PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`TENTH CIRCUIT
`
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 8, 2013
`
`Elisabeth A. Shumaker
`Clerk of Court
`
`SETH TAYLOR; JACOB COBOS, by
`and through his parents Ralph and
`Adrienne Cobos; LACY CORMAN, by
`and through her parents Gary and
`Ladonna Corman; ARIELLE GREEN, by
`and through her parents Joseph and
`Socorro Green; REED MAY, by and
`through his parents Bruce and April May,
`
`
`
`
`v.
`
`ROSWELL INDEPENDENT SCHOOL
`DISTRICT; MICHAEL GOTTLIEB, in
`his capacity as Superintendent of Schools
`for Roswell Independent School District,
`
`
`Plaintiffs - Appellants,
`
` No. 11-2242
`
`
`Defendants - Appellees.
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`(D.C. NO. 2:10-CV-00606 LFG-ACT)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Mathew D. Staver, Liberty Counsel, Maitland, Florida (Stephen M. Crampton, Mary E.
`McAlister, and Matthew H. Krause, Liberty Counsel, Lynchburg, Virginia, and Anita L.
`Staver, Liberty Counsel, Maitland, Florida, with him on the briefs), appearing for
`Appellants.
`
`
`Jerry A. Walz, Walz and Associates, Albuquerque, New Mexico, appearing for
`Appellees.
`
`
`
`

`
`Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.
`
`
`
`MATHESON, Circuit Judge.
`
`
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`The plaintiffs are, or at all relevant times were, high school students from Roswell,
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`New Mexico, who belong to a religious group called “Relentless” (“Plaintiffs”).1 They
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`sued Roswell Independent School District and Superintendent Michael Gottlieb in his
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`official capacity (collectively “the District”) seeking declaratory and injunctive relief.
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`Their complaint alleged that school officials violated their First and Fourteenth
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`Amendment rights by preventing them from distributing 2,500 rubber fetus dolls to other
`
`
`1 When the complaint in this case was filed, Plaintiffs were students at either
`Goddard or Roswell High. Our review of the record indicates that four of the five
`plaintiffs have since graduated and one plaintiff, Jacob Cobos, is expected to graduate in
`May 2013. Plaintiffs seek declaratory and injunctive relief. They do not seek damages,
`even nominal damages. In Board of School Commissioners of Indianapolis v. Jacobs,
`420 U.S. 128 (1975) (per curiam), the Supreme Court dismissed as moot a challenge by
`high school students to regulation of their school newspaper after the Court learned at
`oral argument that all of the plaintiffs had graduated.
`In this case, however, at least one plaintiff, Mr. Cobos, remains in school. He
`clearly has standing, and his claim is not moot. “[T]he presence of one party with
`standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld
`v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006). See also Campbell v.
`Buckley, 203 F.3d 738, 740 n.1 (10th Cir. 2000) (“Because the individual plaintiffs . . .
`have standing, and because [they] jointly raise the same substantive arguments on appeal
`. . . there is no need to address the standing of the [other] plaintiffs.”) (citing Bowsher v.
`Synar, 478 U.S. 714, 721 (1986)); Nat’l Rifle Ass’n v. Magaw, 132 F.3d 272, 278 n.4 (6th
`Cir. 1997) (“[A]s long as one plaintiff meets the requirements of Article III, the court can
`adjudicate the issues raised in the complaint.”).
`We therefore proceed to the merits.
`
`
`
`-2-
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`

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`students. It also challenged the District’s policies requiring preapproval before
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`distributing any non-school-sponsored material on school grounds.
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`A magistrate judge granted summary judgment for the District on all claims, and
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`Plaintiffs appealed.2 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
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`dismissal of Plaintiffs’ free speech, free exercise, and equal protection claims. We also
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`affirm dismissal of Plaintiffs’ facial challenge to Roswell District’s preapproval policies.
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`We note that the public school setting is important to our analysis.
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`I. BACKGROUND
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`A. Factual History
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`The five plaintiffs in this case are, or at all relevant times were, students of two
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`high schools, Roswell and Goddard High. They belong to a religious youth group called
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`Relentless, which is affiliated with a local church called Church on the Move. Relentless
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`is not affiliated with any school.
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`Relentless members testified in depositions that they routinely engaged in
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`religious expression at school. For example, they often spoke to other students, in groups
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`and one-on-one, about their religious beliefs and anti-abortion views; and they regularly
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`prayed, silently and aloud, while on school grounds, including during class. Plaintiffs
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`were never disciplined or asked to stop these activities.
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`2 Both parties consented to proceed before Magistrate Judge Lorenzo F. Garcia,
`with the understanding that appeal from any judgment entered by the magistrate judge
`would be to the United States Court of Appeals for the Tenth Circuit. See 28 U.S.C.
`636(c); Fed. R. Civ. P. 73(b).
`
`
`
`-3-
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`

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`In late 2009, Plaintiffs and other Relentless members began an outreach campaign
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`to express kindness and charity to fellow students and teachers, and to “put God back into
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`the schools.” Aplt. Appx., Vol. I at 195. Each week they distributed different items at
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`both schools. A pastor from Church on the Move, Tim Aguilar, led the students in
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`organizing and planning these events and was present on school grounds for the
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`distributions. Relentless initially gave 220 McDonald’s chicken salad sandwiches
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`(donated by a church member) to the faculty at both high schools. In ensuing weeks, they
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`distributed to students and faculty hot chocolate, candy canes with religious messages,
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`and “affirmation rocks” with scriptural references painted on one side. Aplt. Appx., Vol.
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`IV at 993-95.
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`When these distributions began, Roswell District had two policies concerning
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`distribution of non-school related materials on campus. Policy 7110 required advance
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`permission from the District before distribution in any quantity of promotional items or
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`advertisements on campus. A separate, longstanding but unwritten policy required
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`students to obtain permission before on-campus distribution of non-school-sponsored
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`literature. These policies are described in more detail later in this section.
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`

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`The Relentless students did not seek permission before distributing the previously
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`mentioned items.3 They were not disciplined, reprimanded, or asked to stop. There is no
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`evidence these distributions caused disruption.
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`1. The Rubber Fetus Doll Distributions
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`On January 29, 2010, Pastor Aguilar and the Relentless students planned to
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`distribute 2,500 small rubber dolls, one to every student at both schools. Each two-inch
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`doll was designed to be a realistic representation of a human fetus. A card attached to
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`each doll explained that it represented the actual size and weight of a “12 week old
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`baby,” that is, a fetus at 12 weeks of gestation. Aplee. Appx., Vol. I at 22-23. One side
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`of the card encouraged students to visit or call the Chaves County Pregnancy Resource
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`Center, a clinic affiliated with Church on the Move. The other side featured a Relentless
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`logo and this scriptural passage:
`
`For you formed my inward parts; You wove me in my
`mother[’]s womb. I will give thanks to You, for I am fearfully
`and wonderfully made; Wonderful are your works, And my
`soul knows it very well.
`Psalms 139:13-14
`
`
`Aplee. Appx., Vol. I at 23.
`
`
`
`3 Although it is undisputed that the Relentless students did not seek permission for
`the early distributions, Pastor Aguilar testified in his deposition that he and other adult
`organizers from the church sought and received verbal permission for at least one
`distribution. He could not recall which administrator gave permission or for which
`distribution.
`
`
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`-5-
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`At Goddard High, Pastor Aguilar and eight or nine Relentless students set up
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`tables in the lobby and began the distribution about 7:30 a.m. They approached every
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`student entering the school and offered a doll. The entrances were not blocked, and the
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`Relentless members allowed those who declined to take a doll to continue on their way.
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`Assistant Principal Brian Luck arrived and noticed the distribution. He went to his
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`office and radioed other administrators to ask whether the students had approval for the
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`distribution. Assistant Principal Michelle Edgett responded that the students did not have
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`approval and told Mr. Luck he should “probably” take possession of the dolls.4 Aplt.
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`Appx., Vol. I at 175. On his way back to the lobby, Mr. Luck saw several students
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`throwing what looked like small rubber balls at the wall. The “balls” turned out to be
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`dismembered heads of the rubber fetus dolls. Several female students stopped him to
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`complain. Relentless members were not among those dismembering or throwing the
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`dolls.
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`Mr. Luck approached the Relentless students and said, “It’s time to shut this down.
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`. . . Some people are getting offended.” Aplt. Appx., Vol. IV at 996. He took the
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`remaining dolls and told the students they would be returned at the end of the day. At
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`this point, the Relentless group had distributed more than 300 dolls at Goddard High.
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`4 Mr. Luck testified at his deposition that at the time of these events, he was newly
`appointed as an Assistant Principal and did not have the authority to grant or deny
`approval for student distributions on campus.
`
`
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`-6-
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`Later that morning, a Goddard High administrator called the principal of Roswell
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`High, Ruben Bolaños, to ask if a similar distribution was underway at Roswell High.
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`Principal Bolaños was not on campus, so he telephoned a campus security officer and
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`instructed him to investigate and to confiscate the dolls “[i]f it’s a disruption to the
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`educational process.” Aplt. Appx., Vol. I at 123. Two campus security guards at
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`Roswell High investigated and eventually determined the dolls should be confiscated.
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`Both schools experienced doll-related disruptions that day. Many students pulled
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`the dolls apart, tearing the heads off and using them as rubber balls or sticking them on
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`pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became
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`stuck. Dolls were used to plug toilets. Several students covered the dolls in hand
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`sanitizer and lit them on fire. One or more male students removed the dolls’ heads,
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`inverted the bodies to make them resemble penises, and hung them on the outside of their
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`pants’ zippers.
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`Teachers at both schools complained that students’ preoccupation with the dolls
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`disrupted classroom instruction. While teachers were trying to instruct, students threw
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`dolls and doll heads across classrooms, at one another, and into wastebaskets. Some
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`teachers said the disruptions took eight to 10 minutes each class period, and others said
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`their teaching plans were derailed entirely. An honors freshman English class canceled a
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`scheduled test because students had become engaged in name calling and insults over the
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`topic of abortion. A Roswell security officer described the day as “a disaster” because of
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`the dolls. Aplt. Appx., Vol. II at 447.
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`-7-
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`

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`About two weeks later, on February 11, 2010, Relentless attempted to distribute
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`the dolls again, believing it was their Christian duty and constitutional right.
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`Administrators at both schools immediately stopped this second distribution. A Goddard
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`High administrator announced over the public address system that “[n]othing is to be
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`passed out that is not school related,” and warned that “there will be disciplinary actions
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`taken” if the distribution continued. Aplt. Appx., Vol. I at 21. At Roswell High,
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`Principal Bolaños emailed instructions to the faculty that rubber fetuses should be
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`confiscated and any student distributing them should be referred to the administration.
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`On the same day, other students at Roswell High were allowed to distribute
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`Valentine’s Day-related items such as candy, cards, and stuffed animals. [Id.] The
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`record does not tell whether any students distributed large quantities of these items or
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`whether they received prior approval. There is no evidence of disturbance from the
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`Valentine’s Day-related distributions.
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`In late February, Relentless’s legal counsel sent a written demand to the District
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`that the group be permitted to conduct the fetus doll distribution. Around this time,
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`Superintendent Michael Gottlieb, administrators of both schools, and the senior pastor of
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`Church on the Move, Troy Smotherman, met to discuss this issue (the “Gottlieb
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`meeting”). During the Gottlieb meeting, participants discussed the possibility that
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`Relentless might implement a less controversial message of abstinence. Superintendent
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`Gottlieb asked Pastor Smotherman whether Relentless would consider distributing the
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`fetus dolls more quietly, suggesting the group could “just put these babies in [students’]
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`backpacks . . . without the big to-do.” Aplt. Appx., Vol. I at 114. The meeting ended
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`without resolution.
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`2. Later Relentless Distributions
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`After the meeting, Relentless varied their distributions. Later in February, they
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`distributed wristbands with the message “I’m Worth Waiting For.” Aplt. Appx., Vol. IV
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`at 999. The group did not seek prior approval, which violated Roswell District’s standard
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`practice. Both schools allowed the distributions to continue, but two Relentless students
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`from Goddard High, including one plaintiff, were required to attend “Saturday school”
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`for violating the preapproval policy.
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`In subsequent months, Relentless distributed more items featuring scriptural
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`quotes and religious and anti-abortion messages, including stickers, plastic Easter eggs,
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`pencils, and dog tags. Relentless sought and received permission to distribute the Easter
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`eggs, but Goddard administrators asked them not to block entrances or approach other
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`students as they entered the building. It is not clear whether they sought permission for
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`the other distributions, but there is no evidence of any disruption from any distributions
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`that occurred after the Gottlieb meeting. [Aplt. Appx., Vol. IV at 1042.]
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`In September 2010, after the next school year had begun, Relentless
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`“surreptitiously” left 1,000 doughnuts in the faculty lounges of both schools, with stickers
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`featuring the Relentless logo and a quote from Galatians 6:9, “Let us not grow weary in
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`well doing.” Aplt. Appx., Vol. IV at 1000-01. One Relentless member who is not a
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`plaintiff in this case was disciplined for entering the faculty lounge after being told not to
`-9-
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`do so, but no other disciplinary actions were taken. The doughnuts were removed in part
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`due to “food safety concerns.” Id. at 1001.
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`3. Roswell District Policies Regarding On-Campus Distributions
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`Two Roswell District policies have been referred to in this case. First, Policy
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`7110 was in place before the rubber doll distribution. It requires the school principal’s
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`preapproval to engage in promotional activities on campus, including advertising or
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`solicitations. Policy 7110 bans outright the promotion of certain items on campus, such
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`as alcohol and drugs. It does not mention religion.
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`At the time of the rubber doll distribution, the District had a long-standing,
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`unwritten policy of requiring students to obtain approval before distributing non-school-
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`sponsored material on school grounds. In May 2010, the District formalized this
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`unwritten policy when it promulgated Policy 5195, captioned “Distribution of Non
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`School Sponsored Literature.” Aplt. Appx., Vol. I at 186-87. This policy requires that
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`students obtain approval from the school administration before distributing more than 10
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`copies of “any non-school sponsored literature.”
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`Section 2 of the policy provides that approval may be withheld if the school
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`district administration “reasonably determines” that the distribution:
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`a. Would cause a substantial disruption or a material
`interference with the normal operation of the school or
`school activities.
`b. Is potentially offensive to a substantial portion of the
`school community due to the depiction or description of
`sexual conduct, violence, morbidity or the use of language
`which is profane or obscene and which is inappropriate for
`-10-
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`the school environment as judged by the standards of the
`school community.
`c. Is libelous or which violates the rights of privacy of any
`person.
`d. Is false or misleading or misrepresents facts.
`e. Is demeaning to any race, religion, sex, or ethnic group.
`f. Encourages violation of local, state or federal laws.
`
`
`Aplt. Appx., Vol. I at 186.
`
`Sections 1 and 3 of the policy describe certain procedural safeguards. The District
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`must approve or deny a distribution request within five school days. This time may be
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`extended only with written approval of Superintendent Gottlieb. The District must
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`provide a written explanation of the reasons for any denial. Students whose requests are
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`denied have a right to two appeals. The first appeal is made directly to Superintendent
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`Gottlieb, with a final appeal to the Board of Education. If a student appeals to the Board,
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`it must provide a hearing within 10 school days and render its decision at its next regular
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`meeting.
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`Section 4 of the policy provides definitions of terms, including “distribution” and
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`“non school sponsored.” Aplt. Appx., Vol. I at 186. Sections 5 and 6 give school
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`officials the right to “designate a time, location and means by which the distribution may
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`take place,” and to revoke approval if the distribution causes a substantial disruption.
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`Aplt. Appx., Vol. I at 186-87.
`
`
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`-11-
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`B. Procedural History
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`Plaintiffs’ Second Amended Complaint sought injunctive relief and alleged three
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`counts. Count I included two First Amendment speech claims. First, Plaintiffs brought a
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`facial challenge against the District’s preapproval policies for non-school-sponsored
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`material, alleging the policies are unconstitutional prior restraints and are
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`unconstitutionally vague. Second, they challenged the policies as applied to Plaintiffs,
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`claiming that the District’s refusal to allow them to distribute the fetus dolls violated their
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`free speech rights. Count II alleged violation of Plaintiffs’ free exercise rights under a so-
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`called hybrid claim theory.5 Finally, Count III alleged that the District discriminated
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`against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause.
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`At the close of discovery, the parties filed cross-motions for summary judgment.
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`No oral argument was held. The magistrate judge issued a 64-page opinion granting
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`summary judgment for the District on all claims. Plaintiffs appealed on all counts, but
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`abandoned the hybrid claim theory with respect to its free exercise claim.
`
`
`5 The hybrid claim theory allows a court to apply strict scrutiny when “a free
`exercise claim is coupled with some other constitutional claim” and the plaintiff makes “a
`colorable showing of infringement of [the] companion constitutional right.” Axson-Flynn
`v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (quotations omitted). We have
`recognized this theory with reservations, noting that the “hybrid-rights theory has been
`roundly criticized from every quarter and many have pointed out the danger of
`interpreting [it] broadly.” Id. at 1296. On appeal, Plaintiffs argue their free exercise
`claim but abandon the hybrid claim theory. We therefore do not discuss the hybrid claim
`theory in this opinion.
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`-12-
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`II. DISCUSSION
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`Plaintiffs claim that when the schools prevented them from distributing the rubber
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`fetus dolls, their constitutional rights to free speech, free exercise of religion, and equal
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`protection were violated. They also claim that the speech violation was the product of
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`school policies that are unconstitutional on their face as prior restraints and for reasons of
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`vagueness and overbreadth.6 As we explain below, Plaintiffs’ free speech challenges fail
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`because school officials reasonably forecasted that the distribution would cause
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`substantial disruption and because the distribution did cause substantial disruption.
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`Plaintiffs’ free exercise and equal protection claims fail because the decision to stop the
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`distribution was not based on religion, and Plaintiffs failed to show they were treated
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`differently from similarly situated students.
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`Plaintiffs’ facial challenge to the school policy also fails. The policy is not
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`unconstitutional under the prior restraint doctrine because it constrains official discretion
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`and contains adequate procedural safeguards—and because it applies to the school
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`environment where greater deference is given to school officials. It is not void for
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`vagueness because students of ordinary intelligence can understand its meaning and it
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`neither authorizes nor encourages arbitrary or discriminatory enforcement. As we
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`explain below, we do not address the overbreadth issue.
`
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`6 Plaintiffs did not raise an overbreadth claim in their complaint, but the parties
`argued the theory before the magistrate judge, who addressed overbreadth in the decision
`granting summary judgment.
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`-13-
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`A. Standard of Review
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`We review a grant of summary judgment de novo, under the same standard
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`applied by the district court (or in this case, the magistrate judge). Clinger v. N.M.
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`Highlands Univ., 215 F.3d 1162, 1165 (10th Cir. 2000). Summary judgment is proper
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`when “the movant shows that there is no genuine dispute as to any material fact and the
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`movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
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`genuinely disputed if “the evidence is such that a reasonable jury could return a verdict
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`for the non-moving party.” Witt v. Roadway Exp., 136 F.3d 1424, 1429 (10th Cir. 1998).
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`A fact is material if it “might affect the outcome of the suit under the governing law.” Id.
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`“[W]e draw all reasonable inferences from the evidence in favor of” Plaintiffs as the
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`nonmoving party. Id. Summary judgment for the District is appropriate only if “the
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`record taken as a whole could not lead a rational trier of fact to find for the” Plaintiffs.
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`Tiberi v. Cigna Corp., 89 F.3d 1423, 1428 (10th Cir. 1996).
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`In First Amendment cases, we are obligated “to make an independent examination
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`of the whole record in order to make sure that the judgment does not constitute a
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`forbidden intrusion on the field of free expression.” Snyder v. Phelps, 131 S. Ct. 1207,
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`1216 (2011) (quotations omitted); Bose Corp. v. Consumers Union, 466 U.S. 485, 499
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`(1984); Barker v. Del City, 215 F.3d 1134, 1137 (10th Cir. 2000).
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`We first consider the free speech challenge to the District’s refusal to allow the
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`rubber fetus distribution. Second, we address Plaintiffs’ facial challenge to the District’s
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`policies as unconstitutional prior restraints and for vagueness. Third, we consider the
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`Plaintiffs’ free exercise claim. Finally, we address the equal protection claim.
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`B. The Free Speech As-Applied Claim
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`The First Amendment guarantees the right to free expression and is applicable to
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`the states through the Due Process Clause of the Fourteenth Amendment. Gitlow v. New
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`York, 268 U.S. 652, 666 (1925); De Jonge v. Oregon, 299 U.S. 353, 364 (1937); Cannon
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`v. City and Cnty. of Denver, 998 F.2d 867, 871 (10th Cir. 1993).
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`The magistrate judge analyzed Plaintiffs’ free speech claim under two standards
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`developed in Tinker v. Des Moines, 393 U.S. 503 (1969), and Hazelwood School District
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`v. Kuhlmeier, 484 U.S. 260 (1988), and held that the District was entitled to summary
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`judgment under both standards. We affirm under the Tinker standard. Hazelwood is
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`inapplicable because the expression at issue here is private student speech and not school-
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`sponsored speech.
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`Two important questions are not at issue. First, this case does not turn on whether
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`the content of Plaintiffs’ message warrants First Amendment protection—there is no
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`question that it does. The record shows Plaintiffs meant to convey a religious and
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`political message when they distributed the rubber dolls, and the Constitution requires
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`they be permitted to express these views at school in some form. See Tinker, 393 U.S. at
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`513; Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). For example, the District almost
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`certainly may not prevent Plaintiffs from sharing their religious views in nondisruptive
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`small group discussions with other students who wish to participate; nor can the District
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`exercise editorial control over the content of Plaintiffs’ private expression or decide
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`whether to approve Plaintiffs’ distribution of materials on the basis of their viewpoint.
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`See Tinker, 393 U.S. at 509. Insofar as the District has acknowledged that Plaintiffs’
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`many other religiously-themed distributions at both schools did not disrupt the school
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`environment, it correctly allowed those distributions to continue. See id.; Williams, 443
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`F.2d at 431.
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`Second, the parties do not contest that the District was allowed, under Tinker and
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`Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), to confiscate already-
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`distributed rubber dolls from any students who threw them, used them to harm school
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`property, or displayed them as props for lewd or obscene expressions of their own.
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`What is contested is whether the District violated Plaintiffs’ free speech rights
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`when it stopped their on-campus distribution of large quantities of the rubber fetus dolls.
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`The answer depends on whether school officials reasonably forecasted that this particular
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`form of expression (i.e., mass distribution of hundreds or thousands of three-dimensional
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`rubber dolls to public high school students during the school day) would create a
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`substantial disruption to school discipline. Seamons v. Snow, 84 F.3d 1226, 1237 (10th
`
`Cir. 1996).
`
`In the following discussion, we determine that Plaintiffs’ claims involve private—
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`that is, non-school-sponsored—student speech and therefore fall under the Tinker
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`standard. Applying Tinker, we hold that the District did not violate Plaintiffs’ free speech
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`rights because it reasonably forecasted that distribution of the rubber dolls would lead to
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`a substantial disruption.
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`1. The Tinker Standard Applies to Plaintiffs’ Distribution
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`Restrictions on student speech in public schools are analyzed under one of two
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`standards. Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1225 (10th Cir.
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`2009). Tinker governs private student speech; Hazelwood governs school-sponsored
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`speech. Corder, 566 F.3d at 1225.7
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`Private student expression that is unconnected to any school-sponsored activity is
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`subject to the more stringent Tinker standard. Morse v. Frederick, 551 U.S. 393, 405-06
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`(2007). In Tinker, the plaintiffs were punished for wearing black armbands at school to
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`express their disagreement with U.S. involvement in the Vietnam War. Tinker, 393 U.S.
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`at 504. The Supreme Court held that the school could not restrict this speech unless the
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`school reasonably forecasted that the speech would cause substantial disruption to the
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`school environment. Id. at 509.8
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`7 A third standard addresses speech in public schools that can be characterized as
`“government speech, such as the principal speaking at a school assembly.” Axson-Flynn,
`356 F.3d at 1285 (quotations omitted). As the current case involves student speakers, this
`standard is not relevant.
`
` 8
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` The Tenth Circuit first applied the Tinker standard in the 1971 case of Williams
`v. Eaton, where we held that college football players had a free speech right to wear black
`armbands during a game to protest the racial policies of the other team’s school. 443
`F.2d 422, 430-32 (10th Cir. 1971).
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`In contrast, the Supreme Court has explained that student speech is analyzed under
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`the Hazelwood standard when “students, parents, and members of the public might
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`reasonably perceive [the speech] to bear the imprimatur of the school.” Morse, 551 U.S.
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`at 405. At issue in Hazelwood was a school’s decision to censor the content of a high
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`school newspaper published as part of the school’s journalism program. Id. Schools “do
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`not offend the First Amendment by exercising editorial control over the style and content
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`of student speech in school-sponsored expressive activities,” provided the restrictions
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`“are reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at
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`273.
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`In the present case, “[n]o one would reasonably believe” the distribution of rubber
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`fetuses “bore the school’s imprimatur.” Morse, 551 U.S. at 405. As in Tinker, Plaintiffs
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`were expressing their private views, and their expression was not part of any school-
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`sponsored program. The Tinker standard therefore applies. See Roberts v. Madigan, 921
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`F.2d 1047, 1057 (10th Cir. 1990) (“[I]f the speech involved is not fairly considered part
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`of the school curriculum or school-sponsored activities, then it may only be regulated if it
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`would materially and substantially interfere with the requirements of appropriate
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`discipline.” (quotations omitted)).
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`2. The District’s Actions Did Not Violate Plaintiffs’ Free Speech Rights
`
`a. Further Background on the Tinker Standard
`
` Under Tinker, a public school may not restrict private student expression unless
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`the school reasonably forecasts it “would materially and substantially interfere with the
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`requirements of appropriate discipline in operation of the school,” or “impinge upon the
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`rights of other students.” Tinker, 393 U.S. at 505-06, 509.9
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`A disruption need not actually materialize. School officials may act to prevent
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`problems as long as the situation “might reasonably [lead] authorities to forecast”
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`substantial disruption or interference with the rights of others. Id. at 514. This forecast
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`must be reasonable. Officials may not restrict speech based on “undifferentiated fear or
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`apprehension of disturbance” or a “mere desire to avoid the discomfort and
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`unpleasantness that always accompany an unpopular viewpoint.” Id. at 508-09.
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`For a school’s forecast to be reasonable, courts generally require that it be based
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`on a “concrete threat” of substantial disruption. Sypniewski v. Warren Hills Regional Bd.
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`of Educ., 307 F.3d 243, 262 (3d Cir. 2002). Tinker rejected the idea that a “silent,
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`passive” expression that merely provokes discussion in the hallway constitutes such a
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`threat, particularly if that expression is political. 393 U.S. at 514. The Second and Third
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`Circuits have reinforced this notion, overturning schools’ bans on t-shirts criticizing
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`George W. Bush or featuring comedian Jeff Foxworthy. Guiles v. Marineau, 461 F.3d
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`320 (2d Cir. 2006); Sypniewski, 307 F.3d at 254.10
`
`
`9 Subsequent Supreme Court cases have allowed schools to restrict student speech
`that is lewd or patently offensive or promotes illegal drug use. Bethel Sch. Dist. No. 403
`v. Fraser, 478 U.S. 675, 685 (1986); Morse v. Frederick, 551 U.S. 393, 395 (2007).
`These cases offer useful insight for understanding Tinker’s substantial disruption test.
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`10 We note, however, that several circuits (including ours) have upheld restrictions
`on passive, silent expression—even political expression—where it is clearly associated
`Continued . . .
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`When the speech is neither passive nor silent, restrictions are more readily (but not
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`always) upheld. For example, the Ninth Circuit held that student athletes were
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`constitutionally protected in peacefully circulating a petition criticizing their coach, but
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`upheld the school’s decision to suspend them for holding a protest before a sporting event
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`and refusing to board the team bus. Pinard v. Clatskanie Sch. Dist., 467 F.3d 755 (9th
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`Cir. 2006). The court found the protest was not pro