Amicus Curiae Brief — Morgan v. Plano Independent School District

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FILED

| APR 19 2010

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No. 09-1131

IN THE

Supreme Court of the Ginited States

DOUG MORGAN; ROBIN MORGAN; JIM

SHELL; SUNNY SHELL; SHERRIE VERSHER;

AND CHRISTINE WADE,

PETITIONERS,

V.

PLANO INDEPENDENT SCHOOL DISTRICT, ET

AL.,

RESPONDENT.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR CATO INSTITUTE, BECKET FUND FOR

RELIGIOUS LIBERTY, AND NATIONAL

ASSOCIATION OF EVANGELICALS AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

ILYA SHAPIRO DAVID J. SCHENCK

KATY NOETH Counsel of Record

CATO INSTITUTE ROBERT S. HILL

1000 Mass. Ave., NW RICHARD D. SALGADO

Washington, DC 20001 ANDREW O. WIRMANI

(202) 842-0200 JONES DAY

2727 North Harwood Street

Dallas, TX 75201-1515

dschenck@jonesday.com

Telephone: (214) 220-3939

Counsel for Amicus Curiae

a

TABLE OF CONTENTS

INTERESTS OF THE AMIC1.............0..0.000...... iienane

SUMMARY OF THE ARGUMENT

PRET TE fs tec nie hiivceaceiiceuededercwyiwapuinines Ne aveaemer eat eines 2

I.

This Court’s Precedent Fully Serves All

Legitimate Interests Of School

Administrators In Restricting Speech,

Whereas the Fifth Circuit’s Standard

Invites Incremental Abolition Of Students’

RR mre ea nee EN RCE 2

A.

Tinker And Jts Progeny Already Provide

School Administrators The Authority To

Restrict All Speech That They Have A

Legitimate And Constitutional Interest

re ec ehipeoubennevens 2

1.

a

—“

An Interest In Avoiding

Controversy And/Or Avoiding The

Task Of Exercising Judgment Is

Not A Legitimate Justification For

The Suppression Of Protected

Is “cuistlncpcjasthovcncsininidniciinniakainatbemeineuaivets 4

Enacting A Sweeping Ban On All

Written Speech Is Antithetical To

The First Amendment. .................... dunia 5

Even In The Absence Of Pretext,

Such A Broad But Facially Neutral

Restriction On Student Speech Is

RN ios sieic exrcasnnanvnenureesecwnttesy 8

TABLE OF CONTENTS

(continued)

Page

B. The “Material And Substantial

Disruption” Exception To Tinker Is A

Flexible Standard That Sufficiently

Accommodates Disparities Between

Students, Such As Age And Grade

UNE Piles awaeheascerin i aspsoeceueces cauenaveodeWiiewden 10

C. Permitting A Wholesale Content- And

Viewpoint-Neutral Ban On All Speech

Or A Form Of Speech As An Alternative

To The Tinker Standard Will Result In

The Erosion And Eventual Elimination

Of Student Speech In School At Great

Cost To Societal Interests. ..........................0- 12

1. Schools Will Use Broad, Facially

Neutral Bans On Speech As A

Pretext To Target Religious And

NE SN 23s van eniscodecnavevecessrcenvwine 13

2. Broad Bans On Student Speech Will

Have A Detrimental Societal Effect.......15

Il. The Distribution of The Written Word Lies

At The Heart Of The First Amendment............. 16

dl de yes Co cdnaadmanahsweunaanesesseeces 18

1

TABLE OF AUTHORITIES

CASES

Ambach v. Norwick,

441 U.S. 68 (1979) .....cccccoececseccetsorcorseercorsorees 15

Board of Education, Island Trees Union Free

School District No. 26 v. Pico,

457 U.S. SSS (ee ee eettervesss. 15

Board of Education v. Mergens,

496 U.S. 226 (Te ee eee esiaese 14

Bethel School District No. 408 v. Fraser,

478 U.S. 675 GIGGG). oes 2,9,15

Brown v. Board of Education,

347 U.S. SBR CO ee richceacese 15

Capitol Square Review & Advisory Board v.

Pinette,

515 U.S. 763 (iG ee. 13

Chaplinksy v. New Hampshire,

315 U.S. GGG CU eee eetieaccecees g

City of Houston v. Aull,

462 U.S. S013 CO rai eesistenececeess: 4

City of Ladue v. Gilleo,

512 U.S. 43 CU acc a ttareiene G

Page

lv

TABLE OF AUTHORITIES

(continued)

Page

Good News Club v. Milford Central School,

mts ONG... 14

Hazelwood School District v. Kuhlmeter,

GEE VF aie Se CE cheer ieinninkiininnmalagasee

Hedges v. Wauconda Community Unit School

Mistrict No. 118,

9 F.3d 1295 (7th Cir. 1993)............cccccocceserees 11

Hill v. Colorado,

Ee Gaels PUNE CITED wiccwicnsevandcceuedcevcaviessebeeenam 7

Ingraham v. Wright,

Ce Ura ee EE etitirsveceaterernscee 4

Jamison v. Texas,

BIG UB. 413 (1 OOD ccceecicecseiececcecevecessevontnedenc 9

Keyishian v. Board of Regents,

385 U.S. 589 (1967) .........-....-0.ce.0c00ceeree0e: Me,

Lamb’s Chapel v. Center Moriches Union Free

School District,

508 U.S. 384 (1993)............... esr e AS Hci 7,14

Lovell v. City of Griffin,

303 U.S. 444 (1938) ...............+.. siiinaisle inc ceceasae 9

TABLE OF AUTHORITIES

(continued)

Martin v. City of Struthers,

ee rs Ee RE tecies thesnccedinsiaedeuerelenssecseoes 9

McCreary County v. ACLU of Kentucky,

BOP TFB. BGS CD occ oveciccecccvenvccnsccensscccvenseroes 7

Miller v. California,

pb ge EE Sy. Raa cba euotrl nets Npetnee mre n ee aron 9

Morse v. Frederick,

Bis © os ys Annee eee

Nurre v. Whitehead,

580 F.3d 1087 (9th Cir. 2009)................00...... 6

Sattord Unified School District #1 v. Redding,

ee er I oa orny soveveduonwecduieecsovens 5

Schad v. Mount Ephraim,

Oe eee aso ii nvcuev ences vawnonbrneucnenens 9

Schneider v. State,

306 U.S: 147 (1939) ........ccccccee ciddemaieerenanmaaadl 9g

Tinker v. Des Moines Independent School

Drstrict, 393 U.S. 503 (1969).. ............. passim

United States v. O'Brien,

Bik So eRe nee eer 2, 8,16

TABLE OF AUTHORITIES

(continued)

Vernonia School District 47J v. Acton,

EG TED, GO CAP oe ve evviveccesevsnvencasvevevesorasvese 11

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943)

Widmar v. Vincent,

ee Ore Be OED vccvecacvesdtcecvnvssnsverersecuersess 14

OTHER AUTHORITIES

Alan K. Chen, Statutory Speech Bubbles, First

Amendment Overbreadth, and Improper

Legislative Purpose, 38 Harv. C.R.-C.L. L.

RNs Ee Cader vassncveddsedceieses eaveceseneventeasdwds 8

Douglas Laycock, High- Value Speech and the

Basic Educational Mission of a Public High

School: Some Preliminary Thoughts, 12

LEWIS & CLARK L. REV. 111, 123-24 (2008)13, 14

Elena Kagan, Private Speech, Public Purpose:

The Role of Governmental Motive in First

Amendment Doctrine, 63 U. CHI. L. REV.

OE Ge CE irivetwiteeers cna eee 8

INTERESTS OF THE AMICP

The amici joining in this brief are not-for-profit

organizations committed to protecting’ essential

liberties of the American people. More detailed

statements describing each amicus are set forth in an

Appendix. |

SUMMARY OF THE ARGUMENT

In Tinker v. Des Moines’ Independent

Community School District, this Court made clear

that students enjoy First Amendment rights,..and

that core political and religious speech cannot be

suppressed absent a showing that the speech will

“materially and substantially disrupt” the

educational process. Over the ensuing forty years,

the Court has repeatedly reaffirmed this central

holding ensuring a respectful dialogue in the public

schools on issues of public concern. Having excepted

disruptive speech from the scope of First Amendment

protection, Vinker and its progeny afford school

administrators ample authority to assure the

integrity of the learning environment—at all grade

levels—while also balancing those needs with the

speech rights of students. In contrast, the Fifth

Circuit’s approach, ostensibly applying the time,

lThe parties have consented to the filing of this brief. Counsel

of record for all parties received notice at least ten days prior to

the due date of the intention of Amici Curiae to file this brief.

Pursuant to Supreme Court Rule 37.6, counsel for amici certify

that this brief was not written in whole or in part by counsel for

any party, and that no person or entity other than amici, their

members, and their counsel has made a monetary contribution

to the preparation and submission of this brief.

place, and manner standard set forth in United

States v. O’Brien for mixed conduct and speech, casts

aside any pretense of balance and permits schools to

enforce sweeping speech prohibitions by which all or

virtually all student speech may be _ prohibited.

Indeed, the school policy at issue in this case

underscores the fact that even pure written speech—

which embodies the very essence of the First

Amendment—is included in this unnecessarily broad

approach. Such speech is critical to the development

of responsible discourse among our nation’s youth.

ARGUMENT

I. THIS COURTS PRECEDENT FULLY SERVES

ALL LEGITIMATE INTERESTS OF SCHOOL

ADMINISTRATORS IN RESTRICTING

SPEECH, WHEREAS THE FIFTH CIRCUITS

STANDARD INVITES INCREMENTAL

ABOLITION OF STUDENTS’ SPEECH RIGHTS.

A. Tinker And Its Progeny Already Provide School

Administrators The Authority To Restrict All

Speech That They Have A Legitimate And

Constitutional Interest In Restricting.

While this Court has made it clear that

students in public schools enjoy First Amendment

rights, 7inker v. Des Moines Indep. Sch. D»st., 393

U.S. 503, 511 (1969), it has a/so recogni ed the

unique needs of the education environn 2nt by

affording school officials the authority to res’ rict any

student speech that officials reasonably be ieve will

“materially and substantially disrupt thy work and

discipline of the school,” sd. at 513, that is “lewd” or

“vulgar,” Bethel Sch. Dist. No. 403 v. Fre ser, 478 U.S.

675, 685 (1986), or that may be reasonably viewed as

advocating unlawful drug use, Morse v. Frederick,

551 U.S. 393, 410 (2007). The Court has also

recognized that school officials have a heightened

interest in regulating student speech whenever that

speech carries the imprimatur of the school itself.

Hazelwood Sch. Dist. v. Kuhlmeter, 484 U.S. 260, 273

(1998). Through these cases, the Court has

established a workable framework that accounts for

the needs of educators to maintain order in their

classrooms, while also recognizing the unquestioned

First Amendment rights that students carry with

them into the schoolhouse. But none of these

refinements of 7inker have threatened the basic rule

that non-disruptive student speech on core First

Amendment topics is protected.

Under the present framework, a school district

such as Plano Independent School District (““PISD”)

could constitutionally impose a ban on all student

speech that it considers to be “materially and

substantially disruptive,” as well as all speech that is

“lewd” or “vulgar,” or which advocates unlawful drug

use, and it could carefully regulate school-sponsored

speech. By process of elimination, all remaining

speech would be constitutionally protected. In short,

it would be the speech—including core religious and

political speech--that the school lacks any legitimate

interest in restricting.

The only conceivable objectives that a school

district could advance by enacting a more

comprehensive, content- and viewpoint-neutral ban

affecting a// student speech such as the _ policy

enacted by PISD in this case would be (1) to insulate

school administrators from the effort and potential

controversy of having to exercise judgment in

determining what speech is disruptive, or (2) to

enable school administrators to regulate a particular

category of speech that they would be otherwise

unable to constitutionally restrict. Both of these

objectives violate J7inker and undermine the First

Amendment.

1. An Interest In Avoiding Controversy

And/Or Avoiding The Task Of Exercising

Judgment Is Not A _ Legitimate

Justification For The Suppression Of

Protected Speech.

As this Court observed in 7inker, “an urgent

wish to avoid the controversy which might result

from the expression,” cannot justify stripping public

school students of their First Amendment rights. 393

U.S. at 509-10. Similarly, this Court has held that

difficulties in drafting narrow rules do not justify the

government adopting sweeping restrictions. City of

Houston v. Hill, 482 U.S. 451, 465 (1987). An

administrator's unwillingness to craft a

constitutionally proper restriction on disruptive

student speech—whether to save time or to avoid

making unpopular decisions—thus does not justify

the adoption of a blanket prohibition.

Administrators can no more avoid their

obligation to respect the speech rights of those who

are compelled into their care, than they might avoid

the burden and awkwardness of having to conduct a

hearing before or after imposing serious discipline

(e.g, Ingraham v. Wright, 430 U.S. 651 (1977)) or the

an

inconvenience of refraining from intrusive searches

absent actual, reasonable suspicion of misconduct.

(e.g., Safford Unified Sch. Dist. #1 v. Redding, 129 8.

Ct. 2633 (2009)). Convenience for those in positions

of authority is not the defining objective of the Bill of

Rights. While the educational setting is admittedly

unique, it is not beyond the reach of the Constitution,

as /1nker itself made plain.

2. Enacting A Sweeping Ban On All Written

Speech Is Antithetical To The First

Amendment.

According to the current Fifth Circuit

precedent, the problem with the high school’s policy

in Tinker was that it did not go far enough. If the

school administrators had simply banned a// symbolic

student speech, rather than singling out the arm

bands, the policy would have been—under the Fifth

Circuit’s current standard—a permissible content-

and viewpoint-neutral restriction. Such a conclusion

produces an all-or-nothing scenario that encourages

school administrators to simply outlaw a// speech in

order to get rid of the protected speech they

disfavor—whether it is political speech, religious

speech, or some other expression contrary to the

whims of the principal, school board, or dominant

preference of the community. If that had been the

holding in 7znker, one can only imagine that it would

have resulted in the widespread adoption of all-

encompassing, but content- and viewpoint-neutral

bans on student speech at schools nationwide during

the volatile 1970s, resulting in the suppression of the

speech of an entire generation.

The approach now favored by the Fifth Circuit

and some other lower courts is far more than an

exception to 7inker, it is a transformation. While

some Circuits may have merely implied a basis for

wide-ranging, albeit back-handed, censorship of

student speech that expresses controversial ideas,

see, e.g., Nurre v. Whitehead, 580 F.3d 1087 (9th Cir.

2009), the Fifth Circuit has gone even further and

fully endorsed the wholesale suppression of an entire

category of written speech.

The Fifth Circuit’s proposed “exception” thus

represents an altogether new rule under which even

core political speech that poses no discernible threat

of disruption can be completely and thoroughly

driven off school grounds at the convenience of

administrators, so long as it is grouped with all other

student speech of the same category. This promotion

of deliberate over-breadth is in direct conflict with

this Court’s precedent, strips away the basic rights

previously guaranteed to students (so long as all

students are denied those rights), and invites school

administrators to use neutrality as a pretext to

suppress disfavored political and religious speech.

The history of this lhtigation demonstrates how

a school district, emboldened by the Fifth Circuit, can

use a broad “content- and viewpoint-neutral”

restriction as a pretext to censor disfavored religious

speech. PISD’s original student speech policy

afforded school officials virtually unfettered

discretion to suppress the distribution of written

materials by students. App. to Pet. Cert. 95. And

school officials specifically used that discretion to root

eut all remnants of student religious speech. Pet.

~]

Cert. 5-8. When that pohcy was challenged, PISD

shifted to yet another extreme, enacting an amended

policy that purportedly bans the exchange of virtually

all written materials. App. 98, 103.

The PISD’s new policy was apparently

“presented only as a litigating position” and serves to

confirm both its intention to suppress controversial

speech and its preference to evade critical scrutiny of

that intention. McCreary County v. ACLU of Ky.,

545 U.S. 844, 871 (2005). Given the scope of this new

policy, it seems highly unlikely that even PISD

believes that it is capable of being fully enforced.

Any effort at partial enforcement is almost certain to

be directed at the more controversial religious and

political speech protected at the First Amendment's

core. While 7inker would permit that and other

speech to be constrained to the extent it 1s disruptive,

no decision of this Court has endorsed the exclusion

of religion or controversial, if nondisruptive, speech

from the public schools. See Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384 (1998).

Indulging the notion that PISD actually

intends to enforce its new policy does little to save it.

The only meaningful difference between the PISD

former and new policies is that it has now sacrificed

its own discretion to permit speech that it favors—

such as, perhaps, passing out Dallas Cowboys

bumper stickers during football season—in the

interest of what it evidently perceives to be the

greater need to prohibit non-disruptive religious and

other protected speech. This is directly contrary to

the First Amendment. See Hi// v. Colorado, 530 U.S.

703, 767 (2000) (Kennedy, J., dissenting) (“Clever

content-based restrictions are no less offensive than

censoring on the basis of content.”); Elena Kagan,

Private Speech, Public Purpose: The Role of

Governmental Motive in First Amendment Doctrine,

63 U. Cut. L. Rev. 4138, 454 (1996) (Officials may

care so much about suppressing a particular idea

affected by a content-neutral law as to disregard or

tolerate the law’s other consequences.”); see

generally, Alan K. Chen, Statutory Speech Bubbles,

lirst Amendment Overbreadth, and Improper

Legislative Purpose, 38 Harv. C.R.-C.L. L. Rev. 31

(2003).

While facially neutral, the amended policy in

this case is merely a pretext that permits school

officials to do precisely what they could not

constitutional'y do under the original policy: suppress

otherwise protected speech. Put simply, school

districts should not be permitted to use the guise of

neutrality to “avoid the discomfort and

unpleasantness that always accompany an unpopular

viewpoint.” Tinker, 393 U.S. at 509.

3. Even In The Absence Of Pretext, Such A

Broad But Facially Neutral Restriction On

Student Speech Is Unconstitutional.

Iiven without the pretext discussed above, the

broad bans sanctioned by the Fifth Circuit are

anconstitutional. In effect, the Fifth Cuircuit’s

adoption of OBrien over Tinker invites school

administrators to solve problems with widespread

carpet bombing instead of the pinpoint strikes

mandated by 77inker. The collateral damage te the

core rights protected by the First Amendment is both

excessive and avoidable.

The policies at issue in this case can be loosely

analogized to the attempts of municipalities to

completely ban entire mediums of expression. This

Court has held ordinances invalid that completely

banned the distribution of pamphlets within a

municipality, Lovel/ v. City of Griffin, 303 U.S. 444,

451-52 (1938); handbills on public streets, Jamison v.

Texas, 318 U.S. 413, 416 (1943); door-to-door

distribution of literature, Martin v. City of Struthers,

319 U.S. 141, 145-49 (1943); Schneider v. State, 308

U.S. 147, 164-65 (1939); and live entertainment,

Schad v. Mount Ephraim, 452 U.S. 61, 75-76 (1981).

The mere fact that it is student speech that is heing

restricted does not transform the analysis.

Indeed, 7inker and its progeny closely parallel

this Court’s speech jurisprudence in the non-school

context, where the right to engage in core political

and religious speech has been fervently guarded. For

example, outside of the context of schools, the First

Amendment does not protect “fighting words,”

Chaplinksy v. New Hampshire, 315 U.S. 568 (1942);

in the schoo/ context, the First Amendment does net

protect disruptive speech. Vinker, 393 U.S. at 513.

Similarly, the First Amendment does not protect

obscene speech in the non-school context, Mi//er v.

California, 413 U.S. 15 (1973), and in the school-

context does not protect “lewd” and “vulgar” specch.

Fraser, 478 U.S. at 685. Accordingly, just as a city

could not suppress core speech through a broad, but

“facially neutral” prohibition on any and all signs in

City of Ladue v. Gilleo, 512 US. 43 (1994), a school

district cannot suppress core speech in_ schools

through a broad, but ostensibly “facially neutral”

prohibition on written expression in this case. This is

especially true when the existing authority granted

to schools by this Court’s "| student-speech

jurisprudence undercuts any claim that sweeping,

facially neutral restrictions on speech are a necessary

means of furthering any legitimate goal of school

officials.

Prohibiting civil speech and debate rights

among our most impressionable and developing

population segment is surely not what the Framers

or the Court in Vinker had in mind. While the

challenge in this case is directed at enforcement of a

rule in elementary schools, that rule is equally

applicable to all students in all grades. Thus, no

student could be assured of his or her right to express

views on any issue of public concern.

B. The “Material And Substantial Disruption”

Exception To Tinker Is A Flexible Standard

That Sufficiently Accommodates Disparities

Between Students, Such As Age And Grade

Level.

PISD’s policy restricts the speech not only of

elementary-aged children such as the Petitioners in

this case—who, indeed, are themselves now several

years older than they were when the events giving

rise to this case first occurred—but applies to a//

grade levels. App. 98. PISD’s /egitimate interests—

1¢e., preventing substantially and materially

disruptive speech—are fully served under the

existing 7inker standard with respect to a// grades

11

K through 12—because of the inherent flexibility of

the “substantial disruption standard.”

To be sure, even elementary-aged students

enjoy constitutional speech rights just as they enjoy

due process and Fourth Amendment protection. See,

e.g., Hedges v. Wauconda Cmty. Unit Sch. Dist. No.

118, 9 F.3d 1295, 1298 (7th Cir. 1993) (noting that

“nothing in the First Amendment postpones the right

of religious speech until high’ school”). Amici

recognize, however, that what might fairly be

considered “disruptive” speech will vary depending on

the speaker and the audience. As this Court has

explained, a student’s right to express a point of view

in a public school is as extensive as “the special

characteristics of the school environment” permit.

Tinker, 393 U.S. at 506; Vernonia Sch. Dist. 47J v.

Acton, 515 U.S. 646, 656 (1995) (“the nature of

[student] rights is what is appropriate for children in

school”). The characteristics of a kindergarten

classroom—in which young children’s study may

include topics such as colors and rhyming words—are

substantially different from the characteristics of a

high school classroom in which students are expected

to be capable of discussing genocide in Darfur. What

would be considered “disruptive” would certainly vary

between those two environments. The protection of

non-disruptive speech is, however, critical in a civil

society.

TinkersS substantial and material disruption

standard is sufficiently flexible to account for the

differences in maturity between elementary school

and older children, and, in any event, provides

administrators the authority needed to assure the

12

educational integrity of the classroom at all grade

levels. Accordingly, there is no need or justification

for a wholesale abolition of speech—such as the

standard now being applied by the Fifth Circuit—to

accommodate the unique circumstances of a grade

school rather than high school classroom.

C. Permitting A Wholesale Content- And

Viewpoint-Neutral Ban On All Speech Or A

Form Of Speech As An Alternative To The

Tinker Standard Will Result In The Erosion

And Eventual Elimination Of Student Speech

In School At Great Cost To Societal Interests.

Under Fifth Circuit precedent, — school

administrators have two choices. They can expend

the proper time and effort te craft prudently tailored

policies to prohibit disruptive speech, but which do

not enable administrators to restrict other types of

“protected” speech that they find undesirable. Or

they can simply enact a broad, blanket prohibition

that shuts down all student speech. There is a strong

basis for believing that—given those two choices—

many school administrators will select the path of

least resistance. And, often times, the protected

speech driving the adoption of such policies will be

religious or political insofar as that speech is

typically the most controvei ial and, thus, the speech

that administrators are most interested in censoring.

The unfortunate effect of such policies will be

generations of Americans ill-prepared for meaningful

social, religious, and political discourse. ‘l'o the

extent such sweeping bans are selectively enforced—

singling out the less preferred speech—students and

13

parents alike will simply be left to brood or litigate

the as-applied question, passing the issue to the

courts, albeit in a different form.

1. Schools Will Use Broad, Facially Neutral

Bans On Speech As A Pretext To Target

Religious And Political Speech.

Religious and political speech are the most

likely types of speech to be the rea/ target of broad

speech restrictions for the simple reason that it is the

form of speech over which people most often disagree.

It is that very disagreement that will motivate some

students to speak out and others to complain. Rather

than risk complaints from students, teachers, or

citizens who disagree with some_ controversial

student speech, the easy course in many districts will

be to suppress all speech, thus eliminating all

controversial speech, and thereby—admunistrators

will hope—avoiding all controversy.

Many school administrators will seek to avoid

religious speech out of fear of controversy and

litigation. This is somewhat ironic, of course, given

that religious speech “is at the core of the First

Amendment.” Douglas Laycock, High-Value Speech

and the Basic Educational Mission of a Public High

School: Some Preliminary Thoughts, 12 LEWIS &

CLARK L. REV. 111, 123-24 (2008); see Capito/ Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760

(1995) (“Indeed, in Anglo-American history, at least,

government suppression of speech has so commonly

been directed precisely at religious speech that a free-

speech clause without religion would be Hamlet

without the prince.”) (emphasis in original). ‘This

14

Court has repeatedly held that non-disruptive private

religious speech is protected in public schools. See,

e.g., Good News Club v. Milford Cent. Sch., 533 U.S.

98 (2001); Lamb's Chapel v. Ctr. Moriches Union

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

Mergens, 496 U.S. 226 (1990); cf Widmar v. Vincent,

454 U.S. 263 (1981) (same issue at university level).

Despite this, “|s]chools have repeatedly

claimed that the Establishment Clause requires or

justifies them in censoring religious speech, on

grounds derived from their own confused definition of

their mission.” Laycock, supra, at 124-25. “Because

the Establishment Clause prohibits schools from

promoting religion, some schools conclude that any

student speech promoting religion is’ inherently

inconsistent with the educational mission of the

school.” Jd. at 125. Just as some _— school

administrators resist this Court’s decisions

restricting school-sponsored prayer, and try to inject

as much religion as they can into the school’s own

speech, other school administrators resist this

Court’s religious-free-speech decisions and seek to

suppress all mention of religion lest they be accused

of encouraging or promoting religious speech.

The Fifth Circuit’s precedent, if left unchecked,

arms such administrators with what they believe to

be yet another means of avoiding Establishment

Clause concerns. In actuality, it not only runs

contrary to longstanding principles of free speech, but

in fact subverts the many long-standing principles of

religious exercise described above.

15

2. Broad Bans On Student Speech Will Have

A Detrimental Societal Effect.

Just under 50 million Americans attend public

K-12 schools.? Only a little more than half of those

students will attend college, and many of those will

not attend college for long. Thus, the majority of the

civic training of the country’s young adults, many of

whom will vote and establish their own households

shortly upon graduating, occurs in the public schools.

It is hardly surprising then that this Court has

consistently recognized that public education is “the

very foundation of good citizenship.” Brown v. Bd. of

Educ., 347 U.S. 483, 493 (1954); see also Bd. of Educ.,

Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457

U.S. 853, 866-68 (1982); West Virginia State. Bd. of

Lduc. v. Barnette, 319 U.S. 624, 637 (1943).

Accordingly, “It|he vigilant protection of

constitutional freedoms is nowhere more vital than in

the community of American schools.” Aevishian v.

Bd. of Regents, 385 U.S. 589, 603 (1967) (citing

Shelton v. Tucker, 364 U.S. 479, 487 (1960)). This is

because the “process of educating our youth for

citizenship in public schools is not confined to books,

the curriculum, and the... class.” Fraser, 478 U.S.

at 683. Rather, teachers and administrators

“influence the _ attitudes of students toward

government, the political process, and a citizen’s

social responsibilities,” Ambach v. Norwick, 441 U.S.

68, 79 (1979), as well as “inculcate the habits and

2 Maria Glod, A Changing Student Body, WASH. Post, June 1,

2009, available at http://www.washingtonpost.com/wp-

dyn/content/article/2009/05/3 1/AR2009053 102229. html. (last

visited 4/15/2010).

16

manners of civility.” Fraser, 478 U.S. at 681. But

when schools teach constitutional freedoms in theory

yet fail to honor them in practice, they “strangle the

free mind at its source and teach youth to discount

important principles of our government as mere

platitudes.” Barnette, 319 U.S. at 637.

That is precisely the effect of the broadly

suppressive though purportedly neutral speech

restrictions involved in this case. The Fifth Circuit

and other Circuits that have endorsed neutrality as a

sufficient justification to suppress student speech

have taken a first step toward approving the

transformation of schools into the _ totalitarian

enclaves that this Court condemned in 71nker.

The lessons of citizenship can be neither

taught nor learned in this type of oppressive

environment. Instead of being taught to value civil

speech and debate—including non-disruptive core

political and religious speech—students are taught

that student speech, which is neither lewd nor

supportive of ille~ © drug use, may nonetheless be

suppressea by the state on the most hollow of

grounds.

ll. THE DISTRIBUTION OF THE WRITTEN

WORD LIES AT THE HEART OF THE FIRST

AMENDMENT.

The OBrien standard applied by the Fifth

Circuit is a particularly poor fit for the student

speech at issue in this case because OBrien

addressed conduct that was symbolic—not the pure

speech engaged in by Petitioners. See United States

v. O'Brien, 391 U.S. 367, 377 (1968). Of course,

written expression—which is exactly what PISD’s

policy seeks to restrict—is at the very heart of the

First Amendment, and such expression has long been

critical to furthering society’s most profound debates.

Historically, written communications have been

especially important for voices challenging authority

and orthodoxy. Such controversial expression drove

the Protestant Reformation, the American

Revolution, and the ratification of the Constitution.

Yet the Bible, the Declaration of Independence,

Common Sense, and the Federalist Papers are all

documents that could not be distributed among

students in the Plano schools without fear of official

discipline. Indeed, students complaining of PISD’s

policy could not even underline the First Amendment

or a copy of 7inker and exchange it with a classmate,

or circulate a petition to present to the principal. In

fact, if the policy is to be evenly enforced, they will

not be permitted to exchange birthday or holiday

cards, candy hearts on Valentine’s Day, or share

clippings from the local newspaper.

The fact that such policies may be used, as in

this case, as a pretext to suppress religious speech

places the Fifth Circuit’s ruling even further at odds

with this Court’s precedent. The distribution of

religious literature is protected both as speech and as

free religious exercise. In Murdock v. Pennsylvania,

this Court noted that “hand distribution of religious

tracts...has been a potent force in various religious

movements down through the years.../and] occupies

the same high estate under the First Amendment as

do worship in the churches and preaching from the

pulpits. It has the same claim to protection as the

more orthodox and conventional exercises of religion.”

319 U.S. 105, 108-09 (1943).

By endorsing sweeping, deliberately overbroad

restrictions on the distribution of written materials

by its students, the Fifth Circuit has rejected 7ynker

and the lessons of history that gave rise to the First

Amendment.

Amici urge the Court to grant certiorari and

reverse.

CONCLUSION

For the foregoing reasons, the Court should

grant certiorari.

Respectfully submitted,

ILYA SHAPIRO DAVID J. SCHENCK

KATY NOETH (Counsel of Record)

CATO INSTITUTE ROBERT S. HILL

1000 Mass. Ave., NW RICHARD D. SALGADO

Washington, DC 20001 ANDREW QO. WIRMANI

(202) 842-0200 JONES DAY

2727 North Harwood St.

Dallas, TX 75201-1515

Tel: (214) 220-3939

dschenck@jonesday.com

Counsel for Amici Curiae

April 19, 2010

APPENDIX

la

INTERESTS OF THE AMICI

The Cato Institute was established in 1977 as

a nonpartisan public policy research foundation

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s

Center for Constitutional Studies was established in

1989 to help restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences and forums, publishes

the annual Cato Supreme Court Review, and files

amicus briefs with the courts—including in a variety

of First Amendment cases, as well as in others

involving student rights. Cato files the instant brief

to address the need to clarify constitutional speech

protections in the face of heavy-handed government

regulations.

The Becket Fund for Religious Liberty is a

nonprofit, nonpartisan, law firm dedicated to

protecting the free expression of all rehgious

traditions. The Becket Fund has_ represented

agnostics, Buddhists, Christians, Hindus, Jews,

Muslims, Native Americans, Santeros, Sikhs, and

Zoroastrians, among others, in lawsuits across the

country and around the world. In particular, the

Becket Fund has vigorously advocated for the night of

religious individuals and institutions to express their

beliefs freely and peacefully.

The National Association of Evangelicals

(“NAE”) is the largest network of evangelical

churches, denominations, colleges, and independent

ministries in the United States. It serves 50 member

denominations and associations, representing 45,000

local churches and over 30 million Christians. NAE

serves as the collective voice of evangelical churches

and other religious ministries. That religious speech

is often the first target of the censor goes at least as

far back as John Milton’s Areopagitica (1644). Its

protection is imperative. NAE also believes that

religious freedom is a gift from God that the

government does not create but is charged to protect.

NAE is grateful for the American constitutional

tradition safeguarding religious freedom, and

believes that jurisprudential heritage should be

maintained in this case.