The Tenth Circuit published its opinion in Taylor v. Roswell Independent School District on Monday, April 8, 2013.

The plaintiffs are high school students from Roswell, New Mexico, who belong to a religious group called “Relentless” (“Plaintiffs”). On January 29, 2010, the Relentless students planned to distribute 2,500 small rubber dolls at two high schools, Roswell High School and Goddard High School. Each two-inch doll was designed to be a realistic representation of a human fetus. The Relentless students did not seek permission before distributing these items.

At Goddard High, Relentless students began distributing the dolls to every student entering the school that morning. When the Assistant Principal discovered that the students did not have prior approval, he stopped the distribution and confiscated the dolls. Dolls were also confiscated at Roswell High. Both schools experienced doll-related disruptions that day.

When these distributions began, Roswell District had two policies concerning distribution of non-school related materials on campus. Policy 7110 required advance permission from the District before distribution of promotional items or advertisements on campus. A separate unwritten policy required students to obtain permission before on-campus distribution of non-school-sponsored literature. This policy was later formalized as written Policy 5195.

Plaintiffs sued Roswell Independent School District and Superintendent Michael Gottlieb in his official capacity (collectively “the District”) seeking declaratory and injunctive relief and alleged three counts. Count I included two First Amendment speech claims. First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies were unconstitutional prior restraints and were unconstitutionally vague. Second, they challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the fetus dolls violated their free speech rights. Count II alleged violation of Plaintiffs’ free exercise rights under a so-called hybrid claim theory. Count III alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. A magistrate judge granted summary judgment for the District on all claims, and Plaintiffs appealed on Counts I and III.

Count I: Two First Amendment Speech Claims

The Court noted that two important questions were not at issue. First, this case did not turn on whether the content of Plaintiffs’ message warranted First Amendment protection—there was no question that it did. The record showed Plaintiffs meant to convey a religious and political message when they distributed the dolls, and the Constitution requires they be permitted to express these views at school in some form. Second, the parties did not contest that the District was allowed to confiscate already distributed rubber dolls from any students who threw them, used them to harm school property, or displayed them as props for lewd or obscene expressions of their own.

What was contested was whether the District violated Plaintiffs’ free speech rights when it stopped their on-campus distribution of the dolls. The answer depends on whether school officials reasonably forecast that this particular form of expression would create a substantial disruption to school discipline.

First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies are unconstitutional prior restraints and were unconstitutionally vague.

Plaintiffs’ facial challenge to the school policy failed. Generally, a “prior restraint” restricts speech in advance on the basis of content and carries a presumption of unconstitutionality. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992). The policy was not unconstitutional under the prior restraint doctrine because it constrained official discretion and contained adequate procedural safeguards—and because it applied to the school environment where greater deference is given to school officials. It was not void for vagueness because students of ordinary intelligence could understand its meaning and it neither authorized nor encouraged arbitrary or discriminatory enforcement.

Second, Plaintiffs challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the dolls violated their free speech rights.

Under the standards developed in Tinker v. Des Moines, 393 U.S. 503 (1969), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), The Tenth Circuit held that Plaintiffs’ free speech challenges failed because school officials reasonably forecast that the distribution would cause substantial disruption and because the distribution did cause substantial disruption. Plaintiffs’ distribution conveyed a political and religious message and would likely merit First Amendment protection outside the school context. Inside the school walls, however, the Court had to consider whether the expression was, or was reasonably forecast to be, disruptive. The record was replete with reports of doll-related disruptions throughout the day on January 29, 2010, including substantial disruptions to classroom instruction, damage to school property, and risks to student safety. In short, there was ample undisputed evidence that the District had permissible reasons for stopping the distribution. Plaintiffs’ free speech rights were therefore not violated.

Count III: Discrimination Claim

Plaintiffs alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs argued they were treated differently because non-Relentless students were permitted to distribute Valentine’s Day cards, chocolate, and stuffed animals on the same day that they were prevented from distributing the rubber fetuses.

The Equal Protection Clause provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.A. To prevail on an equal protection claim, a plaintiff must show that she was treated differently from others who were similarly situated. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998).

Applying the rational basis test, the Tenth Circuit held that Plaintiffs’ free exercise and equal protection claims failed because the decision to stop the distribution was not based on religion, and Plaintiffs failed to show they were treated differently from similarly situated students.

The Tenth Circuit noted that the public school setting was important to its analysis.

AFFIRMED.