Petition for Writ of Certiorari — Corder v. Lewis Palmer School District No. 38 (No. 09-257)

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No. 09-

OFFICE OF THE CLERK

ler

IN THE SUPREME COURT OF THE UNITED '

STATES

ERICA CORDER,

Petitioner

LEWIS PALMER SCHOOL DISTRICT No. 38,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

Mathew D. Staver

(counsel of record)

Anita L. Staver

Horatio G. Mihet

LIBERTY COUNSEL

PO Box 540774

Orlando, FL 32854-0774

1055 Maitland Center

Commons

Second Floor

Maitland, FL 32751

(800) 671-1776 Telephone

(407) 875-0779 Facsimile

Attomeys for Petitioner

Stephen M. Crampton

Mary E. McAlister

David M. Corry

LIBERTY COUNSEL

PO Box 11108

Lynchburg, VA 24506

100 Mountain View Rd

Suite 2775

Lynchburg, VA 24502

(434) 592-7000 Telephone

(434) 592-7700 Facsimile

Attorneys for Petitioner

QUESTIONS PRESENTED

Erica Corder, a high school graduate with a 4.0 GPA,

was denied her diploma until she issued a_ publically

disseminated coerced written apology after she presented a

thirty-second valedictory speech that included a religious

reference. Miss Corder was one of fifteen co-valedictorians

who each gave a _ thirty-second message during

commencement. Without warning or lawful authority, the

principal withheld Miss Corder’s diploma until she issued a

public apology, part of which was expressly dictated by the

principal. Colorado law piwvides “that students of the public

schools shall have the right to exercise freedom of speech and

of the press, and no expression contained in a student

publication, whether or not such _ publication is

school-sponsored, shal! be subject to prior restraint except for

the types of expression described in subscction (3) of this

section [obscene, defamatory, threatening harm]....”

The District Court concluded that the school district

did not violate Miss Corder’s First and Fourteenth

Amendment righis and granted the school district’s motion

for judgment on the pleadings. The Tenth Circuit Court of

Appeals affirmed the District Court. The questions presented

for review are:

Whether a message delivered by a high school

valedictorian who is selected by a neutral cnterion of

having the highest grade point average ccnstitutes

schocl-sponsored speech that can be censored under

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

260 (1988), or is private student speech under /inker

v. Des Moines Indep. Comm. School Dist, 393 U.S

503 (1969).

Assuming that Kuhlmeier could be applied to the

commencement message delivered by a student who

is selected by a neutral criterion of having the highest

grade point average, whether a school district’s

withholding of a high school valedictorian’s diploma

to compel her to apologize for a commencement

message that included a religious reference is

reasonably related to legitimate pedagogical concerns

and therefore does not violate the graduate’s First and

Fourteenth Amendment rights.

Whether a school district violates a high school

valedictorian’s First Amendment right against

compelled speech, as described in West Virginia

Board of Education v. Barnette, 319 U.S. 624, 631

(1943) and its progeny when it withholds the

graduate’s diploma to compel her to publically

apologize and dictate what she must say after she

offered a commencement speech that included a

religious reference.

PARTIES

[he Petitioner is Enca Corder. Respondent 1s Lewis-

Palmer School District No. 38.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...

PARTIES

TABLE OF AUTHORITIES .

OPINIONS BELOW ..

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

ims rENTH CiacuUii’s

DETERMINATION THAT HIGH SCHOOL

VALEDICTORY MESSAGES

CONSTITUTE SCHOOL-SPONSORED

SPEECH GOVERNED BY KUHLMEIER

CONFLICTS WITH THIS COURT’S

STUDENT SPEECH PRECEDENTS. .. 10

THE TENTH CIRCUIT'S

DETERMINATION THAT HIGH SCHOOL

VALEDICTORY MESSAGES

CONSTITUTE SCHOOL-SPONSORED

SPEECH GOVERNED BY AKUHLMEIER

CONFLICTS WITH RULINGS IN OTHER

CIRCUITS AND ITS OWN PRECEDENT.

The Tenth Circuit’s Determination

That The Valedictory Speeches Are

School-Sponsored Conflicts With

Dectsions In Other Circuits. ..... 13

The Appellate Panel’s Determination

That The Valedictory Speeches Are

School-Sponsored Creates An Intra-

Circuit Conflict Regarding The

Definition Of School-Sponsored

eee. i

THE TENTH CIRCUIT’S DEFINITION OF

LEGITIMATE PEDAGOGICAL

CONCERNS CONFLICTS WITH THIS

COURT'S PRECEDENTS.

THE TENTH CIRCUIT’S DEFINITION OF

LEGITIMATE PEDAGOGICAL

CONCERNS CONFLICTS WITH ITS OWN

AND OTHER CIRCUITS’ DECISIONS. 23

The Panel’s Determination That The

District Satisfied The Definition Of

Legitimate Pedagogical Concern

Under Kuhlmeier Creates An Intra-

Circuit Conflict.

[he Panel’s Determination [hat The

Vil

District Satisfied The Definition Of

Legitimate Pedagogical Concern

Under Kuhlmeier Conflicts With

Definitions Of The Term In Other

S| rr re er

THE TENTH CIRCUTT’S DECISION

CONFLICTS WITH THIS COURT’S

PRECEDENTS PROTECTING CITIZENS’

FIRST AMENDMENT RIGHTS TO BE

FREE FROM COMPELLED SPEECH. . 29

CONCLUSION

TABLE OF AUTHORITIES

FEDERAL CASES

Adler v. Duval ( ounty School Board.

206 F.2d 1070 (11th Cir. 2000)

Adler v. Duval County School Board,

250 F.3d 1330 (1 1th Cir. 2001) (en banc

Axson-Flynn v. Johnson,

356 F.3d 1277 (10th Cir. 2004) ..

Bannon v. School Dist. of Palm Beach Co.,

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

Bethel School District v. Frasev,

478 U.S. 675 (1986)

Board of Educ., Island Trees Union Free School Dist. No. 26

v. Pico, 457 U.S. 853 (1982)

Chandler v. James,

180 F.3d 1254 (11th Cir. 1999)

Chandler v. Siegelman,

248 F.3d 1313 (11th Cir. 2001)

Curry v. Hensiner.

$13 F.3d 570 (6th Cir. 2008)

l lk Crove nified School Dist V Vewdow.

542 U.S. 1,31 (2004)

Fleming v. Jefferson County School District R-1/,

298 F.3d 918 (10th Cir. 2002) yee: f

Hazelwood School District v. Kuhlmeier,

484 U.S. 260 (1988) . i. 3. 7. 10-12.

Henerey v. City Of St. ( harles. School Dist

00 F.3d 1128 (8th Cir. 1999)

Ingebretsen v. Jackson Public School Dist

$$ F.3d 274 (Sth Cir. 1996)

Jones v. Clear Creek Indep. School Dist

977 F.2d 963 (Sth Cir. 1992)

Lemon vy. Kurtzman,

403 U.S. 602 (1971)

Morse \ Frederick,

551 U.S. 393 (2007)

Parents Involved in Community Schools v. Seattle School

_ 551 U.S. 701 (2007) 20

Poling v. Murphy,

872 F.2d 757 (6th Cir. 1989)

Riley v. National federation of the Blind

S. 781 (1988)

Rumsfeld v. Forum for Acad. and Institutional Rights, In

$47 US. 47. 61 (2006)

Santa Fe Independent School District v. Doe,

530 U.S. 290, 313 (2000)

Tinker v. Des Moines Indep. Comm. School Dist

393 U.S. 503 (1969) _. . 4, 3, 10, 19, 3

U.S. v. Virginia,

518 U.S. 515 (1996)

West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943)

Wooley v. Maynard,

430 U.S. 705 (1977)

FEDERAL STATUTES

28 U.S.C. §1254(1)

(J.S. Const. amend. XIV

STATE STATUTES

Colo. Rev. Stat

Colo. Rev. Stat.

Colo. Rev. Stat

OPINIONS BELOW

(he opinion of the Court of Appeals (App la- 36a)-is

reported at 566 I'.3d 1219. The opinion of the District Court

(App. 37a -57a) is reported at 568 F.Supp.2d 1237.

JURISDICTION

(he judgment of the Court of Appeals was filed on

May 29, 2009. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

U.S. CONST. amend. |

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person ot lite, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws

U.S. CONST. amend. XIV, § |

(1) The general assembly declares that

students of the public schools shall have the

right to exercise freedom of speech and of the

press, and no expression contained in a

student publication, whether or not such

publication is school-sponsored, shall be

subject to prior restraint except for the types

of expression described in subsection (3) of

this section. This section shall not prevent the

advisor from encouraging expression which 1s

consistent with high standards of English and

journalism

COLO. REV. STAT. § 22-1-120(1)

(3) Nothing in this section shall be interpreted

to authorize the publication or distribution in

any media by students of the following

(a) Expression that 1s obscene;

(b) Expression that is libelous, slanderous,

or defamatory under state law;

person who is not a public figure or

involved in a matter of public concern; o1

(d) Expression that creates a clear and

present danger of the commission of

unlawful acts, the violation of lawful

school regulations, or the maternal and

substantial disruption of the orderly

operation of the school or that violates the

rights of others to privacy or that threatens

violence to property or person

COLO. REV. STAT. § 22-1-120(3)

STATEMENT OF THE CASE

In the forty years since Jinker v. Des Moines

Independent Community School District, 393 U.S. 503

(1969), this Court has balanced students’ free speech rights

and educators’ pedagogical interests in controlling the content

of student speech in the context of assemblies, Bethel School

District v. Fraser, 478 U.S. 675 (1986), school assignments,

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

(1988), and extracurricular activities, Morse v. Frederick, 551

U.S. 393 (2007). However, this Court has not addressed the

question raised by this case—whether the First Amendment

permits educators to discipline a high school! graduate for a

commencement speech that included a religious reference. At

issue is whether students continue to enjoy any free speech

rights under 7inker, or if educators can circumvent 7inker by

broadly defining “school-sponsored” and “legitimate

pedagogical concerns” so that they can control student speech

even after students have completed their education

Petitioner. Erica Corder (‘Miss Corder’). had

completed her education, with excellence, when Respondent,

Lewis Palmer School District (“the District’), decided that

she needed to be disciplined after she included a religious

reference in her thirty-second speech given at the conclusion

of the valedictory messages offered during commencement.

Miss Corder was one of fifteen graduates in the class of 2006

who had obtained 4.0 grade point average and therefore

eared the status of valedictorian. (App., 3a, 20a). The

District permitted the valedictorians to choose whether any.

some, or all of them would offer messages at commencement,

and, if messages were to be offered, their general content.

(App., 3a). The valedictorians of the class of 2006 decided

that each of them would speak for thirty seconds and chose

general topics for their speeches. (App., 3a). The

valedictorians rehearsed their speeches for the principal.

(App., 3a). Miss Corder offered a speech that did not include

a religious reference. (App., 4a ).

At the commencement ceremony, Miss Corder offered

the following message:

Throughout these lessons our _ teachers,

parents, and let's not forget our peers have

supported and encouraged us along the way.

Thank you all for the past four amazing years.

Because of your love and devotion to our

success, we have all learned how to endure

change and remain strong individuals. We are

all capable of standing firm and expressing

our own beliefs, which is why I need to tell

you about someone who loves you more than

you could ever imayine. He died for you on a

cross over 2,000 years ago, yet was

resurrected and is living today in heaven. His

name is Jesus Christ. [f you don't already

know Him personally I encourage you to find

out more about the sacrifice He made for you

so that you now have the opportunity to live in

eternity with Him. And we also encourage

you, now that we are all ready to encounter the

biggest change in our lives thus far, the

transition from childhood to adulthood, to

leave Lewis-Palmer with confidence and

integrity. Congratulations class of 2006.

(App., 4a). At the conclusion of the ceremony, Miss Corder

was told that she would not receive her diploma and had to

see the principal. (App., 4a, Sa). The principal indicated to

Miss Corder that she would not receive her diploma unless

she publicly apologized for her valedictory speech. (App., 5a).

Miss Corder submitted the following draft to the principal:

At graduation, I know some of you may have

been offended by what I said during the

valedictorian speech. I did not intend to offend

anyone. I also want to make it clear that [the

principal] did not condone nor was he aware

of my plans before giving the speech. I'm

sorry I didn't share my plans with [the

principal] or the other valedictorians ahead of

time. The valedictorians were not aware of

what | was going to say. |hese were my

personal beliefs and may not necessarily

reflect the beliefs of the other valedictorians or

the school staff.

(App.. 5a). [he principal required that Miss Corder insert the

following statement: “I realize that, had I asked ahead of time,

[ would not have been allowed to say what I did.” (App., 5a).

The statement was distributed via e-mail to the entire Lewis

Palmer community and Miss Corder received her diploma.

(App., 5a).

Miss Corder filed suit, seeking declaratory relief and

nominal damages for (1) violation of her free speech rights

under the First Amendment; (2} compelled speech in violation

of the First Amendment; (3) violation of the right to equal

protection under the Fourteenth Amendment; (4) violation of

freedom of religion under the First Amendment; (5) violation

of Colorado Revised Statute Section 22-1-120 and (6)

violation of the Establishment Clause of the First

Amendment. (App., 40a). The District filed a motion for

judgment on the pleadings. (App., 6a). While that motion was

pending, the parties completed discovery and filed cross-

motions for summary judgment. (App., 6a). The District

Court then granted the District’s motion for judgment on the

pleadings and dismissed Miss Corder’s complaint. (App.,

37a-S7a).

The District Court concluded that Miss Corder’s

speech was not private student speech governed by Tinker,

but was school-sponsored speech governed by Kuhlmeier.

(App., 48a-S0a). The court reasoned that the District limited

the opportunity to speak to valedictorians and screened the

content of their speeches, so it was entitled to regulate the

content of the speeches in a reasonable manner. (App., 48a).

The court found that the commencement ceremony bore the

imprimatur of the school. (App., 48a). : he court agreed with

the District that the graduation ceremony has a pedagogical

concern as a final lesson for departing seniors “and that

limiting religious exhortations by student speakers would be

related to a legitimate concern of not associating the school

‘with any position other than neutrality on matters of political

controversy.’ i/azelwood, 484 U.S. at 272, 108 S.Ct. 562.”

(App., 49a). Accordingly, the court concluded, the District did

not violate Miss Corder’s First Amendment rights. (App.,

49a). The court added that Miss Corder’s actions “to evade”

the screening of her speech gave the District a legitimate

justification to require an apology so that the coerced

statement did not amount to constitutionally prohibited

compelled speech. (App., 49a-Sla).

The District Court dismissed Miss Corder’s Equal

Protection claim because it found no indication that any other

student engaged in the same conduct that Miss Corder

engaged in and therefore no evidence of differential treatment.

(App., 52a). Miss Corder’s free exercise claim was dismissed

because the court found that her religious practice was not

impinged upon or burdened, but that she was merely obligated

to follow the same rules as were the other valedictorians.

(App., 53a). Finally, the court dismissed Miss Corder’s state

law claim because it found that the statute addressed only

written publications, not speech, and it could not be construed

to prohibit schools from regulating speech that could violate

the Establishment Clause. (App., 57a).

Miss Corder appealed, and a three-judge panel of the

Tenth Circuit Court of Appeals affirmed the district court.

(App., la-36a). The appellate pane! found that a valedictory

Speech at graduation is a “school-sponsored...expressive

activity that students, parents and members of the public

might reasonably perceive to bear the imprimatur of the

school,” and ts therefore governed by Kuhlmeier instead of

Tinker. (App., 18a). The panel found that the District had

exercised control over the speeches and named the valedictory

speakers based upon the District’s qualifications. (App., 20a).

Therefore, the District “was entitled to exercise editorial

control over Corder’s speech as along as its action was

reasonably related to pedagogical concerns.” (App., 20a). The

court said that “pedagogical” meant“related to learning” and

included non-academic concepts such as discipline, courtesy

and respect for authority. (App., 18a). A pedagogical interest

can be found “simply by the school district’s desire to avoid

controversy within a school environment.’(App., 18a). Using

that definition, the appellate panel found that the District’s

policy of reviewing valedictory speeches prior to the

graduation ceremony 1s related to learning in that the

ccremony 1S an opportunity to impart lessons on discipline,

courtesy and respect for authority. (App., 20a). Therefore, the

District did not violate Miss Corder’s First Amendment nghts

by requiring the review of the content of her speech prior to

graduation. (App., 21a).

In analyzing Miss Corder’s compelled speech claim,

the Tenth Circuit panel said that forced speech is no different

than censored speech. (App., 23a). Therefore, according to the

panel, if the District can censor Miss Corder “‘because her

speech is school-sponsored rather than private, then so may

the School District tell her what to say when she disregards

the School District’s policy regarding the school-sponsored

speech, so long as the compulsion Is related to a legitimate

pedagogical purpose.” (App., 24a). The appellate panel found

that Miss Corder’s forced apology was reasonably related to

the District’s pedagogical concerns, particularly concerns

related to discipline. (App., 25a). “The discipline chosen by

the School District for Corder’s giving a speech different

from the one she submitted for review was to require her to

write an apology before she could receive her diploma. This

disciplinary action, taken in response to Corder’s violation of

the review policy, was certainly reasonable.” (App., 25a).

The panel concluded that speech restrictions under Kuhimeier

need not be the most reasonable or the only reasonable

limitations, just reasonable. (App., 26a).

The appellate panel also found that Miss Corder was

disciplined for her speech because she did not follow the

religion-neutral policy of submitting her speech for pnor

review and not because of the religious content of her speech.

(App., 28a). Therefore, there was no violation of Miss

Corder’s free exercise rights. (App., 28a). The panel also

upheld the district court’s conclusion that Miss Corder was

not similarly situated to the other valedictorians and therefore

could not assert differential treatment. (App. 29a). The

appeals court added that “because Corder does not contend

she is either a member of a suspect class or was denied a

fundamental right, the School District’s disciplinary response

after her graduation speech need only be rationally related to

a legitimate government purpose to pass muster under the

equal protection clause.” (App., 29a). Finally, the panel

upheld the district court’s finding that Colorado Revised

Statutes §22-1-120 applied only to publications and therefore

could not be applied to Miss Corder’s speech. (App., 35a).

REASONS FOR GRANTING THE PETITION

THE TENTH CIRCUIT’S DETERMINATION

THAT HIGH SCHOOL VALEDICTORY

MESSAGES CONSTITUTE SCHOOL-

Sponsored Creates An Intra-Circuit

Conflict Regarding The Definition

Of Schovi-Sponsored Speech.

[he panel’s decision in this case creates an intra-

circuit conflict on the threshold issue of whether an activity ts

school-sponsored and governed by Auhimeier or private

student speech governed by 7Jinker. Inhcrent in the pancl’s

decision is the erroneous conclusion that the valedictory

speeches in this case are substantially similar to the memorial

tile project another Tenth Circuit pane! found to be school

sponsored in Fleming v. Jefferson County School District R-/,

298 F.3d 918 (10th Cir. 2002). However, the two activitie:

are significantly different. Separate panel decisions

concluding that both activities bear the imprimatur of the

school so as to be “school sponsored creates an intra-circull

conflict on an issue of significant importance — students’ First

\mendment rights on school campuses

a ltenth Circuit panel found that a

memorial tile project at Columbine High School constituted

school-sponsored speech under Kuh/meier. Fleming, 298 F.3d

at 925. The Columbine project consisted of the creation of

memorial tiles that would be permanently affixed to a wall of

the school, which was being reconstructed following the April

1999 tragedy. Fleming, 298 F.3d at 921. The appellate panel

found that the tile project met the “imprimatur” concept in

Kuhlmeier. “The imprimatur concept covers speech that is so

closely connected to the schoo! that it appears the school is

somehow sponsoring the speech.” Fleming, 298 F.3d at 925.

“(E]xpressive activities that the school allows to be integrated

permanently into the school environment and that students

pass by during the school day come much closer to reasonably

bearing the imprimatur of the school.” Jd. The tiles satisfied

that definition because of their permanency—they were

physically attached to the school building so that students

would pass by them during the schoo] day-and because the

school paid for the memorial, supervised the creation of the

tiles and selected the tiles that would be affixed to the wall.

Id. at 925, 930.

By contrast, the valedictory speeches in this case were

fleeting events — only thirty seconds each — that were created

by the students who camed the opportunity to speak by

excelling in their studies. The valedictorians, not school

officials, chose who among them would speak and the general

topics for the messages. (App., 3a). Unlike the messages on

the tiles at Columbine High School, the valedictory messages

viven by Miss Corder and her co-valedictorians were not

made permanent fixtures or otherwise memorialized so that

passers-by would immediately think that school officials were

presenting the message. Nevertheless, the appellate panel

found that the speeches and memorial tiles were substantially

similar. The panel concluded that the District “exercised

control” over the valedictory speeches because it “limited” the

giving of speeches to the valedictorians, despite having earlier

acknowledged that the valedictorians, not the District,

determined whether any, some or all of them would speak at

commencement. (App., 20a). The panel also found that the

District controlled who “qualified” as a valedictorian, when

the determination was based upon whether a student excelled

in her studies. (App., 20a). The appellate panel also reasoned

that the valedictory speeches were school-sponsored because

a teacher escorted Miss Corder to see the assistant principal

at the conclusion of the commencement ceremony. (App.,

20a).

While claiming to follow the path establisned in

Fleming, the appellate panel in fact diverged significantly

from that precedent to create a broad definition of “school-

sponsored” that conflicts with rather than follows from

Kuhlmeier. The result is an intra-circuit contlict that should

be resolved by this Court.

Il. THE TENTH CIRCUIT’S DEFINITION OF

LEGITIMATE PEDAGOGICAL CONCERNS

CONFLICTS WITH THIS COURT’S

PRECEDENTS.

The Tenth Circuit’s broad definition of “legitimate

pedagogical concerns” to extend beyond graduation conflicts

with this Court’s precedents limiting the extent of a school’s

authority to regulate student speech otherwise protected under

Tinker v. Des Moines Indep. Comm. School Dist., 393 US.

$03 (1969).

In Fraser, this Court found legitimate pedagogical

concerns in prohibiting the use of vulgar speech and lewd

conduct during a school assembly that was part of an

educational program in self-government. Bethel School Dist.

v. Fraser,478 U.S. 675, 685 (1986). The event in Fraser was

part of the schoo!’s educational program, and the student’s

speech was seen as undermining the school’s educational

mission. /d. Therefore, the school’s actions were reasonably

related to its educational goals of preparing students to engage

in appropriate and civil public discourse. /d. at 681.

Kuhimeier held that educators can exercise editorial

control over student speech in school-sponsored activities if

their actions are reasonably related to legitimate pedagogical

concerns. Hazelwood School Dist. v. Kuhimeier, 484 U.S.

260, 273 (1988). This Court described legitimate pedagogical

concerns as valid educational purposes and found that the

principal’s deletion of certain news articles from a school

newspaper created as part of the journalism curriculum met

the definition. /d. at 276. Since the newspaper was clearly a

curricular activity, the schoo! could exercise control to ensure

that the educational goals of the journalism class were

appropriately carried out. /d.

While this Court did not apply Kuh/meier to reach its

holding in Morse, it nevertheless followed Kuhlmeier’s and

Fraser’s reasoning with regard to pedagogical concerns.

Morse v. Frederick, 551 U.S. 393, 409 (2007). The Morse

court found that part of the schools’ job in educating students

is to educate them about the dangers of using illegal drugs,

which can impair the learning process and disrupt the learning

environment. /d. at 408. Therefore, it is reasonable for districts

to restrict speech that advocates illegal drug use. /d. The

Morse court noted that these concerns were serious and

palpable, extending well beyond “‘an abstract desire to avoid

controversy.” Jd. at 408-409.

In these and other school speech cases, this Court has

consistently identified pedagogical concerns as tangible

educational purposes attendant to an ongoing program of

study. See, e.g., Parents Involved in Community Schools v.

Seattle School Dist., 551 U.S. 701, 726 (2007) (describing the

pedagogical interest as the educational benefits of a diverse

learning environment, but finding that the district had not

satisfied the standard); U.S. v. Virginia, 518 U.S. 515, 549

(1996) (pedagogical concerns described as the educational

benefits of single-sex education). Schoo! officials have been

permitted to raise “legitimate pedagogical concerns” to justify

actions taken against students who have not completed their

educational requirements and, therefore are still under the

authority of the district.

In this case, Miss Corder and her fellow co-

valedictorians had completed their course of study. There

were no more lessons to be learned, no educational purposes

to be satisfied and no academic requirements left unfulfilled.

The very reason that the valedictorians had the opportunity to

speak was that they had completed the educational program

so exceptionally that they were honored from among their

peers. The only remaining interaction between the

valedictorians and the District was for the District to present

the graduates with diplomas memorializing what they had

already completed.

Nevertheless, the Tenth Circuit determined that the

District had a “legitimate pedagogical concern” that justified

disciplining Miss Corder for including a religious reference in

her speech. (App., 20a). According to the appellate panel, the

“pedagogical concept” set forth by this Court in Kuhlmeier

“merely means related to learning” and can be satisfied

‘simply by the school district’s desire to avoid controversy in

the schoo] environment.” (App., 18a). Using that definition,

the panel found that the District’s policy of reviewing

valedictory speeches prior to graduation ts related te learning

because a graduation ceremony is an opportunity for the

District to impart lessons on discipline, courtesy and respect

for authority. (App., 20a). The panel did not explain how that

opportunity could be applied to Miss Corder, who had already

completed her studies and therefore was no longer part of the

student body subject to the District’s pedagogical authority.

The panel also did not explain how a legitimate pedagogical

concern in pre-commencement review of valedictory speeches

constitutes justification for post-commencement discipline in

the form of withholding a valedictorian’s diploma until she

apologizes for including a religious reference in her speech.

The Tenth Circuit attempted to harmonize its broad

definition of legitimate pedagogical concerns’ with

Kuhlmeier, but its analysis and conclusion show that its

holding directly contradicts the standards set forth in

Kuhlmeier and Fraser. As authority for its proposition that

the pedagogical test may be satisfied simply by a district’s

desire to avoid controversy in the school environment, the

appellate panel cited the following language in Kuhimeier,

484 U.S. at 272:

A school must also retain the authority to

refuse to sponsor student speech that might

reasonably be perceived to advocate drug or

alcohol use, irresponsible sex, or conduct

otherwise inconsistent with “the shared values

of a civilized social order,” Fraser, supra, at

683, or to associate the school with any

position other than neutrality on matters of

political controversy.

(App.. 20a-21la). Kuhlmeier and Fraser do not sweep as

broadly as the Tenth Circuit claims. Instead, those cases

carefully define pedagogical concerns as matters integral to

imparting the prescribed subject matter and to the orderly

operation of the school. Kuhlmeier, 484 U.S. at 279; Fraser,

478 U.S. at 683. Furthermore, this Court specifically rejected

the Tenth Circuit’s definition when it said that mere

incompatibility with a school’s pedagogical message is not a

constitutionally sufficient justification for suppression of

student speech. Kuhimeier, 484 U.S. at 279. This Court

should accept review to resolve the conflict between the

Tenth Circuit’s view and this Court’s precedents.

IV. THE TENTH CIRCUIT’S DEFINITION OF

LEGITIMATE PEDAGOGICAL CONCERNS

CONFLICTS WITH ITS OWN AND OTHER

CIRCUITS’ DECISIONS.

The appellate panel’s determination that the District’s

actions against Miss Corder were reasonably related to

legitimate pedagogical concerns contradicts the panel’s

decision in k/eming v. Jefferson County School District, 298

F.3d 918 (10th Cir. 2002) as well as decisions defining

“legitimate pedagogical concerns” in other circuits.

The Panel’s Determination That

The District Satisfied The Definition

Of Legitimate Pedagogical Concern

Under Kuhlmeier Creates An Intra-

Circuit Conflict.

Unlike the valedictory speeches at issue in ths case,

the Columbine memorial tile project fit squarely into the

definition of pedagogical—“the environment in which learning

takes place, such as the school’s hallways.” Fleming, 298

F.3d at 931. In Fleming, the district had explicitly described

the legitimate pedagogical concerns underlying the project:

To assure that the interior of the building

would remain a positive learning environment

and not become a memorial to the tragedy,

Ms. Monsew directed that there could be no

references to the attack, to the date of the

attack, April 20, 1999, or 4/20/93 [sic], no

names or initials of students, no Columbine

ribbons, no religious symbols, and nothing

obscene or offensive.

Id. at 921. Students returning to Columbine High School

following the reconstruction would be completing their

education within the walls upon which the memorial tiles

were affixed. /d. at 931. What they viewed along those walls

would directly affect the effectiveness of students’ learning

experience for years to come, ‘e., reflected a legitimate

pedagogical concern. /d.

By contrast, in this case, the valedictory speeches were

fleeting remarks which occurred at the end of the

valedictorians’ learning experience. The valedictorians and

other graduates had completed their instructional

requirements, so there were no legitimate educational goals

that the District could cite to justify disciplinary actions

against student expression. Unlike the memorial tiles at

Columbine High School, the thirty-second speeches would

not become part of the learning environment that could affect

whether students would be able to effectively meet

educational standards. The District did not, as the district did

in Fleming, explicitly lay out educational goals for the

commencement ceremony. In other words, the valedictory

speeches in this case bear none of the indicia of legitimate

pedagogical concerns described in Kuhilmeier and Fleming.

The appellate panel’s contrary conclusion creates an intra-

circuit conflict that should be resolved by this Court.

B. The Panel’s Determination That

The District Satisfied The Definition

Of Legitimate Pedagogical Concern

Under Kuhlmeier Conflicts With

Definitions Of The Term In Other

Circuits.

No other reported Circuit opinion has applied the

concept of “legitimate pedagogical concerns” to graduation

ceremonies and post-graduation conduct. The Tenth Circuit’s

expansion of the concept conflicts with other circuit cases’

detinition of the term since Kuhlmeier

In a case analogous to //deming, the Eleventh Circuit

found legitimate pedagogical concerns in a district’s decision

to restrict the content of student-painted murals on the walls

of the school. Bannon vy. School Dist. of Palm Beach Co., 387

F.3d 1208, 1214 (11th Cir. 2004). As was true in Fleming, in

Bannon the artwork was to become part of the physical

learning environment and the district established standards

that were designed to foster effective learning and avoid

disruption for students presently engaged in the educational

process. /d. at 1220. The court found that the district’s

prohibition of the student’s Christian message on the school’s

walls under those circumstances met the reasonable

relationship test in Kuhlmeier. Id

In Curry v. Hensiner, 513 F.3d 570, 578 (6th Cir.

2008), the Sixth Circuit followed this Court’s analysis in

Kuhlmeier to find legitimate pedagogical concerns in limiting

projects in a “classroom city” to products that did not reflect

or represent students’ viewpoints on issues. The Curry court

acknowledged that pedagogical concerns extend beyond

academics to encompass other educational concepts such as

teaching civility and following directions when incorporated

into a curricular program. /d. A key factor in Curry, as in

Kuhlmeier, was that the classroom city event was part of the

ongoing learning processes over which the school exercised

control, just as the newspaper was part of the ongoing

journalism program over which the [lazelwood district

exercised control. /d. In both contexts it was reasonable for

school officials to exercise editorial control. /d. at 578-579;

Kuhlmeier, 484 U.S. at 276. In this case, the Tenth Circuit

adopted the concept that pedagogical concerns encompass

more than academics, but failed to include the critical

qualification that the interests be incorporated into a

curricular program. That critical omission creales a gaping

loophole in student free speech rights as it permits school

officials to extend their reach beyond the ttme when their

pedagogical interests come to an end.

The Sixth and Eighth Circuits have identified

legitimate pedagogical concerns in teaching courtesy,

decorum and propriety in the context of student government

elections. Poling v. Murphy, 872 F.2d 757, 763-764 (6th Cir.

1989); Henerey v. City of St. Charles, School Dist., 200 F.3d

1128, (8th Cir. 1999). In both cases, school officials

disciplined current students for conduct that was disruptive to

the ongoing learning environment. In Poling, the student

made discourteous comments about a school administrator in

order to get votes for his candidacy during a speech at a

compulsory school assembly. Poling, 872 F.2d at 759. The

Sixth Circuit found that the district’s disqualification of his

candidacy was reasonably related to legitimate pedagogical

interests in teaching high school students the art of civil

discourse. /d. at 763. In Henerey, the Eighth Circuit

disqualified a student from student. elections after he

distributed condoms with his campaign slegan. Henerey, 200

F.3d at 1136. “School districts have an interest in maintaining

decorum and in preventing the creation of an environment in

which learning might be impeded, an interest that was

particularly strong in the present case because the condom

distribution occurred within the context ofa school-sponsored

election.” /d. at 1135. Furthermore, the fact that the student

distributed condoms raised concerns about the school

exposing students to materials of a sexual nature without

giving parents notice and the opportunity to consent. /d. at

1136. The court found that these concerns were sufficient to

justify the district’s actions. /d@ As was true in Curry, the

courts in these cases defined pedagogical concern as related

to the ongoing learning environment for current students, not

the perceived teachable moment for a graduate developed by

the Tenth Circuit here.

In each of these cases, legitimate pedagogical

concerns were defined in the context of upholding educational

standards and maintaining an optimal learning environment

in which those standards could be imparted to current

students. None of those factors was present in the District’s

post-graduation actions that the Tenth Circuit determined

could be considered pedagogical interests. The appellate

panel attempted to fit a graduation ceremony into the

pedagogical interest framework by offering a list of “learning

opportunities” that the panel believed a graduation ceremony

could afford, i.c., imparting lessons on discipline, courtesy

and respect for authority. (App., 20a). However, since the

event was high school graduation, which occurs after the

“imparting of lessons” has come to an end, these

opportunities are not related to educational requirements or

processes. Similarly, since the student expression was a thirty-

second valedictory speech at the conclusion of the graduates’

school career, there is no connection between the speeches

and preserving an optimal learning environment for the

students.

The Tenth Circuit’s conclusion that the District

satisfied the legitimate pedagogical concerns concept conflicts

with how pedagogical concerns have been defined in

Kuhilmeier and in subsequent decisions in other circuits. This

Court should accept review to resolve the conflict.

THE TENTH CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S

PRECEDENTS PROTECTING CITIZENS’

FIRST AMENDMENT RIGHTS TO BE FREE

FROM COMPELLED SPEECH.

The Tenth Circuit employed its flawed analysis of this

Court’s student speech precedent in its analysis of Miss

Corder’s compelled speech claim to reach a conclusion that

itself conflicts with this Court’s precedents regarding

compelled speech. The Tenth Circuit reasoned that since it

concluded that the commencement ceremony was “schoo!

sponsored” and the District had “legitimate pedagogical

concerns” sufficient to justify withholding Miss Corder’s

diploma, then it followed that the District was free to compel

Miss Corder to apologize. (App, 24a). However, since the

underlying premises that the commencement ceremony was

school-sponsored and withholding the diploma was

reasonably related to legitimate pedagogical concerns were

incorrect, the conclusion regarding the forced apology is

necessarily incorrect as well. Furthermore, the Tenth Circuit

misapplied the “legitimate pedagogical concerns” concept

trom Kuhimeier to circumstances under which the District no

longer had any pedagogical concerns that could justify taking

action against Miss Corder, particularly compelling her to

apologize.

At the time that Miss Corder was compelled to speak,

after graduation, she was no longer a student subject to the

District’s authority. She had completed her instructional

program. Miss Corder had fulfilled all of her requirements for

a high school diploma, and the only transaction remaining

between Miss Corder and the District was the actual

presentation of the diploma itself. The Tenth Circuit

acknowledged that “|t|he School District no longer has the

power or the opportunity to adversely affect Corder’s rights

as they pertain to valedictory speeches” when it upheld the

dismissal of Miss Corder’s declaratory relief claim. (App..,

10a). However, when it came to analyzing her compelled

speech claim the appellate panel held that the District did

have the power to adversely affect Miss Corder’s rights as

they pertain to valedictory speeches. (App., 51a). According

to the panel, graduation ended the District’s control over Miss

Corder for purposes of ascribing liability, but did not end its

control over her when it came to meting out punishment. The

Tenth Circuit’s amorphous definition of the District’s

authority docs not comport with this Court’s precedents

limiting schools’ authority over student speech and

establishing the fundamental right to refrain from speaking.

In West Virginia Board of Education v. Barnette, 319

U.S. 624, 631 (1943), this Court recognized that elementary-

age students retain the right of freedom from compelled

speech even in the classroom when it ruled that students could

not be compelled to recite the Pledge of Allegiance. “If there

is any fixed star in our constitutional constellation, it is that

no official, high or petty, can prescribe what shall be orthodox

in politics, nationalism, religion, or other matters of opinion

or force citizens to confess by word or act their faith therein.”

ld. at 642. This Court later confirmed that “[t]he mght of

freedom of thought protected by the First Amendment against

state action includes both the right to speak freely and the

right to refrain trom speaking at all.” Wooley v. Maynard, 430

U.S. 705, 714 (1977). “The right to speak and the right to

refrain from speaking are complementary components of the

broader concept of ‘individual freedom of mind.’” Riley 1

3 |

National Federation of the Blind , 487 U.S. 781, 797 (1988)

(quoting Wooley, 430 U.S. at 714).“The First Amendment

guarantees ‘{reedom of speech, aterm necessarily comprising

the decision of both what to say and what not to say.” /d

‘

laken together, Wooley and Barnette have “established the

principle that freedom of speech prohibits the government

from telling people what they must say.” Rumsfeld v. Forum

for Acad. and Institutional Rights. Inc., 547 U.S. 47, 61

(2006). Under these precedents, Miss Corder had the right to

refrain from making any statement related to her valedictory

speech and could not be compelled to say what the District

dictated she must say under threat of not receiving her

diploma. As former Chief Justice Rehnquist succinctly stated,

“Compulsion, after Barnette, is not permissible....” E/k Grove

Unified School Dist. v. Newdow , 542 U.S. 1, 31 (2004)

(Rehnquist, C.J., concurring).

Chis Court’s student speech precedents do not require

a different conclusion. 7inker upheld students’ rights to free

speech even while under the school’s authority, on campus

and during the school day. Tinker v. Des Moines Indep

Comm. School Dist., 393 U.S. 503 (1969). Fraser, Kuhlmeier

and Morse have permitted schools to impose some limitations

on student free speech rights while under the authority of

school officials. Bethel School District v. Fraser, 478 U.S

675 (1986)(permitting disciplinary action against a lewd

speech given during a school assembly); Hazelwood School

District v. Kuhlmeier, 484 U.S. 260 (1988) (permitting

restrictions on speech that is part of a class assignment):

Morse v. krederick, 551 U.S. 393 (2007)(permitting

censorship of pro-drug speech during an extracurricular

activity). However, they have not abrogated the general rule

from Jinker that students “do not shed their constitutional

rights at the schoolhouse gate.” 7inker, 393 U.S. at S06.

[hese precedents i\lustrate that “we have necessarily

recognized that the discretion of the States and local school

boards in matters of education must be exercised in a manner

that comports with the transcendent imperatives of the First

Amendment.” Board of Educ., Island Trees Union Free

School Dist. No. 26 v. Pico, 457 U.S. 853, 864-865 (1982).

Therefore, even when current students engage in

speech in a school setting during instructional time, school

officials cannot stifle students’ First Amendment rights under

the guise of “legitimate pedagogical concerns.” Furthermore,

the courts cannot merely defer to educators’ articulated

pedagogical interests without examining whether the

students’ First Amendment rights were given due

consideration. The Tenth Circuit did not engage in such an

analysis. Instead, the appellate panel said that “[w]e give

‘substantial deference’ to ‘educators’ stated pedagogical

concerns” and upheld the District’s actions. (App., 24a, citing

Axson-Flynn v. Johnson, 356 F.3d 1277, 1290 (10th Cir.

2004)). The Tenth Circuit’s cursory treatment of the

compelled speech issue conflicts with thts Court’s precedents

as to speech by current students while under the authority of

school officials. Since this case involves graduates who are no

longer under the authority of the District, the conflict is all the

more egregious.

The Tenth Circuit’s ruling that the District did not

violate Miss Corder’s First Amendment rights ayainst

compelled speech when it compelled her to issue an apology

for referring to Jesus in her valedictory speech contradicts this

Court's precedents. This Court should grant review to clarity

that high school graduates’ constitutional rights cannot be

infringed upon under the guise of “legitimate pedagogical

concerns.’

CONCLUSION

The Tenth Circuit’s decision undermines this Court’s

long-standing protection of student free speech rights and

creates a deferential standard that will all but erase any

vestiges of free speech on secondary school campuses. The

fenth Circuit’s expansion of the concepts of “school-

sponsored” speech and “legitimate pedagogical concerns”

conflicts with this Court’s precedents, its own decisions in

other cases and decisions by other Circuits.

For these reasons, Miss Corder respectfully requests

that this Court grant her Petition.

Dated: August 27, 2009.

Mathew D. Staver Stephen M. Crampton

(counsel of record)

Anita L. Staver

Horatio G. Mihet

LIBERTY COUNSEL

PO Box 540774

Orlando, FL 32854-0774

(800) 671-1776 Telephone

(407) 875-0770 Facsimile

Attorneys tor Petitioner

Mary E. McAlister

David M. Corry

LIBERTY COUNSEL

PO Box 11108

Lynchburg, VA 24506

(434) 592-7000 Telephone

(434) 592-7700 Facsimile

Attorneys for Petitioner

APPENDIX

APPENDIX A

May 29, 2009.

PUBLISH

UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT.

No. 08-1293

Erica CORDER,

Plaintiff-Appellant,

LEWIS PALMER SCHOOL

DISTRICT NO. 58,

Defendant-Appellec.

The National Legal

Foundation, Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 1:07-CV-1798-WDM MJW)

Stephen M. Crampton (Mary FE. McAlister, Liberty Counsel,

Lynchburg, VA; Mathew D. Staver, Liberty Counsel,

Maitland, FL, with him on the briefs), of Liberty Counsel,

Lynchburg, VA, for Plaintiff-Appellant.

W. Stuart Stuller of Caplan and Earnest LLC, Boulder, CO

(Kristin C. Edgar with him on the brief), for

Defendant-Appellee.

Steven W. Fitschen, Virginia Beach, VA, (Douglas E. Myers

with him on the brief), filed an amicus curiae brief for The

National Legal Foundation.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit

Judges.

BRISCOE, Circuit Judge.

Plaintiff-Appellant Erica Corder appeals the grant of

Defendant-Appellee Lewis Palmer School District No. 38's

(“School District”) Fed.R.Civ.P. 12(c) motion for judgment

on the pleadings. Corder brought claims under the First

Amendment, the Equal Protection Clause of the Fourteenth

Amendment, and Colo.Rev.Stat. § 22-1-120, stemming from

the School District's response to Corder's valedictory speech

at her high school graduation.

We have jurisdiction pursuant to 28 U.S.C. § 129]

and affirm the district court.

Corder was a student at Lewis Palmer High School

and one of fifteen students named as class valedictorian for

her 2006 graduating class. In most previous years, the

valedictorians were each permitted to give a short speech at

the school's graduation ceremony. Prior to Corder's graduation

ceremony, the school principal informed the valedictorians

that they could decide whether all of the fifteen

valedictorians, or a subset thereof, would deliver the

valedictory message. The valedictorians decided that each of

them would speak for approximately thirty seconds, and they

decided on a general topic for the speeches. However, before

a valedictorian would be allowed to present his or her speech

at graduation, the principal required each valedictorian to

present his or her speech to him for his review of the speech's

content. The principal did not provide any further instruction

concerning the conduct or content of the speeches.

The School Distrnct has a written policy governing

student expression which prohibits a variety of types of

speech such as slander and profanity, as well as speech that

“It]ends to create hostility or otherwise disrupt the orderly

operation of the educational process.” Aplt.App. at 11, ¢ 26.

The poiicy makes no reference to religious speech. Further,

the written policy does not require students to submit their

proposed expression for review or approval. Application of

the School District's written policy governing student

expression is not at issue in this case, but rather Corder

challenges the School District's unwritten policy of requiring

students to submit their valedictory speeches for conient

review prior to presentation.

As required, Corder presented her speech to the school

principal for his review prior to the graduation ceremony. The

speech she gave to the principal for review did not mention

religion. At the graduation ceremony, however, Corder gave

a different speech. This is the speech she gave:

Throughout these lessons our teachers,

parents, and let's not forget our peers have

supported and encouraged us along the way.

Thank you all for the past four amazing years.

Because of your love and devotion to our

success, we have all learned how to endure

change and remain strong individuals. We are

all capable of standing firm and expressing

our own beliefs, which is why I nced to tell

you about someone who loves you more than

you could ever imagine. He died for you on a

cross over 2,000 years ago, yet was

resurrected and is living today in heaven. His

name is Jesus Christ. If you don't already

know Him personally [ encourage you to find

out more about the sacrifice He made for you

so that you now have the opportunity to five in

eternity with Him. And we also encourage

you, now that we are all ready to encounter the

biggest change in our lives thus far, the

transition from childhood to adulthood, to

leave Lewis-Palmer with confidence and

integrity. Congratulations class of 2006.

Id. at 11-12, 4 30. At the conclusion of the graduation

ceremony, Corder was escorted to see the assistant principal.

he assistant principal told Corder that she would not reccive

her diploma and that she had to make an appointment to see

the principal.

Corder and her parents met with the principal five

days later. Corder understood from the principal that she

would not receive her diploma unless she publicly apologized

for her valedictory speech. Corder did not apologize for the

content of her speech, but prepared a written statement

explaining that her statement reflected her own personal

beliefs and was made without the principal's prior approval.

The draft submitted by Corder is as follows:

At graduation, I know some of you may have

been offended by what I said during the

valedictorian speech. I did not intend to offend

anyone. I also want to make it clear that [the

principal] did not condone nor was he aware

of my plans before giving the speech. I'm

sorry I didn't share my plans with [the

principal] or the other valedictorians ahead of

time. The valedictorians were not aware of

what I was going to say. These were my

personal beliefs and may not necessarily

reflect the beliefs of the other valedictorians or

the school staff.

Id. at 13, §] 43. The principal required Corder to insert the

following sentence into the statement: “I realize that, had |

asked ahead of time, I would not have been allowed to say

what I did.”"/d. at 13-14, 4] 44. Corder agreed to include the

sentence because the principal said he would not give Corder

her diploma unless she added the sentence. Corder's statement

was distributed via e-mail, and Corder received her diploma.

Corder filed suit, asserting the following claims: (1)

violation of freedom of speech under the First Amendment;

(2) compelled speech in violation of the First Amendment; (3)

violation of the nght to equal protection under the Fourteenth

Amendment; (4) violation of freedom of religion under the

First Amendment; (5) violation of Colo.Rev.Stat. § 22-1-120;

and (6) violation of the Establishment Clause of the First

Amendment.' Corder sought nominal damages and injunctive

relief. After the School District filed a motion for judgment

on the pleadings pursuant to Fed.R.Civ.P. 12(b)(1) and (c)

and the parties conducted limited discovery and then filed

cross-motions for summary judgment, the district court

| Corder does not continue to pursue her Establishment

Clause claim on appeal. An appellant's opening brief must

identity “appellant's contentions and the reasons for them,

with citations to the authorities and parts of the record on

which the appellart relies.” Fed. R.App. P. 28(a)(9)(a).

“Consistent with this requirement, we routinely have declined

to consider arguments that are not raised, or are inadequately

presented, in an apvellant’s opening brief.” Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir.2007).

Corder's brief on appeal does not argue the Establishment

Clause claim and only mentions the Establishment Clause

when urging reversal of the district court's grant of summary

judgment on Corder's claim under Colo.Rev.Stat. § 22-1-120.

Interestingly, Corder submitted supplemental authorities,

pursuant to Fed. R.App. P. 28(;), which were Establishment

Clause cases, but which Corder claimed were pertinent to

other issues on appeal. We considered these cases, as well as

a Fed. R.App. P. 28()) case submitted by the School District,

but do not find them relevant to our analysis of Corder's

appeal.

granted the School District's motion for judgment on the

pleadings.

[]

Standard of Review

We review a dismissal granted under Fed.R.Civ.P.

12(c)“under the standard of review applicable to a Rule

12(b)(6) motion to dismiss.” Nelson v. State Farm Mut. Auto.

Ins. Co., 419 F.3d 1117, 1119 (10th Cir.2005) (internal

quotations omitted). “This court reviews de novo the district

court's grant of a motion to dismiss pursuant to Rule 12(b)(6),

applying the same legal standard applicable in the district

court.” Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th

Cir.2007). “In reviewing a motion to dismiss, this court must

look for plausibility in the complaint.” /d. (internal quotations

omitted). “Under this standard, a complaint must include

‘enough facts to state a claim to relief that is plausible on its

face.’ "/d. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). ‘The

allegations must be enough that, if assumed to be true, the

plaintiff plausibly (not just speculatively) has a claim for

relief.” * Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th

Corder argues that the district court committed

reversible error by reterring to matters outside her complaint

in its order on the School District's Rule 12(c) motion. See

GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381,

1384 (10th Cir.1997) (‘The failure to convert a 12(b)(6)

motion to one for summary judgment where a court does not

exclude outside materials is reversible crror unless the

dismissal can be justified without considering the outside

materials.”’). [tis not evident that the district court referred to

Cir.2008).

Mootness

In addition to a request for nominal damages, Corder's

complaint seeks a declaration that the Schoo] District violated

Corder's First Amendment and Equal Protection nights, and a

declaration that the School District's unwritten policy of

reviewing student graduation speeches is unconstitutional.

Corder's complaint also seeks a permanent injunction against

enforcement of that unwritten policy.’ The School District

argued before the district court that Corder's claims for

declaratory and injunctive relief are moot, and the district

court agreed.‘

Although we have jurisdiction over appeals from all

final decisions of federal district courts, 28 U.S.C. § 1291, we

matters outside Corder's complaint, but rather merely made

inferences from the facts alleged in Corder's complaint. See

Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir.2008)

(‘The court must view all reasonable inferences in favor of

the plaintiff, and the pleadings must be liberally

construed.”(internai quotations omitted)). Regardless, because

we affirm the district court's dismissal without reference to

outside materials, we need not further address Corder's claim

of procedural error.

At oral argument, Corder's counsel clarified that

Corder is no longer seeking injunctive relicf, but continues to

pursue her claims for nominal! damages and declaratory relief.

4 . . , ‘

lhe School District did not assert mootness against

Corder's claim for nominal damages

have no subject matter jurisdiction over a case if it is moot.

Unified Sch. Dist. No. 259, Sedgwick County, Kan. v

Disability Rights Ctr. of Kan., 491 F.3d 1143, 1146-47 (10th

Cir.2007). “Constitutional mootness doctrine is grounded in

the Article III requirement that federal courts may only decide

actual, ongoing cases or controversies.” Seneca-Cayuga Tribe

v. Nat'l Indian Gaming Comm'n, 327 F.3d 1019, 1028 (10th

Cir.2003) (internal quotations and alteration omitted). “It is

well established that what makes a declaratory judgment

action a proper judicial resolution of a case or controversy

rather than an advisory opinion-is the settling of some dispute

which affects the behavior of the defendant toward the

plaintiff. Hence, this court has explained that a plaintiff

cannot maintain a declaratory or injunctive action unless he

or she can demonstrate a good chance of being likewise

injured by the defendant in the future.” Green v. Branson, 108

F.3d 1296, 1299-1300 (10th Cir.1997) (internal quotations,

citations and alterations omitted). We review de novo the

question of whether a case is moot. Prier v. Steed, 456 F.3d

1209, 1212 (10th Cir.2006).

“We have previously held that ‘when an individual

graduates from school there no longer exists a live

controversy necessary to support an action to participate in

interscholastic activity.’ Lane v. Simon, 495 F.3d 1182, 1186

(10th Cir.2007) (quoting Bauchman v. W. High Sch., 132 0.3d

542,548 (10th Cir.1997)). In Bauchman, a Jewish high schoo!

student challenged her choir instructor's alleged advocacy of

Mormonism during classes and choir performances, but

yraduated trom high school while the case was pending on

appeal. 132 F.3d at 546. After determining that the defendant

school officials “no longer ha[d] the power or opportunity to

adversely affect Ms. Bauchman’s constitutional rights,” we

lOa

dismissed her declaratory and injunctive relief claims as

moot. /d. at 548; see also Fischbach v. N.M. Activities Ass'n,

38 F.3d 1159, 1160 (10th Cir.1994) (holding that due to

student plaintiff's graduation, “the power of the [defendant

state activities association} to adversely affect his nghts ha[d]

ended” and the case was moot). In Lane, the plaintiffs were

the student cditors of a college newspaper, who claimed that

the school had impinged on their exercise of frecdom of the

press. We similarly held that because the plaintiffs had

graduated and no longer served on the board of the student

newspaper, the plaintiffs’ claims for declaratory and injunctive

relief were moot. Lane, 495 I'.3d at 1186-87.

Here, Corder complains that the Schoo] District's

unwritten policy for requiring prior approval of graduation

speeches impinges on her rights under the First Amendment

and the Equal Protection Clause. Corder, however, graduated

from high school in 2006 and is no longer a student under the

shoo! District's control. She will never again be subject to

the unwritten policies of the School District requiring prior

cgntent review of valedictory speeches. The School District

no longer has the power or the opportunity to adversely affect

Corder's rights as they pertain to valedictory speeches. As a

result, Corder's demands for declaratory and injunctive relief

are moot

An exception to the mootness doctrine exists tor cases

that are “capable of repetition, yet evading review.” Murphy

v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353

(1982) (internal quotations omitted). But this exception

applies only when: “(1) the challenged action was in its

duration too short to be fully litigated prior to tts cessation or

expiration, and (2) there |1|s a reasonable expectation that the

lla

same complaining party w [ill] be subjected to the same

action again.” /d (quoting Weinstein v. Bradford, 423 U.S

147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)).

Although Corder's claims arguably meet the first

prong of this test, she fails to satisfy the second prong of the

exception. Because only graduating seniors would fall within

the unwritten policy of which Corder complains, there is no

reasonable expectation that Corder will be subjected,

post-graduation, to prior review of the content of a graduation

speech in accordance with the School District's unwritten

policy. Thus, Corder’s claims for declaratory and injunctive

relief do not fall within the exception to the mootness

doctrine. Only Corder's claim for nominal damages for the

violation of her constitutional rights remains for our review

First Amendment Free Speech Claim

[he First Amendment's free speech clause states that

“Congress shall make no law ... abridging the freedom of

speech.” U.S. Const. amend. I. As regards the treatment of a

student's exercise of ['irst Amendment free speech nghts at

school, two approaches have emerged: the approach in 7inker

v. Des Moines Independent Community School District, 393

U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and the

approach in Hazelwood School District v. Kuhlmeier, 484

U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). The parties

dispute which case ts our proper guide for determining the

appropriate classification of Corder's valedictory speech given

at the graduation ceremony

We begin by noting that the Supreme Court cases

make clear that students do not “shed their constitutional

12a

rights to freedom of speech or expression at the schoolhouse

gate.” Tinker, 393 U.S. at 506, 89 S.Ct. 733. At the same

time, the Court has held that “the constitutional rights of

students in public school are not automatically coextensive

with the rights of adults in other settings,” Bethel Sch. Dist

No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92

L..Ed.2d 549 (1986), and that the rights of students “must be

‘applied in light of the special characteristics of the school

environment.’ ’Hazelwood, 484 U.S. at 266, 108 S.Ct. 562

(quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733)

In Tinker, the Court specified that “First Amendment

rights, applied in light of the special characteristics of the

school environment, are available to teachers and students.”

393 U.S. at 506, 89 S.Ct. 733. Tinker involved a group of

high school students who planned to wear black armbands to

protest the Vietnam War. /d. at 504, 89 S.Ct. 733. Schoo!

officials learned of the plan and responded by adopting a

policy prohibiting students from wearing armbands. /d@. When

several students nonetheless wore armbands to school, they

were suspended. /d. The students sued, claiming that their

First Amendment nights had been violated, and the Court

agreed. /d. at 505-06, 89 S.Ct. 733.

linker held that student expression may not be

suppressed unless school officials reasonably conclude that it

will “materially and substantially disrupt the work and

discipline of the school.” Jd. at 513, 898 S.Ct. 733. The only

interest the Supreme Court discerned underlying the school's

actions was the “mere desire to avoid the discomfort and

unpleasantness that always accompany an _ unpopular

viewpoint,” or an urgent wish to avoia the controversy which

might result from the expression.” /d at 509, 510, 89 S.Ct.

l3a

733. That interest was not enough to justify banning “a silent,

passive expression of opinion, unaccompanied by any

disorder or disturbance.” /d. at 508, 89 S.Ct. 733.

The Court again addressed student speech in Bethel

School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct.

3159, 92 L.Ed.2d 549 (1986). In that case, a student was

suspended for delivering a speech before a high school

assembly in which he employed what the Court called “an

elaborate, graphic, and explicit sexual metaphor.” /d. at 678,

106 S.Ct. 3159. Analyzing the case under 7inker, the district

court and court of appeals found no disruption, and therefore

no basis for disciplining the student. /d. at 679-80, 106 S.Ct.

3159. The Supreme Court reversed, holding that the “School

District acted entirely within its permissible authority in

imposing sanctions upon [the student} in response to his

offensively lewd and indecent speech.” /d. at 685, 106 S.Ct.

3159.

The mode of analysis employed in Fraser is not

entirely clear. The Court reasoned, however, that school

boards have the authority to determine “what manner of

speech in the classroom or in_ school assembly is

inappropriate.” /d. at 683, 106 S.Ct. 3159. Cf id. at 689, 106

S.Ct. 3159 (Brennan, J., concurring in judgment) (“In the

present case, school officials sought only to ensure that a high

school assembly proceed in an orderly manner. There is no

suggestion that school officials attempted to regulate [the

student's] speech because they disagreed with the views he

sought to express.”’).

We can distill two basic principles from fraser

“First, #raser's holding demonstrates that ‘the constitutional!

14a

rights of students in public school are not automatically

coextensive with the rights of adults in other settings.’ Morse

v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 2626, 168

L.Ed.2d 290 (2007) (quoting Fraser,478 U.S. at 682, 106

S.Ct. 3159). Had the student in Fraser“delivered the same

speech in a public forum outside the school context, it would

have been protected.” /d.“In school, however, [the student's]

First Amendment rights were circumscribed ‘in light of the

special characteristics of the school environment.’ ”/d. at

2626-27 (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733).

“Second, Fraser established that the mode of analysis set

forth in Tinker is not absolute. Whatever approach Fraser

employed, it certainly did not conduct the ‘substantial

disruption’ analysis prescribed by Jinker.” Id. at 2627. See

Hazelwood, 484 U.S. at 271 n. 4, 108 S.Ct. 562 (disagrecing

with the proposition that there is “no difference between the

First Amendment analysis applied in Tinker and that applied

in Fraser,” and noting that the holding in Fraser was not

based on any showing of substantial disruption).

Che Supreme Court next addressed student speech in

Hazelwood, acase that centered on “expressive activities that

students, parents, and members of the public might reasonably

perceive to bear the imprimatur of the school.” 484 U.S. at

271, 108 S.Ct. 562. Staff members of a high school

newspaper sued their school when it chose not to publish two

of their articles. /d. at 263-64, 108 S.Ct. 562. The court of

appeals analyzed the case under 7inker, ruling in favor of the

students “because it found no evidence of material disruption

to class work or schoo! discipline.” Morse, 127 S.Ct. at 2627.

The Supreme Court reversed, holding that “educators do not

offend the First Amendment by exercising editorial control

over the style and content of student speech in

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school-sponsored expressive activities so long as their actions

are reasonably related to legitimate pedagogical concerns.”

Hazelwood, 484 U.S. at 273, 108 S.Ct. 562.

The Hazelwood Court made an exception to Tinker for

school-sponsored speech. The Court characterized

newspapers and similar school-sponsored activities “as part

of the school curriculum” and held that “[e]ducators are

entitled to exercise greater control over” these forms of

student expression. /d. at 271, 108 S.Ct. 562. Accordingly, the

Court expressly refused to apply 7Jinker's standard. Jd. at

272-73, 108 S.Ct. 562. Instead, for school-sponsored

activities, the Court created a new standard that permitted

school regulation of student speech that is “reasonably related

to legitimate pedagogical concerns.” /d. at 273, 108 S.Ct. 562.

lhe Court stated:

The question whether the First Amendment

requires a school to tolerate particular student

speech-the question that we addressed in

linker-is different from the question whether

the First Amendment requires a_ school

affirmatively to promote particular student

speech. The former question addresses

educators’ ability to silence a_ student's

personal expression that happens to occur on

the school premises. The latter question

concerns educators' authority over

school-sponsored publications, theatrical

productions, and other expressive activities

that students, parents, and members of the

public might reasonably perceive to bear the

imprimatur of the school. These activities may

l6a

fairly be characterized as part of the school

curriculum, whether or not they occur in a

traditional classroom setting, so long as they

are supervised by faculty members and

designed to impart particular knowledge or

skills to student participants and audiences.

Id. at 270-71, 108 S.Ct. 562.

And finally, in the Supreme Court's most recent

student speech case, Morve, the Court affirmed that “schools

may regulate some speech even though the government could

not censor similar speech outside the school” and that the rule

stated in Tinker“is not the only basis for restricting student

speech.” 127 S.Ct. at 2627 (internal quotations omitted). In

Morse, a high school student “unruried a 14-foot banner

beating the phrase ‘BONG HITS 4 JESUS’ during a

school-sanctioned and supervised event.” Ponce v. Socorro

Indep. Sch. Dist., 508 F.3d 765, 768 (Sth Cir.2007) (citing

Morse, 127 S.Ct. at 2622). “The principal confiscated the

banner and suspended [the student].” /d. The student “filed

suit under 42 U.S.C. § 1983 against the principal and the

School Board, claiming that the principal's actions violated

his First Amendment rights.” /d. at 769.

lhe Morse decision “resulted in a narrow holding: a

public school may prohibit student speech at school or at a

school-sponsored event during school hours that the school

‘reasonably view[s] as promoting illegal drug use.’ ’Barr v

Lafon, 538 F.3d 554, 564 (6th Cir.2008) (quoting Morse, 127

S.Ct. at 2629). Justice Alito's concurrence stated that he

joined the majority opinion “on the understanding that (a) it

goes no further than to hold that a public school may restrict

17a

speech that a reasonable observer would interpret as

advocating illegal drug use and (b) it provides no support for

any restriction of speech that can plausibly be interpreted as

commenting on any political or social issue.” Morse, 127

S.Ct. at 2636 (Alito, J., concurring). Justice Alito also made

clear that he joined the majority only insofar as “the opinion

does not hold that the special characteristics of the public

schools necessarily justify any other speech restrictions”

beyond those articulated in the Supreme Court's prior student

speech cases. /d. at 2637.

In Fleming v. Jefferson County School District R-],

298 F.3d 918 (10th Cir.2002), this court addressed student

speech and held that a Columbine High School project that

involved the painting of four-inch-by-four-inch memonial tiles

that would be permanently affixed to the schcol's hallways

constituted “school-sponsored speech” under Hazelwood. 298

F.3d at 920-21, 924. We stated that “[t]he imprimatur concept

covers speech that is so closely connected to the school that

it appears the school is somehow sponsoring the speech” and

derives from such factors as the leve! of involvement of

school officials in organizing and supervising the event. /d. at

925.

We held that in order to determine whether challenged

speech is school-sponsored and bears the imprimatur of the

school, a reviewing court should appraise the level of

involvement the school had in organizing or supervising the

contesied speech, and noted that certain expressive activities

may be closely tied to a school, yet not school-sponsored

speech bearing the school's imprimatur. /d@ Such activities

might include those sponsored by outside organizations who

happen to use school facilities after school hours. /d We

18a

concluded that the memorial tiles project-permitting residents

to design tiles for school walls-was school-sponsored speech

bearing the imprimatur of the school because it was

supervised by school officials and the tiles would be

permanently affixed to the school's walls. /d. at 930-31.

We then stated that the “pedagogical” concept set

forth in Hazelwood merely means that the activity ts “related

to learning.” /d. at 925. We noted that “[t]he universe of

legitimate pedagogical concerns is by no means confined to

the academic for it includes discipline, courtesy, and respect

for authority.” /d. (internal quotations and _ alterations

omitted). We also noted that several other courts have

established that the pedagogical test may be satisfied “simply

by the school district's desire to avoid controversy within a

school environment.” /d. at 925-26 (listing cases).

As we concluded in Fleming, we conclude here that

this case is governed by the Hazelwood standard for

school-sponsored speech.” We resolve this case by first

> Corder relies on an Eleventh Circuit Establishment Clause

case, Adler v. Duval County School Board, 250 F.3d 1330

(11th Cir.2001), for the argument that we should apply the

holding of Tinker and conclude that her speech was private

speech that happened to occur on school premises. In Adler,

the Eleventh Circuit found that the student speech at

graduation was private speech. /d. at 1336-37. However, the

student speech at issue was from a student not chosen by the

school and over whom the school exercised no editorial

control. /d. at 1332. The school's written policy expressly

provided that the purpose of the policy of having the students

choose a student speaker was to allow selected students to

19a

asking: is the “expressive activity” at 1ssue-a valedictory

speech at graduation-a “school-sponsored ... expressive

activit[y] that students, parents, and members of the public

might reasonably perceive to bear the imprimatur of the

school’? Hazelwood, 484 U.S. at 271, 108 S.Ct. 562. If so,

then a valedictory speech at graduation is school-sponsored

speech, and the School District did not violate the “First

Amendment by exercising editonal control over the style and

content of student speech in school-sponsored expressive

activities so long as their actions are reasonably related to

legitimate pedagogical concerns.” /d. at 273, 108 S.Ct. 562.

The first prong of our analysis is easy to satisfy.

Corder spoke as one of fifteen valedictory speakers at her

high school's graduation ceremony. Although her speech did

not occur in a traditional classroom setting, the graduation

ceremony was supervised by the school's faculty and was

clearly a school-sponsored event: Corder's complaint states

that she “qualified” as a valedictorian, Aplt.App. at 9, § 14,

that the valedictorians were instructed by the principa! on how

speak “without monitoring or review by school officials.”’/d.

(continued)

Adler is distinguishable from the present case 1n two respects:

the school policy at issue, and the entity selecting the student

speaker. Corder acknowledges she was chosen by the school

as a valedictorian based on her 4.0 grade point average and

that her valedictory speech was governed by an unwritten

policy requiring submission of graduation speeches for rior

review.

20a

to organize their speech, id. at 9, 4] 16, that the principal

required the valedictonans to submit their speeches to him for

review for content, id. at 11, 9§] 27-28, and that Corder was

“escorted by a teacher” to see the assistant principal after the

conclusion of the graduation ceremony, id. at 12, | 31. The

school limited the giving of speeches to the valedictorians,

who were chosen because of their 4.0 grade point average. A

high school graduation ceremony under these circumstances

is “so closely connected to the school that it appears the

school is somehow sponsoring the speech.” Fleming, 298

F.3d at 925. As a result, on these facts-where the School

District exercised control over valedictory speeches in

advance of graduation, and named valedictory speakers based

on the Schoo] District's qualifications, the Schoo] District was

entitled to exercise editorial control over Corder's speech as

long as its action was reasonably related to pedagogical

concerns.

The second prong of our analysis is also satisfied. The

School District's policy of reviewing valedictory speeches

prior to the graduation ceremony is related to learning. The

giving of a speech in a community graduation ceremony

certainly is a learning opportunity. A graduation ceremony 1s

an opportunity for the Schoo] District to impart lessons on

discipline, courtesy, and respect for authority. /d (“The

universe of legitimate pedagogical concerns 1s by no means

confined to the academic for it includes discipline, courtesy,

and respect for authority. *). And, a School District ts entitled

to review the content of speeches in an effort to preserve

neutrality on matters of controversy within a_ school

environment. See Hazelwood, 484 U.S. at 272, LO8 S.Ct. 562

(“A schoo] must also retain the authority to refuse to sponsor

student speech that might reasonably be perceived to advocate

dla

drug or alcohol use, irresponsible sex, or conduct otherwise

inconsistent with ‘the shared values of a civilized social

order,’... or to associate the school with any position other

than neutrality on matters of political controversy.”(quoting

Fraser, 478 U.S. at 683, 1068.Ct. 3159)); Fleming, 298 F.3d

at 925-26 (noting that several other courts have established

that the pedagogical test may be satisfied “simply by the

school district's desire to avoid controversy within a schoo!

environment’). As a result, the School District's unwritten

policy of reviewing valedictory speeches prior to the

graduation ceremony was reasonably related to pedagogical

concerns.

We cannot conclude that the “First Amendment

require[d][{the] school affirmatively to promote” Corder's

speech. Hazelwood, 484 U.S. at 270-71, 108 S.Ct. 562. We

conclude that the Schoo! District did not violate Corder's First

Amendment free specch rights by requiring the review of the

content of her speech prior to its presentation.

First Amendment Compelled Speech Claim

Corder next argues that the School Distnct's

requirement that she submit a written apology for circulation

as a condition to receiving her diploma violated her First

Amendment right to refrain from speaking.° The Supreme

° Amicus National Legal Foundation argues the district court

erred in dismissing Corder s compelled speech claim because

“it failed to analyze that claim under the unconstitutional

conditions doctrine.” Amicus Br. at 1; see A7’ & G Corp. v

4it'y Gen. of Okla., 535 F.3d 1114, 1136 (10th Cir.2008)

(“[ T]he tocus of the unconstitutional conditions doctrine is on

Court has long held that the First Amendment's freedom of

speech guarantee “prohibits the government from telling

people what they must say.” Rumsfeld v. Forum for Academic

& Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297,

164 L.Ed.2d 156 (2006).’ In addition, “compelled statements

whether a governmental entity is denying a benefit to [a

plaintiff] that [the plaintiff] could obtain by giving up [his or

her] freedom of speech, or is penalizing [the plaintiff] for

refusing to give up [his or her] First Amendment

rights.”(internal quotations omitted)). Amicus and all parties

acknowledge, however, that this argument was not made to

the district court, and we will therefore not consider it. See

Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th

Cir.1997) (concluding that a circuit court should exercise its

discretion to reach an issue raised only by amicus curtae “only

in exceptional circumstances”).

’ In earlier Supreme Court compelled speech cases, the Court

in West Virginia State Board of Education v. Barnette, 319

U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), held

unconstitutional a statc law requiring schoolchildren to recite

the Pledge of Allegiance and to salute the flag. And in Wooley

v. Mayiard, 430 U.S. 705, 717, 97 S.Ct. 1428, 51 L.Ed.2d

752 (1977) the Court held unconstitutional a state law that

required New Ilampshire motorists to display the state

motto-“Live Free or Die”-on their license plates. In Riley v

National Federation of the Blind, 487 U.S. 781, 796-97, 108

S.Ct. 2667, 101 L.Ed.2d 669 (1988), a case repardinyg

charitable organizations’ riyhts to not include certain facts

while soliciting funds, the Court noted that “in the context of

protected speech ... the First Amendment guarantees ‘freedom

of speech,’ a term necessarily comprising the decision of both

of fact ... like compelled statements of opinion, are subject to

First Amendment scrutiny.” /d. at 62, 126 S.Ct. 1297

“In order to compel the exercise or suppression of

speech, the governmental measure must punish, or threaten to

punish, protected speech by governmental action that is

regulatory, proscriptive, or compulsory in nature.”

Axson-F lynn v. Johnson, 356 F.3d 1277, 1290 (10th Cir.2004)

(internal quotations omitted); see also Bauchman, 132 ¥ 3dat

557 (noting that “‘compulsion” is a “threshold element” of a

First Amendment compelled speech claim). All parties agree:

Corder was compelled to apologize for evading the principal's

instructions regarding the prior review of her speech and for

any offense her actions may have caused the audience

The Supreme Court has long recognized that, for

purposes of the First Amendment, forced speech 1s no

different than censored speech. See Miami Herald Publ'g Co

v. Tornillo, 418 U.S. 241, 256, 94 S.Ct. 2831, 41 L.Ed.2d 730

(1974) (noting that the challenged statute, which compelled

newspapers publishing attacks on political candidates to

devote equal space to replies to those attacks, “operate[d] as

a command in the same sense as a statute or regulation

forbidding appellant to publish specified matter’); Riley v

Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796-97,

108 S.Ct. 2667, 101 L.Ed.2d 669 (“There is certainly some

difference between compelled speech and compelled silence,

but in the context of protected speech, the difference 1s

without constitutional significance, for the First Amendment

guarantees ‘freedom of speech,’ a term necessarily comprising

what to say and what not to sav.”

24a

the decision of both what to say and what not to say.”’). Thus,

if the School District may censor Corder because her speech

is school-sponsored rather than private, then so may the

School District tell her what to say when she disregards the

School District's policy regarding the school-sponsored

speech, as long as the compulsion is related to a legitimate

pedagogical purpose. See C.N. v. Ridgewood Bd. of Educ.,

430 F.3d 159, 178 (3d Cir.2005) (“School-sponsored speech

may be restricted for legitimate pedagogical purposes, and it

seems Clear that a school may compel some speech for such

purposes.”’(internal citation omitted)); see also id. at 186

(“Before exploring the contours of the First Amendnient's

protection of the mght ‘to refrain from speaking at all,’ it must

be recognized that this particular right is necessarily different

in the public school setting.’’).

We have already concluded that Corder's presentation

of a valedictory speech at her school's graduation ceremony

involved school-sponsored speech. This conclusion also

applies to Corder's forced apology. The imprimatur concept

is satisfied because Corder's apology was directly related to

her school-sponsored speech at the high schoo! graduation. It

occurred close in time after that graduation ceremony, and

was disseminated through the principal's office via e-mail to

the entire Lewis-Palmer school community. As a result, the

School District was free to compel Corder's speech as long as

the School District's “decision was ‘reasonably related to

legitimate pedagogical concerns.’ "Axson-Flynn, 356 F.3d at

1290 (quoting Fleming, 298 F.3d at 926). “We give

substantial deference’ to ‘educators’ stated pedagogical

concerns.’ ” /d. (quoting /‘/eming, 298 F.3d at 925)

( order's forced | ology is al ’rea onably related to

25a

the School District's pedagogical concerns. ‘he

school-sponsored speech cases emphasize the discretion

school officials have to ensure that “the views of the

individual speaker are not erroneously attributed to the

school.” Hazelwood, 484 U.S. at 271, 108 S.Ct. 562; see also

Fraser, 478 U.S. at 681-83, 106 S.Ct. 3159 (“The undoubted

freedom to advocate unpopular and controversial views in

schools and classrooms must be balanced against the society's

countervailing interest in teaching students the boundaries of

socially appropriate behavior.... Indeed, the fundamental

values necessary to the maintenance of a democratic political

system disfavor the use of terms of debate highly offensive or

highly threatening to others. Nothing in the Constitution

prohibits the states from insisting that certain modes of

expression are inappropriate and subject to sanctions. The

inculcation of these values is truly the work of the schools.

The determination of what manner of speech in the classroom

or in school assembly 1s inappropriate properly rests with the

school board.”(internal quotations and citations omitted)).

The School District's requirement that Corder

apologize for her behavior is “related to learning.” Fleming,

298 F.3d at 925. As we stated in Fleming, the “universe of

legitimate pedagogical concerns is by no means confined to

the academic for it includes discipline, courtesy, and respect

for authority.” /d. (internal quotations and alterations omitted)

(emphasis added). The discipline chosen by the School

District for Corder's giving a speech different from the one

she submitted for review was to require her to write an

apology before she could receive her diploma. This

disciplinary action, taken in response to Corder's violation of

the review policy, was certainly reasonable. “| T]he

Hazelwood standard ...“does not require that the [restrictions]

26a

be the most reasonable or the only reasonable limitations,

only that they be reasonable.’ ’Axson-Flynn, 356 F.3d at 1292

(quoting Fleming, 298 F.3d at 932); see also Wildman v.

Marshalltown Sch. Dist., 249 F.3d 768, 771 (8th Cir.2001)

(concluding there is no constitutional violation for requiring

a student to issue an apology as a condition of continuing on

a sports team after the student circulated an insubordinate

letter; “[i]t is well within the parameters of school officials’

authority ... to teach civility and sensitivity in the expression

of opinions’).

We conclude that the Schoo] District did not violate

Corder's First Amendment free speech rights by compelling

her to e-mail an apology prior to receipt of her high school

diploma.

First Amendment Freedom of Religion (“Free Exercise”)

Claim

Corder claims that the School District “substantially

burdened” her sincerely held religious beliefs in violation of

the Free Exercise Clause of the First Amendment when it

disciplined her for her valedictory speech. The First

Amendment states that “Congress shall make no law

prohibiting the free exercise [of religion].” U.S. Const.

amend. I. “While the First Amendment provides absolute

protection to religious thoughts and beliefs, the [F]ree

[E]xercise [C]lause does not prohibit governments from

validly regulating religious conduc...” Grace United Methodist

Church v. City of Cheyenne, 451 F.3d 643, 649 (10th

Cir.2006) (citing Reynolds v. United States, 98 U.S. 145, 164,

25 L.Ed. 244 (1878)).

27a

“Neutral rules of general applicability normally do

not raise free exercise concerns even if they incidentally

burden a particular religious practice or belief.” Jd. (citing

Employment Div. v. Smith, 494 U.S. 872, 879. 110 S.Ct.

1595, 108 L.Ed.2d 876 (1990) (stating that the Free Exercise

Clause “does not relieve an individual of the obligation to

comply with a valid and neutral law of general applicability

on the ground that the law proscribes (or prescribes) conduct

that his religion prescribes (or proscribes)” (internal quotation

omitted))). “Thus, a law that is both neutral and generally

applicable need only be rationally related to a legitimate

governmental interest to survive a constitutional challenge.”

Id. “On the other hand, if a law that burdens a religious

practice is not neutral or generally applicable, it is subject to

strict scrutiny, and the burden on religious conduct violates

the Free Exercise Clause unless it is narrowly tailored to

advance a compelling governmental interest.” /d. (citing

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)).

Therefore, our first step in analyzing Corder’s free exercise

claim 1s to determine “which level of scrutiny to apply.” /d. ;

see e.g., Axson-Flynn, 356 F.3d at 1294 (“Depending cn the

nature of the challenged law or government action, a free

exercise claim can prompt either strict scrutiny or rational

basis review.’ (internal quotation omitted)).

“A law is neutral so long as its object is something

other than the infringement or restriction of religious

practices.” Grace United Methodist Church, 451 F.3d at

649-50 (citing Church of the Lukumi Babalu Aye, Inc., 508

U.S. at 533, 113 S.Ct. 2217 (a “law lacks facial neutrality if

it refers to a religious practice without a secular meaning

discernable from the language or context’’)). It is clear from

28a

the facts Corder has alleged in her complaint that Corder was

only required to follow the same religion-neutral policies as

the other valedictorians. She was disciplined for her speech

because she did not follow the religion-neutral policy of

submitting her speech tor prior review. Simply because

Corder's valedictory speech happened to mention her religious

views does not support the allegation that she was disciplined

for her religious views. Corder's complaint does not permit

this inference, when the facts of her complaint state she was

the sole valedictorian that did not follow the rules and

therefore the sole valedictorian that was disciplined. “Neutral

rules of general applicability ordinarily do not raise free

exercise concerns even tf they incidentally burden a particular

religious practice or belief.” Axson-Flynn, 356 F.3d at 1294.

We conclude that the School District did not violate

Corder's First Amendment free exercise of religion rights by

disciplining her for presenting a different valedictory speech

than the one she gave to her principal for prior review.

Fourteenth Amendment Equal Protection Claim

Corder also maintains the district court erred in ruling

that the School District did not violate the equal protection

clause. The Fourteenth Amendment's Equal Protection Clause

States that “[n]o state shall ... deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § |. According to Corder, she was treated

differently and more onerously than the other valedictorian

speakers because the School District “allowed similarly

situated speakers to give inspiring speeches without tacing

disciplinary action, but disciplined {Corder] because her

inspiring speech contained religious elements.” Aplt. Br. at

Equal protection “is essentially a direction that all

persons similarly situated should be treated alike.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105

S.Ct. 3249, 87 L.Ed.2d 313 (1985). The problem with

Corder's claim lies in this fundamental precursor: similarity.

Simply because she alleges that al! valedictory speakers gave

“inspirational” speeches does not mean that all valedictory

speakers were similarly situated. The crux of the dispute

between Corder and the School District is that Corder gave a

speech at graduation that was different from the speech she

submitted for review to the principal prior to graduation. She

cannot merely include the conclusory allegation that all

valedictorians were “similarly situated,” when the remainder

of her recitation of the facts indicates otherwise. The district

court correctly ruled for the School District on Corder’s equal

protection claim by concluding Corder was not similarly

situated to the other valedictory speakcrs.

In any event, because Corder does not contend she is

either a member of a suspect class or was denied a

fundamental right, the School District's disciplinary response

after her graduation speech need only be rationally related to

a legitimate government purpose to pass muster under the

equal protection clause. Save Palisade FruitLands v. Todd,

279 F.3d 1204, 1213 (10th Cir.2002). As we have discussed

throughout, the School District had reasonable, legitimate

pedagogical purposes for disciplining Corder.

Colorado State Law Claim

Finally, Corder claims the district court erred when it

30a

determined that her claim under Colo.Rev.Stat. § 22-1-120

failed because section 22-1-120 applied only to

“publications.” he statute states, in its entirety:

(1) The general assembly deciares that

students of the public schools shall have the

right to exercise freedom of speech and of the

press, and no expression contained in a

student publication, whether or not such

publication is school-sponsored, shall be

subject to prior restraint except for the types

of expression described in subsection (3) of

this section. This section shall not prevent the

advisor from encouraging expression which is

consistent with high standards of English and

journalism.

(2) If a publication written substantially by

students is made_ generally available

throughout a public school, it shall be a public

forum for students of such school.

(3) Nothing in this section shall be interpreted

to authorize the publication or distribution in

any media by students of the following:

(a) Expression that is obscene;

(b) Expression that is libelous,

slanderous, or defamatory

under state law:

3]a

to any person who is not a

public figure or involved in a

matter of public concern; or

(d) Expression that creates a

clear and present danger of the

commission of unlawful acts,

the violation of lawful school

regulations, or the material and

substantial disruption of the

orderly operation of the school

or that violates the rights cf

others to privacy or _ that

threatens violence to property

or persons.

(4) The board of education of each choc!

district shall adopt a written publications code,

which shall be consistent with the terms of

this section, and shall include reasonable

provisions for the time, place, and manner of

conducting free expression within the schoo!

district's jurisdiction. The publications code

shall be distributed, posted, or otherwise made

available to all students and teachers at the

beginning of each scliool year.

(S)

(a Student editors of

)

school-sponsored student

publications shall be

responsible for determining

32a

the news, opinion, and

advertising content of their

publications subject to the

limitations of this section. It

shall be the responsibility of

the publications advisor of

school-sponsored _ student

publications within each

school to supervise the

production of such

publications and to teach and

cncourage free and responsible

expression and professional

standards for English and

journalism.

(b) For the purposes of this

section, “publications advisor”

means a person whose duites

include the supervision of

school-spomsored student

publications.

(6) If participation in a school-sponsored

publication is part of a school class or activity

for which grades or school credits are given,

the provisions of this section shall not be

interpreted to interfere with the authority of

the publications advisor for such

school-sponsored publication to establish or

limit writing assignments for the students

working with the publication and to otherwise

direct and control the learning experience that

33a

the publication is intended to provide.

(7) No expression made by students in the

exercise of freedom of speech or freedom of

the press shall be deemed to be an expression

of school policy, and no school district or

employee, or parent, or legal guardian, or

official of such school district shall be held

liable in any civil or criminal action for any

expression made or published by students.

(8) Nothing in this section shall be construed

to limit the promulgation or enforcement of

lawful school regulations designed to control

gangs. For the purposes of this section, the

definition of “gang” shall be the definition

found in section 19-1-103(52), C.R.S.

Colo.Rev.Stat. § 22-1-120. The district court found that the

statute's plain meaning prohibited only prior restraint of

student expression that is contained within a publication.

Colorado follows the general rule of statutory construction

that when construing a statute, we must begin with the

statute's plain !anguage, and if the “statute is clear and

unambiguous on its face, then we need not look beyond the

plain language and we must apply the statute as wmitten.”

Vigil v. Franklin, 103 P.3d 322, 327 (Colo.2004) (internal

citations and quotations omitted). In addition, Colorado law

dictates that “we afford the language of statutes their ordinary

and common meaning and construe statutory provisions as a

whole, giving effect to every word and term contained therein,

whenever possible.” /d (internal quotations and alterations

omitted).

Both parties argued in the district court and in their briefs to

this court that section 22-1-120 is not ambiguous.’ The

district court so found and we agree that the statute is not

ambiguous. We further agree with the district court's reading

of the plain meaning of the statute. The actual prohibition

from subsection 22-1-120(1 ) is that “no expression contained

in a student publication, whether or not such publication is

school-sponsored, shall be subject to prior restraint.”

Although the statute begins with a general siatement

that students in public schools “shall have the right to exercise

freedom of speech and of the press” it is clear from reading

the entire statute that section 22-1-120 regulates only student

“expression” that is contained within a written “publication.”

I here are numerous provisions of section 22-1-120 pertaining

to written speech and journalism to further emphasize this

point: § 22-1-120(1) (“encouraging expression which ts

consistent with high standards of ... journalism”); §

22-1-120(2) (“If a publication wnitten substantially by

students is made generally available throughout a public

school, it shall be a public forum for students of such

school.’’); § 22-1-120(4) (“The board of education of each

school district shall adopt a written publications code ....””); §

* At oral argument, Corder changed course and argued for the

first time that Colo.Rev.Stat. § 22-1-120 is ambiguous. An

argument made for the first time at oral argument, however

will not be considered. Fed J/ns. C'o. v. Tri-State Ins. C’o., 157

F.3d 800, 805 (10th Cir. 1998) ("Issues raised for the first time

at oral argument are considered waived. ”)

35a

22-1-120(5) (“Student editors of school-sponsored student

publications shall be responsible for determining the news,

Opi:.On, and advertising content of their publications subject

to the limitations of this section.”); and § 22-1-120(6) (“If

participation in a school-sponsored publication is part of a

school class or activity ... the provisions of this section shall

not be interpreted to interfere with the authority of the

publications advisor for such school-sponsored publication to

establish or limit writing assignments for the students

working with the publication....”).

Further, even if the statute were ambiguous, there is

no legislative history or Colorado case law which would alter

our plain-meaning analysis. It appears, however, that section

22-1-120 was passed by the Colorado legislature in the wake

of Hazelwood and the concern regarding its impact on student

newspapers. See, e.v., Richard J. Peltz, Censorship Tsunami

Spares College Media: To Protect Free Expression on Public

Campuses, Lessons from the “College Hazelwood” Case, 68

Tenn. L.Rev. 481, SOl, n. 161 (2001) (describing

‘Colo.Rev.Stat. § 22-1-102 as aneffort by Colorado to pass an

“anti-/lazelwood ” law to protect student publications). This

“response to Hazelwood ” is another indication that the

Colorado legislature meant for this statute to be limited in

applicability to wntten student publications.

We affirm the district court's grant of judgment on the

pleadings to the School District on Corder's state-law claim,

as Corder's claim does not fall within Colo.Rev.Stat. §

22-1-120

s6a

We AFFIRM the district court's grant of the School

District's Fed.R.Civ.P. 12(c) motion for judgment on the

pleadings.

37a

APPENDIX B

IN THRE UNITED STATES DISTRICT COURT,

FOR THE DISTRICT OF COLORADO

JUDGE WALKER D. MILLER

Civil Action No. 07-cv-01798-WDM-MJW

Enrica CORDER. Plaintiff.

LEWIS PALMER SCHOOL DISTRICT No. 38

Defendant

ORDER ON MOTION FOR JUDGMENT ON THE

PLEADINGS

MILLER

(his matter is before me on Vetendant's Motion tor

ludgment on the Pleadings (doc no 24) seeking to dismiss

Plaintiff's complaint pursuant to ked.R.Civ.P. 12(b)(1) and

(c). Plaintiff opposes the motion. For the reasons set fort)

below, Defendant's motion will be granted and Plaintiff’

complaint will be dismissed

38a

Background

According to her complaint, Plaintiff was a student at

Lewis Palmer High School and one of fifteen students named

as class valedictorian for the graduating class of 2006. In most

previous years, the valedictorians were each permitted to give

a short speech at the school's graduation ceremony. Prior to

the 2006 ceremony, the school's principal, Mark Brewer

informed the valedictorians that they could decide whether all

of the fifteen valedictorians, or a subset thereof, would deliver

the valedictorian message. He did not provide any further

instructions concerning the conduct or content of the

speeches. The valedictorians themselves decided that each o!

them ‘vould speak for approximately 30 seconds and decided

on a general topic for the speakers. The valedictonans

sclected Plaintiff and another student to deliver the

concluding section of the speech

Before a valedictorian would be allowed to present his

or her speech at graduation, Mr. Brewer required each

valedictorian to present his or her speech to him to review the

content of each student's speech. The school district has a

written policy governing student expression which prohibits

a variety of types of speech such as slander and profanity, as

well as speech that “[tjends to create hostility or otherwise

disrupt the orderly operation of the educational process.” The

policy makes no reference to religious speech

Plaintiff presented hel speech LO Mr Brewer before

the ceremony; that speech did not mention her religious faith

or Jesus. However. at the vraduation ceremony, Plaintiff vav

the following spec

(Throughout these lessons our teachers,

parents, and let's not forget our peers have

supported and encouraged us along the way.

(hank you all for the past four amazing years.

Because of your love and devotion to our

success, we have all learned how to endure

change and remain strong individuals. We are

all capable of standing firm and expressing

our own beliefs, which is why I need to tell

you about someone who loves you more than

you could ever imagine. He died for you on a

cross over 2,000 years ago, yet was

resurrected and ts living today in heaven. His

name is Jesus Christ. If you don't already

know Him personally | encourage you to find

out more about the sacrifice He made for you

so that you now have the opportunity to live in

eternity with Him. And we also encourage

you, now that we are all ready to encounter the

biggest change in our lives thus far, the

transition from childhood to adulthood, to

leave Lewis-Palmer with confidence and

integrity. Congratulations class of 2006

At the conclusion of the ceremony, Plaintiff was

escorted by a teacher to see Assistant Principal Bob Felice

who tnformed her that she would not receive her diploma and

had to make an appointment with Principal Brewer. Plaintiff

and her parents met with Mr. Brewer on May 30, 2006

Plaintiff believed and understood from Mr. Brewer that she

would not receive her diploma unless she publicly apologized

speech. Plaintiff did not apologize tor the content of

ech, but prepared a written statement expiaining that

40a

the statements were her personal beliefs made without Mr.

Brewer's prior approval. The draft submitted by Plaintiff is as

follows:

At graduation I know some of vou may have

been offended by what I said during the

valedictorian speech. I did not intend to offend

anyone. I also want to make it clear that Mr

Brewer did not condone nor was he aware of

my plans before giving the speech. I'm sorry |

didn't share my plans with Mr. Brewer or the

other valedictorians ahead of time. The

valedictorians were not aware of what I was

yoing to say. These were my personal beliefs

and may not necessarily reflect the beliefs of

the other valedictorians or the school staff.

Mr. Brewer required that she insert the following

sentence into the statement: “I realize that, had I asked ahead

of tir, I would not have been allowed to say what I did.”

Plaintiff received her diploma and the statement was

distributed via email.

Plaintiff filed this lawsuit asserting the following

claims: (1) violation of freedom of speech under the First

Amendment; (2) compelled speech in violation of the First

Amendment; (3) violation of the right to equal protection

under the Fourteenth Amendment: (4) violation of freedom of

religion under the First Amendment: (5) violation of C.R.S.

§ 22-1-120; and (6) violation of the Establishment Clause of

the First Amendment. Plaintiff seeks nominal damages and

declaratory and injunctive relief.

4ia

Standard of Review

A motion for a judgment on the pleadings pursuant to

Rule 12(c) is evaluated under the same standard as a motion

brought under Rule 12(b)(6). A complaint must be dismissed

pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim

upon which relief can be granted if it does not plead “enough

facts to state a claim to relief that is plausible on its face.”

Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955,

1974, 167 L.Ed.2d 929 (2007). The court must accept as tru>

11 well-pleaded facts and construe all reasonable allegations

in the light most favorable to the plaintiff. United States v.

Colorado Supreme Court, 87 F.3d 1161, 1164 (10th

Cir.1996).'

1 The parties have also filed motions for summary

judgment (docs no 33 and 34), which are fully briefed.

However, the evidence submitted with the summary judgment

briefs does not contradict the salient facts of the pleadings. In

particular, it is undisputed that the school required review of

the valedictorian speeches and that Plaintiff did not disclose

any hint that her portion of the speech would include religious

references because of her concern that the school would not

permit her to do so. Accordingly, even if I considered these

issues under the summary judgment standard with additiona!

facts, I would reach the same end result, namely dismissal

because no reasonable jury would find for the Plaintiffon the

basis of the undisputed facts

42a

Discussion

|. Claims for Declaratory and Injunctive Relief

Defendant first argues that Plaintiffs claims for

declaratory and injunctive relief should be dismissed as moot.

Specifically, because Plaintiff has graduated and received her

diploma, there no longer exists a “live controversy” in this

matter, the claim is moot, and this court does not have

jurisdiction. Lane v. Simon, 495 F.3d 1182, 1186-87 (10th

Cir.2007) ( “Because defendants can no longer impinge upon

plaintiffs' exercise of freedom of the press, plaintiffs’ claims

for declaratory and injunctive relief are moot.”’). | agree.

Plaintiff argues in response that she does not seek

injunctive relief. This is in direct contradiction to her Verified

Complaint, which clearly sets forth in the Prayer for Relief a

request that this court “issue a permanent injunction enjoining

Defendant ... from enforcing its unwritten pclicy [of]

reviewing student graduation speeches to censor out religious

speech.” Plaintiff also contends that there is a live issue

because some of Defendant's conduct occurred after

graduation, and so Plaintiff's graduation does not mooi her

claims. Plaintiff misses the point. Just as in Lane, Defendant

is no longer in a position to screen Plaintiff's graduation

speech, prevent her from giving a speech containing religious

references, or compel her to issue an apology for doing so by

conditioning receipt of her diploma upon such an apology-i.e.,

the defendant can no longer impinge on Plaintiff's freedom of

speech and religion. Accordingly, Plaintiff's claims for

declaratory or injunctive relief based on such conduct are

43a

moot.”

2. First Amendment Freedom of Speech

Plaintiff's first claim is based on several theories,

including (1) forcing Plaintiff to apologize fomentioning

Jesus Christ violated her free speech rights; (2) requiring the

speeches to be screened was an unconstitutional prior restraint

and screens out too much protected speech; (3) there were no

written guidelines to control the decisionmaker's editing of

student speeches; (4) screening of graduation speeches

amounts to content and viewpoint restrictions on speech; (5)

Plaintiff was improperly punished for her speech because it

did not contain any elements prohibited by the school

district's written policy regulating student speech and

expression; and (6) forcing Plaintiffto apologize amounted to

punishing Plaintiff on the basis of her religious viewpoint.

Defendant argues that Plaintiffs speech was not

curtatled, since she gave the speech she wanted to, and that

she was not required to apologize for the content of her

speech but rather for possibly giving offense and for failing to

disclose the content of her speech, which represented her

views alone, to Mr. Brewer and the other valedictorians.

Defendant also argues that the Plaintiffs speech should be

analyzed as “school-sponsored speech.” Under this line of

case law, Defendant argues, the school has the right to

Plaintiff also argues that her claim for nominal

damages is not moot. Since Defendant did not challenge

Plaintiff's nominal damages claims on mootness grounds, |

need not address the issue.

44a

monitor and control student expression under certain

circumstances. Plaintiff argues in response that her speech

was purely private speech that cannot be limited as Defendant

contends.

The United States Supreme Court has established that

although students in public schools do not “shed their

constitutional rights to freedom of speech or expression at the

schoolhouse gate,” the First Amendment rights of students

“are not automatically coextensive with the rights of adults in

other settings.” Hazelwood Sch. Dist. v. Kuhimeier, 484 U.S.

260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (citations

omitted). Purely private speech that happens to occur on

school property should not be infringed unless school

authorities have reason to believe that such expression will

“substantially interfere with the work ofthe school or impinge

upon the rights of other students.” 7inker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 21

L.Ed.2d 731 (1969). Similarly, speech in a limited public

forum may only be subject to viewpoint-neutral limitations.

Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th

Cir.2007). Thus, to the extent that Plaintiff's speech ts

considered private speech or the graduation ceremony is

considered to be a public forum, the 7inker analysis should

apply. However, a school facility is deemed a public forum

only if the school authorities have by policy or practice

opened those facilities “tor indiscriminate use by the general

public” or by some segment of the public such as student

organizations. Huzelwoud, 484 U.S. at 267, 108 S.Ct. 562

(citations omitted). “If the facilities have instead been

reserved for other intended purposes ... then no public forum

has been created, and school officials may impose reasonable

restrictions on the speech of students, teachers, and other

45a

members of the schoo] community.” /d. (citations omitted).

“The question whether the First Amendment requires

a school to tolerate purticular student speech ... is different

from the question whether t: First Amendment requires a

school affirmatively to promote particular student speech.”

Hazelwood, 484 U.S. at 270-71, 108 S.Ct. 562. ‘The latter

question concerns educators’ authority over school-sponsored

publications, theatrical productions, and other expressive

activities that students, parents, and members of the public

might reasonably perceive to bear the imprimatur of the

school. These activitics may fairly be characterized as part of

the school curriculum, whether or not they occur in a

traditional classroom sctting, so long as they are supervised

by faculty members and designed to impart particular

knowledge or skills to student participants and audiences.” /d.

at 271, 108 S.Ct. 562. Educators are entitled to exercise

“sreater control” over this kind of student expression “to

assure that participants learn whatever lessons the activity is

designed to teach, that readers or listeners are not exposed to

material that may be inappropriate for their level of maturity,

and that the views of the individual speaker are not

erroneously attributed to the school.” /d. Thus, a school may

retain authority to refuse to sponsor student speech that might

be perceived to, inter alia,“associate the school with any

position other than neutrality on matters of political

controversy.” /d. at 272, 108 S.Ct. 562. School-sponsored

expressive activities, therefore, may be subject to educators’

editorial control without offending the First Amendment so

long as the educators’ actions are “reasonably related to

legitimate pedagogical concerns.” /d. at 273, 108 S.Ct. 562

The Supreme Court has also held that the

46a

Establishment Clause of the First Amendment is violated in

circumstances where a student's delivery of a religious

message before a sporting event would be perceived as

“stamped with her school's seal of approval.” Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147

L.Ed.2d 295 (2000). Santa Fe concerned a school policy

intended to remedy the apparent constitutional violation

deriving from the school's previous practice of presenting a

prayer or invocation before football games. Under the new

policy, the students voted on whether a prayer would be part

of the activity. The Court deemed that the appearance of

religious endorsement of a student-delivered prayer

nonetheless came from the following factors: the invocation

was delivered to a large audience assembled as part of a

regularly scheduled school-spons« red function on school

property, broadcast over the school's public address system

which remained subject to the control of school officials, the

invocation was part of a pregame ceremony presumably

clothed in the traditional indicia of a school sporting event

and prominently displaying the school's name. Santa Fe, 530

U.S. at 307-08, 120 S.Ct. 2266. The Court concluded that the

delivery of a religious message “over the school's public

aadress system, by a speaker representing the student body,

under the supervision of schoo! faculty, and pursuant to a

school policy that explicitly and implicitly encourages public

prayer ... 1s not properly characterized as ‘private’ speech.” /d

at 310, 120 S.Ct. 2266.

These principles were recently applied by the Tenth

Circuit in Fleming v. Jefferson County Sch. Dist. R-1, 298

F.3d 918 (10th Cir.2002). Fleming involved a tile painting

project at Columbine High School, the site of a notorious

school shooting incident. Upon deciding to reopen the school,

47a

the school district approved a project whereby students and

other community members would create artwork on 4 x 4

tiles, which would then be installed throughout the school.

The purpose of the project was to assist in reintroducing

students to the school building, changing the school's

appearance, and to have the students be a part of

reconstruction of their school. The project was not intended

to be a memorial to the tragedy; accordingly, the guidelines

for artwork prohibited references to the date of the attack,

names or initials,’ religious symbois, and obscene or offensive

content. The Tenth Circuit, interpreting Hazelwood, analyzed

the two aspects of the standard for school-sponsored speech:

the imprimatur concept and the pedagogical interest of the

school. 298 F.3d at 924. The imprimatur concept concerns

speech “so closely connected to the school that it appears the

school is somehow sponsoring the speech” and derives from

such factors as the level of involvement of school officials in

organizing and supervising the event. /d at 925. The

pedagogical interest standard is satisfied if the activity is

“designed to impart particular knowledge or skills to student

participants and audiences.” /d. Moreover, several other

courts have established that the pedagogical test may be

satisfied “simply by the school district's desire to avoid

controversy within a school environment.” /d. at 925-26

(listing cases). The Tenth Circuit concluded — that

Hazelwood‘allows educators to make _ vicwpoint-based

decisions about school-sponsored speech.” /d. at 926

lurntng to the merits of the case, the court in Fleming

determined that the tle project was not a public forum,

is portion of the guidelines was thereafter changec

Chis port fthe guidel tt {ter changed

48a

because the school district took numerous actions

demonstrating its intent to retain editorial contro! and

responsibility over the project; in other words, the district had

not “opened the tile project to indiscriminate use by the

participants.” /d. at 929. In addition, the project bore the

'mprimatur of the school, as the tiles would be permanently

affixed to the school building; moreover, the project was

funded, organized, and controlled by the district in terms of

selecting participants, holding the tile painting sessions at the

school, and setting forth content guidelines. /d. at 930-31.

Finally, the goal of the tile project involved pedagogical

concerns and the guidelines were reasonably related to those

concerns. /d. at 931-33. Noting that the school has a

legitimate interest in “preventing disruptive religious debate

on the school's walls,” the Tenth Circuit concluded that the

restriction on religious content was appropriate. /d. at 934.

Applying those standards to this case, I conclude that

the valedictorian speech at the school's graduation was not

private speech in a limited public forum but rather

school-sponsored speech. The school limited the opportunity

to speak to valedictorians and screened the content of their

speeches. The school, by permitting its highest achieving

students give short speeches, did not open its facilities for

“indiscnminate use.” Accordingly, school officials were

entitled to regulate the content of the speeches in a reasonable

manner. In addition, the commencement ceremony, even the

portion of which the student valedictorian speeches

comprised, was school-sponsored expression. The yraduation

ceremony clearly bears the imprimatur of the school, as it was

sponsored, organized, and supervised by school officials. The

school sought to exert control over the content of the

valedictorian speeches by requiring them to be heard in

49a

advance by the principal. In addition, Defendant argues

persuasively that the graduation ceremony has a pedagogical

concerns as a “final lesson” for departing seniors and that

limiting religious exhortations by student speakers would be

related to a legitimate concern of not associating the school

“with any position other than neutrality on matters of political

controversy.” Hazelwood, 484 U.S. at 272, 108 S.Ct. 562.

Accordingly, Defendant did not violate Plaintiff's First

Amendment rights by seeking to screen the content of her

speech based on matters reasonably related to the school's

legitimate pedagovical concerns. | note also that the Supreme

Court in Hazelwood expressly rejected the requirement that

such editing be pursuant to a written policy. 484 U.S. at 273

n. 6, 108 S.Ct. 562.Moreover, as discussed further below,

Plaintiff's actions to evade this screening gave the school a

legitimate justification to require an apology.

Plaintiff argues that the analysis of Tinker should

apply here because of the effect of a state statute, which

provides that, “No expression made by students in the

exercise of freedom of speech or freedom of the press shall be

deemed to be an expression of school policy, and no school

distnct ... shall be held liable in any civil or criminal action

for any expression made or published by students.” C.R.S. §

22-1-120(7).* Plaintiff has offered no Iegal analysis to explain

‘

Plaintiff also argues that another section of this statute

means that no school can issue any kind of prior restraint on

student speech. C.R.S. § 22-1-120(1) (“no expression

contained in a student publication, whether or not such

publication is school-sponsored, shall be subject to prior

restraint [with certain exceptions].”’) hor the reasons discussed

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how this state statute should alter the federal jurisprudence on

private speech versus school-sponsored speech under the First

Amendment. I do not read this passage to require schools to

give over its fora to student speech without regulation, which

is what Plaintiff appears to contend. Moreover, | conclude

that the effect of the statute, which might insulate the schoo!

from liability for a student's expression “in the exercise of

freedom of speech” does not transform Plaintiff's remarks in

the valedictorian address into private speech. Accordingly, |

disagree that the analysis ot /inker or Adler v. Duval County

Sch. Board, 250 F.3d 1330 (1 1th Cir.2001) should apply.

5 Compelled Speech

As Defendant notes, Plaintiff expressly alleges in her

complaint that she “did not apologize for the content of her

speech, but prepared a written statement explaining that the

statements were her personal beliefs made without Principal

Brewer's prior approval.” Complaint 4 42. Plaintiff was not

under Part 6, infra, | conclude this statute is inapplicable to

the issues of this case

Adler, upon which Plaintiff puts much reliance, involves a

short message at the school graduation ceremony by a student

speaker not chosen by the school and over whom the schoo!

exercised no editorial control at all. Indeed, the published

school policy expressly provided that the purpose of the

policy was to allow selected students to speak “withoul

monitoring or review by school officials.” 250 F.3d at 1332

(emphasis added in the orginal). Plainly, those facts make

Adler distinguishable and inapplicable to the issues here

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coerced to express a belief, which would be prohibited. West

Virginia Board of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct.

1178, 87 L.Ed. 1628 (1943). Rather, Plaintiff was compelled

to apologize for evading the principal's instructions regarding

the speech and for any offense her actions might have caused

the audience. I conclude this is well within the authority of the

school district and does not amount to constitutionally

prohibited coerced speech. See Wildman ex rel. Wildman v

Marshalltown Sch. Dist., 249 F.3d 768, 771 (8th Cir.2001)

(no constitutional violation to require student to issue apology

as condition of continuing on sports team after student

circulated an insubordinate letter; “It is well within the

parameters of school officials’ authority ... to teach civility

and sensitivity in the expression of opinions”). Plaintiff

appears to primarily object to having to add to her apology

that “had | asked ahead of time, I would not have been

allowed to say what I did,” apparently because she believes

she should have been allowed to include religious content in

her speech. Given the authority discussed above, | conclude

that requiring Plaintiff to include this statement in her written

apology also did not violate her First Amendment rights.

Plaintiff also appears to object to the apology

statement because it required her to be painted as “a liar and

deceiver” as a condition of receiving her diploma. Since

Plaintiff does not assert a duc process claim, [ see no

constitutional tmplication from the school allegedly using the

diploma as leverage for the apology. Moreover, although

Plainuff's actions appear to have been based on her deeply

held commitment to her faith, her own allegations

demonstrate that she evaded the school's efforts to control the

content of the valedictorian speech. Her failure to disclose the

religious nature of her speech gave the principal, her

classmates, and others no notice of her intended speech.

Plaintiff does not contend that anything was false in her

apology (other than her belief that she would or should have

been allowed to say whai she did) and the statements appear

factually accurate. In such circumstances, | perceive no

violation of Plaintiff's constitutional rights in having to issue

the statement.

4 Equal Protection

Defendant argues that Plaintiff's equal protection

claim should be dismissed because she was not treated

differently than anyone similarly situated to her; since

Plaintiff was the only one who deviated from her rehearsed

speech, she cannot show that Defendant treated her differently

without a legally justified basis. In response, Plaintiff's

argument is that she did not do anything wrong, she only

“rehearsed a speech before Mr. Brewer and then offered a

speech referencing Jesus,” which should not be considered a

misrepresentation. Response at 18. Plaintiff's argument is

unavailing. Although Plaintiff disagrees that her conduct

should be considered “deceitful,” there is no indication that

any other student engaged in the same conduct she did and,

therefore, she was not treated differently from any similarly

Situated person. Therefore, this claim also must fatl

5 Free Exercise of Religion

Defendant argues that Plaintiff's free exercise claim

must be dismissed because the school took no action that

placed a substantial burden on her religion, clung 7urner v

Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64

(1987). Specifically, Defendant argues that Plaintiff cannot

demonstrate that it substantially burdened her religion to be

required to issue a statement to the community clarifying that

her religious beliefs were her own, that her speech was not

condoned by the principal of her school, that the principal and

others were not aware of what she was going to say, and that

she would not have been permitted to make the religious

references had she asked first. In response, P!aintiff argues

that she was punished for her Christian viewpoint and her

diploma withheld, and that this states a plausible free exercise

claim. Plaintiff cites no authority in support of her position.

As discussed, the school district was within its legal authority

to exert editorial control over school-sponsored speech at the

graduation and to insist on an apology and clarification for

Plaintiff's conduct in evading such efforts at control and

thereby associating the school with a position other than

neutrality on religion. Plaintiff's religious practice was not

impinged or burdened; rather, she simply was obligated to

follow the same rules as the other valedictorians and to realize

the consequences when she did not. Swanson v. Guthrie

Indep. Sch. Dist. No. 1-L, 135 ¥.3d 694, 702 (10th Cir.1998)

(The Free Exercise clause is “designed to prevent the

government from impermissibly burdening an individual's

free exercise of religion, not to allow an individual to exact

special treatment from the government.”’). | conclude that

Plaintiff's Establishment Clause claim fails onthe same basis

6 Colorado State Law Claim

Plainutt's tinal claim ts for violation of C.R.S

22-1-120, apparently on the grounds that the policy of

screening speeches constitutes a prior restraint of expressio1

lJ \ » 7

ina student publication. ¢ S J2-1]-120(1) provide

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‘The general assembly declares that students of

the public schools shall have the right to

exercise freedom of speech and of the press,

and no expression contained in a student

publication, whether or not such publication is

school-sponsored, shall be subject to prior

restraint except for the types of expression

described in subsection (3) of this section.

This section shali not prevent the advisor from

encouraging expression which is consistent

with high standards of English and journalism.

Subsection (3) lists exceptions to this general

prohibition, including expression that is obscene, defamatory,

false as to persons who are not public figures, and expression

that presents a clear and present danger of the commission of

wrongful acts. C.R.S. § 22-1-120(3). As noted in Part 2

above, Plaintiff also appears to argue that this and other

provisions mean that the school cannot regulate the content of

student speech in school fora in any manner inconsistent with

this statute. Defendant contends that this provision applies

only to written publication, such as school newspapers. I

agree with Defendant's reading of this statute.

Under Colorado state law, a court construing a statute

must first look at the statute's plain language, and if it is clear

and unambiguous on tts face, the court should look ao further

and apply the statute as it is written. Vigil v. Franklin, 103

P.3d 322, 327 (Coio.2004). Neither side argues that this

provision 1s ambiguous and I read it as having plain meaning.

Although the section begins with a recognition that students

in public schools “shall have the nght to exercise freedom of

speech and of the press” it goes on to specifically prohibit

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prior restraint of “expression” that is contained within a

“publication.” Were this provision intended to encompass all

kinds of speech, including oral speech, the statute need only

reference “expression” and the inclusion of “publication”

would be surplusage.°

Moreover, the entire context of the statute makes clear

that “publication” means written media. such as a student

newspaper, since there are numerous provisions pertaining to

written speech and journalism but not to oral speech,

including: subsection (1) (“encouraging expression which is

consistent with high standards of ... journalism”); subsection

(2) (“Ifa publication written substantially by students is made

generally available throughout a public school, it shall be a

public forum for students of such school’’) (emphasis added);

subsection (4) (“The board of education of each school

district shall adopt a written publications code); subsection (5)

(“Student editors of school-sponsored student publications

shall be responsible for determining the news, opinion, and

advertising content of their publications subject to the

. This construction is futher supported by subsection

(7) of the statute, noted supra, which provides that “no school

district ... shall be held liable in any civil or criminal action

for any expression made or published by students.”C.R.S. §

22-1-120(7) (emphasis added). Expression “made” is clearly

a broader category of speech than expressioi: “published,”

which is reasonably limited to written speech which is then

reproduced and distributed to a wider audience, like a

newspaper.

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limitations of this scction.”) (emphasis added); and subsection

(6) (“If participation in a school-sponsored publication is part

of a school class or activity ... the provisions of this section

shall not be interpreted to interfere with the authority of the

publications advisor for such school-sponsored publication to

establish or limit writing assignments for the students

working with the publication ...””) (emphasis added). C.R.S. §

22-1-120.

Moreover, even if this provision were ambiguous,

Plaintiff's interpretation would mean that this statute prevents

a school from regulating speech that could violate the

Estat:tshment Clause (i.e., even student speech, such as that

in Santa Fe, which could reasonably be perceived as school

endorsement of a religious message, could not be

constrained). Such an interpretation would be plainly

unconstitutional under Santa Fe and [/azelwood and therefore

is a construction I should avoid.’ Thorpe v. State, 107 P.3d

1064, 1068 (Colo.App.2004) (“Where a statute is susceptible

ofa constitutional as well as an unconstitutional construction,

the legislature will be presumed to have intended the

: Subsection (7) does not avoid this problem by

decreeing that no student expression “shall be deemed to be

an expression of school policy.” C.R.S. § 22-1-120(7). The

Hazelwood tcst deals with public perception, i.e., that

something closely connected to the school will be seen as

bearing the imprimatur of the school. See Fleming, 298 F.3d

at 925. That perception cannot be made to vanish by

legislative fiat.

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constitutional construction.”); BCW Enters., Ltd. v. Indus.

Claim Appeals Office, 964 P.2d 533, 537 (Colo.App.1997)

(“when possible, statutes should be construed so as to avoid

questions of their constitutional validity”).

Therefore, I conclude that section 22-1-120(1) by its

plain terms does not apply to these circumstances and, even

if it did, cannot be construed to prohibit a school from

regulating speech that could violate the Establishment Clause.

Accordingly, it 1s ordered:

1. Defendant's Motion for Judgment on the Pleadings

(doc no 24) is granted. Judgment shall enter in favor of

Defendant and against Plaintiff on all claims.

DATED at Denver, Colorado, on July 30, 2008.

BY THE COURT:

s/Walker D. Miller

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.