Amicus Curiae Brief — Morgan v. Plano Independent School District

No. 09-1131

IN THE

Supreme Court of the Anited States

DOUG MORGAN, ROBIN MORGAN, JIM SHELL,

SUNNY SHELL, SHERRIE VERSHER, AND

CHRISTINE WADE,

Petitioners,

PLANO INDEPENDENT SCHOOL DISTRICT, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

AMICUS CURIAE BRIEF OF THE

AMERICAN CENTER FOR LAW AND JUSTICE

IN SUPPORT OF PETITIONERS

JAY ALAN SEKULOW

Counsel of Record

WALTER M. WEBER

CARLY F. GAMMILL

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Avenue, N.E.

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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SUMMARY OF ARGUMENT.............ccccccccccoccccccccscees 2

ge eA I Ne car NOS SOE Ge Re 3

THIS COURT SHOULD GRANT THE PETITION

BECAUSE THE DECISION OF THE FIFTH

CIRCUIT CONFLICTS WITH DECISIONS OF

IT I ales i nalncrcnrmuenreirbnbesscneseiniemasantidenrerses 3

A. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF THIS COURT THAT

CONSISTENTLY HAVE RECOGNIZED

THE TINKER STANDARD AS THE

GENERAL RULE APPLICABLE TO

RESTRICTIONS OF PURE SPEECH IN

THE PUBLIC SCHOOL SETTING......0........ 4

B. THE DECISION BELOW MARKS A

DEPARTURE FROM THIS COURT'S

DECISIONS WHICH CLARIFY THAT THE

PURPOSE OF THE O'BRIEN TEST IS TO

ANALYZE RESTRICTIONS IMPOSED ON

EXPRESSIVE CONDUCT, NOT PURE

I Oielalete caer nae ud acevo atanucevkaubenvdvedomneeaes 9

I kad incase ec crdepapdapenevsedeocsienores 12

1

TABLE OF AUTHORITIES

Page

CASES

Adderley v. Florida, 385 U.S. 39 (1966) ................... 11

Bethel Sch. Dist. v. Fraser,

BFS UD. C75 (IGG) hrc ceecevccccercsccrsseeaae 6-8

Cox v. Louisiana, 379 U.S. 536 (1965) ..................... 11

Hazelwood Sch. Dist. v. Kuhlmeier,

G4 V7.2. EO CIBC) .....sc0cccressrreseneecnsecsesteraneee 6-8

Keyishian v. Board of Regents,

BOE U.S. GOD (1967) .0.ccecsccsesconcscecccecseorsuiueeeee 6

Lorillard Tobacco Co. v. Reilly,

Be UD. BEG CQOOD rss ncvccsvsvecresoscessneecse eee 11

McConnell v. FEC, 540 U.S. 93 (2003) ................ 10-11

Morse v. Frederick, 127 S. Ct. 2618 (2007)............. 7,8

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47 (2006)....--.......ccccc00000000-- 10

Texas v. Johnson, 491 U.S. 397 (1989)......00000000.. 6, 11

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

ee Fo. TU CI oo ove coe tecverecrecesstmsevasenae passim

United States v. O’Brien,

els Be fi...) enews. passim

]

INTEREST OF AMICUS!

Amicus, the American Center for Law and Justice

(ACLJ), is an organization dedicated to the defense

of constitutional liberties secured by law. ACLJ

attorneys have appeared frequently before the Court

as counsel for parties or for amici in cases involving

constitutional issues, with a particular emphasis on

the First Amendment. In particular, Counsel of

Record for amicus has argued twelve times before

this Court, most recently in Pleasant Grove City v.

Summum, 129 S. Ct. 1125 (2009).2 Proper

resolution of this case is of significant interest to the

ACLJ as it presents a recurring issue regarding the

degree of protection properly afforded to public

school students in the exercise of their First

Amendment right to freedom of speech.

The ACLJ is committed to protect the free speech

rights of individuals, including’ public — school

students. While public school officials undoubtedly

maintain the authority to act in furtherance of the

' Counsel of record for the parties received timely notice of the

intent te file this brief pursuant to S. Ct. R. 37.2(a). The parties

have consented to the filing of this brief. Copies of the partic.’

written consent are being filed herewith. No counsel for any

party authored this brief in whole or in part. No person or

entity aside from the ACI.J, its members, or its counsel made a

monetary contribution to the preparation or submission of this

brief. The ACLJ has no parent corporation, and no publicly

held company owns 10% or more of its stock.

? See also McConnell v. FEC, 540 U.S. 93 (2003); Lamb’s Chapel

v. Center Moriches Sch. Dist., 508 U.S. 384 (1993); Bd. of Educ.

v. Mergens, 496 U.S. 226 (1990); Bd. of Airport Comm'rs v. Jews

for Jesus, 482 U.S. 569 (1987).

2

discipline and protection of students during the

school day, it is vitally important that school boards,

as arms of the government, not be allowed to silence

our nation’s youth by enacting policies that

discriminatorily or unnecessarily restrict student

speech on school campuses. Policies and practices

that suppress private student messages merely

because they have not received approval from school

officials strike at the core of the First Amendment.

Likewise, policies that broadly prohibit non-

disruptive student expression fail adequately to

protect students’ free speech rights. It is essential

that lower courts understand and apply the proper

constitutional standard when assessing’ the

government’s attempts to limit the free speech rights

of public school students. Becausc the decision below

sharply departs from the settled precedent of this

Court, and thus seriously unsettles the clarity of the

law, this Court should grant review.

SUMMARY OF ARGUMENT

This Court enunciated the rule for analyzing the

constitutionality of restrictions on the free speech

rights of public school students in Tinker v. Des

Moines Independent School District, 393 U.S. 503

(1969). In the forty years since this decision, this

Court has continued to recognize Tinker as the

governing standard in student speech cases. In

particular, not once during that time has the Court

applied the different—and lower—standard for

restrictions on expressive conduct announced in

United States v. O’Brien, 391 U.S. 367 (1968), to

government regulations of pure speech in the public

3

school setting. The application of the O’Brien test by

the Fifth Circuit marks another clear departure by

that circuit from this Court’s decisions. This Court

should grant the petition for certiorari to correct the

Fifth Circuit’s continued erroneous invocation of the

O’Brien test to analyze a restriction on pure student

speech that is properly governed instead by the

standard enunciated in Tinker.

ARGUMENT

The issue in this case is what constitutional

standard governs a public school’s restriction of non-

disruptive student distribution of lawful written

speech. This Court has consistently applied the

Tinker standard to this type of student speech, but

the Fifth Circuit instead chose to apply the O’Brien

test, which governs expressive conduct (like burning

draft cards), not pure speech (like leafleting). This

Court should grant review.

THIS COURT SHOULD GRANT THE

PETITION BECAUSE THE DECISION OF

THE FIFTH CIRCUIT CONFLICTS WITH

DECISIONS OF THIS COURT.

Amicus wishes to highlight the Fifth Circuit’s

blatant departure from this Court’s” relevant

decisions as an important reason for the Court to

grant the petition for certiorari. It appears certain

that until this Court addresses the question

presented herein, public school students within the

jurisdiction of the Fifth Circuit will continue to

4

receive inadequate protection of their’ First

Amendment speech rights.

This Court has held that restrictions on student

speech are governed by the Tinker standard—which

provides that a public school may not silence pure

student speech that does not materially and

substantially disrupt the proper discipline and

functioning of the school—not the O’Brien test. Thus,

Tinker, not O’Brien, sects the constitutional standard

for the Plano Independent School District’s policy

broadly prohibiting student expression during the

school day. Both the terms of the O’Brien test and

this Court’s precedents make clear that application

of O’Brien is inappropriate in the context of

regulations of pure speech of public school students.

A. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF THIS COURT THAT

CONSISTENTLY HAVE RECOGNIZED

THE TINKER STANDARD AS THE

GENERAL RULE APPLICABLE TO

RESTRICTIONS OF PURE SPEECH IN

THE PUBLIC SCHOOL SETTING.

This Court has applied the O’Brien test to

expressive conduct since its inception in 1968.

When faced with government regulations of pure

speech by public school students, however, the Court

has never utilized the O’Brien test. Rather, this

Court has consistently employed the tinker

standard.

Just two terms after issuing the decision in

O’Brien, this Court decided a case involving a

restriction on student expression in a public school.

5

In Tinker v. Des Moines Independent School District,

the Court addressed the constitutionality of a school

regulation prohibiting students from expressing

their political views through their clothing. The

students penalized under the policy had worn

armbands for the express purpose of protesting

hostilities in Vietnam. /d. at 504. Importantly, the

Court cid not apply the test it had recently

establisaed in O’Brien. Instead, the Court described

the students’ expressive activity as “closely akin to

‘pure speech,” id. at 505 (and thus, as explained

infra, beyond the purview of O'Brien). Citing “the

special characteristics of the school environment,”

393 U.S. at 506, the Court held that “in the area

where students in the exercise of their First

Amendment rights collide with the rules of the

school authorities,” id. at 507, a student “may

express his opinions, even on controversial subjects

. lf he does so without ‘maternally and

substantially interfer[ing] with the requirements of

appropriate discipline in the operation of the school’

and without colliding with the rights of others.” Jd.

at 513.

The Tinker Court thus made clear that the

starting point for analysis of student speech

regulations is exactly the opposite of the starting

point under O'Brien. Instead of asking whether

conduct not otherwise within the parameters of free

speech is nonetheless deserving of constitutional

protection by virtue of its expressive nature (as

O’Brien inquires), the question under Tinker is

whether private student speech, which is

presumptively safeguarded against government

infringement by the Free Speech Clause of the First

6

Amendment, is sufficiently disruptive of the proper

functioning of the government (school) to fall outside

that protection.

The Court’s position was clear: the “special

characteristics” of the public school setting give rise

not only to unique and important governmental

interests but also to the need for “vigulant protection

of constitutional freedoms,” Keyishian v. Board of

Regents, 385 U.S. 589, 603 (1967), such that

regulation of the free speech rights of students is to

be scrutinized under a more demanding rule—the

Tinker standard—rather than “O’Brien’s relatively

lenient standard.” Texas v. Johnson, 491 U.S. at 407.

The Court next addressed a restriction of student

speech in Bethel School District v. Fraser, 478 U.S.

675 (1986), involving a school’s discipline of a

student based on a speech he delivered to a school-

wide audience. While the Fraser Court rejected the

student’s First Amendment challenge, it expressly

reaffirmed Tinker’s holding that public school

students retain their free speech rights even while

on campus. Jd. at 680. According to the Court, the

result in favor of the school was warranted by the

“marked distinction between the political ‘message’

of the armbands in Tinker and the sexual content of

{the student’s] speech in this case ....” ld. Again,

as in Tinker, the Court did not apply O’Brien.

Two years after the Fraser decision, the Court

again faced a First Amendment challenge to a

school’s regulation of student speech. In Hazelwood

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

the school principal directed a faculty adviser to

withhold two student-written articles from

publication in the school newspaper. The students

7

filed suit alleging violation of their free speech

rights. While the Court ruled that Kuhlmeier

involved student speech occurring entirely within

the confines of a school-sponsored, curricular setting,

and thus turned on a_— question’ entirely

distinguishable from that in Tinker, the Kuhlmeier

court, like the Fraser Court before it, reaffirmed the

applicability of the Tinker standard to pure speech

by public school students.

The Kuhlmeier Court characterized the issue in

Tinker—pure student speech resulting solely from

the student’s decision to communicate his own

message—as involving “[t]he question whether the

First Amendment requires a school to tolerate

particular student speech,” Jd. at 270 (emphasis

added). Put another way, this “question addresses

educators’ ability to stlence a student’s personal

expression that happens to occur on the school

premises.” /d. at 271 (emphasis added). Thus, the

Court continued to recognize “the standard

articulated in Tinker’—not the O’Brien test—as the

general rule “for determining when a school may

punish student expression,” td. at 272, initiated not

for curricular or other official school purposes but

solely for purposes of interpersonal communication.

Most recently, this Court addressed the validity,

under the First Amendment, of a school’s decision to

punish or restrict student speech in Morse v.

Frederick, 127 S. Ct. 2618 (2007). In Morse, the

Court confronted a First Amendment challenge to a

principal’s decision to suspend a_ student for

displaying, at a school-supervised event, a banner

appearing to advocate illegal drug use. Just like the

Fraser and Kuhlmeier Courts, the Morse Court

8

began by reaffirming Jinker’s holding that “students

do not ‘shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.” Jd. at

2622 (quoting Tinker, 393 U.S. at 506). The Court

simply explained that the Tinker rule is not

“absolute,” id. at 2627, when, “in light of the special

characteristics of the school environment,” Tinker,

393 U.S. at 506, student speech implicates “serious

and palpable” dangers. Morse, 127 S. Ct. at 2629. As

in Fraser, the Morse Court concluded that the proper

functioning of the school (there, protecting students

through its policy prohibiting advocacy of ilegal

drug use) outweighed the student’s right to engage

in his choice of personal expression on the school

campus (there, speech appearing to advocate illegal

drug use). Notably, as in Tinker, Fraser, and

Kuhlmeier, the Court did not apply the O’Brien test.

Taken together, this Court’s student speech cases

consistently have recognized that the general rule

applicable to a restriction of student speech on the

public school campus is Tinker’s “material and

substantial interference” test, which requires a

school, when attempting to “alter[] the usual free

speech rights” of public school students, Morse, 127

S. Ct. at 2638 (Alito, J., concurring), to identify a

concrete danger to “some special characteristic of the

school setting,” id., that would justify the restriction.

In other words, when a school’s challenged policy

“does not relate to regulation of the length of skirts

or the type of clothing, to hair style, or deportment,”

Tinker, 393 U.S. at 507-08, but instead “involves

direct, primary First Amendment rights . . .,” id.,

including “pure speech” such as the distribution of

written materials during non-instructional time, a

9

heightened standard of scrutiny is required to afford

adequate protection to students’ speech rights.

The application of O’Brien by the Fifth Circuit

here thus sharply departs from this Court’s

instructions in Tinker and fails to strike the

appropriate balance between the school’s legitimate

interests in order and_ <disciplinc and_ the

constitutional freedoms to which public school

students are entitled. It is difficult indeed to view

the speech policy at issue here as anything short of

the school district’s attempt to wrest students’ First

Amendment speech rights “at the schoolhouse gate.”

Because the decision below departs from this Court’s

precedents on the governing constitutional standard,

this decision exerts a profoundly unsettling effect

upon the law. This Court should therefore grant

review.

B. THE DECISION BELOW MARKS A

DEPARTURE FROM THIS COURT'S

DECISIONS WHICH CLARIFY THAT THE

PURPOSE OF THE O'BRIEN TEST IS TO

ANALYZE RESTRICTIONS IMPOSED ON

EXPRESSIVE CONDUCT, NOT PURE

SPEECH.

As the Court enunciated the standard in O’Brien,

“when ‘speech’ and ‘nonspeech’ elements are

combined in the same course of conduct, a

sufficiently important governmental interest in

regulating the nonspeech element can _ justify

incidental limitations on First Amendment

freedoms.” 391 U.S. at 376 (emphasis added). By its

own terms, the O'Brien test is intended only for

10

application to physical conduct—like burning a flag

or draft card—that is intended to express an idea.

Further, O’Brien applies only when any restrictions

on First Amendment freedoms—such as the exercise

of “pure speech”—are incidental. Thus, the O’Brien

test is relevant for determining whether activity not

otherwise constitutionally protected should

nevertheless be afforded protection under the First

Amendment because of its expressive nature. It is

entirely inapposite where, as here, pure speech—the

written or spoken word—is the intended target of

the regulation.

This Court first announced the O’Brien test in

1968 in the context of the destruction of a selective

service registration certificate. O’Brien, 391 U.S.

367. The Court distingvished between “speech,” on

the one hand, which enjoys full protecticn under the

First Amendment, and “conduct intend[ed] . . . to

express an idea,” id., which enjoys such protection

only when it is restricted because of its expressive

nature, and the government fails to demonstrate

that the restriction serves a sufficiently important

interest. Applying this standard to O’Brien’s

conduct, the Court held that the governr:ent’s

interests in prohibiting the “independent

noncommunicative” element—destruction of the

draft card—was sufficient to outweigh any incidental

restriction on the exercise of O’Brien’s’ First

Amendment rights—the communication of his anti-

war message. Id. at 382. Subsequent decisions of this

Court have likewise recognized that O’Brien apples

to conduct, as distinguished from pure speech. See,

e.g., Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47, 65-66 (2006); McConnell v.

11

FEC, 540 U.S. 93, 250 (2003); Lorillard Tobacco Co.

v. Reilly, 533 U.S. 525, 567 (2001).

By contrast, the instant case centers on a school

district’s direct and intentional regulation of the

written word, a means of communication this Court

has labeled “pure speech,” which falls squarely

within the protections of the First Amendment. See,

e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989)

(recognizing distinction between “speech,” which

clearly encompasses dissemination of the “written

word,” and “conduct,” which is “intend[ed] . . . to

express an idea”); Tinker, 393 U.S. at 505-06 (“pure

speech’... ., we have repeatedly held, is entitled to

comprehensive protection under’ the First

Amendment”) (citing Cox v. Louisiana, 379 U.S. 536,

555 (1965); Adderley v. Florida, 385 U.S. 39 (1966)).

This Court has expressly acknowledged that “[t]he

government gencrally has a freer hand in restricting

expressive conduct than it has in restricting the

written or spoken word.” Johnson, 491 U.S. at 406

(emphasis added). Because this Court has “limited

O’Brien’s relatively lenient standard” to “regulations

of noncommunicative conduct,” that are “unrelated

to the suppression of free expression,” id. at 403, 407

(emphasis added) (quoting O’Brien, 391 U.S. at 377),

its application by the Fifth Circuit to a school policy

restricting pure student speech marks a_ sharp

departure from this Court’s relevant decisions.

12

CONCLUSION

Because the decision below departs from and

conflicts with controlling precedent from this Court,

the Court should grant the petition for certiorari.

Respectfully submitted,

Jay Alan Sekulow

Counsel of Record

Walter M. Weber

Carly F. Gainmill

American Center for Law &

Justice

201 Maryland Avenue, N.E.

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

April 19, 2010