Freedom of Speech and Association

Morgan v. Plano Independent School District (2009)


  • May 31 2018

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Issue

Whether prohibitions on student-initiated discussions and distributions of religious materials during non-instructional school hours constitutes a violation of free speech under the First Amendment.

Facts

From 2001 to 2004, school children in the Plano Independent School District PISD distributed to fellow school children, during school hours and while on school property, invitations to church functions, “goodie” bags containing religious messages, and other religious material. Teachers, principals, and other administrators informed the parents and students that distributing such religious material violated PISD policy; some religious material could be displayed or offered in other areas of the school; and some were told that continuing to hand out religious material to other students would result in expulsion or suspension.

In total, plaintiffs brought claims against at least six different PISD employees and officials in their individual capacities based on at least four different occurrences at various PISD campuses. They claimed primarily that the PISD engaged in unconstitutional prior restraint of their free speech and unconstitutional viewpoint discrimination under the First Amendment.

The Court Below

The United States District Court for the Eastern District of Texas was the first to hear the case. The court first recommended that three of the six defendants should be dismissed. The court then upheld the facial validity of most of the school district’s policy. See opinions below:

Morgan v. Plano Independent School District, 2007 WL 580765 2007

Morgan v. Plano Independent School District, 2007 WL 654308 2007

The case then went to the Fifth Circuit, which ruled in favor of the school district, holding that the PISD’s policies were facially constitutional, which allowed for the restriction of non-disruptive speech. See opinion below:

Morgan v. Plano Independent School District, 724 F.3d 579 2009

Morgan then appealed to the US Supreme Court, which denied certiorari. 

Question examined by the Court of Appeals for the Fifth Circuit:

[Whether] the Supreme Court's O'Brien standard, or a nigh-equivalent “time, place, and manner” standard, and not the Tinker “substantial disruption” test, applied in determining the facial validity of the school district's policies restricting the distribution of written materials;

[Whether] under the “time, place, and manner” test, the school district's later policy was reasonable and facially constitutional;

[Whether] the prohibition on distribution of materials in the elementary school cafeterias was facially valid; and

[Whether] given parents' claim for nominal damages, their challenge to the district's earlier policy was not moot.

CCJ filed an amicus curiae brief in support of Morgan

Summary:

The Supreme Court has long recognized the importance of public schools as laboratories for training students in citizenship, from West Virginia Board of Education v Barnette 1943 to Ambach v. Norwick 1979 to Island Trees School District v. Pico 1982. The fact that schools effectively educate the young for citizenship is justification enough for strong protections of students’ liberties. When a school teaches constitutional freedoms in theory, but throws them out the window in practice, they “strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” It is imperative that students learn that the Constitution is not just parchment, but a living reality. Moreover, our future leaders need to be trained through exposure to a meaningful exchange of ideas, not coddled through authoritative selection. Access to, and the freedom to evaluate and understand ideas give students a level of maturity required to effectively participate in an often contentious society. As such, the Court should settle on a standard that allows for the best protection of public schools’ historical role as a cornerstone of responsible citizenship.

Tinker v. Des Moines Independent Community School District and subsequent cases along the lines of Tinker have, for almost forty years, served as the standard by which public schools were able to maintain order while also allowing students to exercise their First Amendment freedoms. Therefore, Tinker preserves the public school’s role as a laboratory of citizenship and checks overzealous school administrators who would squelch the development of good citizens by restricting civilized discourse, a requisite for a successful republic. The essential elements of the Tinker standard are clear and well established. Students have a First Amendment right that is not surrendered when stepping onto school property. Unlike the First Amendment rights of adults, however, the free speech rights of students may be circumscribed “in light of the special characteristics of the school environment.” So, under this standard, a school official may regulate student speech occurring at school if there is reason to believe that the speech will substantially interfere with the work of the school or the rights of other students, if the speech is vulgar, if the speech bears the imprimatur of the school, or if the speech advocates the use of illegal narcotics. Any speech that does not fall under one of these four categories – like respectful political and religious speech – is presumably protected. This standard has been applied in several cases since it was created, and has never granted broad bans on religious and political speech.

For forty years, courts have applied Tinker to find a balance between maintaining order and allowing students to exercise First Amendment freedoms. It has allowed for students to become better laboratories for citizenship. The district court disregarded Tinker and adopted the intermediate scrutiny standard applicable to expressive conduct such as nude dancing or draft-card burning to judge the constitutionality of PISD’s literature distribution policy. It did this because it erroneously concluded that Tinker does not apply to viewpoint-neutral religious speech. A recent Supreme Court decision, however, reaffirmed that Tinker is the proper standard to assess all restrictions of core political and religious speech. The district court relied on Canady v. Bossier Parish School Board, which involves content-neutral uniform policies, to reach its decision to apply the intermediate scrutiny standard. School uniforms constitute expressive speech, and can be incidentally regulated, but do not constitute pure speech, like what is at issue in this case. Because of this, Tinker remains the best precedent for judging time, place, and manner restrictions. This notion is even written into the Tinker opinion. Tinker thus creates its own time, place, and manner standard that permits speech restrictions when necessary to avoid disruption. Tinker ensures that while school officials have great leeway in regulating appropriate time, place, and manner of student speech, they do not allow willy-nilly suppression of core religious and political speech without a reasonable forecast of disruption. In Morse, the Court held that most religious and political speech would be considered offensive by some, and therefore even banning “offensive” speech would not pass muster because it would infringe upon religious and political speech at the core of the First Amendment.

Final Outcome

The Fifth Circuit ruled against the CCJ’s position, holding that the O’Brien “time, place, and manner” test, and not the Tinker “substantial disruption” test, was appropriate for determining the validity of the school district’s policies restricting freedom of speech. The court held that the school’s policies were facially constitutional, as was prohibiting the distribution of materials in an elementary school cafeteria.