Fleming v. Jefferson County School Dist. R-1

• Decision Date: 27 June 2002
• Docket Number: No. 01-1512.,01-1512.
• Citation: 298 F.3d 918
• Parties: Donald F. FLEMING; Deidra A. Fleming; Lisa M. Maurer; Brian E. Rohrbough; Susan A. Petrone; Richard P. Petrone, (individually), and Nicole M. Petrone, a minor child, by and through her father and next friend Richard P. Petrone, Plaintiffs-Appellees, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, a Colorado Quasi-Municipal corporation, Defendant-Appellant, and Jon DeStefano, Tori Merritts, David R. Digiacomo, Debby Oberbeck and Vince Chowdhury, individually and in their official capacities, Defendants, American Center for Law and Justice, Christian Legal Society, Catholic League for Religious and Civil Rights, Ethics and Religious Liberty Commission, Family Research Council, Focus on the Family, National Association of Evangelicals, and the Navigators, Amici curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

298 F.3d 918

Donald F. FLEMING; Deidra A. Fleming; Lisa M. Maurer; Brian E. Rohrbough; Susan A. Petrone; Richard P. Petrone, (individually), and Nicole M. Petrone, a minor child, by and through her father and next friend Richard P. Petrone, Plaintiffs-Appellees, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, a Colorado Quasi-Municipal corporation, Defendant-Appellant, and Jon DeStefano, Tori Merritts, David R. Digiacomo, Debby Oberbeck and Vince Chowdhury, individually and in their official capacities, Defendants American Center for Law and Justice, Christian Legal Society, Catholic League for Religious and Civil Rights, Ethics and Religious Liberty Commission, Family Research Council, Focus on the Family, National Association of Evangelicals, and the Navigators, Amici curiae.

No. 01-1512.

United States Court of Appeals, Tenth Circuit.

June 27, 2002.

As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc August 16, 2002.

W. Stuart Stuller (Alexander Halpern and Susan S. Schermerhorn of Caplan and Earnest LLC, Boulder, CO, with him on the briefs) for Defendant-Appellant.

James P. Rouse (Steven H. Aden of The Rutherford Institute, Charlottesville, VA, and William Scott Johns, Louisville, CO, with him on the brief) of Rouse & Associates, P.C., Greenwood Village, CO, for Plaintiffs-Appellees.

Stuart J. Lark and Gregory S. Baylor of Center for Law and Religious Freedom, Christian Legal Society, Annandale, VA, for Christian Legal Society, Catholic League for Religious and Civil Rights, Ethics and Religious Liberty Commission, Family Research Council, Focus on the Family, National Association of Evangelicals and The Navigators, amici curiae in support of Plaintiffs-Appellees.

Gregory N. Bryl, David A. Cortman, Stuart J. Roth, and Jay Alan Sekulow of American Center for Law and Justice, Alexandria, VA and Washington, DC, for The American Center for Law and Justice, amicus curiae in support of Plaintiffs-Appellees.

Before EBEL, HENRY and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant, Jefferson County School District ("the District"), appeals the district court's judgment granting declaratory and injunctive relief to Plaintiffs-Appellees, Donald Fleming et al. The district court entered judgment for the Plaintiffs, holding that the District's guidelines governing a tile painting project at Columbine High School ("CHS") violated the Plaintiffs' constitutional rights under the Free Speech Clause of the United States Constitution.¹ It issued an injunction ordering the District to (1) provide an opportunity for some of the Plaintiffs to paint the tiles they wished to paint but were precluded from doing so under the guidelines and (2) post Plaintiffs' tiles that were painted but not posted because they did not comply with the guidelines. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse and remand.

I. Background

On April 20, 1999, two CHS students, Eric Harris and Dylan Klebold, entered the school and shot numerous students and teachers. They killed twelve students, including Daniel Rohrbough and Kelly Fleming, and one faculty member before taking their own lives. Upon deciding in the summer of 1999 to reopen the school, the District recognized that the "prospect of reintroducing students to the CHS building posed significant mental health challenges." "School officials made a concerted effort to change the appearance of the building to avoid incorporating sensory cues that could reactivate memories of the attack." School officials also sought ways to reacquaint students with the building. The CHS librarian, Elizabeth Keating, and art teacher, Barbara Hirokawa, proposed a project in which students would create "abstract artwork on 4-inch-by-4-inch tiles" that would be glazed, fired, and installed above the molding throughout the halls of the school.² The press release for the project stated that the project would serve "two purposes": "Students will have another opportunity to come into the school and become more comfortable with the surroundings. By participating in creating the tile art, they will also be a part of reconstruction of their school."

Ms. Keating and Ms. Hirokawa received approval for the expanded tile project from the area administrator, Barbara Monseu, who consulted with other administrators, including persons coordinating mental health efforts. "To assure that the interior of the building would remain a positive learning environment and not become a memorial to the tragedy, Ms. Monseu directed that there could be no references to the attack, to the date of the attack, April 20, 1999, or 4/20/93 [sic], no names or initials of students, no Columbine ribbons, no religious symbols, and nothing obscene or offensive." Tiles that did not conform to the guidelines were not to be hung. The tiles and supplies to be used in the tile project were paid for by private donations to the Jefferson Foundation and the Columbine Memorial Account. These donation monies were to be used at the discretion of CHS administrators.

During the summer of 1999, the District invited additional members of the affected community to participate in the tile project. In addition to current and incoming students, family members of the victims, rescue workers who responded to the shooting, and health care professionals who treated the injured were invited to paint tiles. The district court found that the purpose of the tile project was to "assist in community healing by allowing the community to `retake' the school by participating in its restoration." Rescue workers and other community members who responded to the shooting painted tiles at a session in August, and the district court found that "hundreds" of people participated in this session. CHS graduates from 1998-1999, as well as people attending the CHS 1989 reunion, were also allowed to paint tiles. All of the invited participants had some relationship to the school or the shooting.

CHS teachers supervised the tile painting sessions and informed the participants of the guidelines, but did not give them written copies of these guidelines. School officials set up a table at the entrance of the painting area with examples and posters of acceptable tile designs, but did not identify specific symbols that would be prohibited as religious expression.

The Plaintiffs expressed dissatisfaction with the guidelines, and told the CHS instructors supervising the painting that they wished to paint the names of their children and religious symbols on their tiles. These tiles contained messages such as "Jesus Christ is Lord," "4/20/99 Jesus Wept," "There is no peace says the Lord for the wicked," names of victims killed in the shooting, and crosses. The teachers supervising the painting session told some of the Plaintiffs that they could paint the tiles as they wished, but "informed them that tiles that were inconsistent with the guidelines would be fired separately and would not be affixed to the walls, but would be given to them for their personal use."

The tiles were to be screened for compliance with the guidelines before they were sent to be fired and glazed, but due to the volume of tiles, some that were inconsistent with the guidelines escaped review. In addition to screening the tiles prior to firing them, CHS teachers instructed parent volunteers affixing the tiles to the walls not to post tiles that did not comport with the guidelines. If the volunteers had questions about whether a tile was appropriate, they were told to put it to the side. Ms. Monseu inspected the building after the tiles were affixed and noticed that some inappropriate tiles had been posted. The tiles were reviewed again, and approximately eighty to ninety tiles that were inconsistent with the guidelines were removed, out of a total of 2,100 tiles that had been put on the walls. These tiles included ones with crosses, gang graffiti, an anarchy symbol, a "Jewish star," angels, the blue Columbine ribbon, a skull dripping with blood, the art teacher's name on the tile she painted, the date 4-20, and a mural containing red colors that were disturbing to some people.

A meeting was held in early September with the Plaintiffs and families of the victims, during which Ms. Monseu relaxed the restrictions that had previously been imposed, telling them that they could paint tiles with their children's names and initials, dates other than 4-20, and the Columbine ribbon, but that they could not paint religious symbols, the date of the shooting, or anything obscene or offensive. None of the Plaintiffs went to the school to repaint any tiles after this change of policy because "they had made their expressions previously or been denied the opportunity to paint the tiles they wanted to paint." Plaintiffs then brought this suit under 42 U.S.C. §§ 1983 and 1988 for an alleged violation of their free speech rights and the Establishment Clause.³ The district court granted judgment for the Plaintiffs on their free speech claim under the United States Constitution, and the District brought this appeal.

II. Discussion

A. Standard of Review

In cases involving activity that may be protected under the Free Speech Clause, "an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Lytle v. City of Haysville, 138 F.3d 857, 862 (10th Cir.1998) (internal quotation marks omitted). The district court's findings of constitutional fact are reviewed de novo, as are its ultimate conclusions of constitutional law. Revo v. Disciplinary Bd. of the Sup. Ct. for the State of N.M., 106 F.3d 929, 932 (10th Cir.1997). Other factual findings, however, are reviewed for clear error. Brown v. Palmer, 915 F.2d 1435, 1441 (10th Cir.1990), aff'd on reh'g, 944 F.2d 732 (10th Cir.1991) (en banc).

We reject Appellees' assertion that our standard of review on...