The 16th Annual
National High School
Moot Court Competition
March 20-22, 2015 ∞ Washington, DC
American University Washington College of Law
OFFICIAL PROBLEM
No. 10-2042
In The
Supreme Court of the United States
November Term 2010
MARIA ANDREWS,
PETITIONER,
V.
RICHARD BELDING,
RESPONDENT.
On Writ of Certiorari to the
United States Court of Appeals for the Fourteenth Circuit
JOINT APPENDIX
TABLE OF CONTENTS
United States District Court Opinion and Order ............................................................................. 3
United States Court of Appeals Opinion ......................................................................................... 9
Order Granting Certiorari .............................................................................................................. 14
Supreme Court Brief for the Petitioners ........................................................................................ 15
Supreme Court Brief for the Respondents..................................................................................... 26
Case Summaries ............................................................................................................................ 38
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PODUCK
____________________________________
MARIA ANDREWS,
)
)
Petitioner,
)
)
v.
)
)
RICHARD BELDING,
)
)
Respondent.
)
____________________________________)
Civil Action No. 123-10
MEMORANDUM OPINION AND ORDER
June 1, 2010
JOHNSON, District Judge.
The Plaintiff, Maria Andrews, brings this action against the Defendant, Principal Richard
Belding, alleging violations of her rights under the First Amendment to the United States
Constitution. Maria Andrews claims that Principal Belding unlawfully suspended her and
prohibited her from running for school president for wearing a tuxedo to school.
A weeklong trial on the merits was held on May 24-28, 2010. Upon hearing arguments
from both parties, this Court finds in favor of the PLAINTIFF, Maria Andrews.
FACTS
Maria Andrews is a junior at Hendricks High School, which is located in the judicial
district of Poduck. During her junior year of high school, Maria was the Vice President of the
student body as well as an active and popular student. As Vice President, Maria was given the
opportunity to speak at monthly student assemblies.
Maria addressed the school on three
occasions prior to April 2010: once to announce a new snack and drink machine in the cafeteria,
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once on behalf of an initiative by the Muslim Student Society to raise money, and a third time to
raise awareness and money for new equipment for the girls’ field hockey team.
On April 1, advance copies of the yearbook were available for students to review. That
day, several members of the student body, including Maria, became aware of the absence of
Amber Greene’s photo in the yearbook. Maria learned from other students that Amber wore a
tuxedo to school on Student Picture Day in September 2009. School administrators did not
permit the yearbook to print Amber’s photo, and instead, printed a silhouette with the words
“PHOTO UNAVAILABLE.” That afternoon, Maria went to the yearbook office to talk with
Ms. Miller, her teacher and the yearbook advisor. Ms. Miller was not there, but Amber was
sitting in the office. Amber said to Maria, “I can’t believe they didn’t print my picture. It’s not
like I was wearing anything vulgar or offensive. I really wanted to wear a tux, you know, it’s so
easy to get lost in the crowd here and I wanted to be different. And now I’m not even there at
all.”
At Hendricks High, the month of April is usually very busy, both with standardized
testing and preparation for Advanced Placement (AP) examinations given in May. Normally,
campaigning for student body elections is relatively calm, with students given the opportunity to
make a speech at the April assembly and display up to three posters in designated areas
throughout the school. This year, however, the presidential race was hotly contested, as Maria
ran against Kevin Hamm, the star quarterback of the football team and one of the school’s most
successful students. Kevin’s parents are both doctors and openly declared that they would spare
no expense to see their son elected. The election was scheduled for May 5.
To help her campaign, Maria began a series of initiatives to promote her name throughout
the school. During the April school assembly, she announced her candidacy and her “See the Big
4
Picture” platform.
On April 10, Maria’s Uncle Carlos, the owner of Casual and Classy
Eveningwear by Carlos, visited Hendricks High to tell students that he would be offering
discount tuxedo rentals to anyone who came into the store and mentioned Maria’s name. The
thirty-five percent discount was immediately popular with Hendricks High students.
Two days later, on April 12, Principal Belding, in response to student demand to hear
from the candidates, held an additional student assembly. There, Maria took the stage, holding a
copy of the yearbook. “Hendricks High is a great place for most of us to go to school,” she said,
“but with me as the President, it will finally be a great place for everyone to go to school. I want
to improve things for everyone at the school, from the sports teams to the clubs to the individual
students. Vote for me, because I think it is important for everyone to see the big picture. The
whole picture.” On April 13, Maria handed out flyers in school. Printed on one side of the flyer
was the phrase:
“Maria for President:
See the Big Picture.”
On the reverse was an
advertisement for Casual and Classy Eveningwear by Carlos. The flyer contained Carlos’ earlier
offer of thirty-five percent off tuxedo rentals for any student who mentioned Maria’s name.
On Monday, April 21, Maria attended school dressed in a tuxedo. She attended all of her
classes and passed out some additional campaign flyers. The day was largely uneventful, except
for the senior prank. Teachers had to escort a large and ornery cow from the third floor of the
school. Principal Belding suspected that Kevin Hamm was involved in the cow prank. On
Tuesday, April 22, Maria again wore a tuxedo to school. During her second period chemistry
class, a student, Walter MacArthur, sent her a text message that said, “what’s with the tux?”
In response, she passed him one of her flyers with “Isn’t it obvious?” written in the top
margin. Mr. Alvarez, the teacher, noticed Maria pass the note and took it from Walter’s desk.
5
Mr. Alvarez crumpled it up and threw it in the trash. Upset, Walter asked Mr. Alvarez
why he threw the note out, adding, “It’s not like we are bothering anyone.” Mr. Alvarez,
addressing the entire class, then stated “At this crucial time of the year, as we prepare for AP
examinations, I cannot tolerate even minor disruptions.” The remainder of the class proceeded
without incident.
On Wednesday, April 23, Maria again wore a tuxedo to school. During English class, her
teacher, Mr. George, called on Maria to present an essay she had written on Macbeth. He told
the class that he believed there would be questions on the upcoming AP exam on Macbeth, and
since Maria had written a good essay, he thought the class would benefit from hearing it. The
class, however, did not pay much attention during Maria’s presentation. Mr. George stopped
Maria twice to discipline students who were laughing or whispering to each other about Maria’s
outfit. Maria made it to the end of her presentation shortly before the end of class.
At that point, Mr. George asked Maria to step out in the hallway. He said that her choice
of clothing was a “serious disturbance,” and asked her to wear “something normal” to school
from then on. He explained to her that AP examinations are an important part of school and that
he hoped Maria would “understand that other students are having a hard time handling a girl
wearing a tuxedo to school.” Before Maria could respond, the bell rang, and she walked away.
The following day, during lunch, Mr. George informally addressed a group of teachers
gathered in the teachers’ lounge. He said, “Has anyone else had a problem with this Maria
Andrews wearing a tuxedo to school? I don’t know about anyone else, but she’s causing a
constant problem in my classroom. The rest of the kids won’t pay attention to me, and it’s not
fair to me or anyone else to have to put up with this cross-dressing nonsense. I think it’s time we
all do something about this.”
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Ms. Miller then addressed the teachers. “I’m worried about tomorrow. We have a big
AP review planned, and the students in my class are going to have the same problems as the
students in your class, Mr. George,” she said. “I don’t really think we can afford to have a
disturbance.” Mr. George then asked Mr. Alvarez, who was seated in the back of the room but
had not said anything, for his opinion. “I don’t see a problem here,” Mr. Alvarez stated. “These
are just kids being kids. Leave them alone and focus on teaching.”
The next day, Friday, Maria again wore a tuxedo, and Ms. Miller refused to let Maria into
first period government class. “We are having an important review today, and I can’t risk
anything disrupting it,” she said. Ms. Miller then sent Maria to the principal’s office. There,
Principal Belding informed Maria that her choice to wear a tuxedo was disruptive and would not
be tolerated. She was suspended for five days and told she would not be permitted to run for
student body president for the following year.
Maria sued Principal Belding, alleging that he violated her right to free expression, which
is protected by the First Amendment, by suspending her for wearing a tuxedo.
DISCUSSION
While the First Amendment rights of students in school have been examined in great
detail, this case presents a new and unique set of circumstances. Yet, this Court is of the opinion
that the case can be resolved in line with existing case law governing the rights of student
expression through their dress.
First, there is no question that Maria’s conduct can fairly be considered “speech.” Spence
v. Washington, 418 U.S. 405, 410-11 (1974). The closest analogy in the case law to the present
case is Tinker v. Des Moines Indep. Cnty. School Dist., 393 U.S. 503 (1969). In Tinker, students
wore black armbands to school to protest the Vietnam War. Id. at 504. Here, Maria wore a
7
tuxedo to school to protest the censoring of Amber Greene’s picture in the yearbook and to show
solidarity with Amber. The resemblance to Tinker is clear, and as such, Maria’s conduct should
be considered speech.
Equally clear to this Court is the fact that Principal Belding violated Maria’s free speech
rights under the First Amendment. Again, Tinker provides the proper guidance. The Tinker
Court held that student speech that does not pose a “material and substantial” disruption to the
academic environment cannot be prohibited by school administrators. Id. at 513. In the present
case, there is no evidence to suggest that Maria posed a “material and substantial” disruption to
the academic environment at Hendricks High School. While it may be true that her teachers
were interrupted on one or two occasions, that certainly does not rise to the level of serious
disruption contemplated in Tinker. Rather, the circumstances described at Hendricks High
appear to be more like the everyday antics commonplace at any high school in the nation, and
this Court is hesitant to give schools more power than necessary to deal with behavior issues.
Accordingly, this Court finds in favor of the PLAINTIFF, Maria Andrews.
IT IS SO ORDERED.
________
/s/ _____
WILLIAM JOHNSON
United States District Judge
District of Poduck
8
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
____________________________
Richard Belding,
Appellant,
v.
No. 10-2042
Maria Andrews,
Appellee.
____________________________
Appeal from the United States District Court
For the District of Poduck
William Johnson, District Judge
(Civil Action No. 123-10)
Argued: August 1, 2010
Decided and Filed: August 10, 2010
Before ALEXANDER, Chief Judge, BUCKMAN and POWELL, Circuit Judges.
OPINION
BUCKMAN, Circuit Judge:
Richard Belding appeals the ruling of the United States District Court for the District of
Poduck (“District Court”) finding in favor of Maria Andrews. The District Court found that
Principal Belding violated Maria’s First Amendment rights by suspending her for wearing a
tuxedo to school. For the reasons set forth below, this Court REVERSES the ruling of the
District Court.
DISCUSSION
The District Court was correct to note that this case presents a novel twist to a familiar
legal issue. The District Court was incorrect, however, to summarily find in favor of Maria
9
Andrews. Quite frankly, nothing in this case is “simple” or “clear,” despite the District Court’s
characterization of the issues. We will first address the issue of symbolic speech before moving
to the issue of the disturbance that Maria caused.
a.
Symbolic Speech
First, it is not clear that Maria was engaging in conduct that can properly be considered
speech within the scope of the First Amendment. The Supreme Court has rejected the notion
that “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person
engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S.
367, 376 (1968). Conduct is considered symbolic speech when two things are present. First, the
“speaker” must intend to convey a particularized message. Second, it must be likely that those
viewing the message would understand it. Spence v. Washington, 418 U.S. 409, 410-11 (1974).
In making this determination, context plays an extremely important role, “for the context may
give meaning to the symbol.” Id. at 410.
Spence presented a clear situation in which conduct was considered speech. In Spence, a
man hung an American flag, upside-down and adorned with a peace sign, in his front window.
The petitioner was convicted under a Washington law that prevented the “improper use” of a
flag. He appealed his conviction on the grounds that the law violated his right to free speech.
The Supreme Court found in favor of Mr. Spence, mostly because the Court considered his
conduct to be deliberately expressive within the meaning of the First Amendment.
The Court found that Mr. Spence was conveying a particular message—namely, his
protest of American military invasions into Cambodia during the Vietnam conflict and the
killings at Kent State University. The fact that these events occurred in the days immediately
prior to Mr. Spence hanging the flag in his window made it highly likely that others viewing the
10
flag would know what it meant. In that context, hanging a flag with a peace sign on it upsidedown was considered speech.
The case currently before this Court is not as clear as Spence. However, Maria’s decision
to wear a tuxedo to school satisfies the first prong of the Spence test. She intended to convey a
particular message—namely, that the school was wrong to censor the yearbook and not print the
picture of Amber Greene. Maria began wearing the tuxedo to school shortly after learning about
Amber’s photo being censored. Maria also ran for president on the “See the Big Picture”
platform and addressed the student body holding a yearbook. In this context, then, same as in
Spence, the facts support Maria’s argument that she intended to convey a particularized message.
On the other hand, it is not clear that Maria’s message, communicated through her choice
of clothing, was likely to be understood by those who viewed her clothing. It is entirely possible,
for example, that other students thought Maria was wearing a tuxedo to gain attention for her
campaign for student body president. Furthermore, it is also possible that the other students
would believe that she was trying to help out her uncle.
The note she passed to Walter
MacArthur does not make it clear that she satisfied the Spence test. First, only one student saw
her handwritten note, after which it was immediately destroyed. Second, the meaning of the
handwritten note she passed to Mr. MacArthur was ambiguous.
Third, in addition to the
handwritten note, the flyer contained two other messages: (1) “Vote for Maria,” and (2) rent a
tuxedo from Carlos.
When balancing these countervailing factors, context is the key to this court’s decision,
just as in Spence. Maria only began wearing a tuxedo after learning about Amber Greene’s
yearbook from other students. Maria took the stage, in front of the entire student body, holding a
copy of the yearbook and saying, “It is important for everyone to see the big picture. The whole
11
picture.” Consequently, this Court is of the opinion that Maria’s message was likely to be
understood by those who viewed it, and Maria’s wearing a tuxedo to school is therefore speech
within the meaning of the First Amendment.
b.
Disruption of School
Deciding if conduct is symbolic speech, though, is only the first of two issues that must
be addressed. When a school is faced with a material and substantial disruption caused by
student speech, school administrators can take steps to restrict that speech. Tinker v. Des Moines
Indep. School Dist., 393 U.S. 503, 509 (1969). Principal Belding’s decision to suspend Maria
was permissible within the standard outlined in Tinker. April is an extremely important time of
the year at Hendricks High, as students take standardized exams and prepare for AP
examinations. During this extremely important time, Hendricks High administrators were faced
with disciplinary issues stemming from Maria’s decision to wear a tuxedo to school. Her
clothing caused her teachers, on multiple occasions, to have to stop class and address a
disturbance. Her clothing also distracted a large group of students and prevented them from
focusing on their studies. Maria’s clothing caused a material and substantial disruption of the
educational environment; Principal Belding was justified in restricting her speech.
CONCLUSION
This Court is aware that students do in fact have free speech rights in school. However,
in the context of a school, student speech that materially and substantially disrupts class work
can and must be prohibited to ensure the orderly operation of the educational process. It is with
this in mind that this Court determines that Maria Andrews posed a material disruption to the
academic environment by wearing a tuxedo to school. As a result, the ruling of the District
Court is REVERSED.
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ALEXANDER, Chief Judge, dissenting:
I write separately from my colleagues because I do not believe Principal Belding had a
sufficient reason for preventing Maria Andrews from wearing a tuxedo to school. First, several
of the comments made by her teachers seem to suggest that the real problem was not caused by
Maria wearing a tuxedo; rather, it was the fact that the other students had a problem with her
choice of clothing. It does not seem fair to me that Maria should be punished for the immaturity
of her peers.
Second, and most importantly, the decision to suspend Maria seems to have been based
on the concern that her choice of clothing might cause a disturbance in the future. As the Court
in Tinker stated, however, “undifferentiated fear or apprehension of disturbance is not enough to
overcome the right to freedom of expression.” 393 U.S. at 508. Because it appears to me that
Principal Belding suspended Maria based on fear or apprehension of a disturbance, I cannot
agree with my colleagues and write separately in dissent.
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No. 10-2042
In the
Supreme Court of the United States
November Term 2010
MARIA ANDREWS,
PETITIONER,
V.
RICHARD BELDING,
RESPONDENT.
ORDER GRANTING CERTIORARI
Petition for writ of certiorari to the United States Court of Appeals for the Fourteenth
Circuit is GRANTED. The parties are directed to argue on the following question:
1. Whether suspending a female high school student for wearing a tuxedo to school violates
her rights under the First Amendment.
Petitioner Maria Andrews shall present argument first.
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No. 10-2042
In The
Supreme Court of the United States
November Term 2010
MARIA ANDREWS,
PETITIONER,
V.
RICHARD BELDING,
RESPONDENT.
On Writ of Certiorari to the
United States Court of Appeals for the Fourteenth Circuit
BRIEF FOR THE PETITIONER
15
QUESTION PRESENTED
1.
Does the First Amendment permit a high school principal to suspend a female student
who wore a tuxedo to school as a protest measure when the only disturbances
allegedly caused by the student’s outfit were some giggling and note-passing?
16
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... 18
STATEMENT OF THE CASE ...................................................................................................... 19
SUMMARY OF THE ARGUMENT............................................................................................. 19
I.
By wearing a tuxedo to school, Maria Andrews intended to communicate a message
of solidarity with Amber Greene in a manner that made it highly likely that others
would understand her message .................................................................................... 20
A. By wearing a tuxedo, Maria Andrews conveyed a clear message of solidarity with
Amber Greene ....................................................................................................... 20
B. In the context of Hendricks High School, other students were likely to understand
Maria Andrews’s message ..................................................................................... 21
II.
Maria Andrews did not materially or substantially disrupt the educational
environment of Hendricks High School by wearing a tuxedo to school, and her
suspension was based on fear or apprehension of a disturbance ................................. 22
A. Maria Andrews did not materially or substantially disrupt the educational
environment of Hendricks High School by wearing a tuxedo to school, and her
suspension was based on fear or apprehension of a disturbance ........................... 23
B. Principal Belding wrongly suspended Maria Andrews solely based on fear of a
disturbance ............................................................................................................. 24
CONCLUSION ............................................................................................................................. 25
17
TABLE OF AUTHORITIES
Cases:
Barber ex rel. Barber v. Dearborn Public Schools,
286 F. Supp. 2d 847 (E.D. Mich. 2003)............................................................................. 23
Spence v. Washington,
418 U.S. 405 (1974) .................................................................................................... 20, 21
Tinker v. Des Moines Independent School District,
393 U.S. 503 (1969) ................................................................................................... passim
United States v. O’Brien,
391 U.S. 367 (1968) .......................................................................................................... 22
West Virginia Bd. of Ed. v. Barnette, ..................................................................................... 19, 20
319 U.S. 624, 637 (1943)
Other Authorities:
U.S. Const. amend. I ...................................................................................................................... 20
18
STATEMENT OF CASE
The parties agree to the facts as detailed by the District Court of Poduck and will argue
based on these facts.
SUMMARY OF THE ARGUMENT
Petitioner, Maria Andrews, files this brief to request that the ruling of the United States
Court of Appeals for the Fourteenth Circuit be overturned. Upon discovering that Hendricks
High School omitted the yearbook photo of a fellow student, Amber Greene, for wearing a
tuxedo in the picture, Maria began to support Amber as best she could. Maria used every
possible avenue available to her to spread her message of support for Amber. She used her
presidential campaign as a soapbox to speak for Amber’s cause and wore a tuxedo to school to
show her solidarity.
Maria made her message clear through her speeches and her explanation of why she was
wearing a tuxedo. Maria’s fellow students understood her message, and her message did not
cause a distraction to the educational environment. Accordingly, by suspending Maria for five
days and forcing her to drop out of the student body president race, Principal Belding violated
Maria’s First Amendment right to free expression.
ARGUMENT
Public schools are charged with “educating the young for citizenship.” West Virginia Bd.
of Ed. v. Barnette, 319 U.S. 624, 637 (1943). Although schools may limit student speech to a
certain extent, “state-operated schools may not be enclaves of totalitarianism. School officials
do not possess absolute authority over their students.” Tinker v. DesMoines Indep. School Dist.,
393 U.S. 503, 511 (1969). Indeed, the Supreme Court has long held that it must protect the
Constitutional freedoms of individuals in schools: “if we are not to strangle the free mind at its
19
source and teach youth to discount important principles of our government as mere platitudes.”
Barnette, 319 U.S. at 637. With these principles in mind, we ask that the Court find in favor of
the Petitioner and reverse the ruling of the United States Court of Appeals for the Fourteenth
Circuit.
I.
By wearing a tuxedo to school, Maria Andrews intended to communicate a message
of solidarity with Amber Greene in a manner that made it highly likely that others
would understand her message.
The First Amendment provides, in pertinent part, that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. In order to be considered symbolic
speech for the purpose of the First Amendment, conduct must satisfy two criteria. First, the
speaker must intend to convey a particularized message. Spence v. Washington, 418 U.S. 409,
410-11 (1974). Second, that message must be likely to be understood by those viewing it. Id.
The context of the speech is especially important, “for the context may give meaning to the
symbol.” Id. at 410. The context in which Maria wore a tuxedo to school demonstrates that her
conduct was clearly symbolic speech and therefore entitled to First Amendment protection.
A. By wearing a tuxedo, Maria Andrews conveyed a clear message of solidarity with
Amber Greene.
The first prong of the Spence test requires that the speaker intend to convey a
particularized message. 418 U.S. at 410-11. The Court’s jurisprudence provides a plethora of
examples of conduct that were held to be symbolic speech. In Tinker, for example, adults and
students met at a private home to determine that they would wear black armbands in opposition
to the war in Vietnam and as an expression of their desire for a truce. Tinker, 393 U.S. at 503.
When those students subsequently wore the black armbands to school, it was clear that they
intended to convey a particularized message. Id. Further, in Spence, a university student
attached a peace sign to an American flag, which he hung upside-down in his window, to protest
20
killings in Cambodia and at Kent State, and to show that American stood for peace. Spence, 418
U.S. at 408. This Court found that the student’s conduct conveyed a particularized message,
especially because of the student’s own statements regarding his intent, coupled with the long
recognized communicative connotations of the use of flags. Id. at 410.
Similar to the speakers in Spence and Tinker, Maria had the intent to convey a particular
message: solidarity with Amber Greene. Even though there was no meeting beforehand to
determine what the message would be, as was the case in Tinker, the fact remains that Maria had
the intent to convey a particular message. Maria has maintained from the beginning of the case
that the message she intended to communicate through wearing a tuxedo was support for Amber.
Maria only began wearing a tuxedo shortly after learning that school administrators had censored
Amber’s yearbook photo. Furthermore, Maria ran for student body president on the “See the Big
Picture Platform,” and announced this platform, to the entirety of the school, with a yearbook in
hand. When asked by Walter McArthur, a fellow student, why she was wearing a tuxedo, Maria
responded, “Isn’t it obvious?” While not a clear statement of intent, this statement taken in
context supports Maria’s argument regarding the purpose of her speech. All of these facts taken
together clearly show that Maria conveyed a particularized message: support for Amber Greene.
B. In the context of Hendricks High School, other students were likely to understand
Maria Andrews’s message.
The second prong of the Spence test requires that “[i]n the surrounding circumstances the
likelihood [is] great that the message [will] be understood by those who view[] it.” Spence, 418
U.S. at 411. In Spence, the court remarked that “[a] flag bearing a peace symbol and displayed
upside down by a student today might be interpreted as nothing more than bizarre behavior, but
it would have been difficult for the great majority of citizens to miss the drift of appellant’s point
at the time that he made it.” Id. at 410.
21
The Supreme Court has stated that “an apparently limitless variety of conduct can[not] be
labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an
idea.”
United States v. O’Brien, 391 U.S. 367, 376 (1968).
However, in the context of
Hendricks High School, Maria’s conduct falls within the Supreme Court’s definition of speech.
Maria only began wearing a tuxedo shortly after learning that the school administrators refused
to print Amber’s photo. Maria learned from other students that Amber’s photo was censored
because Amber had worn a tuxedo on picture day. Only a few days after learning of the
omission, Maria addressed the entire school holding the yearbook, and all of her actions to
express solidarity with Amber occurred within a few weeks of the yearbook publication. Maria
acted as soon as she possibly could after the censorship, and the proximity of her actions to the
discovery of censorship, coupled with her decision to carry a yearbook during her speech in front
of the entire school, make it likely that others understood Maria’s message.
II.
Maria Andrews did not materially or substantially disrupt the educational
environment of Hendricks High School by wearing a tuxedo to school, and her
suspension was based on fear or apprehension of a disturbance.
Maria’s speech may not be limited by Principal Belding unless it would “materially and
substantially interfere with the requirements of appropriate discipline in the operation of the
school.” Tinker, 393 U.S. at 509. The school “must be able to show that its action was caused
by something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509. Furthermore, schools may not
ban speech in anticipation of a disruption unless there is evidence that the anticipated speech will
actually cause a material and substantial disruption. Id. at 510 (“[T]he record fails to yield
evidence that the school authorities had reason to anticipate that the wearing of the armbands
would substantially interfere with the work of the school or impinge upon the rights of other
22
students.”) Simply put, fear of controversy is not a sufficient justification for limiting student
speech in a public high school. Id.
A. Maria Andrews did not materially or substantially disrupt the educational
environment or prevent students from learning.
In Tinker, the Court found that the “silent, passive expression of opinion, unaccompanied
by any disorder or disturbance on the part of petitioners” did not cause a sufficient disruption for
the school to limit student speech. 393 U.S. at 508. The Court in Tinker did not explicitly define
“material and substantial disruption,” though courts since Tinker have drawn some meaningful
lines by considering different factual scenarios. Barber ex rel. Barber v. Dearborn Public
Schools, 286 F. Supp. 2d 847 (E.D. Mich. 2003) is a good example.
In Barber, Bretton Barber, a junior at Dearborn High wore a t-shirt to school, the front of
which displayed a photograph of President George W. Bush, with the caption “International
Terrorist,” to express his feelings about President Bush's foreign policies and the imminent war
in Iraq. 286 F. Supp. 2d at 849. During the lunch period, another student approached Barber and
told him that he was “angry” about Barber's shirt and that he thought “it was inappropriate.” The
student then asked the assistant principal to do something about the shirt. Id. A few minutes
later, a teacher assigned to supervise the lunchroom asked the assistant principal if he had seen
Barber's shirt. Id. at 850. The assistant principal said that he had not seen the shirt, but had
heard about it. The teacher said he thought Barber's shirt “may be inappropriate.” After
observing Barber's shirt, the assistant principal told Barber to turn it inside out or remove it.
When Barber refused, the assistant principal told him to go call his father. Barber called his
father and then left school for the remainder of the day. Id.
The court, applying Tinker, overturned the school’s prohibition of the shirt, holding that
“there is nothing in the record . . . to indicate that . . . any students at Dearborn High, might
23
respond to the t-shirt in a way that would disrupt or interfere with the school environment.” Id.
at 857. The court further elaborated that “the courts have never declared that the school yard is
an inappropriate place for political debate, . . . . In fact students benefit when school officials
provide an environment where they can openly express their diverging viewpoints and when they
learn to tolerate the opinions of others.” Id. at 857-58.
Similar to Tinker and Barber, Maria’s choice of clothing was a silent, passive expression
of opinion that did not cause a significant disturbance. Any disturbance that Maria might have
caused was minimal; her teacher, Mr. Alvarez, said as much during the faculty meeting. The
only “disturbance” she might have caused was from passing a note, behavior common in high
schools for generations. The teachers of the school preemptively overreacted to a non-issue. As
the dissenting opinion by Chief Judge Alexander stated, it is unfair for a student to be punished
for the immaturity of her peers. Maria’s speech did not cause violence, class cutting, or school
action and, as such, her speech cannot be considered a material and substantial disruption.
B. Principal Belding wrongly suspended Maria Andrews solely based of fear of a
disturbance.
“Undifferentiated fear or apprehension of disturbance is not enough to overcome the right
to freedom of expression.” Tinker, 393 U.S. at 508. Rather, a school must be able to show that it
was motivated by more than the desire to avoid unpleasantness; it must reasonably anticipate that
the message would substantially interfere with the work of the school or impinge upon the rights
of the other students. Id. at 509. Without this showing, a school must respect the strong First
Amendment protections that public school students enjoy.
Principal Belding, however, restricted Maria’s message solely out of undifferentiated
fear, which Tinker expressly forbids. Maria’s speech did not cause a material and substantial
disruption. Aside from passing a note, and a few students making comments during a student
24
presentation (events that Maria’s teacher dismissed as simply “kids being kids”), Maria did not
disrupt class by wearing a tuxedo to school. Furthermore, there was no reason to assume that
this “disturbance” would intensify to such a degree that Maria’s teachers would be unable to
conduct the AP review scheduled for Friday, April 25. Principal Belding acted solely out of
undifferentiated fear of a disturbance, which, according to the Supreme Court in Tinker, is not a
sufficient justification to overcome the First Amendment protections that students enjoy.
CONCLUSION
Maria Andrews wore a tuxedo to school to express her clear message of solidarity with a
fellow student, Amber Greene. Additionally, by wearing this tuxedo, Maria did not cause a
material or substantial disturbance to the educational environment at Hendricks High School.
Accordingly, this Court should reverse the ruling of the United States Court for the
Fourteenth Circuit and find that Principal Richard Belding violated Maria’s First Amendment
right to free expression by suspending her from school for wearing a tuxedo.
25
No. 10-2042
In The
Supreme Court of the United States
November Term 2010
MARIA ANDREWS,
PETITIONER,
V.
RICHARD BELDING,
RESPONDENT.
On Writ of Certiorari to the
United States Court of Appeals for the Fourteenth Circuit
BRIEF FOR THE RESPONDENT
26
QUESTION PRESENTED
1.
Does the First Amendment permit a high school principal to suspend a female student
who wore a tuxedo to school when the student’s actions could be interpreted to have
multiple messages and disturbed multiple teachers’ classes?
27
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... 29
STATEMENT OF THE CASE ...................................................................................................... 30
SUMMARY OF THE ARGUMENT............................................................................................. 30
I.
Principal Belding did not violate Maria Andrews’ First Amendment rights because
wearing a tuxedo to school was not symbolic speech ................................................. 31
A. Maria Andrews’s intent behind wearing a tuxedo to school was ambiguous and
open to interpretation ............................................................................................. 31
B. Maria Andrews did not communicate her message in a manner that was likely to
be understood by others ......................................................................................... 32
II.
Principal Belding acted properly when he suspended Maria Andrews because her
conduct interrupted class and could have seriously interfered with an important test
review .......................................................................................................................... 33
A. Maria Andrews’s conduct distracted her classmates and forced her teachers to stop
class on multiple occasions ................................................................................... 34
B. Principal Belding reasonably believed that Maria Andrews would seriously
interfere with an important test review .................................................................. 36
CONCLUSION ............................................................................................................................. 36
28
TABLE OF AUTHORITIES
Cases:
Barber ex rel. Barber v. Dearborn Public Schools,
286 F. Supp. 2d 847 (E.D. Mich. 2003)....................................................................... 35, 36
Blackwell v. Issaquena County, Board of Education,
363 F.2d 749 (5th Cir. 1966).............................................................................................. 35
Burnside v. Byars,
363 F.2d 744 (5th Cir. 1943)........................................................................................ 34, 36
Spence v. Washington,
418 U.S. 405 (1974) .............................................................................................. 31, 32, 33
Tinker v. Des Moines Independent School District,
393 U.S. 503 (1969) ................................................................................................... passim
United States v. O’Brien,
391 U.S. 367 (1968) .......................................................................................................... 31
Other Authorities:
U.S. Const. amend. I ...................................................................................................................... 30
29
STATEMENT OF THE CASE
The parties agree to the facts as detailed by the District Court of Poduck and will argue
based on these facts.
SUMMARY OF THE ARGUMENT
Respondent, Principal Richard Belding, maintains that the ruling of the United States
Court for the Fourteenth Circuit was correct. Principal Belding did not violate Petitioner, Maria
Andrews’s First Amendment rights when he suspended her for five days and prevented her from
running for student body president for wearing a tuxedo to school. First, by wearing a tuxedo to
school, Maria did not engage in symbolic speech. It was unclear exactly what message Maria
was trying to convey and, given the circumstances at Hendricks High, it was unlikely that any of
the students understood the message Maria intended to convey. Therefore, the protections of the
First Amendment do not apply.
Second, even if Maria’s conduct can be considered speech, Principal Belding acted
appropriately when he suspended Maria because she materially and substantially disrupted class
on multiple occasions. Furthermore, Maria’s conduct threatened to disrupt a critically important
test review, and Principal Belding had to ensure that the students at Hendricks High would be
prepared for their exams. Accordingly, Principal Belding was justified when he suspended
Maria because her conduct, even if it could be considered speech, disrupted school. As a result,
Principal Belding asks that this Court affirm the ruling of the Fourteenth Circuit.
ARGUMENT
The First Amendment provides, in pertinent part, that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. This provision applies to all public
officials, including public high school officials.
30
School administrators, however, are not
powerless to regulate student speech: whenever student expression constitutes a “material and
substantial” disruption to the educational environment, school officials have the authority to limit
that speech. Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 509 (1969).
I.
Principal Belding did not violate Maria Andrews’s First Amendment rights because
wearing a tuxedo to school was not symbolic speech.
“We cannot accept the view that an apparently limitless variety of conduct can be labeled
speech whenever the person engaging in the conduct intends thereby to express an idea.” United
States v. O’Brien, 391 U.S. 367, 376 (1968). Unless some limitation was placed on First
Amendment protection of conduct, the First Amendment would become so expansive that it
would be almost meaningless. It is for this reason that conduct is only considered speech when
two important conditions are met.
First, the actor must intend to convey a particularized
message. Second, given the surrounding circumstances, it must be likely that others understand
this message. Spence v. Washington, 418 U.S. 405, 410 (1974). By wearing a tuxedo, Maria
Andrews’s conduct did not rise to this level. Therefore, her conduct cannot be considered speech
and, thus, does not enjoy First Amendment protection.
A.
Maria Andrews’s intent behind wearing a tuxedo to school was ambiguous and
open to interpretation.
For conduct to be considered speech, the actor must intend to convey one particularized
message. Spence, 418 U.S. at 410. In Spence, for example, the Supreme Court found that an
individual who hung an American flag with a peace sign drawn on it upside-down in his
window, did so in “a pointed expression of anguish.” Id. Additionally, the Court has held that a
group of students who wore black armbands to school engaged in symbolic speech because the
students met beforehand and determined that they would wear the armbands for the specific
31
purpose of protesting the Vietnam War. Tinker, 393 U.S. at 504. The Court later considered the
message conveyed by wearing these armbands to be “unmistakable.” Spence, 418 U.S. at 410.
Maria’s decision to wear a tuxedo to school is markedly different. First, unlike in Tinker,
Maria never met with anyone to discuss her idea or determine what message she chose to convey
by wearing a tuxedo. Second, and perhaps as a result of her failure to determine her message
beforehand, Maria’s intent behind wearing the tuxedo to school could reasonably be interpreted
in one of three ways. She may have intended the tuxedo to be a means to gain attention for
herself during the student body election, and as a result, her message may simply have been
“Vote for Maria.” Similarly, her message may have been to promote her uncle’s tuxedo rental
store. Lastly, it is possible that her message was one of support for her classmate, Amber
Greene. Indeed, the only time Maria was asked what here intent was behind wearing a tuxedo,
she replied “Isn’t it obvious?” The fact that Walther MacArthur had to ask why she was wearing
the tuxedo demonstrates that her intent was not obvious.
The fact that her message may have meant one of three things indicates that it does not
rise to the level of conveying a particularized message that the Court established in Spence.
Rather than being a “pointed display of anguish,” as in Spence, id., her message was muddled
and unclear. The protections of the First Amendment do not extend to such ambiguous conduct.
Accordingly, Maria fails to meet the first prong of the Spence test.
B.
Maria Andrews did not communicate her message in a manner that was likely to
be understood by others.
Even if this Court finds that Maria did intend to convey a particular message, her conduct
still is not symbolic speech. As this Court in Spence held, in addition to the intent to convey a
particularized message, the actor must communicate his message in a manner that makes it likely
that the message will be understood by others who receive it. Spence, 418 U.S. at 410. In
32
making this determination, context is important, as “context may give meaning to a symbol.” Id.
In Spence, for example, the flag incident occurred just six days after the massacre at Kent State,
making the killings an issue of “intense public concern.” Id. at 409-10. Additionally, in Tinker,
school officials learned of a meeting at which the determination was made to wear black
armbands that would stand for a protest of the Vietnam War. Tinker, 393 U.S. at 504.
The surrounding circumstances at Hendricks High are quite different. While it is true
that Maria was offended that her classmate was unable to wear a tuxedo in her yearbook photo,
there is no indication that this issue mattered to any of the other students. Unlike in Spence, the
record does not indicate that this issue was one of “intense public concern.” Additionally, it is
very possible that Maria’s classmates thought she was promoting her campaign, or her uncle’s
tuxedo shop, when she wore a tuxedo to school. Her uncle Carlos supported her run for
president by coming to the school and offering tuxedos at a discount before Maria spoke to the
students about her Big Picture campaign. Also, the advertisement for his store appeared on the
back of the flyers Maria handed out. Given the circumstances at Hendricks, it is more likely that
the students understood her to be wearing a tuxedo as support for her presidential campaign, or
for her uncle’s tuxedo store. At Hendricks, the student body election and the prom are much
more high profile than the yearbook censoring the photo of one of its students. As a result,
Maria’s conduct did not rise to the level of symbolic speech and is, therefore, entitled to no First
Amendment protection.
II.
Principal Belding acted properly when he suspended Maria Andrews because her
conduct interrupted class and could have seriously interfered with an important test
review.
“The establishment of an educational program requires the formulation of rules and
regulations necessary for the maintenance of an orderly program of classroom learning.”
33
Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966). Principal Belding has an obligation to all
of his students to ensure a safe learning environment, uninterrupted by disorderly students. The
need for order in the classroom was at its highest in April, when teachers are preparing students
for standardized testing and AP examinations. By wearing a tuxedo to school, Maria disrupted
her classes and threatened the effectiveness of an important test review. Principal Belding had
no choice but to suspend her in order to preserve the educational environment.
A. Maria’s conduct distracted her classmates and forced her teachers to stop class on
multiple occasions.
“A reasonable regulation is one which measurably contributes to the maintenance of
order and decorum within the educational system.” Burnside, 363 F.2d at 748. Accordingly,
school officials can limit student speech that disrupts class work and invades the rights of others.
Tinker, 393 U.S. at 514. Specifically, the Court in Tinker noted that the group of students that
wore black armbands did not disrupt class or interfere with work. Id. The “silent, passive
expression[s] of opinion, unaccompanied by any disorder or disturbance on the part of
petitioners” were found to be protected by the First Amendment. Id. at 508.
By wearing a tuxedo, however, Maria did not engage in silent protest. To the contrary,
the record is clear that by wearing a tuxedo, Maria disrupted her classes on multiple occasions.
First, on April 22, Maria interrupted her chemistry class by drawing attention to herself and
passing notes. Her teacher, Mr. Alvarez, had no choice but to stop instruction to the rest of the
students to address the distraction Maria posed. Second, the following day, Maria interrupted
her English class. Her tuxedo interfered with a presentation she was giving to the class on an
important issue for an upcoming AP exam. Like the incident the day before, her teacher, Mr.
George, had to stop instruction to the rest of the class to address Maria privately.
34
Petitioner argues that this is just, as Mr. Alvarez stated, “kids being kids,” and should be
left alone. This is only partially true. Passing notes and joking are certainly “kids being kids.”
Schools, however, are tasked with regulating the conduct of their students, so that when “kids
being kids” interrupts instruction, the school has the power to step in and preserve order. As the
Fifth Circuit held, “It is always within the province of school authorities to provide by regulation
the prohibition and punishment of acts calculated to undermine the school routine.” Blackwell v.
Issaquena Cnty. Bd. of Ed., 363 F.2d 749, 753 (1966). Additionally, even though Chief Judge
Alexander considers it to be unfair to punish Maria for the actions of her classmates, it is
certainly true that Maria was the root cause of the disruption.
Petitioner cites Barber ex rel. Barber v. Dearborn Public Schools, 286 F. Supp. 2d 847
(E.D. Mich. 2003) as support for their argument that Principal Belding acted unconstitutionally.
However, the circumstances surrounding Maria’s conduct are distinguishable from the
circumstances in Barber.
286 F. Supp. 2d 847 (E.D. Mich. 2003).
In Barber, school
administrators prohibited a student from wearing a shirt with a picture of George W. Bush and a
caption reading “International Terrorist.” 286 F. Supp. 2d at 857-58. The school argued that the
imminent invasion of Iraq and the high number of Iraqi students at Dearborn High created a
situation that justified its actions. Id. at 849-51. The court disagreed and held that the student’s
rights had been violated. Id. at 858.
In Barber, only one student made a comment about the “International Terrorist” shirt and
it was not during class, it was during the lunch period. 286 F. Supp. 2d at 849. Besides that one
comment, the student in Barber had worn the shirt all day without incident. Id. Conversely,
Maria’s actions disrupted multiple classes. Indeed, both Mr. George and Mr. Alvarez had to deal
with disruptions in their classes caused by Maria’s dress. These disruptions were particularly
35
consequential because they occurred during the final week of preparations for the AP
examinations. The facts in Barber are distinguishable from the present case. As a result,
Principal Belding was compelled to preserve order and did not violate Maria’s First Amendment
rights when he did so.
B. Principal Belding reasonably believed that Maria Andrews would seriously interfere
with an important test review.
This Court has held that “undifferentiated fear or apprehension of disturbance” is not a
sufficient justification for a school to limit student speech.
Tinker, 393 U.S. at 509.
Additionally, the Fifth Circuit has held that school officials cannot ignore expressions or feelings
simply because they are undesirable. Burnside, 363 F.2d at 749. This is true because, as the
Supreme Court indicated, schools are a “marketplace of ideas.”
Tinker, 393 U.S. at 512.
However, when there is evidence to suggest that certain conduct will pose a substantial
disruption, a school is justified in limiting it. Id. at 509.
Contrary to Petitioner’s assertion, there was evidence to suggest that Maria’s conduct
would pose a substantial disruption. Principal Belding did not suspend Maria simply because he
found her message to be objectionable or undesirable. Nor was he motivated by a desire to avoid
an uncomfortable subject. Instead, Principal Belding suspended Maria in response to multiple
classroom disturbances, which established a credible fear that Maria would interrupt a scheduled
AP review. This fear was not undifferentiated; it was based on concrete evidence. Accordingly,
Principal Belding acted properly when he suspended Maria for wearing a tuxedo to school.
CONCLUSION
Principal Richard Belding was justified in suspending Maria Andrews for wearing a
tuxedo to school and accordingly, did not violate her First Amendment rights. First, Maria did
not engage in symbolic speech by wearing a tuxedo because, if she had an intended message, it
36
was unclear, and she did not convey a particularized message in a way that others were likely to
understand.
Second, even if Maria’s conduct was speech, it materially and substantially
disrupted school and threatened to interrupt a critical test review. As a result, Principal Belding
did not violate Maria’s rights by suspending her for wearing a tuxedo. This Court should
therefore affirm the ruling of the United States Court of Appeals for the Fourteenth Circuit.
37
No. 10-2042
In The
Supreme Court of the United States
November Term 2010
MARIA ANDREWS,
PETITIONER,
V.
RICHARD BELDING,
RESPONDENT.
On Writ of Certiorari to the
United States Court of Appeals for the Fourteenth Circuit
CASE SUMMARIES
38
P = case cited in Petitioner’s Brief
R = case cited in Respondent’s Brief
United States Supreme Court Cases:
Spence v. Washington, 418 U.S. 405 (1974) (P + R)
On May 10, 1970, appellant, a college student, hung a United States flag from the
window of his apartment on private property. The flag was upside down, and attached to the
front and back was a peace symbol. Three Seattle police officers observed the flag and entered
the apartment house, where they seized the flag and arrested the appellant. Appellant charged
with improper use of a flag.
The trial court sentenced appellant to 10 days in jail and to a $75 fine. The Washington
Court of Appeals reversed the conviction, but the Washington Supreme Court reversed and
reinstated the conviction. The Supreme Court inquired into whether this student’s use of the flag
qualified as “speech,” thereby entitling it to First Amendment protection. The Supreme Court
held that the nature of appellant's activity, combined with the factual context and environment in
which it was undertaken, led to the conclusion that he engaged in a form of protected expression.
According to the Court, his message was direct, likely to be understood by those who
viewed it, and therefore within the contours of the First Amendment. Since the appellant’s
expression was protected and the State had no valid interest in preserving the physical integrity
of a privately owned flag, the conviction was invalidated.
Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969) (P + R)
In December 1965, a group of adults and students determined that, to publicize their
objections to the hostilities in Vietnam and their support for a truce, they would wear black
armbands during the holiday season. The principals of the Des Moines schools became aware of
the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any
student wearing an armband to school would be asked to remove it, and if he refused he would
the school authorities adopted. On December 16 and 17, the students wore black armbands to
their schools. They were all sent home and suspended from school until they would come back
without their armbands. They did not return to school until after the planned period for wearing
armbands had expired-that is, until after New Year's Day.
The U.S. District Court dismissed complaint and plaintiffs appealed. The Court of
Appeals affirmed without opinion. The Supreme Court held that, in absence of demonstration of
any facts which might reasonably have led school authorities to forecast substantial disruption of,
or material interference with, school activities or any showing that disturbances or disorders on
school premises in fact occurred, regulation prohibiting wearing armbands to schools and
providing for suspension of any student refusing to remove such was an unconstitutional denial
of students' right of expression of opinion.
United States v. O’Brien, 391 U.S. 367 (1968) (P + R)
On March 31, 1966, O'Brien and three companions burned their Selective Service
registration certificates on the steps of the South Boston Courthouse. A sizable crowd, including
several agents of the Federal Bureau of Investigation, witnessed the event. For this act, O'Brien
was indicted, tried, convicted, and sentenced in U.S. District Court. O'Brien argued that law he
was convicted under, which criminalized the destruction of registration certificates, was
39
unconstitutional as applied to him because his act of burning his registration certificate was
protected ‘symbolic speech’ within the First Amendment.
The Supreme Court cautioned that they would not accept the view that an apparently
limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea. The Supreme Court never decided whether O’Brien’s acts
were speech, reasoning that “even on the assumption that the alleged communicative element
O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily
follow that the destruction of a registration certificate is constitutionally protected activity.” The
Court held that the statute furthered an important governmental interest, unrelated to the
suppression of free expression, which was no greater than necessary to further the government’s
interest.
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (P)
On January 9, 1942, the West Virginia Board of Education adopted a resolution ordering
that “all teachers and pupils shall be required to participate in the salute honoring the Nation
represented by the Flag.” The resolution provided that refusal to salute the Flag be regarded as an
act of insubordination dealt with by expulsion. Children of the Jehovah’s Witness faith refused to
salute the flag because they claimed that doing so would violate their religious beliefs,
specifically the commandment of Exodus, Chapter 20, verses 4 and 5, which says: ‘Thou shalt
not make unto thee any graven image, or any likeness of anything that is in heaven above, or that
is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to
them nor serve them.’ They consider that the flag is an ‘image’ within this command.
The U.S. District Court restrained enforcement of the resolution as applied to the
Jehovah’s Witnesses;; The Board of Education appealed directly to the Supreme Court. The
Supreme Court stated that there is no doubt that, in connection with the pledges, the flag salute is
a form of utterance. The Supreme Court held that no government official can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to
confess by word or act their faith therein. Therefore, the Supreme Court overturned the Board’s
resolution.
United States Circuit Court Cases:
Blackwell v. Issaquena Cnty. Bd. of Ed., 363 F.2d 749 (5th Cir. 1966) (R)
On Friday, January 29, 1965, approximately 30 students at the all black Henry Weathers
High School wore ‘freedom buttons' to class. The buttons were about an inch in diameter
depicting a black and white hand joined together with ‘SNCC’ inscribed in the margin. It was
reported to the principal that some of these students were creating a disturbance. They were told
that they would have to remove their buttons. The following Monday, approximately 150 pupils
came to school wearing the buttons. These students distributed buttons to students in the corridor
of the school building and accosted other students by pinning the buttons on them even though
they did not ask for one. The principal to assembled the students and informed them that they
were forbidden to wear the buttons at school.
The next day, close to 200 students appeared wearing buttons. The students were told if
they returned to school again wearing buttons, they would be suspended. The following day, the
students returned to school wearing the buttons whereupon the principal immediately sent them
home. Those children who continued to remain at home after a period of 20 days were suspended
40
for the balance of the school year. On April 1, 1965, a mandatory preliminary injunction was
sought to compel school officials to re-admit the suspended pupils and to allow them to wear
freedom buttons so long as there was no disturbance. The injunction was denied. According to
the Court, even thought the buttons were a form of protected speech, the facts demonstrated that
the students created much disturbance. The School authorities had a legitimate and substantial
interest in the orderly conduct of the school and a duty to protect the school's operation.
Therefore, the denial of the injunction was affirmed.
Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966) (R)
Several days prior to September 21, 1964, the principal of the Booker T. Washington
High School learned that a number of his students were wearing ‘freedom buttons.' The buttons
were circular, approximately 1 1/2 inches in diameter, containing the wording ‘One Man One
Vote’ around the perimeter with ‘SNCC’ inscribed in the center. Thereupon he announced to the
entire student body that they were not permitted to wear such buttons in the school. Despite the
principal’s announcement, three or four children appeared at school wearing the buttons. All
were given an opportunity to remove the buttons and remain in school but three of the children
elected to keep them and return home.
The following day all the children returned to school without their buttons. However, a
few days later, 30 or 40 children were displaying the buttons and that it was causing a
commotion. The principal assembled them in his office, reminded them of his previous
announcement, and gave them the choice of removing their buttons or being sent home. The
great majority elected to return home and Mr. Moore thereupon suspended them for a period of
one week. Injunctive proceedings were instituted against the school officials to enjoin them from
enforcing the regulation. The students contend that the school regulation forbidding ‘freedom
buttons' on school property is an unreasonable rule which abridges their children's First
Amendment freedom of speech. The school argued that the regulation imposed by the principal
is reasonable in maintaining proper discipline in the school.
The Supreme Court stated that the right to communicate a matter of vital public concern
is embraced in the First Amendment right to freedom of speech and therefore is clearly protected
against infringement by state officials, but the liberty of expression guaranteed by the First
Amendment can be abridged by state officials if their protection of legitimate state interests
necessitates an invasion of free speech. Since the wearing of the buttons did not materially and
substantially interfere with the requirements of appropriate discipline in the operation of the
school, the Supreme Court held the school’s prohibition to be arbitrary, unreasonable, and an
unnecessary infringement on the students' protected right of free expression.
United States District Court Cases:
Barber ex rel. Barber v. Dearborn Public Schools, 286 F. Supp. 2d 847 (E.D. Mich. 2003) (P + R)
On February 17, 2003, Plaintiff Bretton Barber, a junior at Dearborn High wore a t-shirt
to school, the front of which displayed a photograph of President George W. Bush with the
caption “International Terrorist,” to express his feelings about President Bush's foreign policies
and the imminent war in Iraq. Barber wore the t-shirt to his first class, which began at 7:30 a.m.,
until the 10:30 a.m. lunch period. During the lunch period, another student approached Barber
and told him that he was “angry” about Barber's shirt and that he thought “it was inappropriate.”
The student then asked the assistant principal to do something about the shirt. A few minutes
41
later, a teacher assigned to supervise the lunchroom asked the assistant principal if he had seen
Barber's shirt. The assistant principal said that he had not seen the shirt, but had heard about it.
The teacher said he thought Barber's shirt “may be inappropriate.” After observing Barber's shirt,
the assistant principal told Barber to turn it inside out or remove it. When Barber refused, the
assistant principal told him to go call his father. Barber called his father and then left school for
the remainder of the day.
The District Court, applying Tinker, held that Barber was substantially likely to succeed
on merits of his claim that school was not justified in prohibiting him from wearing the shirt to
school and that Barber was irreparably harmed by school's prohibition.
42