In a recent decision, the 10th Circuit Court of Appeals upheld a Colorado District Court’s rejection of a student’s First Amendment and Equal Protection claims over a forced apology resulting from her valedictory address. The case, Corder v. Lewis Palmer School District No. 38, No. 08-1293, 2009 U.S. App. LEXIS 11668, results from an unwritten School District rule requiring students to submit their valedictory addresses for content review prior to giving the speech. Erica Corder, one of fifteen valedictorians selected based on their 4.0 GPA, submitted a thirty-second speech, which contained no religious content, to the principal of Lewis Palmer High School for content approval. However, during the graduation ceremony she presented a different speech, telling the students about Jesus Christ and encouraging them to “find out more about the sacrifice He made for you.” As a result of the speech, she was denied her diploma until she issued an apology email, including the statement: “I realize that, had I asked ahead of time, I would not have been allowed to say what I did.” Corder issued the apology email, including the preceding statement, and was awarded her diploma.
Corder then filed suit, asserting claims that the school violated her rights to freedom of speech and religion under the First Amendment, compelled speech in violation of the First Amendment, and violated her right to equal protection under the Fourteenth Amendment based upon the fact that the School District “allowed similarly situated speakers to give inspiring speeches without facing disciplinary action, but disciplined [Corder] because her inspiring speech contained religious elements.” The District Court granted judgment for the School District on the pleadings, and the 10th Circuit affirmed.
There are two aspects of the courts’ reasoning that are particularly troubling for those concerned with restriction of student speech: the holding that Corder’s claims for declaratory relief are moot, and the overly-broad interpretation of “legitimate pedagogical concerns” from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
Beyond nominal damages, Corder sought “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.” Citing Green v. Branson, 108 F.3d 1296 (10th Cir. 1997), the court noted “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.” Since Corder graduated, “[t]he School District no longer has the power or the opportunity to adversely affect Corder’s rights as they pertain to valedictory speeches,” and her demand for declaratory relief is moot. Although the 10th Circuit notes the exception to the mootness doctrine outlined in Murphy v. Hunt, 455 U.S. 478 (1982), for cases that are “capable of repetition, yet evading review,” it specifies that this exception is very narrow, applying only where “there [i]s a reasonable expectation that the same complaining party w[ill] be subjected to the same action again.” (Emphasis added.) Corder, having graduated, will never again be subjected to the School District’s unwritten prior review policy. While legally and analytically sound, this rationale is something of a cop-out – instead of making a determination on the School District’s policy now, the court puts it off until a student refuses to submit his or her speech for prior approval, is denied the opportunity to speak, and then sues. Not only does this seem like a colossal waste of judicial resources, but it’s doubtful that a high school student will have the legal know-how to follow through on this carefully choreographed series of legal moves, nor the dedication to potentially put off graduating for years as the case moves through the court system.
The second disturbing part of the opinion is the continued expansive reading of “legitimate pedagogical concerns” under the Hazelwood test. The 10th Circuit begins by discussing the two approaches to students’ First Amendment rights at school: the Tinker test (393 U.S. 503 (1969)), which only allows suppression of student speech if it will “materially and substantially disrupt the work and discipline of the school,” and the Hazelwood test, which allows for editorial control of student speech in “school-sponsored expressive activities so long as [educators’] actions are reasonably related to legitimate pedagogical concerns.” In Fleming v. Jefferson County School District R-1, 298 F.3d 918 (10th Cir. 2002), the 10th Circuit interpreted Hazelwood broadly by stating that “pedagogical” merely meant any activity that was “related to learning,” and that the concept was “by no means confined to the academic for it includes discipline, courtesy, and respect for authority.” Thus, according to the 10th Circuit, the painting of memorial tiles by students and community members, to be affixed to Columbine High School’s hallways, constituted school-sponsored, pedagogical speech under Hazelwood, and was thus subject to editorial control. Not to be outdone, other courts have interpreted “pedagogical” even more broadly, stating that this test may be satisfied “simply by the school district’s desire to avoid controversy within a school environment.” Under this framework, it is not surprising that the Corder Court found that “[t]he giving of a speech in a community graduation ceremony certainly is a learning opportunity. . . . an opportunity for the School District to impart lessons on discipline, courtesy, and respect for authority.” Of course, to someone not myopically focused on legal doctrine, it is absurd to claim that the School District is imparting “lessons on discipline, courtesy, and respect for authority” when the valedictorians themselves had full control over the content of their speeches (subject, of course, to prior review).
While some may find this decision to be nothing special, such analysis misses the point. The fact that Corder intentionally mislead her principal by submitting a different speech than the one she eventually presented certainly reduces her moral claim. But the 10th Circuit did not address this issue in its discussion of Corder's First Amendment arguments, except to distinguish Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001) in a footnote. Instead, such analysis was confined to the court's discussion of Corder's Fourteenth Amendment Equal Protection claim. Thus, the First Amendment analysis outlined above presumably would apply to any student challenging the prior review policy, whether or not they engaged in Corder-style subterfuge.
Given the Supreme Court’s restrictive view of student speech rights, as exemplified by the recent Morse v. Frederick, 551 U.S. 393 (2007) decision – better known as the “BONG HiTS 4 JESUS” case – it is not surprising that the circuit courts should also err on the side of over-restricting student speech. Yet it seems that a more extensive use of the Tinker test would more appropriately serve the dual interests of students and educators – granting students the greatest freedom to voice their opinion and speak their mind while preventing disruptions to the learning environment. How do we reconcile a society that values free discourse and the open marketplace of ideas with an increasing restriction of student speech, even outside of the school environment?
(Lee Baker is a rising second-year law student at Harvard Law School and a CMLP legal intern.)