Robert Lee Tullis Moot
Court Competition Problem
2008-2009
Copyright 2008
LSU Law Center Moot Court Board
ALL RIGHTS RESERVED
Competition administered by the
MOOT COURT BOARD
Problem created by
Tullis Competition Co-Chairs: David Borghardt and Megan Rawle
LSU Paul M. Hebert Law Center
THE SUPREME COURT OF THE UNITED STATES
Antigony “Anne” SMITH, by and through her parents and guardians Edopus and
Josephine Smith, Petitioner.
v.
THEBES UNIFIED SCHOOL DISTRICT,
Jim Cadmus, in his official capacity as Superintendent of Thebes Unified School
District, and, Rex Creon, in his official capacity as Principal of Thebes High
School, Respondents.
Petitioner’s Writ of Certiorari was granted on the following issues:
1. Does a student-created website qualify as a public forum for First
Amendment purposes?
2. Even if a student-created website does qualify as a public forum, does a
school district's decision to suspend a student who operated a controversial
website advance a compelling state interest and is the regulation narrowly
drawn to achieve that interest?
2
UNITED STATES COURT OF APPEAL
FIFTEENTH CIRCUIT
Antigony “Anne” SMITH, by and through her parents and guardians Edopus and
Josephine Smith
v.
THEBES UNIFIED SCHOOL DISTRICT,
Jim Cadmus, in his official capacity as Superintendent of Thebes Unified School
District, and, Rex Creon, in his official capacity as Principal of Thebes High
School, Defendants.
Civil Case No. 2008-0001
SPARTA, J. and CORINTH, J.
I
Appellant Antigone “Anne” Smith is a 17-year-old minor who at all times relevant to this
lawsuit was a junior at Thebes High School (Hereinafter “THS”).
THS is located within the Thebes Unified School District (Hereinafter “TUSD”), a public
school district operating in and under the laws of Dragon Parish and the State of Boeotia.1 THS
is publicly funded. Appellees Jim Cadmus and Rex Creon were at all times relevant to this suit
acting in their official capacities as Superintendent and Principal.
At all times relevant to this lawsuit, Appellant was a member of the THS Computer Club.
Mr. Ty R. Seas, the advanced computer teacher, was the moderator of the organization. Students
in the club engaged in a variety of activities, including private lessons from Mr. Seas on
advanced computer topics (e.g. Ubuntu, a Linux-based operating system that is an alternative to
Windows XP and Vista), discussions among the students and the instructor on computer
technology for pleasure (e.g. the latest games) and as a source of income (e.g. designing and
operating online businesses and games), and access to the computer lab in their free time.
The THS Computer Club had an annual contest dating back to 2003. Each student had to
design and implement a website. The work included selecting a theme and subject matter,
writing its contents, creating the artwork and graphics, and inputting the correct HTML code.
Each student was also required to have three significant components to his website, but the
students could choose the components and how they were used. Mr. Seas was the judge.
All of the websites (including the one at issue) were hosted on a server maintained by
several alumni of the school. Acting in the interest of education, the graduates made the server
1
Pronounced bē-ō' -shē-ə ;
3
available free of charge to the school’s classes and organizations.
On October 1, 2007, the Appellant published a website entitled “The Crossroads.” She
had done roughly half of the work on the website at home and half at school.
The first element consisted of a series of polls. Some addressed hot-button political and
social issues.2 Others were more inane.3 For the second element, the Appellant established a
series of message boards so that website users could make comments to the polls. Website users
had the power to make these comments public (so that all users of the website could see them) or
private (so that only the Appellant could see them). As administrator to the site, Appellant could
also switch comments made by others from public to private. However, Appellant never
exercised this power. Appellant’s website also contained a general disclaimer on the home page
of the website stating, “No poll conducted on this site reflects the opinion of its creator or the
school. This site is purely for entertainment value.”
The third element was a message board unattached to any poll. This component was
called, “The Wonder Board.” Each post began with the phrase, “I wonder … .” This introduction
was followed by some personal details about THS students or school personnel. However, no
one was specifically named.4 The details were sometimes based on actual events and sometimes
fictitious. Other students could supply the details without verification. The Wonder Board was
the most popular of the three elements.
Mr. Seas told Smith that he thought some of the content of “The Crossroads” website
might be viewed negatively. He suggested she tone it down. However, Seas said her work was,
overall, exceptionally creative and that she won the contest. Even after this conversation,
Appellant maintained her website on the free server, which could be accessed from the World
Wide Web at http://www.thebeshighschool.com/thecrossroads.
Principle Creon testified that he had received numerous complaints about “The
Crossroads” from both students and parents. Typical of what they found offensive was
disrespect for the President, denigration of established religion, promotion of teenage sex, and
insulting or suggestive comments about students and faculty. Principle Creon also overheard
2
Examples include the following:
1. Whom do you support for president?
2. Do you support the war in Iraq?
3. Shouldn’t the school distribute free contraceptives?
4. Isn’t affirmative action inherently unfair?
5. Is Christianity really that different from Islam?
6. Isn’t President Bush a moron?
3
Examples include the following:
1. Should Britney Spears’ kids be taken away?
2. Are you on Team Aniston or Team Jolie?
3. Will the SEC continue to dominate college football this year?
4
Examples from the record of The Wonder Board comments include the following:
1. I wonder if a certain senior English teacher is putting on a little weight or just expecting Rosemary’s baby.
2. I wonder if a certain petite blonde cheerleader has a crush on a hotshot tight end.
3. I wonder if a certain student council officer has become a certain four-eyed, balding biology teacher’s pet.
4
students conversing about gossip on the website. Several teachers told him the website was
disruptive; for example, during class time they had heard students whispering and had
intercepted notes that related to gossip on the website.
Principal Creon consulted Superintendent Cadmus before he took action concerning “The
Crossroads.” Cadmus and Creon agreed that the Appellant should be suspended until she
discontinued her website. Cadmus and Creon believed that Appellant’s website violated the
Policy Regarding Student Activities in Journalism Classes.5
On Monday, November 16, 2007, Appellant was summoned to Principal Creon’s office.
He informed Appellant that her website was causing disruption among THS students and that he
had received numerous complaints from students and parents about how offensive the website
was. Creon also said she had to discontinue her website or be suspended from school until the
website was no longer accessible. He gave her a letter to that effect and instructed her to have
her parents sign and return the letter to him.
On Tuesday, November 17, 2007, Anne Smith returned the letter signed by her parents to
the principal's office before class. Principal Creon informed her that she would not be allowed to
remain at school that day because the website was still operational.
After Appellant discussed the matter with her parents, she made one change to the
website, adding two polls. One said, “Should the school shut down The Crossroads?” Another
asked, “Is this website offensive?” During the remaining week, she received hundreds of mostly
anonymous posts. The number of supportive messages was approximately equally to the number
of critical ones. Some were vaguely threatening, saying “Watch out, we know where you live,”
and “God will use His armies to take back this school!”
On Saturday, November 22, 2007, Appellant disabled her website.
November 24, 2007, she was allowed to resume her regular classes.
On Monday,
The next day, Principal Creon received a telephone call from Josephine and Edopus
Smith. Both parents requested that Anne be able to reinstate her website. Creon refused their
request, and this lawsuit ensued.
While on suspension, Appellant missed several assignments and tests which resulted in
lower grades and loss of her status as an honor student for that reporting period. Until that point,
she had been an honor student.
II
5
See Appendices I (Thebes Unified School District Policy Regarding Student Activities in Journalism Classes)
and II (Boeotia Education Code § 48907 (2008))
5
Appellant sought redress in the District Court of Thebes under 42 U.S.C. § 1983.6 Ms.
Smith claimed her free speech rights were violated under the First Amendment of the U.S.
Constitution.
The trial court found in favor of the Thebes Unified School District. The court first
rejected Ms. Smith’s argument that public schools are a public forum deserving heightened
protection under the First Amendment. The trial court then decided that, even if schools were
public forums, the Thebes Unified School District’s decision to suspend Anne for operating the
controversial website was not a violation of the First Amendment. The school district had a
compelling interest in maintaining an orderly school environment and in preventing the
disruption caused by Smith’s website. Moreover, the district’s actions were narrowly tailored to
achieve that purpose. For those reasons, we affirm.
III
The Appellant’s claim that her free speech rights were violated rests on her invalid
assumption that students in public schools enjoy freedom of speech to the full extent of the First
Amendment. The United States Supreme Court has recently addressed students’ right to free
speech in Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007). Following a line of prior student
speech cases, the Court held that school officials did not violate the First Amendment rights of a
student who displayed a banner encouraging illegal drug use.
The Constitutional rights of students in public schools are not equal to those of adults in
other settings. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). In Fraser, a high
school student was disciplined for using a sexually explicit metaphor while delivering a speech
for a school-sponsored educational program. 478 U.S. at 677. The Supreme Court rejected the
student’s violation of free speech claim. Frazer, 478 U.S. at 685. It reasoned that prohibiting
offensive language is a highly appropriate function of public schools and that the determination
of what speech is appropriate properly rests with the school board. Frazer, 478 U.S. at 683. The
Court further reasoned that educators must balance students’ freedoms against society’s interest
in teaching students appropriate social behavior. Frazer, 478 U.S. at 681.
While there is no evidence that Appellant’s speech was sexually explicit in the instant
case, there is substantial evidence that the website was offensive. Appellant’s school principal
received numerous complaints, and many students made posts on Appellant’s website criticizing
it. Moreover, Appellees have the right to determine that the Appellant’s speech was
inappropriate. Prohibiting Appellant’s offensive speech was a proper exercise of school
authority in providing an appropriate educational environment. In balancing Smith’s free speech
6
42 U.S.C. § 1983 (2008) provides in part the following:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
… subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any
rights, … secured by the Constitution … , shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress … ”
6
rights against the school’s interest in teaching appropriate social behavior, the Thebes Unified
School District reasonably decided that that latter outweighed the former.
Appellant’s claims are based on a false premise that she were operating within a public
forum. Public schools do not possess all of the attributes of traditional public forums.
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988). In Kuhlmeier, a school principal
deleted two pages of the school newspaper because they described some students’ personal
experiences with pregnancy and their parents’ divorces; although false names were used, the
principal felt that possible identification of students could be detrimental to the students and their
parents. Kuhlmeier, 484 U.S. at 263. The Court first addressed the question of whether the
school paper might appropriately have been characterized as a forum for public expression.
Kuhlmeier, 484 U.S. at 267.
The Kuhlmeier Court followed the rule that a school facility is deemed a public forum
only if the school has, by policy or practice, opened it for use by the general public or by some
segment of the public; if the school has instead reserved it for other purposes, the school officials
may impose reasonable restrictions on the students’ speech. Kuhlmeier, 484 U.S. at 267. The
court reasoned that the school’s journalism policy indicated that it was a closed forum because
involvement in the school newspaper was designed for the specific purpose of educating students
about journalism. Kuhlmeier, 484 U.S. at 268. The fact that students could exercise some
authority over its content did not mean that the school relinquished its control over the activity.
Kuhlmeier, 484 U.S. at 270.
Appellees had a similar journalism policy. Although the computer club is not a
journalism class, the writing component of the contest subjects it to the policy which includes
“other writing classes.” Also, since the school had reserved the forum of the website for the
particular purpose of educating the students on how to design a website, the Appellant was
operating within a closed forum. That Appellant’s website was open to the entire world is simply
a result of the nature of a website. The Appellee did not intentionally open it to the world
through policy or practice, nor did they relinquish control over the website just because
Appellant’s had produced its content.
IV
Even if Smith’s website operated as a public forum, Thebes Unified School District did
not violate her free speech rights. When a school publication is deemed to be a limited public
forum, school officials can still regulate the students’ speech if they demonstrate that the
regulation advances a compelling state interest and that the regulation is narrowly drawn to
achieve that interest. Lopez v. Tulare Jt. Union High Sch. Dist. Bd. of Trustees, 40 Cal. Rptr. 2d
762, 778 (App. 5th Dist. 1995). In Lopez, school officials directed students to delete profanity
used in a film the students produced for a class; the students claimed this action violated their
freedom of speech. 40 Cal. Rptr. 2d at 765. The court affirmed the school board’s motion for
summary judgment. Lopez, 40 Cal. Rptr. 2d at 766, 769. It reasoned that the school board had a
compelling interest in teaching the students professional standards of English and that having the
students delete profanity achieved this interest. Lopez, 40 Cal. Rptr. 2d at 777. The court further
7
reasoned that the school board’s decision was based not on the content of the speech, but on the
indecent manner of the speech. Lopez, 40 Cal. Rptr. 2d at 777.
Likewise, Appellees have a compelling state interest in maintaining an educational
environment that fosters socially appropriate behavior. Because of the nature of a website, it
would have been impractical, if not impossible, for Principal Creon or Superintendent Cadmus to
have restricted only part of Smith’s speech as did the school officials in Lopez. The Appellees
were reasonable in assuming the only means in achieving their interest was to shut the entire
website down. Also, the Thebes Unified School District’s prohibition was not based on the
content of Smith’s website. This Court recognizes that there can be valuable discussion of
politics, religion, and school events. However, the Appellees prohibited the website because of
the inappropriate manner of expression: revealing disruptive school gossip, mocking religions
and religious figures, and denigrating political commentary. Therefore, Creon, Cadmus, and the
Thebes Unified School District were justified in prohibiting “The Crossroads.”
Appellant’s rights are subject to Appellee’s rights of running an orderly school. Though
students do not shed their constitutional rights to freedom of speech at the schoolhouse gate,
school officials are justified in prohibiting speech if their action was caused by more than a mere
desire to avoid discomfort and unpleasantness associated with unpopular views, and if the
students’ activities materially and substantially interfere with the work and discipline of the
school. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 509 (1969). In
Tinker, students were prohibited from wearing black armbands to school to express their
opposition to the Vietnam War. 393 U.S. at 504. The Court held that this action violated the
First Amendment. Tinker, 393 U.S. at 514. It reasoned that wearing black armbands did not
intrude upon the work of the schools or rights of other students. Tinker, 393 U.S. at 508.
Unlike the expression in Tinker, Appellant’s expression did materially and substantially
intrude upon the work of the school and the rights of other students. Furthermore, the Wonder
Board component may have intruded upon the privacy rights of some students. The website
materially interfered with the classes which were distracted by notes and conversations regarding
the website. Though passing notes and exchanging gossip are common in schools, here they
caused a degree of disruption that resulted in complaints to the principal. Furthermore, the
problems will most likely burden the Appellees with unnecessary additional work (e.g.
monitoring the annual computer contest more closely, discontinuing or materially altering
advanced computer courses dealing with website construction to avoid inappropriate content on
students’ websites, etc). Thus, Appellees were justified in prohibiting Appellant’s speech.
Appellant’s rights are not the only rights that the Thebes Unified School District needs to
protect. Appellees have an interest in protecting the privacy rights all THS students and
personnel. Educators do not offend the First Amendment by exercising control over student
speech in school-sponsored expressive activities, as long as their actions are reasonably related to
legitimate pedagogical concerns; judicial intervention to protect students’ First Amendment
rights is necessary only where a school censors a vehicle of student expression without a valid
educational purpose. Kuhlmeier, 484 U.S. at 273. In Kuhlmeier, the Court reasoned that the
principal was justified in deleting two pages of the newspaper because he was reasonably
8
concerned for the privacy interests of the students’ boyfriends and parents discussed in the
articles without their consent. 484 U.S. at 274. Additionally, lower courts have given no First
Amendment protection to students whose speech was considered threatening to others. E.g.
J.S. ex rel. H.S. v. Bethlehem Area School Dist., 757 A.2d 412, 418-422 (Pa.Cmwlth. ,2000).
Likewise, Appellees have a pedagogical concern in protecting their students’ privacy
rights. Appellees required the website to be shut down for the educational purpose of creating an
environment in which students could come and learn without fear of being subjected to an
unreasonable amount of gossip. Moreover, the Appellant’s website contained language that
could easily be construed as a threat. Therefore, judicial intervention to protect Appellant’s
freedom of expression rights is not necessary.
WHEREFORE, the judgment of the district court is AFFIRMED.
ATHENS, J, dissenting
I agree that schools have the duty to provide an environment to teach appropriate social
behavior. However, this mission cannot be fulfilled when a school prevents students from
appreciating the values of free expression, political discourse, criticism of authority, and other
democratic participatory roles.
The “material disruption” standard set out in Tinker v. Des Moines Indep. Community
Community Sch. Dist., 393 US. 503 (1969) is inapplicable to the present case. First, the holding
and reasoning in Tinker cannot apply to off-campus speech. Judge Sparta himself refers to the
famous Tinker quote that students do not shed their constitutional rights at the schoolhouse gate.
Thus, outside of the schoolhouse gates, students are clothed with all of the constitutional First
Amendment safeguards afforded to every person.
Moreover, even if a persuasive argument was made that Tinker applies to off-campus
speech, Appellant’s actions cannot be said to have materially and substantially disrupted the
classroom environment. The majority argues that the distractions (note passing and
conversation, possible privacy intrusion, and the likely burden of altering the computer club and
computer courses) justify free speech intrusion. The Tinker court explicitly states that a school
“must be able to show its action was caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id at 509.
Many lower courts have recognized this principle as well. E.g. Beussink v. Woodland R-IV
School District, 30 F. Supp. 2d 1175, 1180 (E.D. Mo., 1998). Gossip, murmuring, and hurt
feelings amount to discomfort and unpleasantness, but the Constitution requires more. The
Appellant’s actions are not the only distractions; nothing restricts the school from exerting
disciplinary authority over those that persistently gossip in class.
Finally, Appellant is not acting under the false pretense that she was operating within a
public forum when the Supreme Court held in Reno v. ACLU, 521 U.S. 844, 868 (1997) that the
Internet should be treated as a public forum for robust discourse, just like newspapers, books,
streets, and parks. The school policy fails to satisfy the narrow intrusion allowed in a public
forum. The policy is not narrowly tailored to define what conduct is prohibited and is thus
9
improper. Proper remedies do exist for those who feel threatened or slandered, but those
concerns should be addressed by law enforcement and other civil remedies, not school
punishment.
The schoolhouse gate does not extend into cyberspace. A school’s basic educational mission
is undermined when students fear their off-campus public discussion jeopardizes their classroom
success.
For these reasons, I respectfully dissent.
10
Appendix I
Thebes Unified School District Policy Regarding Student Activities in Journalism
Classes
The governing board of the Thebes Unified School District and the Dragon Parish Board
of Education hereby adopt the following rules and regulations to serve as a written
publications code. These rules and regulations apply to all official school publications.
"Official school publications" refers to material produced by students in the journalism,
newspaper, yearbook, or writing classes and distributed to the student body either free or
for a fee.
Time, place, and manner of conducting student journalistic activities
All official school publications shall be produced within the time and place of
assignments made in journalism or other writing classes, either during class time or
outside of class as would be normal for homework assignments for other classes. The
manner of producing official school publications shall conform to the criteria below.
Responsibilities of student editors and faculty advisers
Student editors of official school publications shall be responsible for assigning and
editing the news, editorial, and feature content of their publications subject to the
limitations of section 48907 of the Boetia Education Code. However, it shall be the
responsibility of a journalism adviser or advisers of student publications within each
school to supervise the production of the student staff, to maintain professional standards
of English and journalism, and to maintain the provisions of section 48907.
11
Appendix II:
Boeotia Education Code § 48907 (2008)
Students of the public schools shall have the right to exercise freedom of speech and of
the press including, but not limited to, the use of bulletin boards, the distribution of printed
materials or petitions, the wearing of buttons, badges, and other insignia, and the right of
expression in official publications, whether or not such publications or other means of expression
are supported financially by the school or by use of school facilities, except that expression shall
be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material which
so incites students as to create a clear and present danger of the commission of unlawful acts on
school premises or the violation of lawful school regulations, or the substantial disruption of the
orderly operation of the school.
Each governing board of a school district and each county board of education shall adopt
rules and regulations in the form of a written publications code, which shall include reasonable
provisions for the time, place, and manner of conducting such activities within its
respective jurisdiction.
Student editors of official school publications shall be responsible for assigning and
editing the news, editorial, and feature content of their publications subject to the limitations of
this section. However, it shall be the responsibility of a journalism adviser or advisers of student
publications within each school to supervise the production of the student staff, to maintain
professional standards of English and journalism, and to maintain the provisions of this section.
There shall be no prior restraint of material prepared for official school publications
except insofar as it violates this section. School officials shall have the burden of showing
justification without undue delay prior to any limitation of student expression under this section.
"Official school publications" refers to material produced by students in the journalism,
newspaper, yearbook, or writing classes and distributed to the student body either free or for a
fee.
Nothing in this section shall prohibit or prevent any governing board of a school district
from adopting otherwise valid rules and regulations relating to oral communication by students
upon the premises of each school.
12