint.

Fleming, 298 F.3d at 928 (some citations and internal

quotes omitted, alteration and emphasis added). Fleming

22

also persuasively pointed out: “If the District were

required to be viewpoint neutral in this matter, the

District would be required to post tiles with inflammatory

and divisive statements, such as ‘God is Hate,’ once it

allows tiles that say ‘God is Love.” Id. at 934.

Given its authorization of viewpoint discrimi-

nation, Fleming was far more remarkable than Bannon.

Yet this Court found Fleming to be unworthy of certiorari

just two years ago; and it seems the Court should find

Bannon even less interesting.

II. No “SPLIT” EXISTS WHEN THE CIRCUITS HAVE

UNANIMOUSLY REACHED THE SAME RESULTS

UNDER HAZELWOOD AND THIS COURT HAS

DENIED ANY PETITIONS FOR CERTIORARI

In the course of holding that schools may exercise

substantial control over school-sponsored speech in a

nonpublic forum under Hazelwood, six circuits have

commented on whether viewpoint neutrality is required.

On both sides of that question, many of these circuits

have made their comments in dicta, nonessential to their

holding, and all have held that the speech in question was

properly restricted under Hazelwood.

First Circuit: Upheld a school’s restriction on a

teacher’s speech regarding abortion and noted that Hazel-

wood “did not require that school regulation of school-

sponsored speech be viewpoint neutral.” Ward v. Hickey,

996 F.2d 448, 454 (1st Cir. 1993) (citations omitted). Ward

reasoned that “public schools may limit classroom speech

to promote educational goals” due to the need, among

others, “for public school officials to assure . . . ‘that the

views of the individual speaker are not erroneously

attributed to the school” (quoting Hazelwood, 484 U.S. at

271 (1988)).

23

Third Circuit: Upheld a school’s right to limit a

student’s presentation of religious material in class and to

move a student’s poster with a religious theme, noting

that “Hazelwood clearly stands for the proposition that

educators may impose non-viewpoint neutral restrictions

on the content of student speech in school-sponsored

expressive activities so long as those restrictions are

reasonably related to legitimate pedagogical concerns.”

C.H. ex rel. Z.H. v. Oliva, 195 F.3d 167, 172-73 (3d Cir.

1999), affd on other grounds, 226 F.3d 198 (3d Cir. 2000)

(en banc), cert. denied, 533 U.S. 915 (2001).

Sixth Circuit: Upheld a university’s control of

student speech in yearbooks under Hazelwood, noting:

“{I]f the school did not intentionally create a public forum,

then the publication remains a nonpublic forum, and

school officials may impose any reasonable, non-

viewpoint-based restriction on student speech exhibited

therein.” Kincaid v. Gibson, 191 F.3d 719, 727 (6th Cir.

1999), rev'd en banc on other grounds, 236 F.3d 342 (6th

Cir. 2001).*

Ninth Circuit: Upheld a school’s refusal to publish

family-planning ads in school publications as a permis-

sible viewpoint-neutral subject-matter restriction under

Hazelwood. Planned Parenthood v. Clark County Sch.

Dist., 941 F.2d 817 (9th Cir. 1991). The Ninth Circuit also

upheld a school’s declining to display religious speech on

the ball field fence, allowing viewpoint-neutral content-

based restrictions which “exclude speech based on topic,

such as politics or religion, regardless of the particular

stand the speaker takes on the topic.” DiLoreto v. Downey

Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 969 (9th

Cir. 1999), cert. denied, 529 U.S. 1067 (2000).

* The en banc court vacated the panel’s decision and invalidated the

university's control over the yearbook speech after finding a limited

public forum instead of a nonpublic forum and deciding that

Hazelwood did not apply to this extracurricular college-level activity.

24

Tenth Circuit: Upheld a restriction on religious

speech on tiles to be affixed to the school walls, holding

that Hazelwood did not require viewpoint neutrality.

Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 928

(10th Cir. 2002), cert. denied, 537 U.S. 1110 (2003).

Eleventh Circuit: Allowed viewpoint-neutral

content-based restrictions on denigrative anti-military

political speech, noting: “Hazelwood involved a content

based distinction. . . . There was no indication that the

principal was motivated by a disagreement with the views

expressed in the articles.” Searcey v. Harris, 888 F.2d

1314, 1324-25 (llth Cir. 1989). However, “exhortative

and denigrative presentations by speakers for the purpose

of denouncing certain careers . . . may properly be

banned” as content-based restrictions. Jd. at 1326.

Where the various circuits have reached the same

result of permitting restrictions on school-sponsored

religious or political speech under Hazelwood, it matters

little that some have followed different rationales.

Further, in any of these cases in which a petition for

certiorari was filed, this Court has denied each petition.

There is no true “split” among the circuits when they

reach the same results and, in many instances, cite each

other for support.

Ill. THE ELEVENTH CIRCUIT COURT COULD HAVE

AFFIRMED ON SEVERAL OTHER GROUNDS

The Eleventh Circuit affirmed the district court’s

judgment under Hazelwood because it was the most

obvious basis for a decision. Neither court had occasion to

reach the several other grounds upon which we believe

the Eleventh Circuit would also have affirmed. These

issues are summarized here to indicate the complications

of the case and the likelihood that the district court’s

judgment would be affirmed in any event.

25

A. Disruption and Interference

Had the semi-permanent murals been purely

private student speech that just happened to occur on

school grounds, the commotion and disruption

accompanying the displays should have justified the

school’s editorial control even under Tinker v. Des Moines

Independent Community School District, 393 U.S. 503

(1969) (allowing a school to ban silent wearing of black

armbands if administrators could reasonably forecast

substantial disruption of, or material interference with,

school activities or if there was any showing that

disturbances or disorder actually occurred).

As shown in the Factual Background section

above, in Bannon there was not only a reasonable forecast

of disruption, but alsu actual disturbance and material

interference with the learning environment. Although the

Eleventh Circuit mentioned the disruption and com-

motion, it did not need to focus extensively on the

disruption because the murals clearly were school-

sponsored speech under the Hazelwood standard (rather

than purely private speech just happening to occur on

school grounds under Tinker)—and Hazelwood does not

require a showing of substantial disruption; it only

requires legitimate pedagogical concerns.

Even so, the commotion and disruption intensified

the principal’s pedagogical concerns. “Although the avoid-

ance of controversy is not a valid ground for restricting

speech in a public forum, .~ . [t]he First Amendment does

not forbid a viewpoint-neutral exclusion of speakers who

would disrupt a nonpublic forum and hinder its

effectiveness for its intended purpose.” Cornelius, 473

U.S. at 788 (1985). “In no activity of the State is it more

vital to keep out divisive forces than in its schools... .”

Illinois ex rel. McCollum v. Board of Ed. of School Dist.

No. 71, 333 U.S. 203, 231 (1948) (Frankfurter, J.,

concurring). The Eleventh Circuit recognized that one of

26

the legitimate pedagogical goals was ending “the

disruption to the school’s learning environment caused by

[Petitioner’s}] murals,” and the editorial control was

reasonably related to that goal “because it ended the

disruption.” Bannon, 387 F.3d at 1217. Had the speech

been purely private expression just happening to occur on

school grounds, such disruption certainly would have

merited control under Tinker.®

B. Government Speech

The Eleventh Circuit could have affirmed on the

broader basis of government speech. Where speech is not

only school-sponsored but also becomes part of the

construction walls for up to four years, the expression can

properly be deemed government expression, over which

the school has the right of full control. See Downs v. Los

Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000),

cert. denied, 532 U.S. 994 (2001) (upholding a school’s

refusal to post viewpoints contrary to speech on the

school’s bulletin board, which was government expression

to which viewpoint analysis is inapplicable).

C. Establishment Clause Neutrality

The Establishment Clause requires the school to

be neutral toward religion, between the various religions,

and between religion and nonreligion. See Epperson v.

5 Additionally, the principal's editorial control would have been

justified under Scott v. School Bd. of Alachua County, 324 F.3d 1246,

1247 (11th Cir. 2003), cert. denied, 540 U.S. 824 (2003) (upholding a

ban on displaying the confederate flag, without reference to a forum

analysis). School administrators “must have the flexibility to control

the tenor and contours of student speech within school walls or on

school property, even if such speech does not result in a reasonable fear

of immediate wenn aag oo Id. at 1247-48 (internal quotations omitted;

emphasis added). Proselytizing sectarian speech—no less than

controversial political symbols—can spur divisiveness and controversy

that hinders the school’s educational mission.

27

Arkansas, 393 U.S. 97, 193-04 (1968); Engel v. Vitale, 370

U.S. 421, 430-31 (1962).

Families entrust public schools with the

education of their children, but condition

their trust on the understanding that the

[school] will not purposely be used to

advance religious views that may conflict

with the private beliefs of the student and

his or her family.

Edwards v. Aguillard, 482 U.S. 578, 584 (1987).

Proselytizing speech affixed to the divider walls

would be perceived by a captive audience as endorsed by

the school. “No viewer could reasonably think that it

occupies this location without the support and approval of

the government.” See County of Allegheny v. ACLU

Greater Pittsburgh Chapter, 492 U.S. 573, 599-600

(1989). See also Santa Fe Independent School Dist. v. Doe,

530 U.S. 290 (2000) (a school’s policy of permitting prayer

at football games was unconstitutional where the activity

took place during a school-sponsored event, which was not

a public forum); Cole v. Oroville Union High School Dist.,

228 F.3d 1092 (9th Cir. 2000), cert. denied, 532 U.S. 905

(2001) (a school district’s refusal to allow students to

deliver a sectarian prayer or a sectarian and proselytizing

valedictory speech as part of a graduation ceremony was

necessary to avoid violating the Establishment Clause);

Washegesic v. Bloomingdale Public Schools, 33 F.3d 679,

683-84 (6th Cir. 1994), cert. denied, 514 U.S. 1095 (1995)

(a portrait of Christ, donated to the school, in a hallway

near the school office, had a proselytizing effect and failed

the test in Lemon v. Kurtzman, 403 U.S. 602 (1971)); Joki

v. Board of Educ. of Schuylerville Cent. School Dist., 745

F.Supp. 823 (N.D.N.Y. 1990) (display of student’s mural

secured to the wall of the school auditorium as part of

school decoration project, had the effect of conveying a

message of government endorsement of Christianity and

was prohibited by the Establishment Clause).

28

The school had a compelling governmental interest

in avoiding violation of the Establishment Clause,

justifying the minor content-based restriction on religious

speech. “There is no doubt that compliance with the

Establishment Clause is a state interest sufficiently

compelling to justify content-based restrictions on speech”

even in a traditional public forum. Capitol Square Review

and Advisory Bd. v. Pinette, 515 U.S. 753, 761-62 (1995)

(emphasis added). Accord Good News Club v. Milford

Cent. Sch., 533 U.S. 98, 151 (2001).6

Incidentally, disclaimer signs could not sufficiently

neutralize the captive student audience’s perception of

school endorsement; “no sign can disclaim an over-

whelming message of endorsement.” County of Allegheny,

492 U.S. at 619. Accord Smith v. County of Albemarle,

Va., 895 F.2d 953, 958 (4th Cir. 1990), cert. denied, 498

U. S. 823 (1990) (“It remains to be seen whether any

disclaimer can eliminate the patent aura of government

endorsement of religion.”); American Jewish Congress v.

City of Chicago, 827 F.2d 120, 128 (7th Cir. 1987) (“[A]

disclaimer of the obvious is of no significant effect.”)

(citation and internal quotations omitted). Further, where

two faculty members had actually suggested or

encouraged the proselytizing religious speech, a dis-

claimer of school involvement or endorsement could

appear disingenuous.

6 Even a viewpoint-based restriction would have been justified by a

compelling interest in avoiding violation of the Establishment Clause.

“To discriminate ‘against a particular point of view .. . would. . . flunk

the test . . . [of] Cornelius, [but only] provided that the defendants have

no defense based on the establishment clause.” Lamb’s Chapel v.

Center Moriches Union Free School Dist., 508 U.S. 384, 394 (1993)

(quoting, with approval, May v. Evansville-Vanderburgh Sch. Corp.,

787 F.2d 1105, 1114 (7th Cir. 1986) (emphasis added)). Accord Good

News/Good Sports Club v. School Dist. of City of Ladue, 28 F.3d 1501,

1508 n.13 (8th Cir. 1994), cert. denied, 515 U.S. 1173 (1995); Hills v.

Scottsdale Unified School Dist. No. 48, 329 F.3d 1044, 1053 n.7 (9th

Cir. 2003), cert. denied, 540 U.S. 1149 (2004).

WOOP othe

€

29

D. Qualified Immunity

As shown in detail in the Respondents’ brief in the

Eleventh Circuit, the legal landscape predating February,

2002, would have informed a reasonable principal that

the editorial control was lawful. Moreover, the Eleventh

Circuit’s ruling in this case is an indication that a —

reasonable principal should have seen Hazelwood as

authorizing the editorial control, pecause a principal

cannot be held to a higher standard of understanding

than the courts. Denno v. Sch. Bd. of Volusia County, Fla.,

218 F.3d 1267, 1274 (11th Cir. 2000). Thus, the principal

would be entitled to qualified immunity and there would

be no liability even if, merely arguendo, the editorial

control had been unconstitutional.

E. The School Board’s Non-Liability

An alternative basis for affirmance by the

Eleventh Circuit would be that, under the circumstances

of this case, the School Board could not be liable for

money damages under 42 U.S.C. § 1983, even assuming

unconstitutional actions by the principal. See Monell v.

Department of Social Services, 436 U.S. 658, 694 (1978);

Denno v. School Bd. of Volusia County, Fla., 218 F.3d

1267, 1276 and 1278 (11th Cir. 2000), cert. denied, 531

U.S. 958 (2000) (Monell allows entity liability for a school

board “only if [the] constitutional torts result from an

official government policy, the actions of an official fairly

deemed to represent government policy, or a custom or

practice so pervasive and well-settled that it assumes the

force of law”—conditions inapplicable in Bannon...

IV. THIs CASE Is UNIQUE AND COMPLEX, NOT

CONDUCIVE TO CERTIORARI REVIEW

There are several factual and legal complications

that would impede straightforward review. For instance:

30

the allegedly “student-initiated” expression on Petitioner’s

murals was suggested and/or encouraged by two faculty

members (apparently not in compliance with School

Board Policy 2.122, which requires employees to exhibit

neutrality toward religion, nor with the Equal Access Act,

which prohibits faculty monitors from participating in the

club activities, 20 U.S.C. §§ 4071(c\2)-4071(c)(5)); the

supervising teacher and principal immediately and

correctly became concerned that the semi-permanent,

strategically-placed 8-foot by 8-foot murals, to be in place

up to four years, would violate the Establishment Clause;

the school required only minor changes to the messages;

the principal clearly had no invidious discriminatory

motive; and only Petitioner's murals contained verbal

messages, while the other murals simply met the

expectation of colorful artwork to beautify the drab

construction panels; there was commotion and disruption

of the learning environment, but the disruption ceased

after the messages were edited. Accordingly, this case

would be less than conducive to certiorari review.

CONCLUSION

The Eleventh Circuit thoughtfully reached the

correct result in Bannon, consistent with decisions of this

Court and the results in similar cases in other circuits.

The petition for writ of certiorari should be denied.

Respectfully submitted,

RANDALL D. BURKS, PH.D.

Office of the Chief Counsel

The School Board of Palm Beach County

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, FL 33406-5813

(561) 434-8500

Counsel for Respondents