Opposition Brief — Palmer v. Waxahachie Independent School District (No. 09-409)

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No.09-409

I

In the Supreme Court of the United States

PAUL T. PALMER, by and through

his parents and legal guardians PAUL

D. PALMER AND SUSAN

GONZALEZ BAKER

Petitioner,

Vv.

WAXAHACHIE INDEPENDENT SCHOOL

DISTRICT,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

| DANIEL R. ORTIZ SARA HARDNER LEON

JAMES E. RYAN Counsel of Record

University of Virginia WILLIAM CARR BEDNAR, JR.

School of Law Powell & Leon, LLP

Supreme Court 1706 W. 6% Street

Litigation Clinic Austin, TX 78703

580 Massie Road (512) 494-1177

Charlottesville, VA 22903

(434) 924-3127 DAVID T. GOLDBERG

Donahue & Goldberg, LLP

99 Hudson Street, Sth Fl.

New York, NY 10013

(212) 334-8813

QUESTIONS PRESENTED

Whether intermediate scrutiny, the standard this

Court traditionally uses to assess content-neutral

regulations of speech, is the proper standard to assess

the constitutionality of a content-neutral school dress

code?

Whether the court of appeals correctly applied that

standard to the facts of this case?

1]

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................cccssssssceeeeeees i

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REASONS FOR DENYING THE

Te anvsrsscecsssvsseconcosensvosscesesoessesccscevecoce 11

THE FIFTH CIRCUIT CORRECTLY

DETERMINED THAT INTERMEDIATE

SCRUTINY APPLIES TO CONTENT-

NEUTRAL REGULATIONS OF

STUDENT SPEECH, AS HAVE ALL

OTHER CIRCUIT COURTS FACED

ee ge 1) Yy y O) . 11

There Is No Circuit Split Regarding

the Constitutional Status of

Content-Neutral Regulations Of

ITE occa cs csvccoscocnvccccevscncccoccessoce 11

Intermediate Scrutiny Is The

Proper Standard For Content-

Neutral Regulation of Student

PETITIONER’S SECOND QUESTION

DOES NOT MERIT THIS COURT’S

i!

The Second Question Concerns The

Application of Well-Established

Precedent To The Facts Of This

The Court Of Appeals Properly

Applied Intermediate Scrutiny To

Re WE CIE Te A vv cbiceincetsvaceinicecctenes 24

THE INTERLOCUTORY POSTURE OF

THIS CASE MAKES REVIEW

UNNECESSARY AND UNWISE..................... 27

PETITIONER’S ATTEMPT TO RAISE

THE QUESTION OF WHETHER THE

DRESS CODE IS CONTENT-BASED

OFFERS ANOTHER REASON TO

EPEUET © SOREN © OEE EOEPET ccteisccsscecssessiesssmeenisiesens 29

COEF NG EO ONY tisisicincerisncrnnnaniaicassonamian 31

ill

TABLE OF AUTHORITIES

Cases

American Constr. Co. v. Jacksonville, T. &

KW. FI. Coy, 146 UB. SIS CGB) qo. ccecissceccacceces 27

Bar-Navon v. Brevard County Sch. Bd., 290

FAD He ZFS Cl BU Cah, FI vnvsvcncciescescssscccsenesecs 6, 11

Bar-Navon v. Sch. Bd. of Brevard County,

Fla., No. 6:06-cv-1434-Orl-19KRS, 2007

WL 3284322 (M.D. Fla. Nov. 5, 2007) ................... 1]

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.

Blau v. Fort Thomas Pub. Sch. Dist., 401

De BE Ce GP, FI viicscn vce nccnncccsccesdsscvcevesecees 6,13

Canady v. Bossier Parish Sch. Bd., 240 F.3d

Oe ee sss kanacesseacvonckeussrcessacscans 6, 7, 8, 20

Caspar v. Bohlen, 510 U.S. 383 (1994) ........ ee. 31

Chandler v. McMinnville Sch. Dist., 978

fe Be Be 15, 16

City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789

1 |. RAR ee aaa eee a, cere 20

1V

Clark v. Comty. for Creative Non- Violence,

he Me I ocx csancacecueansdcbvicsercsncesssonsees a7, 23

Guiles v. Marineau, 461 F.3d 320 (2d Cir.

RGR Rp ict a A pe ieee AIO SA ....14

Hamulton-Brown Shoe Co. v. Wolf Bros. &

Re Ma i vig vncnscvscvecesusccskecvecsvenceaddens a7

Hazelwood Sch. Dist. v. Kuhlmeier, 484

Oe as sc hieeke vwcav'etesonnivns 5, 10, 15, 2

Heffron v. Int'l Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640 (1981) 0.0.0... 19

Hill v. Colorado, 530 U.S. 703 (2000) ............. 8, 20, 21

Intl Soc’y for Krishna Consciousness, Inc. v.

Be he Be OE kek cs cxnvecdececescesesccieveciienvecs 20

Jacobs v. Clark County Sch. Dist., 526 F.3d

ee Mt I ois ccanunisessecuyseeticecasenseueson passim

Linmark Assocs., Inc. v. Willingboro Twp.,

Ue tT MEF asic dean sancti ovssineets ctarsecescscreessies 22

M.A.L. v. Kinsland, 543 F.3d 841 (6th Cir.

RE SPORE, ASN oo Ert LD RROD ETT 13

Metromedia, Inc. v. City of San Diego, 453

enn IE sep pended chi orto naaa ont eceaiweserene 26

Morgan v. Plano Indep. Sch. Dist., F.3d.,

SN WR Os cc's cade nat cosaseveavunsacieaee 14

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

Vv

Newsom v. Albermarle County Sch. Bd., 354

Fe ee Ce GE, I ccc ssessvssssecnvensencrvessevsesvesesns 16

Nuxoll v. Indian Prairie Sch. Dist., 523 F.3d

ee ee I ns vac vuccsancvasddaeniusdvideeccseennere 16

Perry Educ. Ass'n v. Perry Local Educators’

I ER TE CE oo sa ssssucdancvesnedasdseeacssecseas 20

Saxe v. State College Area Sch. Dist., 240

ee Be Ce Ss ED vices sctvesscinnsencadsecssvccsavss 14, 16

Shanley v. N.E. Indep. Sch. Dist., 462 F.2d

I i cai ccven cv ntavarssdeavaicevadesvinnsecxcavnsess 20

Tinker v. Des Moines Indep. Comty. Sch.

DEBE, SOS US. BOS CABG) occcccssscsssecccsonscocscssss passim

Turner Broad. Sys., Inc. v. FCC, 512 U.S.

ay eel i auiens rau ecapenvabsen Gants 17

United States v. Kokinda, 497 U.S. 720

AE tea AIRE ch ASE VE aA ee ean VE oP RR, eet EE 20

United States v. O’Brien, 391 U.S. 367

ead ety es lacureaas passim

Va. Military Inst. v. United States, 508 U.S.

I IID coc ccccccsssavescctasaceece a Lah Daa thet Sie Tel PP tne 28

Ward v. Rock Against Racism, 491 U.S. 781

ak anh cote caccenesy si ubgkd nds ova kiadacdnanaees Esau 8, 20

vl

Statutes

42 U.S.C. § 1983

Constitutional Provisions

My le, AU, IIE Bocce cncicscscdavdccccssevodnns

]

BRIEF FOR THE RESPONDENT IN

OPPOSITION

STATEMENT

A. Factual Background

This case challenges the constitutionality of a

comprehensive, school-wide dress code adopted to

“maintain an orderly and safe learning environment,

increase the focus on instruction, promote safety and

life-long learning, and encourage professional and

responsible dress for all students.” Pet. App. 30.

Respondent Waxahachie Independent School District

(Waxahachie) adopted the dress code after finding

that student dress issues consumed too much

administrative time and attention, Tr. 20:1-21:3, and

that limiting printed messages on clothing would

reduce distractions in the classroom, allowing

students to better focus their attention on

schoolwork. Tr. 22:4-11. In developing the dress

code, no school official ever expressed an intent or

desire to regulate or suppress student political speech

or any particular message. Tr. 22:4-11; Tr. 28:6-12;

Tr. 34:18-23.

Before implementing the dress code, school

officials engaged in an extensive policy development

and review process. Tr. 18:5-22:3; Tr. 24:21-26:14.

School officials reviewed over forty other school dress

codes, took trips to see dress code enforcement in

action, and reviewed data regarding the impact of

such codes on other schools. Pet. App. 17.

2

Waxahachie learned that discipline had improved in

those schools and that stricter dress standards had

furthered the schools’ educational missions and

improved safety and security. Tr. 25:11-26:12; Tr.

18:6-23. Though it considered requiring school

uniforms, Waxahachie ultimately adopted a dress

code, believing that educational objectives could still

be served while allowing students some choice in the

style of their clothing. Tr. 26:15-27:12; Pet. App. 3

n.2.

Waxahachie adopted its dress code on May 21,

2007. Pet. App. 41. The initial version prohibited

students from wearing printed messages on t-shirts

unless the messages related to school clubs, school

spirit, school sports teams, or a university. Pet. App.

37. Other portions of the dress code prohibited low-

cut necklines, spiked jewelry, torn clothing, and too-

short shorts, skirts or dresses. Pet. App. 38-41.

On September 21, 2007, petitioner, Paul (“Pete”)

Palmer, went to school wearing a t-shirt with “San

Diego” written on it. Pet. App. 2. An assistant

principal told him that his shirt violated the dress

code, id., and that he would not be permitted to

return to class until he changed into acceptable

clothing. 3 R. 431. Petitioner then called his parents

and asked his father to bring his “John Edwards for

President ‘08” t-shirt for him to wear instead. Jd. at

430-431. The assistant principal told him that he

would not be allowed to wear the Edwards t-shirt

because it also contained a printed message. Pet.

App. 2. Petitioner put on a plain t-shirt and returned

to class. His parents later filed an appeal using the

3

school grievance process. The principal denied

petitioner's appeal, and the district superintendent

agreed, Id.

B. Proceedings in the District Court

In the spring of 2008, the District began an

internal review of the dress code, and began

considering changes. On April 1, 2008, petitioner

sued Waxahachie under 42 U.S.C. § 1983, claiming

that the dress code violated his freedom of speech

under the First Amendment. Pet. App. 2. He

requested, among other things, a_ preliminary

injunction. Jd. Four days prior to the district court

hearing, Waxahachie amended the dress code after

reviewing the recommendations of the administrative

committee tasked with revising the policy. Id. at 3.

The district court dismissed petitioner’s motion for a

preliminary injunction without prejudice. /d.

Waxahachie had tightened its policy to prohibit all

but school-related messages on student clothing after

finding that students had taken advantage of the

prior exceptions to promote gang affiliation. Pet.

App. 3. The new dress code continued to permit

shirts printed with school-related messages. Id. at 3.

It also permitted manufacturer's logos no larger than

two inches by two inches. /d. at 31. While the dress

code did not explicitly address accessories like

political pins, buttons, or wrist bands, such items

were covered, if at all, by Waxahachie’s general policy

that permits such items unless they are distracting,

sexually explicit, or promote the violation of school

rules. Pet. App. 4.

After receiving a copy of the revised dress code,

petitioner submitted three shirts to Waxahachie for

its reaction. Pet. App. 4. One was the original “John

Edwards for President ‘08” t-shirt, one was a “John

Edwards for President” polo shirt, and one was a t-

shirt with “Freedom of Speech” printed on the front

and the text of the First Amendment printed on the

back. Waxahachie advised him that all three shirts

would violate the dress code. Id.

Petitioner amended his Complaint in district court

to challenge the new dress code. Pet. App. 4. The

district court denied his request for a preliminary

injunction, finding that he would not suffer

irreparable harm because the dress code did not

prevent him from conveying political messages

through alternative means, like campaign buttons.

Id. The district court never examined the remaining

three requirements for a preliminary injunction:

whether there was a substantial likelihood of success

on the merits; whether the threatened injury if the

injunction were denied would outweigh any possible

harm resulting from the injunction being granted;

and whether granting the injunction would not

disserve the public interest. See Pet. App. 4-5.

C. Proceedings in the Court of Appeals

Petitioner appealed, challenging the district

court’s holding that denying a preliminary injunction

would not cause him irreparable injury. Pet. C.A. Br.

20. The Fifth Circuit held that denying the

preliminary injunction would indeed cause such

5

injury, assuming that petitioner’s First Amendment

rights were in fact being violated. Pet. App. 5. The

court then examined whether petitioner could

establish a substantial likelihood of success on the

First Amendment point.

The Fifth Circuit began with this Court’s

admonition in Tinker v. Des Moines Indep. Comty.

Sch. Dist., 393 U.S. 503 (1969), that “students [do

not] shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate,” Pet.

App. 6 (quoting Tinker, 393 U.S. at 506), and

summarized Tinker’s holding as “[s]chools can

restrict student speech only if it materially interferes

with or disrupts the schools’ operation and cannot

suppress expressions of feelings with which they do

not wish to contend.” Jd. at 7 (internal quotation

marks and citations omitted). It then noted that

“since Tinker, every Supreme Court decision looking

at student speech has expanded the kinds of speech

schools can regulate,” and described these subsequent

holdings as allowing schools to prohibit sexually

explicit, indecent, or lewd speech, Bethel Sch. Dist.

No. 403 v. Fraser, 478 U.S. 675, 685 (1986), to

regulate school-sponsored speech, Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988), and to

prohibit speech “advocating illegal drug use,’ Morse

v. Frederick, 551 U.S. 393, 403 (2007). Zd.

The Fifth Circuit rejected petitioner's argument

that these decisions established a “bright-line rule

that schools cannot restrict speech that is not

disruptive, lewd, school-sponsored, or drug-related.”

Pet. App. 7. Such a “categorical rule,” it held, was

6

“flawed, because it fails to include another type of

student speech restriction that schools can institute:

content-neutral regulations.” Jd. at 7-8. The Fifth

Circuit explained that the Tinker line of cases “all

addressed disciplinary action by school officials

directed at the political content of student expression,

not content-neutral regulations such as_ school

uniforms.” Jd. at 8 (internal quotation marks

omitted). Viewpoint- and content-neutral regulations

of school speech, the court therefore held, are not

governed by the Tinker line of cases but by the

traditional standard used to assess such regulations

outside of school: intermediate scrutiny, as first

articulated by this Court in United States v. O’Brien,

391 U.S. 367 (1968); Pet. App. 8-9.

In so holding the Fifth Circuit followed its earlier

decision in Canady v. Bossier Parish Sch. Bd., 240

F.3d 437 (5th Cir. 2001). Canady, as the Fifth Circuit

noted, has itself been followed by three other circuits,

see Pet. App. 9 & n.6 (citing Bar-Navon v. Brevard

County Sch. Bd., 290 F.App’x 273, 276-277 (11th Cir.

2008); Jacobs v. Clark County Sch. Dist., 526 F.3d

419, 428-434 (Sth Cir. 2008); Blau v. Fort Thomas

Pub. Sch. Dist., 401 F.3d 381, 392-393 (6th Cir.

2005). No court of appeals, by contrast, has

expressed disagreement with Canady.

The Fifth Circuit rejected all three of petitioner's

arguments that Canady should not control. First, it

held that “([nJothing in Justice Alito’s concurrence or

the majority opinion in Morse overruled Canady.”

Pet. App. 10. That case, it found, “involved a school’s

targeting specific speech and did not concern content-

7

neutral regulation,” a distinction it found “critical

and controlling.” Jd. Second, it rejected petitioner's

attempt to distinguish Canady as involving “a

uniform rather than a dress code” as making “a

distinction without a difference.” Jd. at 11. “A

uniform code,” it noted, “is merely a strict version of a

dress code” and petitioner’s distinction, if accepted,

“would spawn endless_ line-drawing litigation”

because courts would have to “decide when a dress

code is strict enough to be considered a uniform.” Id.

The court further noted that to treat dress codes

differently from uniforms “would punish those school

districts that adopt dress codes rather than uniforms

because their students cannot afford uniforms” and

would “perverse[ly] push[ } schools to adopt uniforms

rather than dress codes that give students some

clothing choice.” Jd. Third, it rejected petitioner's

argument that Canady applied only to facial, not to

as-applied, challenges to dress codes. That position,

it found, “make[s} no sense.” Jd. Intermediate

scrutiny should apply in both contexts. Jd. at 11-12.

The Fifth Circuit then considered whether

Waxahachie’s dress code was content-neutral. Pet.

App. 12. Petitioner argued that the dress code was in

fact a content-based restriction since it allowed

students to wear brand name clothing with modestly-

sized logos or shirts bearing school-related messages,

but not those with messages non-germane to the

school environment. /d.; Pet. C.A. Br. 19 n.6; see also

Pet. C.A. Reply Br. 11. The Fifth Circuit noted,

however, that this Court had held that “[t]he

principal inquiry in determining content-neutrality

*** is whether the government has adopted a

8

regulation of speech because of disagreement with

the message it conveys.” Jd. at 13 (citing Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989),

reaff'd in Hill v. Colorado, 530 U.S. 703, 719 (2000)).

Under that test, it held, “the dress code is content-

neutral.” Jd. at 14. The court held that Waxahachie

is in no way attempting to suppress any student's

expression, and its allowance for school logos and

school-sponsored shirts “does not suppress unpopular

viewpoints but provides students with more clothing

options than they would have had under a complete

ban on messages.” Id.

The court of appeals then applied’ the

intermediate scrutiny test from O’Brien. Under that

test, a content-neutral regulation passes

constitutional muster: (1) “if it furthers an important

or substantial government interest;” (2) “if the

interest is unrelated to the suppression of student

expression;” and (3) “if the incidental restrictions on

First Amendment activities are no more than is

necessary to facilitate that interest.” Pet. App. 8

(citing Canady, 240 F.3d at 443).

Petitioner challenged the dress code only under

the first and third prongs of the test, arguing that the

dress code did not further “an important or

substantial governmental interest.” Pet. App. 15.

Waxahachie asserted that the dress code

furthered several important interests, including

“maintain{ing] an orderly and_ safe _ learning

environment, increas[{ing] the focus on instruction,

promot[ing] safety and life-long learning, * **

9

encourag|[ing] professional and responsible dress for

all students[,] reduc[ing] administrative time spent

enforcing the code, and promot[ing] the school and its

activities.’ Pet. App. 15. The court of appeals held

that “[Waxahachie’s] stated interests all qualify

under the first prong fof intermediate scrutiny.]” Jd.

at 16 (emphasis added).

It noted, moreover, that petitioner was actually

making a different argument. He did “not take issue

with the school board’s claimed interests” but instead

argued that permitting political statements on pins,

wrist-bands, and other accessories nullified these

proffered benefits. Pet. App. at 17. The court of

appeals found, however, that the distinction between

messages on shirts and on accessories made sense:

Because shirts are large and quite

visible, banning them while allowing

buttons would still cause less distraction

and promote an orderly learning

environment. Buttons and pins are also

less prominent than are shirts and

therefore require less attention from and

regulation by teachers. Another District

goal—promoting professional and

responsible dress—still functions as

well, because students are prepared for

a working world in which pins and

buttons may be appropriate at work but

large, stark political message t-shirts

usually are not.

10

Id. at 18. And “even if, arguendo, [it] were to find the

distinction between messages on shirts and messages

on buttons odd, [the court of appeals] recognize[d]

that the teachers and administrators who establish

these rules know better than [the courts] how the

distinction will function in schools.” /d. “The

determination of where to draw lines on dress code

decisions ‘properly rests with the school board, rather

than with the federal courts.” Jd. at 19 (quoting

Hazelwood, 484 U.S. at 267).

Petitioner's argument, the court also noted, was

“somewhat ironic.” Pet. App. 19. He “requests that

[the court] strike down the dress code because the

District gave him [other avenues] to express himself.

He argues that, to survive intermediate scrutiny, the

code must allow him no options at all.” Td. It

rejected this “perverse reasoning” because it would

cause “school districts [to] rush to impose the strictest

dress code possible or * * * require school uniforms.”

Id.

Finally, the Fifth Circuit held that “[the dress

code] passes [intermediate scrutiny’s} third prong.”

Pet. App. 21. Since “[it did] not restrict student

dress outside of school and provide[d] students with

some means to communicate their speech during

school,” the court of appeals found, the policy

restricted no more speech than was “necessary to

achieve [Waxahachie’s} goals.” Jd. at 20-21. It thus

affirmed the district court’s denial of a preliminary

injunction.

11

REASONS FOR DENYING THE PETITION

I. THE FIFTH CIRCUIT CORRECTLY

DETERMINED THAT INTERMEDIATE

SCRUTINY APPLIES TO CONTENT-

NEUTRAL REGULATIONS OF STUDENT

SPEECH, AS HAVE ALL OTHER CIRCUIT

COURTS FACED WITH THE QUESTION

A. There Is No Circuit Split Regarding the

Constitutional Status of Content-Neutral

Regulations Of Student Speech

Contrary to petitioner's contention, Pet. 19-23,

there is no conflict among the courts of appeals over

the constitutional standard governing First

Amendment challenges to content-neutral regulations

of student speech in public schools. Petitioner claims

that a split exists between the Fifth, Ninth, and Sixth

Circuits, all of which decline to apply the Tinker

disruption standard to content-neutral regulations of

student speech, and the Second and Third Circuits,

which petitioner claims apply the Tinker standard to

such regulations. Pet. 14-25.! This claim blurs the

' Petitioner also cites to a non-precedential decision from a

Florida district court for the proposition that the courts disagree

as to the scope of Tinker’s holding. Pet. 19 (quoting Bar-Navon

v. Sch. Bd. of Brevard County, Fla., No. 6:06-cv-1434-Orl-19KRS,

2007 WL 3284322, at *5 (M.D. Fla. Nov. 5, 2007)). In fact, the

Eleventh Circuit, in an unpublished decision in the same case,

upheld the application of intermediate scrutiny to a content-

neutral school dress code. Bar-Navon v. Brevard Cty. Sch. Bad.,

290 Fed. App’x at 277.

12

clear distinction between viewpoint-neutral

regulations that incidentally impact student

expression and school regulations that censor a

particular viewpoint.

Neither this Court nor any court of appeals has

ever applied the Tinker disruption test to content-

neutral regulations of student speech. The Fifth

Circuit joins the Sixth and Ninth Circuits in holding

that intermediate scrutiny applies to content-neutral

regulations, such as student dress and grooming

policies. The Second and Third Circuit decisions

relied on by petitioner, by contrast, involve content-

or viewpoint-based restrictions, and therefore do not

pose any conflict over the proper standard to apply to

content-neutral regulations.

In a strikingly similar dress code case, the Ninth

Circuit in Jacobs explained that “the Tinker test has

only been employed when a school's restrictions have

been based, at least in part, on the particular

messages students were attempting to communicate.”

526 F.3d at 431. In a carefully reasoned and

thorough decision, the court concluded _ that

intermediate scrutiny, which is the standard applied

to content-neutral regulations of speech outside of

schools, should apply within schools as well.? 7d. at

434.

2 The Jacobs court noted that “[i]f anything, the scrutiny should

be even less demanding,” as “the constitutional rights of

students in public school are not automatically coextensive with

the rights of adults in other settings, and * * * the rights of

students must be applied in light of the special characteristics of

the school environment.” 526 F.3d at 434 n.34 (quoting Morse v.

Frederick, 551 U.S. 393, 396-397 (2007)).

13

The Sixth Circuit has also declined to apply the

Tinker disruption test to content-neutral regulations

of student speech. In M.A.L. v. Kinsland, 543 F.3d

841 (6th Cir. 2008), the court analyzed restrictions on

student distribution of leaflets in the hallways during

school hours. The Kinsland plaintiffs argued that

content- and viewpoint-neutral regulations on

literature distribution should be subject to the Tinker

test and therefore held invalid unless the distribution

was likely to cause substantial disruption. Id. at

845-846.

The court emphatically rejected the argument

that Tinker should apply to content-neutral

regulations of student speech, emphasizing that “the

school officials in Tinker sought to silence the student

because of the particular viewpoint he expressed,

while the Jefferson school authorities have merely

sought to regulate the time, place, and manner of

[plaintiffs] speech irrespective of its content or his

viewpoint.” Jd. at 849. Thus the school district “need

not satisfy [Tinker’s] demanding standard merely to

impose a viewpoint-neutral regulation of the manner

of [plaintiff's] speech to prevent hallway clutter and

congestion.” Jd. at 850. To hold otherwise, the court

observed, “would produce numerous legal anomalies,

the most obvious of which is that schools would have

less discretion over the use of school facilities than is

exercised by any other public entity over any other

forum on public property. This is not the law.” 7d.

See also Blau, 401 F.3d at 391-393 (applying

intermediate scrutiny to uphold a content- and

viewpoint-neutral dress code).

14

The Fifth Circuit recently reaffirmed the

application of intermediate scrutiny to content-

neutral school regulations that impact student speech

in Morgan v. Plano Indep. Sch. Dist., --F.3d.--, 2009

WL 4265219. “We have made plain that time, place,

and manner is the proper standard for evaluating

content and viewpoint neutral regulations of student

speech and [only] when a school imposes content or

viewpoint based restrictions the court will apply

Tinker.” Id. (internal quotations and citations

omitted.)

The Sixth Circuit, together with the Fifth and

Ninth Circuits, are the only courts to address the

constitutional status of content-neutral dress code

regulations in schools. For dress regulations, like

other content-neutral regulations impacting student

speech, these courts of appeals have consistently and

correctly decided that intermediate scrutiny is the

proper standard and that Tinker does not apply.

The decisions of the Second and Third Circuits

cited by petitioner are not to the contrary because

those cases directly involved content- or viewpoint-

based speech restrictions. In Guiles v. Martineau, 461

F.3d 320 (2d Cir. 2006), a student was disciplined for

wearing a t-shirt critical of President George W. Bush

as the “Chicken-Hawk-In-Chief’ and an abuser of

alcohol and drugs. Jd. at 326. The court applied

Tinker because both Tinker and the case at hand

presented “political viewpoint-based discrimination.”

Id. Similarly, Saxe v. State College Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001), involved a challenge to

15

an anti-harassment policy, which the court explicitly

determined involved content-or viewpoint-based

restrictions on student speech. The court cited and

applied Tinker because “school({s] may not prohibit

speech based on the mere desire to avoid the

discomfort and unpleasantness that always

accompany an unpopular viewpoint.” Id. at 215.

(internal quotation marks and citation omitted,

emphasis added). Neither court addressed what

standard might govern content- and viewpoint-

neutral regulation of student speech. Consequently

those decisions are not in conflict with the decision in

this case.

Petitioner attempts to concoct a conflict from

dicta. Petitioner quotes language from the Second

and Third Circuit opinions, divorced from the factual

contexts of those cases, which he contends establishes

that those courts would apply the Tinker standard to

content-neutral regulations of student speech. Pet.

20. That amounts to speculation, given that the cases

did not involve content-neutral regulations. A

speculative conflict is no substitute for a real one, as

the Ninth Circuit’s experience illustrates. In 1992, in

a viewpoint discrimination case, the Ninth Circuit

broadly declared “that the standard for reviewing the

suppression of vulgar, lewd, obscene, and plainly

offensive speech is governed by Fraser, school-

sponsored speech by Hazelwood, and all other speech

by Tinker.” Chandler v. McMinnville Sch. Dist., 978

F.2d 524, 529 (9th Cir. 1992) (citations omitted and

emphasis added). Then 16 years later, the court

encountered for the first time a _ content-neutral

student dress code. In Jacobs, the court eschewed

16

Tinker and instead found itself obliged to apply

intermediate scrutiny, clarifying its broad declaration

in Chandler and distinguishing that decision — as

well as Tinker — on the ground that it involved a

viewpoint-based restriction on speech and thus did

not control. 526 F.3d at 428-432.

Petitioner cites to cases from the Fourth and

Seventh Circuit, but significantly, he does not claim

they are in conflict with the Fifth Circuit. Those

decisions, just as in the Second and Third Circuits,

involved content-based speech restrictions. As with

Saxe, the Seventh Circuit, in Nuxoll v. Indian Praturie

Sch. Dist., 523 F.3d 668 (7th Cir. 2008), applied

Tinker to a _ policy prohibiting written or oral

“derogatory comments’ referring to “to race,

ethnicity, religion, gender, sexual orientation, or

disability.” Id. at 670. Judge Posner described the

issue in Tinker as “discriminat{ion] against a

particular point of view, namely opposition to the

Vietnam war expressed by the wearing of black

armbands.” Id. at 674. Nor was the Fourth Circuit

faced with a content-neutral restriction in Newsom v.

Albemarle County Sch. Bd., 354 F.3d 249 (4th Cir.

2003). The dress code in Newsom _ prohibited

“messages on clothing * * * that relate to drugs,

alcohol, tobacco, weapons, violence, sex, vulgarity, or

that reflect adversely upon persons because of their

race or ethnic group,” and the student in that case

was prohibited from wearing a t-shirt depicting

weapons because of the assistant principal’s

disagreement with the message it conveyed. Id. at

252-253.

17

There is no disagreement, much less a deep

division, among the courts of appeals. All circuits

that have addressed viewpoint-neutral regulation of

student speech have come to the same conclusion as

the Fifth Circuit, and with all relevant courts in

agreement, review by this Court is unwarranted.

B. Intermediate Scrutiny Is The Proper

Standard For Content-Neutral Regulation

of Student Speech

The Fifth Circuit correctly decided to apply

intermediate scrutiny to content-neutral school dress

codes.’ As this Court famously declared in Tinker,

“lilt can hardly be argued that either students or

teachers shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.” 393

U.S. at 506. But neither do students and teachers

acquire additional rights at the schoolhouse gate.

Extending Tinker as urged by petitioner would,

anomalously, grant students in public schools greater

3 The Fifth Circuit was correct to apply intermediate scrutiny to

the school’s dress code under both the test for restrictions on

expressive conduct, articulated in O’Brien, as well as the so-

called “time, place, and manner’ test for viewpoint- and content-

neutral restrictions on “pure speech.” This Court's application of

those tests confirms that there is “little, if any, differen[ce]”

between the two tests. Clark v. Comty. for Creative Non

Violence, 468 U.S. 288, 299 (1984); see also Turner Broad. Sys.,

Inc. v. FCC, 512 U.S. 622, 661-662 (1994). Petitioner's

suggestion, made in the questions presented, see Pet. 1, that it is

incorrect to apply intermediate scrutiny to content-neutra!

regulations of “pure speech” is thus without merit

18

free speech protections than adults have outside of

school.

While this Court has addressed the extent to

which schools may engage in content- or viewpoint-

based regulation of speech, the Court has never

indicated that content-neutral regulations, such as

uniform and dress codes, are impermissible in schools

if they also restrict some non-disruptive speech. It is

clear from Tinker and its progeny that students in

public schools have speech rights, but because of the

need “to prescribe and control conduct in the schools,”

Tinker, 393 U.S. at 507, the scope of speech

protections is specially-tailored to the school setting.

Tinker and the school speech cases that followed

arose in the context of regulations discriminating

based on content or viewpoint Petitioner nonetheless

argues that Jinker and its progeny preclude the

application of intermediate scrutiny to a content-

neutral dress code. This view turns the Tinker line of

cases on its head.

Justice Alito’s concurrence in Morse v. Frederick,

551 U.S. 393 (2007) does not further petitioner's

argument. In Morse, the student was disciplined for

displaying a banner expressing a pro-drug use

viewpoint. Justice Alito’s concern was with the

dangerous breadth of the “educational mission”

argument advanced by the petitioners and the United

States, which he saw as _ potential license for

viewpoint discrimination: “The ’educational mission’

argument would give public school authorities a

license to suppress speech on political and social

issues based on disagreement with the viewpoint

19

expressed. The argument, therefore, strikes at the

very heart of the First Amendment.” Morse, 551 U.S.

at 423 (Alito, J., concurring)

Justice Alito wished to _ foreclose any

interpretation of the majority opinion that would

authorize school boards to engage in viewpoint

discrimination by the simple expedient of adopting a

converse point of view as their “educational mission.”

But Justice Alito was dealing with the viewpoint

discrimination case before him, not a dress code.

Accordingly, Justice Alito “joinfed] the opinion of the

Court on the understanding that the opinion does not

hold that the special characteristics of the public

schools necessarily justify any other speech

restrictions.” Morse, 551 U.S. at 422 (Alito, J.,

concurring).

But the application of intermediate scrutiny to

content-neutral regulations is not based on “the

special characteristics” of the school setting. It is a

generally applicable speech rule. This Court has

never suggested that students have more free speech

protections in school than outside of them.

Even adults in public settings may have

reasonable restrictions placed on the exercise of their

speech rights: “the First Amendment does _ not

guarantee the right to communicate one’s view at all

times and places or in any manner that may be

desired.” Heffron v. Intl Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640, 647 (1981). Even

in traditional public forums, such as a park or a

public street, the government may impose reasonable

20

restrictions on the time, place or manner of protected

speech. See, e.g., Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989); Perry Educ. Ass'n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983); Aull v.

Colorado, 530 U.S. 703, 720 (2000) (upholding limits

on approaching another for the purpose of “engaging

in ‘oral protest, education, or counseling”); United

States v. Kokinda, 497 U.S. 720 (1990) (upholding

prohibition against soliciting on a sidewalk adjacent

to a post office); Int'l Soc’y for Krishna Consciousness,

Inc. v. Lee, 505 U.S. 672, 684 (1992) (upholding

restrictions on speech rights in airport terminals);

City Council of City of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789 (1984) (applying intermediate

scrutiny to prohibition against posting of signs on

sidewalks, utility poles, and_ similar public

structures).

Tinker does not change those fundamental

principles of First Amendment law in their

application to a school context. Expression by

students in school may be limited by reasonable and

equally applied time, place, and manner restrictions.

Shanley v. N.E. Indep. Sch. Dist., 462 F.2d 960, 970

(5th Cir. 1972). Under petitioner’s reading of Tinker,

schools would transform not merely into a public

forum, but a super-public forum, in which time, place,

and manner limitations are invalid.

Petitioner seeks to create a false dichotomy

between the rule articulated in Tinker and the

standard laid down in O'Brien. But Tinker is not, as

petitioner asserts, distinguishable from cases like

O’Brien and Canady because Tinker deals with "pure

21

speech" while the other cases deal with expressive

conduct. Tinker itself involved expressive

conduct—the silent wearing of plain black armbands.

393 U.S. at 504. As with burning a draft card,

sleeping in a public park, or wearing non-uniform

school clothes, it was the expressive content of the

wordless conduct that brought First Amendment

considerations into play. See id. at 505; cf. Clark, 468

U.S. at 298-299. The relevant distinction is not in

the form of the expression but in the form and scope

of the regulation.

Tinker involved a ban against black armbands

because the wearers intended to express a particular

viewpoint. The school district permitted the wearing

of political buttons and other politically-charged

symbols like the Iron Cross but singled out black

armbands for prohibition because they were being

worn to oppose the war in Vietnam. 393 U.S. at

510-11. It was not the prohibition of armbands or

other apparel items in general, but the suppression of

one particular opinion without evidence of material

and substantial interference with schoolwork or

discipline that was not constitutionally permissible.

Id. at 511.

Tinker remains the rule for testing the validity of

a viewpoint--based regulation of student speech in

public schools. But it says nothing about the validity

of a content- and viewpoint—neutral policy that

restricts students’ clothing only during school hours

reserved for the schools' core mission of education.

See Jacobs, 526 F.3d at 432. Like the statute upheld

in Hill v. Colorado, Waxahachie’s dress code is not a

22

regulation of speech so much as a regulation of the

places where and times when some speech may occur.

530 U.S. at 719. Tinker is not a stand-alone doctrine

that transforms schools into super—public forums in

which students enjoy rights greater than adults in

traditional forums. Reasonable time, place, and

manner restrictions on permitted expression—like

those in Waxahachie’s dress code-are governed by

First Amendment jurisprudence other than Tinker.

See, e.g., Linmark Assocs., Inc. v. Willingboro Twp.,

431 U.S. 85, 93 (1977) ("[Ljaws regulating the time,

place, or manner of speech stand on a different

footing from laws prohibiting speech altogether.").

The Ninth Circuit clearly articulated the rationale

of this approach in Jacobs. The court began by

noting that Tinker did not fully resolve “the question

of how restrictions upon expressive conduct in schools

should be evaluated” and that “the holding itself

extends only to viewpoint-based speech restrictions,

and not necessarily to viewpoint-neutral speech

restrictions.” Jacobs, 526 F.3d at 430. The court

then explained why intermediate scrutiny should

apply to content-neutral regulations, such as uniform

and dress codes:

Applying intermediate scrutiny to school

policies that effect content-neutral

restrictions upon pure speech or place

limitations upon expressive conduct (or,

as is the case here, do both) not only

strikes the correct balance between

students’ expressive rights and schools’

interests in furthering their educational

23

missions, but, as the Fifth Circuit

explained, is entirely consistent with the

Supreme Court’s other school speech

precedents, not to mention’ the

remainder of the Court's’ First

Amendment jurisprudence.

Id. at 434. Like all the other courts of appeals that

have addressed this issue, the Ninth Circuit held that

a content-neutral dress code passed constitutional

muster. Id. at 428-437.

The approach taken by the Fifth Circuit in this

case 1S necessary to the proper functioning of public

schools in the United States. Petitioner’s proposed

rule would effectively invalidate not only dress codes

like the one here, but uniform codes as well. A

uniform code would certainly qualify as a content-

neutral regulation incidentally burdening speech.

Yet under petitioner’s broad rule, not even important

government interests and narrow tailoring could

justify a uniform code if, in its application, it

prohibited a single student from wearing a “John

Edwards” or “San Diego” t-shirt—as it necessarily

would. School districts around the country are

looking closely at what dress and uniform code

options they have to ensure that our public schools

are safe and effective educational environments.

Petitioner would take many of these options off the

table, effectively handcuffing school boards in this

pursuit.

24

II. PETITIONER’S SECOND QUESTION DOES

NOT MERIT THIS COURT’S REVIEW

A. The Second Question Concerns The

Application of Well-Established Precedent

To The Facts Of This Case

Petitioner also asks this Court to review whether

the Fifth Circuit correctly applied intermediate

scrutiny to the facts of this case. This question does

not warrant review. There is no conflict among the

circuits on this point. Petitioner is thus left to argue

that the Fifth Circuit erred in its application of well-

established precedent to the specific facts of this case.

Correcting the fact-bound application of settled law

does not, ordinarily, supply a basis for granting

certiorari. Even if it did, there is no error to correct

in this case.

B. The Court Of Appeals Properly Applied

Intermediate Scrutiny To The Facts Of

This Case

The Fifth Circuit applied the well-known

intermediate scrutiny test first set forth in O’Brien,

391 U.S. at 377. As the court explained, to pass this

test, the dress code: (1) must “further[ ] an important

or substantial government(al] interest;” (2) the

interest must be “unrelated to the suppression of

student expression;” and (3) “the incidental

restrictions on First Amendment activities [must be]

no more than is necessary to facilitate that interest.”

Pet. App. 14-15 (internal quotation marks omitted).

Petitioner challenged only the first and third prongs

25

of the test, and the court of appeals correctly held

that he did not show a likelihood of success on the

merits.

The court first held that all of the school’s stated

interests were undoubtedly of sufficient importance

to survive intermediate scrutiny. Pet. App. 16. The

court stated that it is difficult to conceive “of a

governmental interest more important than the

interest in fostering conducive learning environments

for our nation’s children.” Jd. (internal quotation

marks omitted) (quoting Jacobs, 526 F.3d at 435-—

436). The court found that the dress code furthered

these interests by reducing the distractions created

by large logos and messages, and by preparing

students for a “working world in which pins and

buttons may be appropriate at work but large, stark

political message t-shirts usually are not.” Pet. App.

18.

The court also found that reducing time spent

administering the code was important to furthering

the school’s educational mission, as was promoting

school spirit. Jd. at 16. And properly so-after all,

time teachers expend determining compliance with

the code is time not spent teaching. Under the third

prong of the analysis, the court then found that the

restriction was not broader than necessary because

the dress code affected students only during the

school day and did not affect other means of

communication. Jd. at 20-21.

Petitioner does not question the importance of the

school’s interests, but instead argues that “these

26

interests do not apply, because the board’s ban on

shirts is undermined by allowing students to wear

pins, buttons, wrist-bands, and bumper stickers

containing messages.” Pet. App. 17. His problem

with the dress code, presumably, is that it does not

restrict enough speech.

As the court of appeals observed, that is an

argument that is both ironic and perverse. Pet. App.

19-20 (quoting Metromedia, Inc. v. City of San Diego,

453 U.S. 490, 540 (1981) (Stevens, J., dissenting in

part)). It is ironic because it would require “that, to

survive intermediate scrutiny, the code must allow

him no options at all.” Pet. App. 19. It is perverse

because it would put Waxahachie to a Hobson's

choice. If alternative forms of expression are not

permitted, Waxahachie cannot show that its code is

no stricter than necessary under the third prong of

intermediate scrutiny. If they are permitted,

according to petitioner, the entire code fails for failing

to advance the school’s interests. The court of

appeals properly declined to subject schools to this

dilemma. Id. at 19-20.

In assessing the school’s dress code—and doing so

in the context of a preliminary injunction—the Fifth

Circuit was appropriately sensitive to the school

environment. School administrators and teachers

need sufficient flexibility to advance the goals of

educating the nation’s youth. See, e.g., Hazelwood,

484 U.S. at 267. In this case, the school undertook a

careful process to formulate a dress code that was

easily administered yet permitted alternative

avenues of expression. After some experience with

27

that code and further study, the school amended it to

reduce the opportunities for gangs to. signal

membership through their choice of clothing. See

Pet. App. 3 n.2. School officials should be encouraged

to find ways of balancing the rights of students with

the need for an orderly learning environment, while

maintaining their ability to adapt to new and

unforeseen circumstances.

The court of appeals displayed proper sensitivity

to the school’s need for discretion and its comparative

advantage in knowing how to design a workable dress

code while respecting the speech rights of students.

Petitioner’s argument that the Fifth Circuit erred in

its application of intermediate scrutiny to the facts of

this case is without basis, as is his fleeting attempt to

bolster the significance of the decision by suggesting

without explanation that it has broad implications

beyond the school context. See Pet. 30.

Ill. THE INTERLOCUTORY POSTURE OF

THIS CASE MAKES REVIEW

UNNECESSARY AND UNWISE

This Court’s practice establishes that review of

interlocutory decisions, such as the denial of a

preliminary injunction, should only be undertaken in

extraordinary circumstances. See, e.g., Hamuilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251,

258 (1916) (“[E]xcept in extraordinary cases, the writ

is not issued until final decree.”); see also American

Constr. Co. v. Jacksonville, T. & K.W. R.R. Co., 148

U.S. 372, 384 (1893); Va. Military Inst. v. United

28

States, 508 U.S. 946 (1993) (Opinion of Scalia, J.,

respecting denial of the petition for writ of certiorari).

There is nothing extraordinary about this case. It

involves a First Amendment challenge to the dress

code of a single school, which hardly makes it unique.

It also involves a well-reasoned decision that is

consistent with the views of all other circuits to have

considered the same question.

Adhering to the policy against interlocutory

review is especially sensible in this case, as a decision

by this Court would not even decide the preliminary

injunction issues, much less the merits. There are

four distinct criteria which must be met for a court to

grant a preliminary injunction. The courts below

only considered two—irreparable harm and likelihood

of success on the merits. Thus, even if Petitioner

were to succeed before this Court, the courts below

would still have to consider the balance of harm and

the public interest before deciding whether to grant a

preliminary injunction. The case is hardly ready for

review here.

This is not a case, moreover, where partially

resolving the preliminary injunction would in effect

decide the merits of the case. If the Court affirmed

the application of intermediate scrutiny, both

Petitioner and respondent would be entitled to

introduce more evidence to bolster their contentions.

The district court never resolved, for example,

whether all school-related t-shirts have to _ be

individually approved by the principal or whether the

t-shirts simply have to relate to extracurricular clubs

29

and organizations that have themselves’ been

approved by the principal. See Pet. App. 25 (“I don’t

think it’s all that clear whether the school approval

has to be of the club, or the school approval has to be

of the shirt.”).

Even if this Court were to apply Tinker, the

question of whether petitioner's conduct posed a

threat of substantial disruption would have to await

later resolution on the merits. Waxahachie

stipulated only that the original “John Edwards’ t-

shirt sought to be worn on September 21, 2007 was

not disruptive under the circumstances of that single

day. Waxahachie has never conceded that allowing

repeated exceptions to its dress code would not cause

disruption. See Pet. C.A. Br. 13-14; Answer to

Plaintiffs Amended Verified Complaint 6, 8; Agreed

Stipulation of Facts § 11. The larger questions of

disruption and threat of disruption remain

unanswered and cannot be decided on this limited

factual record. At best, this Court could only

partially resolve the preliminary injunction and the

merits. That consideration alone should foreclose

review.

IV. PETITIONER’S ATTEMPT TO RAISE THE

QUESTION OF WHETHER THE DRESS

CODE IS CONTENT-BASED OFFERS

ANOTHER REASON TO DENY THE

PETITION

In framing the issues, petitioner concedes the

content-neutrality of the dress code as indeed he

must to assert that the circuits are split over

30

content-neutral regulations of student speech. Pet

ili. He argues in particular that this case presents an

“optimal” or “ideal” vehicle for resolving the supposed

conflict. Pet. 2, 14-25.

In the courts below, petitioner argued just the

opposite-that the dress code was the very model of a

content-based restriction, and for that reason the

O’Brien test should not apply.‘ Pet. C.A. Br. 41 n.6.

Petitioner repeats that argument here, albeit rather

softly. Down in a footnote, for example, petitioner

murmurs that the Fifth Circuit erred in “deem[ing]

the restriction on Pete’s political speech content

neutral.” Pet. 9n.1. Later, petitioner frets over the

Fifth Cuircuit’s failure to grasp that “the speech

restriction actually challenged by Pete” was “why a

policy banning some words and allowing others

approved by the government is content neutral.” Pet.

28. Yet the only questions petitioner presents for this

Court’s review clearly assume that Waxahachie’s

dress code is content neutral. Pet. i.

So which is it to be? In continuing to argue that

the dress code was actually content-based, petitioner

defeats his own assertion that this case presents an

“optimal vehicle” for reviewing a content-neutral

dress code. Pet. 2. Petitioner cannot frame one set of

4 Amict in support of the petition also argue that the Fifth

Circuit erred in concluding that respondent's dress code is

content-neutral. See, e.g., Br. for Cato Institute, et al., as Amici

Curiae at 13-18. Indeed, some amici explicitly argue that “|t]his

Court should grant the writ because the school district's dress

code is not content-neutral.” Br. for Baruch & Walker as Amici

Curtae at 10-11.

31

questions in seeking this Court’s review, but then

turn around and slip a quite different question under

the door in the body of his petition. Whether the

dress code was content-based could not be reached by

this Court if review were granted, as that issue is not

“fairly included” in the questions presented. See Sup.

Ct. R. 14.1(a); see also, e.g., Caspari v. Bohlen, 510

U.S. 383, 388 (1994). Nonetheless, petitioner's

persistence in advancing this argument ensures that

it will remain a point of contention at the merits

stage, rendering this case far from an “optimal

vehicle” for addressing the questions actually

presented by petitioner.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DANIEL R. ORTIZ SARA HARDNER LEON

JAMES E. RYAN Counsel of Record

University of Virginia WILLIAM CARR BEDNAR, JR.

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