Amicus Curiae Brief — Lowery v. Euverard (No. 07-1567)

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O r : _ ae

0 GB) FILED

No. 07-1567 JUL 1? 2008

SUPREME COURT Ue

In The

Supreme Court of the Gnited States

¢

DERRICK (“RABBIT”) LOWERY, a Minor, et al.,

Petitioners,

Vv.

MARTY EUVERARD, DALE SCHNEITMAN,

AND CRAIG KISABETH,

Respondents.

&

vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

s

BRIEF OF AMICUS CURIAE LIBERTY LEGAL

INSTITUTE IN SUPPORT OF PETITIONERS

KELLY J. SHACKELFORD

Counsel of Record

HIRAM S. SASSER, III

ROGER L. BYRON

LIBERTY LEGAL INSTITUTE

903 E. 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

RE-DRAFTED QUESTIONS PRESENTED

May a government school official punish a student for

peacefully petitioning for administrative change

when the petition does not contain words that may be

prohibited under Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986), or Morse v. Frederick, 127 S. Ct.

2618 (2007), the petition could not be interpreted as

school-sponsored under Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260 (1988), and the schoo] did

not satisfy their burden that a “material and substan-

tial” disruption to the operation of the school would

result under Tinker v. Des Moines, 393 U.S. 503

(1969)?

In other words, is Tinker the mandated standard for

student speech cases when Bethel, Hazelwood, and

Morse do not contzol?

ll

TABLE OF CONTENTS

Page

Re-drafted Questions Presented .................ececceeeeee i

TiGOPORE OF ARIICUS TOUTIOG .......0000ccccccccccseccsrvessesecess 1

PN ie atti iba cian sep lavaveki nee diaverstuxtterwinnc 2

I. Absent guidance on the actual application

of the Tinker “material and substantial”

disruption standard, some lower courts

have either refused to apply Tinker or mis-

takenly limited 7inker in ways contrary to

CEie CIGD SP MOIIOTEE., 00. sccscccconedenctscscateeses 2

A. Lower federal courts have incorrectly

stated that Jinker only apples to

viewpoint-based policies and that the

less-rigorous intermediate scrutiny

test in United States v. O’Brien, 391

U.S. 367 (1968), controls when the

regulation at issue is content-based,

leaving student speech with substan-

CIRELY ISDE TICOURCEION «05.005. siccesieccccservavenes 5

i. Applying O’Brien to student speech

has allowed schools to suppress

constitutionally protected student

speech, including core religious

IN eh edie tacnvah ieee es 8

B. Other federal courts have also refused

to apply Tinker and incorrectly ana-

lyzed student speech under forum

analysis or by evaluating if the speech

would have adverse effects on other

SI bkitriris secre ink 9

ill

TABLE OF CONTENTS —- Continued

Page

II. Whether 7inker remains good law and how

to properly apply its standard are impor-

tant issues the Court must resolve ............. 12

SLO RCP ROAR od Oe NEC Din AIRE ALE I ORCL 15

iV

TABLE OF AUTHORITIES

Page

CASES

Barnes v. Glen Theatre, 501 U.S. 560 (1991)............... 5

Board of Educ. of Westside Cmty. Sch. v. Mer-

ered, BIG VF. TG CI oes se iissecsnvenscsececesnentesbecanvs 14

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

5 MARR trce erg smnnrveAlni gitrusspDs Rosin SEaD ey rTs 3,10, 11,13

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

fe 3 Ee Onan NM cao ee RCRA ete oer REDE 5,6

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)............ 5

City of Los Angeles v. Alameda Books, Inc., 535

8 Ge ks RRP Rae mRneyES OW wen nnet ee nee a Micore ne 2 5

Connick v. Myers, 461 U.S. 138 (1983) ............ 4.12. 15

Fleming v. Jefferson Cty. Sch. Dist., 298 F.3d

ee: 5 | RMS een BNE at ar item ree 4

Good News Club v. Milford Cent. Sch. Dist.,

Be Ge as IF pais decescuveosinciuvesenncuimenenmnnean 2,11, 14

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

, | EG crater OME SPEC R I EON ener err m RNR SUR SEAR 4

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

BE icici cisincceinscaisainrnearnnahackcbunaeneiiaammieleiuas ud’ 3

Jacobs v. Barber, 526 F.3d 419 (9th Cir. 2008)............ 7

Krestan v. Deer Valley Unified Sch. Dist. No.

97, No. CV-08-194-PHX-DGC, slip op. (D.

PERG, TR Fi, Fe icnaikittisicirinsccasenencenarniecciniuieamnmaaian 10

TABLE OF AUTHORITIES - Continued

Page

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Ng CI Bie He CAO cesevsvcccenccnvocecnceresecsnesece 2,15

Littlefield v. Forney Indep. Sch. Dist., 268 F.3d

i oa sak ec claaeuacinbaceces 6

Lowery v. Euverard, 497 F.3d 584 (6th Cir.

BEG ARRRE RE. ROIS ALAS ane sae RAN AT nets RO Eee Oa 13

Morgan v. Plano Indep. Sch. Dist., No.

4:04cv447, slip op. at 2 (E.D. Tex. Feb. 20,

ahi ee a a duailipareovenens 9

Morse v. Frederick, 127 S. Ct. 2618

i nraiebldicd.s doh cebvaruvieetiedsasduenisdsie 3, 4, 6, 7, 10

Monell v. Dept. of Soc. Serv. of New York, 436

ia os lowe cj ac kpundeinvelcaouenmernces 11

Muller v. Jefferson Lighthouse Sch., 98 F.3d

Ee I asia isi vedas sdvesavareberviowsrateieriesses 9

Newsom v. Abemarle Cty. Sch. Bd., 354 F.3d

Nee id alse vce peiidetennscknday en's 4

Nuxoll v. Indian Prairie Sch. Dist. #204, 523

ee EE 0 COE Se NED: veciiccasvonscccevensysesenceesedesicvesves 10

Pickering v. Bd. of Educ., 391 U.S. 563 (1968)....12, 13

Pinard v. Clatskanie Sch. Dist., 467 F.3d 755

i a a as ig oh naaald iglesia vnank 4

Pounds v. Katy I.S.D., 517 F. Supp. 2d 901

oe ali vals uucetaanisiubeediskbauarderendbariny~s 6

Rosenberger, v. Rector & Visitors of the Univ. of

OE A EE © BO Risiicse seers ds cinesssunscesevssnsccvesvenesse 2

TABLE OF AUTHORITIES — Continued

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200

Ee see EE aie es stivirn gdieccstrnbiechniplicdacedinunneni ibis 4,8

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

ee OAs Re © RE nach ei vincetcievecsenecieisustentionnoiian passim

United States v. O’Brien, 391 U.S. 367 (1968).....5, 6, 8

Widmar v. Vincent, 454 U.S. 263 (1981).................... 15

1

INTEREST OF AMICUS CURIAE'

The Liberty Legal Institute is a non-profit law

firm dedicated to the preservation of religious free-

dom and other First Amendment nghts. In its com-

mitment to the protection of religious liberty and

speech, the Institute has been involved in significant

First Amendment litigation nationwide, including

several student speech cases in public schools. The

Institution is gravely concerned that student speech

will be threatened if the Court does not affirm that

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503 (1969), is the controlling precedent for student

speech, clarify that the school bears the burden of

proof on the substantial disruption affirmative de-

fense, and remand for consideration in light of the

opinion.

Amicus believes that Tinker provides the best

framework for analyzing freedom of speech in public

schools. Tinker affords substantial protection for

student speech and expression, while still allowing

schools to operate effectively. Lower courts, unfortu-

nately, have set aside the Tinker framework and

substituted a lower standard unfit for evaluating

student speech. Given the importance of free speech

* The parties of record received proper notice of and con-

sented to the filing of this brief in support of Petitioner. Amicus

states that no portion of this brief was authored by counsel for a

party and that no person or entity other than amicus made a

monetary contribution to the preparation or submission of this

brief.

2

and expression, the Court should be very cautious

when granting government broad powers to prohibit

it, even in the context of public schools.

°

ARGUMENT

I. Absent guidance on the actual application

of the Tinker “material and substantial”

disruption standard, some lower courts

have either refused to apply Tinker or

mistakenly limited Tinker in ways con-

trary to the Court’s precedent.

Some federal courts have tried to cabin away

Tinker by declaring that it only applies to viewpoint

discriminatory policies. This is contrary to this

Court’s precedent, as viewpoint discrimination juris-

prudence is an independent body of law; when a

policy is challenged that constitutes viewpoint dis-

crimination, Rosenberger v. Rector & Visitors of the

Univ. of Va., 515 U.S. 819 (1995), Good News Club v.

Milford Cent. Sch. Dist., 533 U.S. 98 (2001), and

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384 (1993) provide the appropriate standard.

But even more compelling is the fact that Tinker itself

declared that it is not limited to viewpoint-based

regulations. In Tinker, students decided to wear black

armbands to express their opposition to the Vietnam

War. In response to the planned protest, school au-

thorities prohibited the wearing of all armbands, and

provided that any students wearing armbands would

be suspended until they returned without them. The

3

Court, in striking the policy down, specifically stated

that the material and substantial disruption stan-

dard “obvious([ly]” applies to both content-based and

view point-based policies.

If a regulation were adopted by school offi-

cials forbidding discussion of the Vietnam

conflict [content-based regulation], or the ex-

pression by any student of opposition to it

|[viewpoint-based regulation] anywhere on

school property except as part of a prescribed

classroom exercise, it would be obvious that

the regulation would violate the constitu-

tional rights of students, at least if it could

not be justified by a showing that the stu-

dents’ activities would materially and sub-

stantially disrupt the work and discipline of

the school.

Tinker, 393 U.S. at 513 (emphasis and bracketed

words added).

The Court has continually affirmed Tinker’s

holding, but delineated three exceptions to the case’s

framework: (1) speech that could be “reasonably

viewed as promoting illegal drugs” Morse, 127 S. Ct. at

2625; (2) “vulgar and lewd speech” Bethel, 478 U.S. at

685; and (3) “school-sponsored” speech, Hazelwood,

484 U.S. at 271. Although the Court’s precedent man-

dates that Tinker’s material and substantial disrup-

tion standard governs as long as the speech does not

fall within one of the above exceptions, several federal

A

courts have ignored or diminished Tinker, threaten-

ing student speech.’

This is an important case because it affords the

Court the opportunity to re-affirm that Tinker is the

controlling precedent for student speech cases absent

vulgar, lewd or profane language, absent any school

publication scenario, and absent language that ar-

guably promoted the use of illegal narcotics. This is

an important case about the rights of students to

petition the government for change in governmental

administration. The application of Connick v. Myers,

461 U.S. 138 (1983), to student speech is but the most

recent of a line of federal cases seeking to abandon

Tinker for standards more deferential to the State.

Other than Bethel, Hazelwood, and Morse, there is no

opinion from this Court that holds “the special char-

acteristics of the public schools necessarily justify any

other speech restrictions,” such as applying Connick

or applying any other more deferential standard than

Tinker, such as the O’Brien standard. See Morse, 127

S. Ct. at 2637 (Alito, J., concurring).

* While this brief discusses the cases where federal courts

either intentionally did not apply Tinker out of some philosophi-

cal disagreement or were simply confused, there are federal

courts that have applied the proper analysis. See, e.g., Guiles v.

Marineau, 461 F.3d 320, 325 (2nd Cir. 2006); Saxe v. State Coll.

Area Sch. Dist., 240 F.3d 200, 214 (3rd Cir.-2001) (Alito, J.);

Newsom v. Abemarle Cty. Sch. Bd., 354 F.3d 249, 255-57 (4th

Cir. 2003); Pinard v. Clatskanie Sch. Dist., 467 F.3d 755, 765

(9th Cir. 2006); Fleming v. Jefferson Cty. Sch. Dist., 298 F.3d

918, 923 (10th Cir. 2002).

5

A. Lower federal courts have incorrectly

stated that Tinker only applies to

viewpoint-based policies and that the

less-rigorous intermediate scrutiny

test in United States v. O’Brien, 391

U.S. 367 (1968), controls when the

regulation at issue is content-based,

leaving student speech with substan-

tially less protection.

Using the O’Brien intermediate scrutiny to

evaluate student speech is completely without Su-

preme Court precedent. Although the Court decided

O’Brien in 1968, prior to every student speech case at

the Supreme Court, the Court has never once men-

tioned O’Brien as relevant to student speech analysis

and continually affirmed Tinker. The O’Brien stan-

dard is most famous for its application to zoning

regulations aimed at limiting the secondary effects of

adult book stores, nude dancing establishments, and

other adult entertainment venues, see City of Los

Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002);

Barnes v. Glen Theatre, 501 U.S. 560 (1991); City of

Erie v. Pap’s A.M., 529 U.S. 277 (2000), and is misap-

plied when student speech is at issue.

In 2001, the Fifth Circuit refused to apply the

Tinker framework in two cases where a _ school’s

content-based regulation was at issue, and instead

applied the less demanding time, place, and manner

analysis from O’Brien. In Canady v. Bossier Parish

Sch. Bd., 240 F.3d 437 (5th Cir. 2001), parents of

students unsuccessfully challenged the dress code

6

policy because it did not provide exceptions for reli-

gious attire. The Fifth Circuit found that the “School

Board’s uniform policy is unrelated to any viewpoint”

and incorrectly stated that Tinker does not apply

since it “does not account for regulations that are

completely viewpoint-neutral.” Id. at 443. The court

held that “a level of scrutiny should apply . . . [that is]

less stringent than the school official’s burden in

Tinker” and that “[bloth the traditional time, place

and manner analysis and the O’Brien test for expres-

sive conduct satisfy this requirement.” Jd.

During the same year, the Fifth Circuit in Little-

field v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th

Cir. 2001), upheld a dress code policy that was chal-

lenged under religious grounds, inter alia. The court

rubberstamped the Canady decision and applied the

O’Brien analysis without even a discussion of

whether Tinker should apply.

In Pounds v. Katy 1.S.D., 517 F. Supp. 2d 901

(S.D. Tex. 2007), post-Morse, a federal district court

upheld a school policy governing what type of litera-

ture students in school could distribute over a chal-

lenge that it infringed upon student religious speech.

The court applied Canady in holding that O’Brien,

and not Tinker, applied when reviewing student

speech regulations that are not viewpoint-based. The

court ignored the Plaintiffs’ argument that Justice

Alito’s concurring opinion from Morse controlled, and

instead applied the O’Brien standard, even though the

case involved students handing religious literature to

other students. The court found that distribution of

7

religious literature was not pure speech deserving

protection under Tinker — and this was after Morse.

In addition to the Fifth Circuit, the Ninth Cir-

cuit, in another post-Morse decision, refused to apply

Tinker in a school speech case. Jacobs v. Barber, 526

F.3d 419 (9th Cir. 2008), upheld a school dress code

that allowed only plain clothes or school logos against

challenges that it violated students’ right to free

speech, including religious speech. One student was

suspended four times after wearing a T-shirt contain-

ing a message expressing the student’s religious

beliefs as a member of the Church of Jesus Christ of

Latter-day Saints. The court applied the intermediate

scrutiny standard as defined by O’Brien and held that

Tinker was not applicable. The opinion incorrectly

stated that Tinker “extends only to viewpoint-based

speech restrictions, and not necessarily to viewpoint-

neutral speech restrictions” and that it “applies only

to restrictions on pure speech.” Jd. at 430 (internal

quotation marks omitted). Judge Thomas, in dissent,

correctly argued that the court’s opinion “represents a

substantial rewriting and undermining of the First

Amendment protections afforded by Tinker.” Id. at

442. Under these Fifth Circuit and Ninth Circuit

cases, bans on student speech, including core political

and religious speech, are not evaluated under the

material and substantial disruption standard; under

these cases, a school could ban an entire discussion of

the Vietnam War, as long as it did not ban only one

side of the discussion or the other, and survive a

8

constitutional chellenge in direct contravention of

Tinker. See Tinker, 393 U.S. at 513.

The Court should grant the petition to affirm the

approach taken by the Third Circuit in Saxe v. State

Coll. Area Sch. Dist., 240 F.3d 200 (2001) (Alito, J.).

The court stated: “[njor do we believe that the restric-

tion of expressive speech on the basis of its content

may be characterized as a mere ‘time, place, and

manner’ regulation.” Id. at 209. It struck down the

school’s policy because it was not limited to merely

vulgar or lewd speech or to speech that was school-

sponsored, and the policy’s restrictions were not

necessary to prevent substantial disruption or inter-

ference with school or rights of other students. Jd. at

215 (the case was handed down before the Court

delineated the exception for promoting illegal drug

use in Morse). This approach correctly follows the

Supreme Court’s precedent and allows for substantial

protection of student speech.

i. Applying O’Brien to student speech

has allowed schools to suppress

constitutionally protected student

speech, including core _ religious

speech.

Knowing that broad sweeping bans on speech

had a better chance of survival under the intermedi-

ate scrutiny applied in O’Brien, schools within the

Fifth Circuit began banning all student speech on

specified topics. For example, schools in Texas

9

adopted the Texas Association of School Board’s

model policy FNAA (local) (See App. 1) banning

students from even handing a pencil to a friend that

bore the message “No. 2 pencil.” Additionally, a school

district in Texas used that policy to prohibit a girl

from handing her friend a “Jesus is the Reason for

the Season” pencil and banned a boy from handing

his friends bookmarks bearing the “Legend of the

Candy Cane.” Morgan v. Plano Indep. Sch. Dist., No.

4:04cv447, slip op. at 2 (E.D. Tex. Feb. 20, 2007). If

the test in Tinker is not applied, clearly non-

disruptive speech, such as handing a pencil bearing a

religious message to a friend at school between

classes, can be prohibited by schools in the Fifth and

Ninth Circuits.

B. Other federal courts have also refused

to apply Tinker and incorrectly ana-

lyzed student speech under forum

analysis or by evaluating if the speech

would have adverse effects on other

students.

The Seventh Circuit circumvented Tinker in

Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th

Cir. 1996), when it considered a school ban on stu-

dents distributing invitations to a religious gathering.

The Seventh Circuit, using forum analysis and de-

claring the school a non-public forum, held that

Hazelwood applies to all student speech regulations,

regardless of whether the speech was _ school-

sponsored. This is contrary to the correct approach

10

taken by the Third Circuit in Saxe, and contrary to

the Supreme Court’s jurisprudence on these issues.

In Nuxoll v. Indian Prairie Sch. Dist. #204, 523

F.3d 668 (7th Cir. 2008), the Seventh Circuit consid-

ered a case involving a high school student who was

forbidden from wearing a shirt reading, “Be Happy,

Not Gay” because it would offend another group.

Although it overturned the regulation in an as-

applied challenge, the court declined to apply Tinker,

holding that it applied only to viewpoint discrimina-

tion, and not content discrimination. Instead, the

court inferred from Morse and Bethel that schools can

forbid a type of speech if there is “reason to believe

that [it] will lead to a decline in students’ test scores,

an upsurge in truancy, or other symptoms ... of

substantial disruption.” Jd. at 674. The court also

held that Alito’s concurrence in Morse was not con-

trolling. Id. at 673. Applying its rule, the court found

that because derogatory speech can cause psychologi-

cal harm and lower grades, the rule was Constitu-

tional, but that the application to Nuxoll’s shirt was

invalid because it was not sufficiently negative to be

substantially hurtful. Jd. at 18, 21. An eloquent

partial concurrence by Judge Rovner defended Tinker

and the importance of school speech. Id. at 677. The

opinion correctly stated that “[cJontrary to the major-

ity’s characterization, Tinker is not a case about

viewpoint discrimination and is not distinguishable

from the instant case.” Jd.

In Krestan v. Deer Valley Unified Sch. Dist. No.

97, No. CV-08-194-PHX-DGC, slip op. (D. Ariz. May 9,

ll

2008), the court held that a Christian prayer and

Bible study club could be prevented from distributing

pamphlets. It rejected a Tinker analysis and held that

the prohibition on pamphlet distribution was a view-

point-neutral and reasonable restriction on speech in

a limited public forum under Good News Club. Id. at

16.

These cases highlight the importance of this

petition and the need for the Court to clarify that

Tinker is the required test for student speech that

falls outside of the categories delineated in Fraser,

Hazelwood and Morse. Without clarification on the

underlying test, federal courts are either confused or

no longer believe Tinker is the mandated approach.

But without Tinker, schools will simply adopt broad

sweeping bans on student speech and declare them-

selves free of any viewpoint discrimination. If a

teacher or principal were to tell a student that they

are not allowed to hand another student literature

about God or Jesus or Mohammad at school, the

school district will not face any liability. Under Mo-

nell v. Dept. of Soc. Serv. of New York, 436 U.S. 658

(1978), the schoo] district will simply argue that no

viewpoint discrimination is authorized by the policy.

Instead, ALL speech is prohibited, which invariably

includes core political and religious speech. An eight-

een year old may be old enough to die in Baghdad for

our freedom, but without Tinker, she may be prohib-

ited by the State from wearing a button advocating

for her candidate of choice as Commander in Chief.

The Court should grant the petition to protect the

12

rights of students to engage in core political and

religious speech.

II. Whether Tinker remains good law and

how to properly apply its standard are

important issues the Court must resolve.

In the present case, high school students* were

exercising their basic constitutional rights to “free

speech” and to “petition the Government for a redress

of grievances.” See U.S. CONST. amend. I. The court

used Connick v. Meyers, 461 U.S. 138 (1983) and

Pickering v. Bd. of Educ., 391 U.S. 563 (1968), two

employment law cases, to deprive the students of

their right to petition the government for a change in

an appointed office. This is a massive deviation from

Tinker and Morse and must be corrected. As Judge

Gilman points out in his concurrence, this approach

“has never before taken in student-speech cases by

° The Plaintiffs in this case were of substantially similar

age to many of the founders when they began their public

service and military careers. George Washington was seventeen

when he was appointed to his first public office as the Surveyor

of Culpeper County, Virginia. John Quincy Adams held his first

diplomatic appointment at age fourteen when he accompanied

Francis Dana as his secretary on a diplomatic mission to Russia

during the Revolution. Aaron Burr became a Captain in the

Continental Army at age nineteen. Jonathan Dayton, a delegate

to the Constitutional Convention and Framer of the Constitu-

tion, joined the Continental Army at age sixteen and was

promoted to Captain by age nineteen. James Wilkinson, a

Revolutionary War hero, became a Captain in the Continental

Army by age eighteen.

13

either the Supreme Court or any other federal court of

appeals to consider the issue.” Lowery v. Euverard, 497

F.3d 584, 601 (6th Cir. 2007). Additionally, the Sixth

Circuit did not require the school to carry the burden of

proof that the petition would cause a material and

substantial disruption and therefore misapplied Tinker.

As Judge Gilman again points out, the majority opinion

“amproperly places the burden on the students to prove

that there would not have been a disruption. This is

simply not the test articulated in Tinker.” Id. at 603.

The Court should reaffirm that Tinker provides

the appropriate standard for student speech, that the

school bears the burden of proof on the substantial

disruption affirmative defense, and remand for con-

sideration in light of the opinion. Despite Bethel,

Hazelwood and Morse, the Court has not revisited the

underlying main test to reiterate to the unbelieving

or confused lower courts that Tinker is alive and well,

and its test means what it says. Student speech

rights may not be coextensive with adults, but that

only relates to permissible content-based restrictions

outlined in Bethel and Morse, not the standard to be

used to govern protected speech such as petitioning

the government for a redress of grievances.

This new twist on student speech jurisprudence —

the application of government-employee doctrine —

that the Sixth Circuit implemented in the current case

is yet another attempt to marginalize the protection

Tinker provides to student speech. Students are not in

the same position as government employees. Students

are required to attend school under compulsory

14

attendance laws and thus parents must relinquish

control of their children to the State for most of the

day. This presents a significant challenge to religious

families. The State daily inculcates students with

mantras and messages that may, depending upon

who is in power at the school and the values of the

parents, undermine the teachings of the parents and

the church the family attends. In addition, it is not

uncommon upon a review of the evening news to see

yet another teacher accused of inappropriate conduct

involving students. Students should be free to dissent

from the official state messages promoting cultural

“norms” that run contrary to the family’s or church’s

teachings, and students should have a voice to peace-

fully petition the government for change.‘

Government schools do not have a history of

welcoming the exercise of civil rights on campus, and

they certainly have not been willingly accommodating

religious speech. See, e.g., Board of Educ. of Westside

Cmty. Sch. uv. Mergens, 496 U.S. 226 (1990); Good

News Club v. Milford Cent. Sch. Dist., 533 U.S. 98

* The Sixth Circuit’s reference to the movie Hoosiers is

actually helpful to the students in this case. Later in the movie

than the Sixth Circuit explored, there is a scene where the town

establishment, including the school district, is gathered to run

Coach Dale out of town. Jimmy Chitwood, a student and the star

player, issues an ultimatum to the powers in the room — if Coach

goes, I go. Jimmy was petitioning the government, caused quite

a stir in the town, and directly contravened authority. Jimmy

Chitwood’s stand is a reminder to all that even the voice of a

student can lead to positive change.

15

(2001); Lamb’s Chapel v. Center Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent,

454 U.S. 263 (1981). Of course, there is a litany of

cases since these landmark decisions in every circuit

in the country enforcing these decisions. Amicus is on

demonstrably solid ground when expressing doubt as

to the wisdom of granting schools any more discretion

to censor speech. If this new Connick v. Meyers bal-

ancing approach to student speech is not stopped,

there is no doubt that the first casualty will be reli-

gious speech and any other speech that runs contrary

to the questionable social agenda of most of our

nation’s public schools. The Court should grant the

Petition and bring any speculation regarding Tinker’s

continuing vitality to an end.

e

CONCLUSION

The Petition should be granted and the question

of whether Tinker is the primary test for student

speech cases should be answered to bring clarity and

uniformity to the federal courts.

Respectfully submitted,

KELLY J. SHACKELFORD

Counsel of Record

HIRAM S. SASSER, IIIT

ROGER L. BYRON

LIBERTY LEGAL INSTITUTE

903 E. 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

App. l

APPENDIX

STUDENT EXPRESSION: FNAA

DISTRIBUTION OF (LOCAL)

NONSCHOOL LITERATURE

For purposes of this policy, “distribution” means

circulation of any written material, tapes, or other

media over which the school does not exercise control

and that is intended for dissemination to students.

The District’s classrooms during the school day are

provided for the limited purpose of delivering instruc-

tion to students in the courses and subjects in which

they are enrolled. Hallways in school buildings are

provided for the limited purpose of facilitating the

movement of students between classes and allowing

access to assigned lockers. Classrooms and hallways

shall not be used for the distribution of any materials

over which the school does not exercise control.

* * *