Interesting Student Speech Case

A reader e-mailed me yesterday to ask me what I thought about Taylor v. Roswell Indep. School Dist. (10th Cir. Apr. 8, 2013). I’m inclined to think that it’s about right, but in any event the facts seemed interesting enough to be worth a post. It all started with some students who opposed abortion, and who brought 2,500 rubber alien fetus dolls to school to convey their views. Here’s what happened:

Assistant Principal Brian Luck arrived and noticed the distribution. He went to his office and radioed other administrators to ask whether the students had approval for the distribution. Assistant Principal Michelle Edgett responded that the students did not have approval and told Mr. Luck he should “probably” take possession of the dolls. On his way back to the lobby, Mr. Luck saw several students throwing what looked like small rubber balls at the wall. The “balls” turned out to be dismembered heads of the rubber fetus dolls. Several female students stopped him to complain. Relentless members were not among those dismembering or throwing the dolls.

Mr. Luck approached the Relentless students and said, “It’s time to shut this down…. Some people are getting offended.” He took the remaining dolls and told the students they would be returned at the end of the day. At this point, the Relentless group had distributed more than 300 dolls at Goddard High.

Later that morning, a Goddard High administrator called the principal of Roswell High, Ruben Bolaños, to ask if a similar distribution was underway at Roswell High. Principal Bolaños was not on campus, so he telephoned a campus security officer and instructed him to investigate and to confiscate the dolls “[i]f it’s a disruption to the educational process.” Two campus security guards at Roswell High investigated and eventually determined the dolls should be confiscated.

Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants’ zippers.

Teachers at both schools complained that students’ preoccupation with the dolls disrupted classroom instruction. While teachers were trying to instruct, students threw dolls and doll heads across classrooms, at one another, and into wastebaskets. Some teachers said the disruptions took eight to 10 minutes each class period, and others said their teaching plans were derailed entirely. An honors freshman English class canceled a scheduled test because students had become engaged in name calling and insults over the topic of abortion. A Roswell security officer described the day as “a disaster” because of the dolls.

About two weeks later, on February 11, 2010, Relentless attempted to distribute the dolls again, believing it was their Christian duty and constitutional right. Administrators at both schools immediately stopped this second distribution.

The court said that the school’s actions were generally constitutional (and that the distribution policy was constitutional on its face as well). An excerpt from the reasoning:

Plaintiffs’ distribution conveyed a political and religious message and would likely merit First Amendment protection outside the school context. Inside the school walls, however, we must consider whether the expression was, or was reasonably forecast to be, disruptive. Unlike in Tinker, the expression here was neither silent nor passive. It involved proactive contact with large numbers of other students. The items being distributed remained on school grounds in the hands of students throughout the school day. The sheer number of items also created strong potential for substantial disruption.

Furthermore, these fetus dolls were made of rubber — a material that could easily be, and was, pulled apart, bounced against walls, and stuck to ceilings. The dolls’ small size made them tempting projectiles and toilet-clogging devices. This scenario carries more potential for disruption than the passive, silent act of wearing a t-shirt or a black armband. And that potential quickly came to fruition. The record is replete with reports of doll-related disruptions throughout the day on January 29, 2010, including substantial disruptions to classroom instruction, damage to school property (the ceilings and plumbing), and risks to student safety (the fire-starting and doll-throwing).

Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities. They argue that preventing their speech because of bad acts of others amounts to banning leafleting because of litterbugs. This argument might be effective outside the school context, but it ignores the “special characteristics of the school environment,” Tinker, 393 U.S. at 506, where the government has a compelling interest in protecting the educational mission of the school and ensuring student safety.

Plaintiffs also argue that the magistrate judge ignored disputes of material fact regarding the District’s reasons for shutting down the distribution. They stress Assistant Principal Luck’s statement to Plaintiffs at the time he confiscated the fetus dolls: “It’s time to shut this down … Some people are getting offended.” They urge us to infer from this that Mr. Luck chose to stop the distribution solely because he was personally offended, or was worried that others would be offended, by Plaintiffs’ religious, anti-abortion message….

Even if we accepted Plaintiffs’ interpretation of Mr. Luck’s statement, this claim would still fail…. Plaintiffs argue that the District’s decision to stop the distribution was unjustified because the fetus dolls were confiscated before any substantial disruption had occurred. But the District was not obligated to wait until a substantial disruption materialized, so long as its forecast was reasonable. The substantial disruptions that actually transpired show the forecast was reasonable.

Finally, even if Mr. Luck initially stopped the distribution for impermissible reasons, Plaintiffs could not defeat summary judgment. At Roswell High, the dolls were not confiscated until security guards had observed actual disruptions. As for Goddard High, Plaintiffs’ reading of Mr. Luck’s statement shows at most that the school’s decision to stop the distribution was unjustified for some short period of time — likely a few minutes, but no more than one or two hours. Because Plaintiffs seek only injunctive relief, any claim they could have under this fact interpretation became moot once actual substantial disruptions occurred.

As I mentioned, I think the court’s analysis is generally quite sound. Indeed, The “heckler’s veto,” under which speech is restricted because it may lead to misconduct by listeners or viewers who disagree with it, is generally not allowed in most contexts, but it is allowed — given the Tinker substantial disruption standard — in public K-12 schools. And, given that, this seems like a classic case of substantial disruption.