Corder v. Lewis Palmer School Dist. No. 38

• Decision Date: 29 May 2009
• Docket Number: No. 08-1293.,08-1293.
• Citation: 566 F.3d 1219
• Parties: Erica CORDER, Plaintiff-Appellant, v. LEWIS PALMER SCHOOL DISTRICT NO. 38, Defendant-Appellee. The National Legal Foundation, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

566 F.3d 1219

Erica CORDER, Plaintiff-Appellant, v. LEWIS PALMER SCHOOL DISTRICT NO. 38, Defendant-Appellee The National Legal Foundation, Amicus Curiae.

No. 08-1293.

United States Court of Appeals, Tenth Circuit.

May 29, 2009.

Stephen M. Crampton (Mary E. McAlister, Liberty Counsel, Lynchburg, VA; Mathew D. Staver, Liberty Counsel, Maitland, FL, with him on the briefs), of Liberty Counsel, Lynchburg, VA, for Plaintiff-Appellant.

W. Stuart Stuller of Caplan and Earnest LLC, Boulder, CO (Kristin C. Edgar with him on the brief), for Defendant-Appellee.

Steven W. Fitschen, Virginia Beach, VA, (Douglas E. Myers with him on the brief), filed an amicus curiae brief for The National Legal Foundation.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff-Appellant Erica Corder appeals the grant of Defendant-Appellee Lewis Palmer School District No. 38's ("School District") Fed.R.Civ.P. 12(c) motion for judgment on the pleadings. Corder brought claims under the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Colo.Rev. Stat. § 22-1-120, stemming from the School District's response to Corder's valedictory speech at her high school graduation.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court.

I

Corder was a student at Lewis Palmer High School and one of fifteen students named as class valedictorian for her 2006 graduating class. In most previous years, the valedictorians were each permitted to give a short speech at the school's graduation ceremony. Prior to Corder's graduation ceremony, the school principal informed the valedictorians that they could decide whether all of the fifteen valedictorians, or a subset thereof, would deliver the valedictory message. The valedictorians decided that each of them would speak for approximately thirty seconds, and they decided on a general topic for the speeches. However, before a valedictorian would be allowed to present his or her speech at graduation, the principal required each valedictorian to present his or her speech to him for his review of the speech's content. The principal did not provide any further instruction concerning the conduct or content of the speeches.

The School District has a written policy governing student expression which prohibits a variety of types of speech such as slander and profanity, as well as speech that "[t]ends to create hostility or otherwise disrupt the orderly operation of the educational process." Aplt.App. at 11, ¶ 26. The policy makes no reference to religious speech. Further, the written policy does not require students to submit their proposed expression for review or approval. Application of the School District's written policy governing student expression is not at issue in this case, but rather Corder challenges the School District's unwritten policy of requiring students to submit their valedictory speeches for content review prior to presentation.

As required, Corder presented her speech to the school principal for his review prior to the graduation ceremony. The speech she gave to the principal for review did not mention religion. At the graduation ceremony, however, Corder gave a different speech. This is the speech she gave:

Throughout these lessons our teachers, parents, and let's not forget our peers have supported and encouraged us along the way. Thank you all for the past four amazing years. Because of your love and devotion to our success, we have all learned how to endure change and remain strong individuals. We are all capable of standing firm and expressing our own beliefs, which is why 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. And we also encourage you, now that we are all ready to encounter the biggest change in our lives thus far, the transition from childhood to adulthood, to leave Lewis-Palmer with confidence and integrity. Congratulations class of 2006.

Id. at 11-12, ¶ 30. At the conclusion of the graduation ceremony, Corder was escorted to see the assistant principal. The assistant principal told Corder that she would not receive her diploma and that she had to make an appointment to see the principal.

Corder and her parents met with the principal five days later. Corder understood from the principal that she would not receive her diploma unless she publicly apologized for her valedictory speech. Corder did not apologize for the content of her speech, but prepared a written statement explaining that her statement reflected her own personal beliefs and was made without the principal's prior approval. The draft submitted by Corder is as follows:

At graduation, I know some of you may have been offended by what I said during the valedictorian speech. I did not intend to offend anyone. I also want to make it clear that [the principal] did not condone nor was he aware of my plans before giving the speech. I'm sorry I didn't share my plans with [the principal] or the other valedictorians ahead of time. The valedictorians were not aware of what I was going to say. These were my personal beliefs and may not necessarily reflect the beliefs of the other valedictorians or the school staff.

Id. at 13, ¶ 43. The principal required Corder to insert the following sentence into the statement: "I realize that, had I asked ahead of time, I would not have been allowed to say what I did." Id. at 13-14, ¶ 44. Corder agreed to include the sentence because the principal said he would not give Corder her diploma unless she added the sentence. Corder's statement was distributed via e-mail, and Corder received her diploma.

Corder filed suit, asserting the following claims: (1) violation of freedom of speech under the First Amendment; (2) compelled speech in violation of the First Amendment; (3) violation of the right to equal protection under the Fourteenth Amendment; (4) violation of freedom of religion under the First Amendment; (5) violation of Colo.Rev.Stat. § 22-1-120; and (6) violation of the Establishment Clause of the First Amendment.¹ Corder sought nominal damages and injunctive relief. After the School District filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(b)(1) and (c) and the parties conducted limited discovery and then filed cross-motions for summary judgment, the district court granted the School District's motion for judgment on the pleadings.

II Standard of Review

We review a dismissal granted under Fed.R.Civ.P. 12(c) "under the standard of review applicable to a Rule 12(b)(6) motion to dismiss." Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir.2005) (internal quotations omitted). "This court reviews de novo the district court's grant of a motion to dismiss pursuant to Rule 12(b)(6), applying the same legal standard applicable in the district court." Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.2007). "In reviewing a motion to dismiss, this court must look for plausibility in the complaint." Id. (internal quotations omitted). "Under this standard, a complaint must include `enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). "The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief."² Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008).

Mootness

In addition to a request for nominal damages, Corder's complaint seeks a declaration that the School District violated Corder's First Amendment and Equal Protection rights, and a declaration that the School District's unwritten policy of reviewing student graduation speeches is unconstitutional. Corder's complaint also seeks a permanent injunction against enforcement of that unwritten policy.³ The School District argued before the district court that Corder's claims for declaratory and injunctive relief are moot, and the district court agreed.⁴

Although we have jurisdiction over appeals from all final decisions of federal district courts, 28 U.S.C. § 1291, we have no subject matter jurisdiction over a case if it is moot. Unified Sch. Dist. No. 259, Sedgwick County, Kan. v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1146-47 (10th Cir.2007). "Constitutional mootness doctrine is grounded in the Article III requirement that federal courts may only decide actual, ongoing cases or controversies." Seneca-Cayuga Tribe v. Nat'l Indian Gaming Comm'n, 327 F.3d 1019, 1028 (10th Cir.2003) (internal quotations and alteration omitted). "It is well established that what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion—is the settling of some dispute which affects the behavior of the defendant toward the plaintiff. Hence, this court has explained that 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) (internal quotations, citations and alterations omitted). We review de novo the question of whether a case is moot. Prier v. Steed, 456 F.3d 1209, 1212 (10th Cir.2006).

"We have previously held that `when an individual graduates from school there no longer exists a live controversy necessary to support an action to participate in interscholastic activity.'" Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir.2007) (quoting Bauchman v. W. High Sch., 132 F.3d 542, 548 (10th Cir.1997)). In Bauchman, a Jewish high school student challenged her choir...