CORDER v. LEWIS-PALMER SCHOOL DISTRICT

 

DISPOSITION: denied in part, affirmed in part

 

JUDGES: Authored by Emily Percival and Aviv Bridges with whom Chief Justice Jim Hanson joins

Aviv Bridges also filed an opinion, dissenting in part
(with part G)

 

In the Matter of

ERICA CORDER, Appellant, v. LEWIS-PALMER SCHOOL DISTRICT NO. 38, Respondent.

HANSON SUPREME COURT

October 25, 2009, Filed

PRIOR HISTORY: Appeal from the Tenth Circuit Court. Date filed: May 29, 2009.

COUNSEL: For Appellant: Galen Bernard, Walla Walla, WA.

For Respondent: Lewis Silver, Walla Walla, WA

 

 

I. FACTS OF THE CASE

 

Erica Corder, a student at Lewis-Palmer High School, qualified for the status of valedictorian and was thus accorded a 30-second speech at her 2006 graduation ceremony. Prior to the ceremony, all of the qualifying students were required to submit their proposed speeches for review by the principal. During her speech, Corder deviated from her approved speech and asked her fellow students to “find out more about the sacrifice He [Jesus] made for you.” The school withheld her degree until she published a statement recognizing that she knew that she would not have been allowed to say what she did, had she submitted it for review.

 

II. ARGUMENTS

 

A. APPELLANT HAS GROUNDS FOR APPEAL

         This court has jurisdiction because, contrary to Defendant’s objections, the Appellant did introduce arguments citing a possible chilling effect in her initial brief and her First Amendment claims in this appeal are consistent with those presented earlier. Additionally, we agree that the case is not moot, and that lower courts came to that decision without taking into full consideration the issues at stake. Under the mootness doctrine, “a plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured by the defendant in the future” (Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997)). In Bauchman v. W. High Sch., 132 F.3d 542, 548 (10th Cir. 1997) the 10th Circuit Court ruled that “when an individual graduates from school there no longer exists a live controversy necessary to support an action to participate in interscholastic activity.” Under this precedent, it would seem that Corder, having graduated and being no longer subject to the school district’s policies, cannot bring a claim for declaratory or injunctive relief under the argument that her First Amendment rights were violated. In Murphy v. Hunt, 455 U.S. 478, 482 (1982), however, the court established an exception to the mootness doctrine for cases that are “capable of repetition, yet evading review,” so long as “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a reasonable expectation that the same complaining party w[ill] be subjected to the same action again.” The 10th Circuit court ruled that though Corder’s appeal met the first criterion for an exception to the mootness doctrine, she did not meet the second. We rule that to allow the second criterion to supersede the broader rule for exception is to declare the broader rule ineffectual. If Corder’s claim cannot be ruled on because she, herself, will not be subjected to the same action by the School District, then the School District’s policies will forever go unquestioned, thereby ensuring that this issue is permanently “capable of repetition, yet evading review.” Therefore, we find that the inherent primacy of Corder’s claims (a First Amendment Constitutional violation) in this case allows the court to dismiss the mootness doctrine’s second rule for exception, as to do otherwise would be to ensure that constitutional violations in public schools could never be legally addressed.

 

B. CORDER’S SPEECH WAS SCHOOL-SPONSORED, AND THEREFORE SUBJECT TO REVIEW.

 

            Unlike in Adler v. Duval Country School Board, 250 F.3d 1330 (11th Cir. 2001), in which “the student speech at issue was from a speaker not chosen by the school” the Appellant in this case was, in fact, chosen by the school; her speech was thus school-sponsored. She was selected for her qualifications as a valedictorian, a standard which is established and approved by the school, and was then given 30 seconds of speech. Without the school’s sponsorship of these standards and privileges, the Appellant would not have been a valedictorian, nor would she have been given 30 seconds of speech time at her graduation ceremony. Respondent claims that the speech was not part of a school sanctioned presentation are not persuasive. That the group of valedictorians divvied up the block of time given by the school into 30-second chunks is not relevant. The school still provided the venue and event for the presentation of Corder's speech.

         That we find her speech to be “school-sponsored” does not mean that we think that therefore her words must be in accordance with the School District’s views. Rather, “school-sponsorship” merely indicates that the speaker’s speech is in accordance with the rules and regulations of the district. The Appellant takes a different view, stating that because “no reasonable audience member would conclude that Ms. Corder spoke on behalf of the school and thus conclude that the school aligned itself with a particular religious belief,” the Appellant’s speech “did not disrupt the work of the school in the sense that it would ‘associate the school with any position other than neutrality on matters of political controversy’ Fraser, 478 U.S. at 6831403 (10th Cir. 1997),” (Appellant Brief, 6). The danger is not that the school would be mistaken for supporting the Appellant’s religious statement; the danger is that the school is becoming a venue for speech which defies the Establishment Clause of the Constitution.  The court’s view of the Establishment Clause and its application to public schools is clear: religious readings and prayer are prohibited in public schools even when students can opt out (School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962)); hence, the posting of the Ten Commandments in public schools is prohibited (Stone v. Graham, 449 U.S. 39, 41 (1980)). Most pertinently, in Lee v. Weisman, 505 U.S. 577 (1992) the Court ruled that prayer of any kind at a graduation ceremony was by its very nature coercive and in contradiction with the values of the Establishment Clause that prohibit using schools as a site for proselytizing.

         In this case, we find that the student’s (Corder’s) speech served the same function as a prayer—inviting students at the graduation ceremony to participate in religious activity at a school function. These were Corder’s words: “If you don’t know Him [Jesus Christ] personally I encourage you to find out more about the sacrifice He made for you so that now you have the opportunity to live in eternity with Him.” She goes beyond addressing her own faith, beyond expressing her personal beliefs—she asks her fellow students to involve themselves in her religious beliefs at a secular, public function. Because the student’s speech did not follow the rules and regulations required by the Establishment Clause of the Constitution, her speech necessitated restriction. The school district had authority to reprimand the student for her speech, which was in violation of its own codes of conduct.

 

         C. CENSURE OF APPELLANT’S SPEECH DID NOT VIOLATE HER FIRST AMENDMENT RIGHTS

         In Everson v. Board of Education, 330 U.S. 1 (1947), the Supreme Court called for a strict “separation between church and state,” when it ruled that New Jersey school districts could pay for transportation costs of their students to public and private schools. This is the same fine line we walk in this case; how do we allow the greatest possible freedom while ensuring constitutional separation of church and state? Appellant’s comments during her speech, as a speaker chosen by the school at a school sanctioned event, were very clearly in violation of the Establishment Clause. Her expression is not part of the constitutionally protected balance embodied in the First Amendment. Specifically, we mean the following portion:

         “I need to tell you about someone who loves you more than you could ever imagine. He died for you on a cross over 2,000 years ago, yet was resurrected and is living today in heaven. His name is Jesus Christ. If you don’t already know Him personally I encourage you to find out more about the sacrifice He made for you so that you now have the opportunity to live in eternity with Him.”

         Corder's statement is clearly proselytizing. The Constitution prohibits prayer at public school graduation ceremonies (Stone v. Graham, 449 U.S. 39, 41 (1980)) as well as holding religious meetings in public schools (Bender v. The Williamsport Area School District 741 F. 2d 538 (1984)). In both cases, the court found that when religious material is expressed with the sanctioning or even permission by school officials by permitting a time of silence or the use of a building, the implication is that the school endorses the message of that religious material or at minimum creates a venue where other members of the school community are expected to listen and participate in such religious promotion. From the facts of this case, we are led to believe that the School District sought to avoid the constitutional violations incurred in Stone and Bender, and so required student speeches to be reviewed for objectionable content.

         Appellant argues subsequent review and censure of her speech violated her First Amendment rights. We find that the School District did not violate the Appellant’s First Amendment rights, as we find the content of her speech to fall outside the range of speech protected by the First Amendment, and the school’s actions in censuring her were therefore appropriate and constitutional. In Faith Ctr. Church Evangelistic Ministries v. Glover 462 F. 3d 1194 1211, the court notes, citing Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) that “when the government targets…particular views taken by speakers on a subject, the violation of the First Amendment is…blatant.” The court termed this “viewpoint discrimination” but makes a distinction between religious viewpoints and religious worship. Corder was free to express her personal religious convictions and was not censured on that account; she was censured for using her school given public forum as a platform to preach. We find that her speech constituted religious worship. In Faith v. Glover, the Court found that “any speech classified as ‘religious worship’ will now be placed outside the protection of the Free Speech Clause.” Similarly, we find that because the Appellant’s speech was outside the protection of the First Amendment, the School District did not violate her First Amendment rights when it asked for her apology. Because we find the School District to have acted appropriately, we award no damages to the Appellant.

 

D. SCHOOL SPONSORSHIP IS ESTABLISHED BY THE INVOLVEMENT OF THE SCHOOL IN THE EVENT

 

            In Fleming v. Jefferson the Court ruled that schools may restrict speech if “it appears the school is somehow sponsoring the speech, which is derived by such factors as the level of involvement of school officials in organizing and supervising the event.”  Given the fact that the school district planned, supervised, funded, advertised and that school officials participated in the event[1] it is difficult to conclude the school was not sponsoring the speech in some way.  Hazelwood deemed what is and is not a school-sanctioned venue and that decision made clear that a school-sponsored event is one where students, parents, and simply members of the public would understand it to have the “imprimatur” of the school.

            Appellant suggests that Adler v. Duval County School Board should be binding on this case.  However, appellant fails to recognize and correctly understand the two-part standard.  In Adler, the Court held that “the student speech at issue was not chosen by the school and over whom the school exercised no editorial control.” Adler v. Duval County School Board, 250 F. 3d 1330 (11th Cir. 2001).  While the case could be made that the school did not choose the speaker, Ms. Corder, we seriously question that claim as the school’s own criteria for valedictorians was the reason she was chosen as a speaker. Further, it is indisputable that the school exercised editorial control.  Therefore Adler does not apply to this case.

 

E. THE POLICY AS STATED IS ON ITS FACE UNCONSTITUTIONAL DUE TO VAGUENESS/OVERBREADTH

The school’s policy about what is not allowed in student speeches is non-existent and is on its face a violation of the First Amendment.  The Supreme Court has repeatedly noted, especially in Lewis v. City of New Orleans and Gooding v. Wilson, restrictions on expression must be clear and only targeted at speech that may be proscribed.  To do otherwise, creates a chilling effect.  A chilling effect is said to be actuated when “vague or overly broad rules regulating speech are likely to result in people censoring themselves, even censoring acceptable speech since they cannot be sure whether their speech is illegal or not.”[2] 

            The school describes speech it believes it may restrict as tending “to create hostility or otherwise disrupt the orderly operation of the educational process.”[3]  Based upon this description, it is far too difficult to comprehend and then abide by these statements, especially when not in the context of clearly stated rules.  Simply put, the rule employs unclear, undefined, and broad language when it says “create hostility.”  What exactly would constitute hostility is ambiguous.  According to Merriam Webster dictionary, hostility ranges in definition from deep seated ill will to conflict or opposition in thought or in principle.[4]  This represents far too broad a range of possibilities and therefore is impermissible. 

Further, Lewis Palmer utilized their unconstitutional rule without explanation of how and when it would be employed to a situation not even proscribed by the rules (proselytizing), thereby furthering its lack of clarity and increasing the potential for a chilling effect.  The rule’s lack of clear definitions and potentially far reaching ramifications make it insufficiently consistent with First Amendment Principles.

As a result, it places an undue burden on the speaker and would result in self-censorship for fear of losing one’s diploma after four years of high school.  It could be construed that the appellant was unafraid of retribution, but this is false.  She was simply willing to risk punishment if it meant expressing her beliefs.  Either way, the failure to have a clear statement of what was not permitted for such sanction events was in violation of the First Amendment.  As Justice William J. Brennan stated in Gooding v. Wilson 405 US 518 (1972) “the ordinance, as thus construed, is susceptible of application to protected speech, and therefore is overbroad in violation of the First…Amendment and facially invalid.”

 

F. LIMITS ON THE RULING: ABSENT EXPLICIT PROSELYTIZYING, FIRST AMENDMENT CONCERNS ARE STRENUOUSLY PROTECTED

            We have established that the graduation ceremony in question was school sanctioned, and that because Corder explicitly proselytized, the School District was within its rights in requiring an apology acknowledging that had she submitted for review her speech as stated, she would not have been allowed to say it. While we have ruled that the School District’s written policy is vague and overbroad, in keeping with First Amendment speech protections, we maintain that student expression is protected except when it is indecent, disruptive, or in defiance of the Constitution. We agree with Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) that “in the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” We take the precedent set in Tinker very seriously and hold freedom of expression as of tantamount importance especially in our nation’s public schools.

 

G. RELIGIOUS SELF-EXPRESSION DOES NOT VIOLATE THE FIRST AMENDMENT

A student’s self-expression in the form of religious apparel, words, and actions is expressly permitted and protected under this ruling, except when such expression crosses into proselytizing. Justice Bridge questions the line for when self-expression becomes advocacy. Justice Bridge is correct that certain words or actions that are not explicitly proselytizing such as a person shouting “I love Jesus” especially done over and over might be proselytizing. Further, it is possible that such objections could be raised under the precedent set in Tinker, allowing for the censure of disruptive speech.

We hold, however, that to restrict self-expression including religious expression violates the First Amendment. Obviously, self-expression may, in some contexts, cross into constitutionally unprotected territory but that is a judgment call for the juries and justices involved, not for this Court to make a priori. Such judgment should be based on whether the expression expresses a belief or more advocates a religious viewpoint or more constitutes a religious ceremony. When student expression is neither proselytizing nor disruptive, it is protected. Despite our finding in favor of Lewis-Palmer High School, the First Amendment questions the Appellant presents are important questions, and she is right to take action to ensure that her freedoms are being protected. Nowhere, perhaps, is it more important for our youth to feel free to be themselves and speak freely about themselves than in public high schools. In a non-school sanctioned context, Corder has every right to express herself including to proselytize (in a non-disruptive manner). In a school sanctioned context, however, Corder may not use the school’s venue nor it’s sanctioning to proselytize. She and others similarly situated may only express their own views as opposed to promoting or practicing them.

 

CONCLUSION

The United States Court of Appeals 10th Circuit correctly found Ms. Corder in possession of the school’s imprimatur and was therefore violating the establishment clause when her speech promoted her religious beliefs.  As such, speaking at a school sanctioned event does not mean you are expressing the school’s views nor that the school agrees with the speech expressed.  When speaking at a school sanctioned event, speech that is disruptive is not allowed nor can speech that violates the Establishment Clause.  To ensure that these guidelines are followed and handled in accord with the First Amendment, school policies must be written consistent with the First Amendment. We have repeatedly stated that restrictions must be extremely clear and must apply exclusively to restrictable speech.  To allow otherwise, creates a “chilling effect” in which participants subject themselves to potential penalty or to practice self-censorship due to lack of clarity in the policy. As such, appellant is due no redress but the school district must change its policy to be consistent with the First Amendment.

 

 

Justice Aviv Bridge, dissenting in part (from part G).

 

THE ESTABLISHMENT CLAUSE RESTRICTS WHAT SPEECH IS ALLOWED AT A SCHOOL SPONSORED EVENT

The Establishment Clause, of the First Amendment, requires that no government action “respecting an establishment of religion” occur.[5]  As such, the school has the responsibility, because it is a subsidiary of the government, to take no action respecting an establishment of religion.[6]  This is clearly the case here.  The school is required to make sure it does not conflict with the establishment clause, hence, they may restrict the religious speech of a student should it be understood as a statement of the school.

            Ms. Corder’s words not only expressed her own love of Jesus but also an encouragement to others to seek him out.  This is clearly not just an expression of her appreciation of her own religious affiliation but also a proselytization towards the audience.  While proselytizing is prohibited, so too is expressing her love for Jesus.  This is where I differ from my co-Justices.  If we are to assume she is an extension of the school and speaking on their behalf, her own love for Jesus violates the Establishment Clause.

            My co-Justice Percival, asked if this would extend to symbolic expression for one’s religion; for example, consider a female Muslim student who normally wears a hijab.  Should her words be seen as coming from the school, would her symbolic expression of love for Islam be considered unacceptable?  Her hijab is a symbol of her religious affiliation and appreciation.  Perhaps this could fall under symbolic free speech in violation of the Establishment Clause.  However, there has been no court that has made such a ruling in the United States. 

            The case could be made for her clothing being disruptive.  If this is the case, it is pertinent to understand that her attire is passive and is present when she speaks and when she doesn’t.  Simply wearing a religion specific item and speaking at a school-sanctioned event does not violate the Establishment Clause.  There is an important active element that must be included in order to be relevant.  This is established by the ruling in Tinker.  Justice Fortas wrote, “The petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment.”  The hypothetical Muslim student in question would be symbolically expressing her religious beliefs both quietly and passively and her attire would not interfere with the rights of the public.  Therefore, consistent with Tinker, her speech would be protected.

THE SCHOOL’S POLICY NEEDS FURTHER CLARIFICATION

         Further, while I agree with justices Percival and Hanson that “hostility” is vauge, I also find the school district’s use of the phrase “orderly operation” to be too vague.  Since this is a phrase and not a term one cannot turn to a dictionary for assistance.  As a result, its lack of stated definition is even more problematic and over broad.  Each individual would have a different understanding of what is constituted by “orderly operation.”  The school needs to specifically state disruptive speech in their policy and what constitutes disruptive speech.

 

 

 



[1] Lewis Silver, Brief for Respondent, p. 8.

[2] http://www.ncac.org/art-law/glossary.cfm

[3] Aplt. App. At 11, 26

[4] "Hostility." Merriam-Webster Online Dictionary. 2009. Merriam-Webster Online. 10 November 2009 <http://www.merriam-webster.com/dictionary/Hostility>

[5] Cite of Respondents Brief, Lewis Silver, p. 13

[6]  Morse addresses the issue, stating: schools may restrict rights of student speech if they are “reasonably” understood as involving a substantial governmental interest.  While this court does not wish to endorse the decision, mostly due to the legitimacy of restriction of school grounds, it is necessary to reference due to its relevance. Morse at. 551.