713 F.3d 25 (10th Cir. 2013), 11-2242, Taylor v. Roswell Independent School District

Docket Nº:11-2242.
Citation:713 F.3d 25
Opinion Judge:MATHESON, Circuit Judge.
Party Name: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, Plaintiffs-Appellants, v. ROSWELL INDEPENDENT SCHOOL DISTRICT; Michael Gottlieb,
Attorney:Mathew D. Staver, Liberty Counsel, Maitland, FL (Stephen M. Crampton, Mary E. McAlister, and Matthew H. Krause, Liberty Counsel, Lynchburg, VA, and Anita L. Staver, Liberty Counsel, Maitland, FL, with him on the briefs), appearing for Appellants. Jerry A. Walz, Walz and Associates, Albuquerque, N...
Judge Panel:Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.
Case Date:April 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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713 F.3d 25 (10th Cir. 2013)

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, Plaintiffs-Appellants,

v.

ROSWELL INDEPENDENT SCHOOL DISTRICT; Michael Gottlieb, in his capacity as Superintendent of Schools for Roswell Independent School District, Defendants-Appellees.

No. 11-2242.

United States Court of Appeals, Tenth Circuit.

April 8, 2013

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Mathew D. Staver, Liberty Counsel, Maitland, FL (Stephen M. Crampton, Mary E. McAlister, and Matthew H. Krause, Liberty Counsel, Lynchburg, VA, and Anita L. Staver, Liberty Counsel, Maitland, FL, with him on the briefs), appearing for Appellants.

Jerry A. Walz, Walz and Associates, Albuquerque, NM, appearing for Appellees.

Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

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 sued Roswell Independent School District and Superintendent Michael Gottlieb in his official capacity (collectively " the District" ) seeking declaratory and injunctive relief. Their complaint alleged that school officials violated their First and Fourteenth Amendment rights by preventing them from distributing 2,500 rubber fetus dolls to other students. It also challenged the District's policies requiring preapproval before distributing any non-school-sponsored material on school grounds.

A magistrate judge granted summary judgment for the District on all claims, and Plaintiffs appealed.2 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of Plaintiffs' free speech, free exercise, and equal protection claims. We also affirm dismissal of Plaintiffs' facial challenge to Roswell District's preapproval policies. We note that the public school setting is important to our analysis.

I. BACKGROUND

A. Factual History

The five plaintiffs in this case are, or at all relevant times were, students of two high schools, Roswell and Goddard High. They belong to a religious youth group called Relentless, which is affiliated with a local church called Church on the Move. Relentless is not affiliated with any school.

Relentless members testified in depositions that they routinely engaged in religious expression at school. For example, they often spoke to other students, in groups and one-on-one, about their religious beliefs and anti-abortion views; and they regularly prayed, silently and aloud, while on school grounds, including during class. Plaintiffs were never disciplined or asked to stop these activities.

In late 2009, Plaintiffs and other Relentless members began an outreach campaign to express kindness and charity to fellow students and teachers, and to " put God back into the schools." Aplt. Appx., Vol. I at 195. Each week they distributed different items at both schools. A pastor from

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Church on the Move, Tim Aguilar, led the students in organizing and planning these events and was present on school grounds for the distributions. Relentless initially gave 220 McDonald's chicken salad sandwiches (donated by a church member) to the faculty at both high schools. In ensuing weeks, they distributed to students and faculty hot chocolate, candy canes with religious messages, and " affirmation rocks" with scriptural references painted on one side. Aplt. Appx., Vol. IV at 993-95.

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 in any quantity of promotional items or advertisements on campus. A separate, longstanding but unwritten policy required students to obtain permission before on-campus distribution of non-school-sponsored literature. These policies are described in more detail later in this section.

The Relentless students did not seek permission before distributing the previously mentioned items.3 They were not disciplined, reprimanded, or asked to stop. There is no evidence these distributions caused disruption.

1. The Rubber Fetus Doll Distributions

On January 29, 2010, Pastor Aguilar and the Relentless students planned to distribute 2,500 small rubber dolls, one to every student at both schools. Each two-inch doll was designed to be a realistic representation of a human fetus. A card attached to each doll explained that it represented the actual size and weight of a " 12 week old baby," that is, a fetus at 12 weeks of gestation. Aplee. Appx., Vol. I at 22-23. One side of the card encouraged students to visit or call the Chaves County Pregnancy Resource Center, a clinic affiliated with Church on the Move. The other side featured a Relentless 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.

At Goddard High, Pastor Aguilar and eight or nine Relentless students set up tables in the lobby and began the distribution about 7:30 a.m. They approached every student entering the school and offered a doll. The entrances were not blocked, and the Relentless members allowed those who declined to take a doll to continue on their way.

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.4 Aplt. Appx., Vol. I at 175. On his way back to the lobby, Mr. Luck

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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." Aplt. Appx., Vol. IV at 996. 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." Aplt. Appx., Vol. I at 123. 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. Aplt. Appx., Vol. II at 447.

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. A Goddard High administrator announced over the public address system that " [n]othing is to be passed out that is not school related," and warned that " there will be disciplinary actions taken" if the distribution continued. Aplt. Appx., Vol. I at 21. At Roswell High, Principal Bolaños emailed instructions to the faculty that rubber fetuses should be confiscated and any student distributing them should be referred to the administration.

On the same day, other students at Roswell High were allowed to distribute Valentine's Day-related items such as candy, cards, and stuffed animals. [ Id. ] The record does not tell whether any students distributed large quantities of these items or whether they received prior approval. There is no evidence of disturbance from the Valentine's Day-related distributions.

In late February, Relentless's legal counsel sent a written demand to the District that the group be permitted to conduct the fetus doll distribution. Around this time, Superintendent Michael Gottlieb, administrators of both schools, and the

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senior pastor of Church on the Move, Troy Smotherman, met to discuss this issue (the " Gottlieb meeting" ). During the Gottlieb meeting, participants discussed the possibility that Relentless might implement a less controversial message...

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