Morgan v. Plano Independent School Dist.

• Decision Date: 01 December 2009
• Docket Number: No. 08-40707.,08-40707.
• Citation: 589 F.3d 740
• Parties: Doug MORGAN; Robin Morgan; Jim Shell; Sunny Shell; Sherrie Versher; Christine Wade, Plaintiffs-Appellants-Cross-Appellees, v. PLANO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee-Cross-Appellant, and Lynn Swanson, in her individual capacity and as Principal of Thomas Elementary School; Jackie Bomchill, in her individual capacity and as Principal of Rasor Elementary School, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

589 F.3d 740

Doug MORGAN; Robin Morgan; Jim Shell; Sunny Shell; Sherrie Versher; Christine Wade, Plaintiffs-Appellants-Cross-Appellees, v. PLANO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee-Cross-Appellant, and Lynn Swanson, in her individual capacity and as Principal of Thomas Elementary School; Jackie Bomchill, in her individual capacity and as Principal of Rasor Elementary School, Defendants-Appellants.

No. 08-40707.

United States Court of Appeals, Fifth Circuit.

December 1, 2009.

William Charles Bundren (argued), Wm. Charles Bundren & Associates, Frisco, TX, Hiram S. Sasser, Kelly J. Shackelford, Chief Counsel, Liberty Legal Institute, Plano, TX, for Plaintiffs-Appellants-Cross-Appellees.

Richard M. Abernathy, Charles J. Crawford, Director, Abernathy, Roeder, Boyd & Joplin, P.C., McKinney, TX, Gregory Scott Coleman (argued), Richard Bernard Farrer, Christian Jared Ward, Yetter, Warden & Coleman, L.L.P., Austin, TX, for Plano Independent Sch. Dist.

Aaron Michael Streett, Baker Botts, L.L.P., Houston, TX, Ryan L. Bangert, Baker Botts, L.L.P., Dallas, TX, for Claremont Institute for the Study of Statesmanship & Political Philosophy, Amicus Curiae.

Walter M. Weber, Am. Ctr. for Law & Justice, Washington, DC, for Am. Ctr. for Law & Justice, Amicus Curiae.

Darren Lee McCarty, Alston & Bird, Dallas, TX, for Christian Legal Society, Amicus Curiae.

Steven W. Fitschen, Nat. Legal Found., Virginia Beach, VA, for Wallbuilders, Inc., Amicus Curiae.

Christopher Blewer Gilbert, Thompson & Horton, L.L.P., Houston, TX, for Texas Ass'n of Sch. Boards Legal Assistance Fund, Amicus Curiae.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is a First Amendment challenge to the facial validity of school rules for student distribution of written materials.

I

Four families with students in Plano Independent School District schools allege that over a three-year period students were not permitted to distribute various religious materials, including pencils inscribed with "Jesus is the reason for the season," candy canes with cards describing their Christian origin, tickets to a church's religious musical programs, and tickets to a dramatic Christian play, this by a policy then in effect and captured by a 2004 version of the District rules. While this suit was pending, the District adopted a new policy, referred to as the 2005 Policy. It permits distribution of materials during: (1) 30 minutes before and after school; (2) three annual parties; (3) recess; and (4) school hours, but only passively at designated tables. Students are generally prohibited from distributing material at all other times and places.¹ In addition, middle and secondary school students are permitted to distribute materials in the hallways during noninstructional time and in the cafeterias during noninstructional time and designated lunch periods. The 2005 Policy also contained narrow limitations on the content of materials that may be distributed.²

At a public hearing the school board heard testimony from various employees regarding its necessity. Following this hearing, the District "re-adopted" the 2005 Policy, adding a preamble detailing its justifications for enacting it. The preamble states, in relevant part, that the Policy is "intended to decrease distractions, to decrease disruption, to increase the time available and dedicated to learning, and to improve the educational process, environment, safety and order at District schools and not invade or collide with the rights of others" and that the additional restrictions on elementary students are "intended to facilitate the safe, organized and structured movements of students between classes and at lunch, as well as to reduce littering."

II

With the new policy in effect, plaintiffs moved for a summary judgment that the policies are facially invalid. Accepting a magistrate judge's recommendation, the district court found the facial challenge to the 2004 Policy to be moot because no evidence suggested that the District would revert to a policy it had replaced with another. Turning to the facial validity of the 2005 Policy, the magistrate judge, relying on Canady v. Bossier Parish School Board,³ applied the O'Brien test for content and viewpoint neutral restrictions, concluding that it was narrowly tailored to achieve the significant governmental interest of "improving the educational process,"⁴ while leaving open ample alternative channels of communication. The district court adopted the magistrate judge's report and recommendation except as it related to the provision in the 2005 Policy prohibiting distribution of materials during elementary school lunch periods. The district court concluded that "this provision reaches more broadly than is reasonably necessary to protect [the District's] legitimate interests."

Plaintiffs here challenge the finding of mootness and the finding that the 2005 Policy is facially valid.⁵ The school district cross appeals the finding regarding the elementary school cafeteria policy. We conclude that the 2005 Policy is facially constitutional and hold that the challenge to the facial validity of the 2004 Policy is not moot. We will remand the claim of facial invalidity of the 2004 Policy so it can first be addressed by the district court with its resolution of the as-applied challenge to that policy, which is not before us.

Defendants Lynn Swanson and Jackie Bomchill, Principals at Thomas Elementary School and Rasor Elementary School, urge that the First Amendment does not apply to elementary school students. They and their argument are not before us. While this appeal was pending, the district court denied their separate motion to dismiss based on qualified immunity. That appeal is proceeding.⁶

III

We review a district court's judgment on cross motions for summary judgment de novo,⁷ addressing each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.⁸ We will affirm only if there is no genuine issue of material fact and the party is entitled to prevail as a matter of law.⁹

IV

The district court found the 2005 Policy to be facially valid under United States v. O'Brien,¹⁰ rejecting plaintiffs' contention that the case is controlled by the standard of Tinker v. Des Moines Independent School District—that restrictions be "necessary to avoid material and substantial interference with schoolwork or discipline."¹¹

We have made plain that "time, place, and manner" is the proper standard for evaluating content and viewpoint neutral regulations of student speech¹² and that when a school imposes content or viewpoint based restrictions the court will apply Tinker.¹³ In Canady v. Bossier Parish School Board, we reaffirmed that there were four (arguably now five after Morse) categories of student speech and that "the level of scrutiny applied to regulations of student expression depends on the substance of the message, purpose of the regulation, and the manner in which the message is conveyed."¹⁴ The first four categories are various content based designations drawn from the Tinker line,¹⁵ making essentially the same inquiry: whether, "in light of the special characteristics of the school environment,"¹⁶ the school may impose content or viewpoint based regulations on student speech. The last category of restrictions, the one at issue in Canady, includes those that are content and viewpoint neutral.¹⁷

Canady viewed O'Brien as an application of the time, place, and manner standard.¹⁸ The Supreme Court has recognized their virtual equivalence.¹⁹ By this measure, a regulation must be content and viewpoint neutral, and must be "narrowly tailored to serve a significant government interest, and ... leave open ample alternative channels for communication of the information."²⁰ The regulation need not be the least restrictive alternative, but it must avoid burdening substantially more speech than is necessary to achieve the government's interest.²¹

Plaintiffs argue that the O'Brien standard only applies to expressive conduct and not to "pure speech"; that because distributing written materials is "pure speech," the Tinker "substantial disruption" test must apply. We are unpersuaded that the O'Brien standard, or a nigh-equivalent time, place, and manner standard, is so limited. The Supreme Court has twice applied the test we apply here to leafleting or distribution of written materials. In Heffron v. International Society for Krishna Consciousness, Inc., the Court upheld a regulation preventing Hare Krishnas from distributing their literature at a state fair outside of specifically assigned booths.²² The Court found that the state interest in orderly movements of the crowd was significant and that the regulation was narrowly tailored to meet that end. Likewise, in Hill v. Colorado, in evaluating a restriction on the distribution of handbills (as well as making oral statements and displaying placards) near health care facilities, the Court asked whether the restrictions were "narrowly tailored to serve a significant government interest" and found them valid.²³ Both of these cases address regulation of what is urged here to be "pure speech." As we understand it, the logic of the argument would confine the time, place, and manner standard to regulations of "quintessential public forums" such as sidewalks;²⁴ requiring the state to clear the higher burden of a "substantial disruption" when regulating students. We must disagree. Tinker is triggered by content or viewpoint regulation. That "pure speech" is being regulated is here of no moment.

Morse v. Frederick is not contrary. Nor did Justice Alito's²⁵ observation that he did not understand the majority opinion "to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of ...