123456789101112131415161718192021222324252627affirmatively to promote particular student speech. The former questionaddresses educators’ ability to silence a student’s personal expression thathappens to occur on the school premises. The latter question concernseducators’ authority over school-sponsored publications, theatrical productions,and other expressive activities that students, parents, and members of the publicmight reasonably perceive to bear the imprimatur of the school.
Hazelwood Sch. Dist v. Kuhlmeier,
484 U.S. 260, 270-71 (1988) (
)Similarly: “A teacher’s curricular and pedagogical choices are categorically unprotected.”
Evans-Marshall v. Bd. Of Educ. Of the Tipp City Exempted Village Sch. Dist.
, 624 F.3d 332,342 (6th Cir. 2010) (emphasis added). As discussed below in Section III, every single Circuitthat has considered this issue has ruled the same way: 11 cases in 7 circuits.It is therefore respectfully submitted that the Superintendent should be entitled tosummary judgment on the First Amendment issues.
B.As a Matter of Law, There Is No Valid Facial Challenge to This Statute forAlleged Vagueness.
The Ninth Circuit “presume[s] statutes are constitutional.” S
ea River Mar. Fin. Holdings, Inc. v. Mineta
, 309 F.3d 662, 669 (9th Cir. 2002). “Facial invalidation is,manifestly, strong medicine that has been employed by the court sparingly and only as a lastresort.”
Nat’l Endowment for the Arts v. Finley
, 524 U.S. 569, 580 (1998). Courts mustconstrue statutes to uphold their validity if possible.
Robertson v. Seattle Audubon Soc’y,
5032 U.S. 429 (1992). Because plaintiffs cannot show that A.R.S. § 15-112 affects their FirstAmendment Rights, they must show that the law is unconstitutional “in all its applications” to prevail on their facial challenge.
Humanitarian Law Project v. U.S. Treasury Dep’t
, 578 F.3d 1133, 1146 (9th Cir. 2009). They cannot do so here.Plaintiffs Reply argues that the statute itself must define terms, and that dictionary
Wherever Plaintiffs summarize their claims (e.g., motion pages ii,7), they present threetheories: 1. The statute does not provide notice as to what constitutes a violation; 2. It grantsa subjective power of enforcement; 3. It violates the First Amendment. As Plaintiffsrecognize in their Reply at page 20 lines 19-22, the first and second theories fall under theFourteenth Amendment prohibition against vagueness. This Reply in Support of the CrossMotion is organized under two headings, First Amendment and Alleged Vagueness. Wesubdivide our analysis of alleged Vagueness under “facial” and “applied” challenges.
Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 3 of 25