Reply Brief — McComb v. Crehan (No. 08-1566)

Supreme Court, U.S,

| WA FILED

No. 08-1566 uel 16 2009

FFICE OF THE CLERK

In The id.

Supreme Court of the Anited States

BRITTANY McCOMB, and MARIANNA McCOMB,

by her best friend, CONSTANCE J. McCOMB,

Petitioners,

GRETCHEN CREHAN, ROY THOMPSON, and

CHRISTOPHER SEFCHECK, individually and in their official

capacities as employees of Foothill High School, and the Ciark

County School District, a political subdivision of the State of

Nevada, and WALT RULFFES, in his official capacity as

Superintendent of the Clark County School District, a political

subdivision of the State of Nevada, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

Anand Agneshwar Douglas H. Clark

Counsel of Record LAW OFFICES OF DOUGLAS

Vijay Baliga H. CLARK, P.C.

ARNOLD & PORTER LLP 2595 South Torréy Pines Drive

399 Park Avenue Las Vegas, NV 89146

New York, NY 10022 Tel: (702) 388-1333

Tel: (212) 715-1000

James J. Knicely John W. Whitehead

KNICELY & ASSOCIATES, P.C Douglas R. McKusick

487 McLaws Circle, Suite 2 THE RUTHERFORD

Williamsburg, VA 23185 INSTITUTE

Tel: (757) 253-0026 1440 Sachem Place

Charlottesville, VA 22906

Tel: (434) 978-3888

October 15, 2009 Counsel for Petitioners

TABLE OF CONTENTS

Page

ig 2 ak by yt. Se enn menu Ace i eee l

I. The Decision Below Runs Contrary to

Weisman and Santa Fe...... siuiieiticcateetecu aaa 3

II. The Permissibility of a Student-

Initiated Speech Shculd Not Depend on

a Distinction Between Proselytizing

and Non-Proselytizing Speech ..................cc0c000s 6

IT] This Court Should Reconcile A Clear

Difference in Jurisprudence Between

REN GOI sv ccccicctsccrscessomncorad nee 11

IV. Petitioners Have Fairly Presented All

Issues Which Remain Ripe for Review........... 12

CITRON is cc sduinde ca psetatenconssabodedierestaannne 13

TABLE OF AUTHORITIES

Page(s)

CASES

Adler v. Duval County School Board,

eee Boo (Lith Cir. Z001)................0.........seeseee 1]

Cole v. Oroville Union High School District,

228 F.3d 1092 (9th Cir. 2000)................ Le 7,14,

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

168 F.3d 806 (5th Cir. 1999).......... Siaesavesiwcuseacoun 7,10

Doe v. School District of Norfolk,

340 F.3d 605 (8th Cir. 2003)... ce eeeeeeeeeeete eee 11

Follett v. McCormick,

ES re 7

Forsyth County, Georgia v. Nationalist Movement,

CY) re 10

Grupo Mexicano de Desarrollo v.

Alhance Bond Fund, Inc.,

527 U.S. 308 (1999).....0.0000... ae aenietx laseeseias 12

Lassonde v. Pleasanton Unified Schoo! District,

a foe 879 (Sth Cir. 2003)........................... 2. 11, 12

Lee v. Weisman,

505 U.S. 577 (1992)... _ Fe ee oe ee

Murdock v. Pennsylvania,

319 U.S. 105 (1943) 7

CSR HEE HEHEHE HEHEHE ETE SHEESH T HEHEHE HH EES

N.C.A.A. v. Smith,

BO UT By, BE CI svc icinciocnenocsecsecegucvcsenasaveririessiaceses 12

Nurre v. Whitehead,

No. 07-35867, 2009 WL 2857196

(9th Cir. Sept. 8, 2009).......................0000 a ee Re

Rosenberger v.

Rector and Visitors of University of Virginia,

EO Tye a nce escheat 10

Santa Fe Independent School District v. Doe,

SOO U.S. BO I oo esicscnesecssunscesscieanncsexvsusscdia tie Mg hy 2

OTHER AUTHORITIES

Clark County School District Administrative

NNN BE Bae sass aoe 4.5

http://schooltree.org (last visited Oct. 15, 2009)........ 2

Oral Argument before the Ninth Circuit in

McComb v. Crehan, 07-16194 (Mar. 10, 2009),

http-//www.ca9.uscourts.gov/

media/view_subpage.php?pk_id=0000002983

lawt vinsted Oct. 15, BOD «.eiscccicchcosscsecsnsusesscavvesescercece s

111

INTRODUCTION

Respondents’ primary argument is that the

Establishment Clause required them to censor

Brittany McComb (“Brittany” or “Petitioner”) -- one

of three public high school students selected because

of their G.P.A. to write and give speeches at a

graduation ceremony ~- solely because she spoke

about the key to her success in school (her faith in

Christ) and told others that they could likewise

succeed. See Plaintiffs’ First Amended Complaint

(““Compl.”) at 4§§16-21 (Petitioners’ Appendix

(“App.”) at 24-25) This Court should grant certiorari

to make clear that the Establishment Clause does

not stretch so broadly to stifle personal student

speech simply because it reflects a _ sectarian

religious orientation. Yet the Ninth Circuit

repeatedly has reached that conclusion! and it again

did so here despite the presence of viewpoint

discrimination between the student graduation

speakers.

These overbroad Ninth Circuit rulings are

taking a cumulative and unnecessary toll on Free

Speech, well beyond this Court’s expressed concerns

with school prayer. See, e.g., Nu..2 v. Whitehead,

No. 07-35867, 2009 WL 2857196 (9th Cir. Sept. 8,

2009) (Censoring school band _ instrumental

performance of Ave Maria from school graduation

! Cole v. Oroville Union High School District, 228 F.3d 1092,

1103 (Sth Cir. 2000), and Lassonde v. Pleasanton Unified

School District, 320 F.3d 979 (9th Cir. 2003)

ceremony because of its religious orientation). There

are over 17,000 public schools in the Ninth Circuit?

and this orientation undoubtedly stifles student

speech across the West Coast. As such, we urge the

Court to review this case and settle this question

once and for all.

See http://schooltree.org (tallying total number of public

schools located within each State of the Union) (last visited Oct.

15. 2009)

I. The Decision Below Runs Contrary to

Weisman and Santa Fe

Respondents first argue that this case is not

certworthy because the speech at issue was not

really Brittany’s but that of the School District. In

particular, Respondents claim that because school

officials asked to review the students’ speeches

before they were given, the school had plenary

control of the event. Petitioners’ Opposition Brief

(““Opp.”) at 3-5. In Respondent’s view, whatever

student speech was given created the perception of

being endorsed by the school district and became

subject to Establishment Clause limitations under

Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe

Independent School District v. Doe, 530 U.S. 290

(2000). See id.

Let us be clear -- the school district did not

exercise “plenary control” over Brittany’s speech by

virtue of the principal’s review of her speech. But

even if the principal’s review somehow gave the

school district some control over what types of

speeches should be prohibited -- for example,

pornographic or incendiary speeches designed to

disrupt the event -- that type of control does not

mean tnat the school endorses whatever speech is

permitted to go forward. Nor does that review

suggest primary control over the “content” of whollv

student-authored expression. The simple fact that

the principal asks to review the speech does not

entwine the school district with the substantive

content of the speech. Otherwise, any speech that

would be barred if given by the principal in his

3

official capacity would by definition be barred if

given by the student. There is no logical stopping

point to such an doctrine.

In fact, Respondent’s “plenary control”

argument flows from a misreading of the scope of

Weisman and Santa Fe. Those cases involved school

districts that, respectively, inserted themselves into

the substantive content of school prayer, and

actively encouraged student-initiated school prayer.

See generally, Weisman, 505 U.S. 577, and Santa Fe,

530 U.S. 290. The school in Weisman selected a

rabbi to deliver an “invocation” and “benediction” to

the graduating class and provided materials for him

to use in delivering the prayers (Weisman, 505 U.S.

at 581); the school in Santa Fe engineered the

election of a student speaker for a school event for

the specific purpose of delivering a prayer to the

student audience (Santa Fe, 530 U.S. at 296-97).

Neither of these factual scenarios is remotely

analogous to the situation here -- where no prayer

was involved and where the student was one of three

valedictorians invited to speak because of her class

rank and informed that she could speak about what

was important to her. See Compl. at {§ 16-21 (App.

at 24-25).

Nor does Respondents’ invocation of Clark

County School District Regulation (“Regulation”)

6113.2 add anything material to their argument.

Opp. At 4-5. That regulation was designed to

encourage student speech (see Regulation 6113.2

(App. At 3)); 1t emphasizes a distinction between

situations where neutrally selected students exercise

4

“primary control of the content of the expression”

and when they do not. Jd. Here, Brittany not only

authored the content of her speech, she was solely

and primarily responsible for its delivery. Compl. at

{4 32-33 (App. at 30). There was no school policy

against religious expression at graduation (d.);

indeed, where the expression was the student’s and

the student was selected by neutral criteria, school

policy favored permitting the religious expression.

Regulation 6113.2 (App. at 3).

Respondent’s logic and the logic of the decision

below would result in the censorship of any and all

student-initiated speech that takes on a religious

orientation so long as the speech reached the desk of

a school official before it was given. The Ninth

Circuit in fact appears to be headed towards that

extreme. In its recent decision in WNurre v.

Whitehead, No. 07-35867, 2009 WL 2857196 (9th

Cir. Sept. 8, 2009), the Court upheld a school’s

prohibition on a student playing an instrumental

version of Ave Maria at a high school graduation

ceremony, due to the “religious nature” of the song.

Id., 2009 WL 2857196 at *5. The dissent in that case

realized this went far beyond Santa Fe and

Weisman, and raised concerns as to the ultimate

effect of this ban:

(Ilf the majority’s reasoning on this

issue becomes widely adopted, the

practical effect will be for public school

administrators to chill - or even kill

musical and artistic presentations by

their students in_ school-sponsored

)

limited public fora where those

presentations contain any trace of

religious inspiration, for fear of

criticism by a member of the public,

however extreme that person’s views

may be.

Id., 2009 WL 2857196 at “9.

Petitioners respectfully request the Court to

provide clarity as to whether the far reaching

Kstablishment Clause Defense advanced _ by

Respondents, that would justify the removal of all

student-initiated religious speech with a sectarian

component from graduation ceremonies, reflects a

proper understanding of the balance between the

Free Speech and Establishment Clauses.

Il. The Permissibility of a Student-Initiated

Speech Should Not Depend on a Distinction

Between Proselytizing and Non-Proselytizing

Speech

Respondents implicitly acknowledge that their

“plenary control” argument proves too much by

arguing that Brittany’s speech violated’ the

Establishment Clause for another reason -- , that it

constituted “proselytizing.” See generally Opp. at

25-27. To date, this Court has not permitted

censorship of student religious speech based on

whether it 1s non-proselytizing or proselytizing

The sole definition of the term relied upon by

Respondent: derives from Cole. 228 F.3d at 1103

and a Fifth Circuit case on which it relies (Doe v.

Santa Fe Ind. Sch. Dist., 168 F.3d 806, 817-18 (5th

Cir. 1999)). In these authorities, proselytizing is any

comment “designed to reflect, and even convert

others to a particular religious viewpoint.’ Jd. This

Court should grant certiorari and hold that the

Constitution does not permit school districts to

prohibit speech that otherwise would be viewed as

that of the non-governmental speaker solely because

it falls within a highly subjective and overbroad

distinction between “proselytizing” and “non

proselytizing” speech.

For one thing, courts are ill-equipped to

distinguish between proselytizing and non

proselytizing religious speech. [It is moreover

unclear why “proselytizing” speech is inherently

coercive but non-proselytizing speech is_ not.

Consider the following two examples. A student

gives a twenty minute speech that is suffused with

references to God and God’s role in the student’s life

and successes. The speech is personal and contains

no exhortation to others to convert. A_ second

student gives a nearly identical speech but then adds

“1 am where | am because of my Buddhist faith and

if you follow the Buddhist Eightfold Path I beleve

you will succeed and fina happiness as I have.” It

The Cole Court also relied on Follett v. McCormick, 321

U.S. 573, 576°77 (1944), and Murdock v. Pennsylvania, 319

U.S. 105, 108-10 (1943) to equate prayer with what it termed to

he the religious practice of door-to-door evangelizing Cole

29R F.3d at 1104

cannot credibly be contended that the second speech

presents Establishment Clause concerns while the

first does not, and yet that is the substance of the

Ninth Circuit’s judgment in this case. See Orai

Argument before the Ninth Circuit in McComb v.

Crehan, 07-16194 (Mar. 10, 2009),

http://www.ca9.uscourts.gov/media/view_subpage. ph

p?pk_id=0000002983 (last visited Oct. 15, 2009).

Inevitably, this distinction between

proselytizing and non-proselytizing speech is

devolving into more invidious viewpoint

discrimination based on the extent to which the

speech is deemed to be sectarian. That in fact is

what Petitioners believe occurred here. Two

students gave speeches with religious orientations.

See Compl. at {| 64-66 (App. at 36°41). Janelle

Oehler (“Janelle”) spoke about God and her beliefs in

a non-sectarian, but arguably proselytizing, manner.

Id. Brittany’s speech contained references to her

particular faith in Christ which Respondents deemed

to be proselytizing. Jd. Janelle’s speech was deemed

acceptable but Brittany's was not. Id

While Respondents clumsily argue that the

greater number of “Is and “me’s in Janelle’s speech

warranted the disparate treatment (see Opp. at 9

10), the record in fact reflects that every time

Brittany wrote “Christ” or “Jesus” in her draft

speech school district officials struck them out and

then censored the speech by turning off the

microphone in the presence of parents, classmates

and friends (see Compl. %{| 56°64 (App. at 35-36);

‘Filling That Void" (App. at 58) By contrast

wy

Janelle was permitted to advocate that prayer and a

relationship to God is the path to personal success:

[O]ur meal is never started without

prayer. My Heavenly Father plays an

extremely important role in my life. |

am confident that I would not be

standing before you today if I had not

included Him in my life. He is the

One who truly understands our

individual needs. .. . [I would be

nothing without Him [God]. Find your

inspiration. Living with the hope for a

brighter future will make a significant

difference in our lives, provide us with

true inner happiness and personal

success. If we strive to be more

motivated by inspiration, we will find

ourselves more satisfied, as if we had

enjoyed a complete balanced and

nutritional spaghetti dinner.

Excerpt of Janelle’s Speech (App. at 8).

While Brittany may have spoken about her

faith at greater length, the principal distinction in

the speeches was that Brittany’s was avowedly

sectarian and Janelle’s was not.

lar from preventing an Establishment Clause

violation, by selectively intervening to censor

Brittany's commencement speech, the Respondents

committed one by preferring a “civic‘religious’

speech over a sectarian one. See Weisman, 505 U.S.

at 588.

Finally, it is not at all clear what standards

the Ninth Circuit is using to determine what is ana

what is not proselytizing. Respondents’ actions in

this case are tainted with the standardless personal

predilections found unconstitutional in Forsyth

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

123 (1992), and its progeny. There is no First

Amendment doctrine that permits, let alone

encourages, such a_ linear and_. potentially

discriminatory approach to — student-initiated

religious speech. To the contrary, the Court has

cautioned that religous clause cases are intensely

fact-specific and that the entire context must be

examined. Indeed, in Rosenberger v. Rector and

Visitors of University of Virginia, 515 U.S. 819

(1995), Justice O’Connor stated in her concurring

opinion that these types of cases “dependl[] on the

hard task of judging-sifting through the details and

determining whether the challenged program

offends the Establishment Clause.” Id. at 847; see

also Weisman, 505 U.S. at 597 (noting that “[olur

Establishment Clause jurisprudence remains a

delicate and fact-sensitive one”). Instead of

deliberate fact-finding, the Ninth Circuit has opted

for a form of summary justice based on an “I know it

when I see it” standard that is, in fact, standardless.

We respectfully request that this Court use this

petition to reaffirm the principle that context

matters in the evaluation of student-initiated high

school graduation speeches.

10

Il. This Court Should Reconcile A Clear

Difference in Jurisprudence Between the

Circuits

Over the past several years, circuit and

district courts have been interpreting the scope of

Weisman and Santa Fe with differing and

contrasting results that requires clarification from

this Court. The Ninth’s Circuit’s decision below, its

recent decision in /Vurre and its earlier decisions in

Cole, 228 F.3d at 1103, and Lassonde, 320 F.3d at

979-80, took a stunningly broad view of the

Establishment Clause’s reach -- virtually any

javolvement by the school officials in the student’s

speech gave the speech the appearance of being

endorsed by the school district. The Eleventh and

Eighth Circuits have reached different results

interpreting the same two Supreme Court cases.

The Eleventh Circuit in Adler v. Duval County

School Board, 250 F.3d 1330 (11th Cir. 2001), and

the Eighth Circuit in Doe v. School District of

Norfolk, 340 F.3d 605 (8th Cir. 2003), both rejected

the argument that Santa Fe and Weisman require a

“total ban” on religious references at school

functions. See Adler 250 F.3d at 1332-33; Norfolk,

340 F.3d at 611-12. In those cases, the ceremonies

at issue were school-sponsored events on _ school

premises under school control. Jd. The speeches

were broadcast by the _ schools’ using _ school

equipment. Id. Before determining whether

censorship was necessary, the Adler and Norfolk

Courts examined the entire context in which the

speech was made and ultimately concluded that no

Establishment Clause issues existed. Id.

1]

There is therefore a clear need for this Court

to intervene and clarify the proper analytical

approach to such questions and the scope of the

Establishment Clause’s reach.

IV. Petitioners Have Fairly Presented All Issues

Which Remain Ripe for Review

Respondents urge that the issues presented in

this case have previously been addressed in the

Petitions for Certiorari in the Cole and Lassonde

cases, and thus do not need to be revisited by this

Court. To the contrary, this case presents an

invidious example of viewpoint discrimination that

was not pressed in Cole and Lassonde, and occurred

in the instant matter precisely because this Court

did not grant certiorari in those cases. As such, the

Court should do so now.‘

+ Respondents also assert that Grupo Mexicano de Desarrollo

v. Alliance Bond Fund, Inc., 527 U.S. 298, 319 n.3 (1999), and

N.C.A.A. v. Smith, 525 U.S. 459, 470 (1999) prohibit Petitioners

from raising claims related to Entanglement, Viewpoint

Discrimination and Equal Protection. Opp. at 22. Grupo

Mexicano and N.C.A.A., both involved attempts by the parties

to ergue novel theories not raised in the Court below. See

Grupo Mexicano, 527 U.S. at n.3; N.CA.A., 525 U.S. at 470.

Here, Petitioners’ Entanglement and Viewpoint Discrimination

claims are both inextricably intertwined with the First

Amendment claims pled in the Amended Complaint briefed and

raised fully below. Comp. {4 67-90 (App. at 41-48). Similarly,

all claims attendant to Equal Protection were alsvu pled in the

Amended Complaint and raised in Petitioners’ Equal

Protection Clause arguments below as well. Compl. §§& 91-97

(App. at 48-50). Despite Respondents’ assertions to the

Footnote continued on next page

12

CONCLUSION

The Petition for a writ of certiorari should be

granted.

Respectfully submitted,

Anand Agneshwar

Counsel of Record

VIJAY BALIGA

ARNOLD & PORTER LLP

399 Park Avenue

New York, NY 10022

Tel: (212) 715-1000

Douglas H. Clark

LAW OFFICES OF

DOUGLAS H. CLARK, P.C.

2595 South Torrey Pines

Drive

Las Vegas, NV 89146

Tel: (702) 388-1333

Counsel! for Petitioners

October 15, 2009

James J. Knicely

KNICELY &

ASSOCIATES, P.C.

487 McLaws Circle

Suite 2

Wilhamsburg, VA 23185

Tel: (757) 253-0026

John W. Whitehead

Douglas R. McKusick

THE RUTHERFORD

INSTITUTE

1440 Sachem Place

Charlottesville, VA

22906

Tel: (434) 978-3888

Footnote continued from previous page

contrary, Petitioners’ use of Supreme Court case law to support

these claims (as opposed to the Ninth Circuit case law used

below) does not render the claims “novel” or an “issue of first

instance.” They have been presented as issues tn the case from

its inception.