You are on page 1of 13

THOMAS MORE SOCIETY

A National Public Interest Law Firm



29 S. LaSalle | Suite 440 | Chicago, IL 60603 | www.thomasmoresociety.org | P: 312.782.1680 | F: 312.782.1887
Injustice anywhere is a threat to justice everywhere. Rev. Dr. Martin Luther King
MEMORANDUM
TO: Students for Life of America
FROM: Thomas More Society
RE: First Amendment Rights of Public High School Students
DATE: July 12, 2013
ISSUE
Under the Equal Access Act and the First Amendment to the United States Constitution,
can a student establish an officially recognized pro-life club, affiliated with Students for Life of
America, at a public high school when the school functions as a limited public forum and school
officials and administrators have resisted or refused to allow the clubs formation or activities?
BRIEF ANSWER
Yes. Under the Equal Access Act, a school that permits any non-curricular clubs to be
established may not deny other clubs, on the basis of the content of their speech. Under the First
Amendment, schools may prohibit student speech that will cause substantial disruption to
education, violates the rights of other students, or is contrary to educations goals (such as
obscenity or speech promoting drugs).
STATEMENT OF FACTS
Students for Life of America (SFLA) recently launched a new initiative for public and
private high school students. The High School and Homeschool outreach program includes
specialized training, programming, guide books, and a website addressing the issues and
challenges that pro-life high school students face. SFLA has also created a step-by-step guide on
how to start pro-life groups at high schools.
Following the launch, various high school students across the country attempted to start
pro-life groups at their respective high schools. Many experienced resistance from school
2 of 13
administrators, who either commented that such a club would be illegal or created obstacles for
the students, effectively preventing club formation.
For example, a student at Central High School in Tuscaloosa, Alabama, was discouraged
by all teachers from starting Tuscaloosa Teens for Life, with teachers both claiming it was too
controversial and making other excuses. The schools social worker told him that the school is
not allowed to talk to students about sex or pro-life issues, but also said that she would give a
student facing an unexpected pregnancy information about all of her options, including abortion.
The principal voiced concerns about protests at the school and demanded that the student
provide him with a list of every pro-life event that Tuscaloosa Teens for Life planned to host,
stating that the school board would need to examine the list before it could even consider
approving the club. The school continues to find ways to stall the clubs formation, intentionally
delaying the student and attempting to bury the club in bureaucracy.
Other high school students in Welsh, Louisiana, encountered similar resistance to starting
a pro-life club at their public school. One student attempted in the Fall 2012 semester, and
another tried again in the spring. The principal told both students that it was not a good idea and
that they could not start the group. The principals justifications were that groups were not
allowed to talk about religion or put up flyers that are church related, even though the group
is not religious. After the second student pushed the issue, administration threatened to expel him
because he attended the school, outside of his district, by special permission.
Students at Beaverton High School in Beaverton, Oregon, received permission to start a
pro-life group, but have encountered administrative problems in actually conducting group
activities. After consulting the schools lawyers, the administration give permission for the
group to be official, but with the restriction that the group would have to get approval for
3 of 13
everything it did. When the students attempted to get their fetal development flyers approved,
they were told they had to eliminate the words abortion breaks tiny hearts campaign. Their
clubs flyers showing a picture of Horton Hears a Who and the phrase A Person is a Person
No Matter How Small were approved and hung. However, the administration again changed its
mind upon receiving calls from other students complaining that the flyers were offensive. The
school principal told the students that the school had changed its policy on flyers, and said that
the flyers could only show the name of the club and what time they meet. Despite this alleged
policy change, many other clubs flyers, containing graphics and words, remained hanging.
At this point, no party involved has filed a lawsuit. This memo is not designed to give an
opinion on the specifics of those three potential lawsuits, but to give a legal opinion on high
school students rights in general to form pro-life groups in public high schools under First
Amendment jurisprudence.
DISCUSSION
SFLA student groups have rights to be official school clubs both under the Equal Access
Act and through their First Amendment constitutional rights to free speech. This memorandum
will first analyze the students rights under the Equal Access Act, then under the First
Amendment.
I. EQUAL ACCESS ACT
A. Summary of law
The first question when determining the rights of high school students to form groups at
their schools is whether the Equal Access Act (the EAA), 20 USCS 4071, applies. The EAA
says that a school may not discriminate on the basis of religious, political, philosophical or other
content against potential or established student groups. In order for the EAA to apply, the school
must:
4 of 13
1) Receive federal financial assistance;
2) Be a public secondary school; and
3) Maintain a limited open forum, meaning that it allows one or more noncurriculum-
related student group to meet on school premises during non-instructional time (the
time before or after actual classroom instruction).
If these three conditions are met, then the EAA applies, and school must provide equal
access or a fair opportunity to the forum. This equal access and fair opportunity required by the
EAA means that the school must uniformly provide that:
(1) the meeting is voluntary and student-initiated; (2) there is no sponsorship of
the meeting by the school, the government, or its agents or employees; (3)
employees or agents of the school or government are present at religious meetings
only in a non-participatory capacity; (4) the meeting does not materially and
substantially interfere with the orderly conduct of educational activities within the
school; and (5) non-school persons may not direct, conduct, control or regularly
attend activities of student groups.
20 USCS 7071(c).
In Board of Educ. of Westside Community Schools v. Mergens, the Court held the EAA
constitutional and provided guidance as to its application. 496 U.S. 226 (1990). In Mergens,
though the public secondary school permitted students to form and join various clubs that met on
school grounds after instructional hours, the plaintiff students were denied permission to form a
Christian club. Id. at 231-32. The Supreme Court held that the EAA applied and prohibited
discrimination against the requested club on the basis of its religious content. Because the parties
stipulated that the school received public funding and was a public secondary school, the pivotal
question was whether the school maintained a limited open forum.
The EAA defined a limited open forum as one that allows one or more non-curriculum
related student group to meet on school premises during non-instructional time,

but it did not
provide a definition of non-curriculum related. The Court defined noncurriculum student
5 of 13
group as any student group that does not directly relate to the body of courses offered by the
school. Id. at 239 (emphasis in original).
1
A student group directly relates to the curriculum if:
1) the subject matter is taught in a regularly offered course;
2) the subject matter concerns the body of courses as a whole;
3) participation is required for a course; or
4) participation results in academic credit.
Id. at 239-240.
Though whether a group is curriculum-related is a question of fact, the Court noted that
religious and political groups are likely noncurriculum-related. Id. at 240, 238. If the school
allows even one noncurriculum related student group, then it has created a limited open forum
and may not deny other clubs, on the basis of the content of their speech, equal access to meet
on school premises during noninstructional time. Id. at 236.
This is not to say that a school has no power whatsoever over groups it recognizes. It
may structure its course offerings in order to avoid the Acts obligations altogether, or opt to
decline federal funding. Id. at 240. If it does submit to the Act, it may prohibit meetings that
would materially and substantially interfere with the orderly conduct of educational activities
within the school; and it may maintain order on its premises, protect the well-being of students
and faculty, and assure that student attendance at meetings is voluntary. Id.
However, the bottom line is that if a public secondary school receives federal funding,
then if it opens the forum to even one noncurriculum student group, it may not discriminate
against others because of the content of their speech.

1
The Court explicitly rejected the argument that curriculum related, meant anything remotely related to abstract
educational goals, saying that such a broad interpretation would render the EAA meaningless and contradict the
entire purpose of the EAA. Id. at 244-45.
6 of 13
B. Application
Based on the information that SFLA has provided at this point, it is reasonable to assume
that current and future schools balking at SFLA groups are public secondary schools that receive
federal funding and have other noncurriculum-related clubs. If that is not the case, the EAA will
not apply, and the students will need to rely on First Amendment principles, as discussed below.
However, if the EAA does apply, then the school must meet the five fair opportunity criteria
discussed above on page 4.
The most common issues that students may face in the formation and operation of their
clubs are as follows:
1) Schools prohibiting the clubs on the grounds that they might be disruptive, under the
fourth fair opportunity criterion at 20 USCS 4071(c)(4) and under Mergens.
2) Schools arguing that SFLA is a non-school person that is directing, conducting, or
controlling the activities of the groups, thus the groups may be prohibited under the
fifth fair opportunity criterion at 20 USCS 4071(c)(5).
3) Schools arguing that clubs are required to have a faculty sponsor or supervisor and
that to assign one to the pro-life group would be endorsing its views and thus
violate the establishment clause.
4) Schools allowing the clubs to form but treating them differently than other clubs.
First, schools will have to present facts that reasonably lead school officials to predict
that the club will cause substantial disruption. Though the EAA line of cases is generally
separate from the First Amendment line of cases, the concepts in Tinker pertaining to disruption
can be informative for determining disruption under the fair opportunity criteria. Prince v.
Jacoby, 303 F.3d 1074, 1082 (9th Cir. Wash. 2002). Under Tinker, student expression may not
be suppressed unless school officials reasonably conclude that it will materially and
substantially disrupt the work and discipline of the school. Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 505 (U.S. 1969). However, the school needs to have concrete
7 of 13
justifications for predicting a substantial disruption, and it must be large in scope to constitute
such. (See below, Section II.A, for further discussion of the Tinker standard).
Second, the school may refuse to approve a pro-life group by claiming that it is under the
control of some outside organization. However, under 20 USCS 4071(c), non-school persons
did not direct, conduct, [or] control a public high school students group merely because a
national organization suggested the name or because nonstudents met with group members in
order to offer information and moral support. Colin ex rel. Colin v. Orange Unified Sch. Dist., 83
F. Supp. 2d 1135 (C.D. Cal. 2000). Furthermore, if other clubs at the school are permitted to
have names derived from an outside organization (such as a Key Club), then the school must
allow the pro-life group to use the SFLA name or a name derived from it.
Third, the schools may claim that the Establishment Clause prevents them from allowing
teachers to supervise pro-life clubs because they are religious in nature, or that assigning a
faculty sponsor would result in the school endorsing the religious or political message. SFLA
maintains that these groups are not religious in nature, but even if they were, the Court explicitly
rejected the argument that having a faculty supervisor over such groups would violate the
Establishment clause. Mergens, 496 U.S. at 253. Similarly, the Supreme Court has been clear
that the proposition that schools do not endorse everything they fail to censor is not
complicated, and high school students are mature enough to understand that permitting speech
is not the same as endorsing it. Id. at 250.
Finally, schools may attempt to treat the pro-life clubs differently after they have been
established. The EAA requires that students will not be subject to discrimination by the school
on the basis of their message or content. This means that all noncurriculum-related student
groups must be afforded the same rights, benefits, and protections. For example, if the other
8 of 13
clubs are permitted to hang posters with images on them, the school may not prevent the pro-life
group from placing posters with images as well. Similarly, if the school allows student groups to
publicize their activities using the public address system or the bulletin boards, then the pro-life
group must also be allowed to use those means of communication. Jacoby, 303 F.3d 1074; see
also, Straights and Gays for Equality v. Osseo Area Schools-District No. 279, 540 F.3d 911 (8th
Cir. 2008).
II. FIRST AMENDMENT
A. Student Speech
The purpose of the First Amendment is to preserve an uninhibited marketplace of ideas in
which truth will ultimately prevail, with the right to receive information and ideas an inherent
corollary. See Red Lion Broadcasting Co. v. F.C.C., 396 U.S. 367, 390 (1969); Board of
Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982).
The Supreme Court has made clear that students do not surrender their First Amendment
rights upon entering the school environment. Tinker v. Des Moines Independent School Dist.,
393 U.S. 503, 506 (1969). However, a students constitutional rights in a public school are not
identical to the rights of adults in other settings. Bethel School Dist. No. 403 v. Fraser, 478 U.S.
675, 682 (1986). Rather, the rights of students must be considered in light of the unique
characteristics of the school environment. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,
266 (1988).
In Tinker, a school suspended three students, ages 13-16, for wearing black armbands to
protest the Vietnam conflict. Tinker, 393 U.S. at 504. The district court supported the school,
reasoning that it reasonably prevented disturbance of school discipline. Id. at 505. The Supreme
Court ruled in favor of the students, saying that neither students nor teachers shed their
constitutional rights to freedom of speech and expression at the schoolhouse gate. Id. at 506.
9 of 13
Under the Tinker Standard, school authorities may not silence student expression unless they
reasonably forecast, based on evidence and not mere fear or apprehension of disturbance, that the
student expression would lead to either a substantial disruption of the school environment or an
invasion of the rights of others. Id. at 512.
Following the Courts decision in Tinker, lower courts across the country have clarified
the parameters of a substantial disruption. Indeed, schools need not have absolute certainty that
disruption will result, Nuxoll v. Indian Prairie Sc. Dist. No. 204, 523 F.3d 668, 673 (7th Cir.
2008), nor must they wait for a disturbance to actually occur before suppressing speech, Lowery
v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007). However, they must have facts which might
reasonably lead school officials to forecast substantial disruption. Nuxoll, 523 F.3d at 673
(emphasis added). Furthermore, it is usually not sufficient to conclude that certain topics are
inherently disruptive in order to predict substantial disruption. Chandler v. McMinnville Sch.
Dist., 978 F.2d 524, 530-31 (9th Cir. 1992). In fact, even significant disruption in the community
or school is not enough to justify squelching the group, as long as the group members are not
themselves causing the disruption. Boyd County High School Gay/Straight Alliance, 258 F.
Supp. 2d 667 (rallies with thousands of people and a boycott by half the student body were not
sufficient disruption to silence student group). Thus, though the contours may slightly differ by
jurisdiction, Tinker suggests that schools cannot suppress speech under the guise of some vague
possibility of disruption.
In Fraser, a student (Fraser) delivered a speech nominating a fellow student for student
elective office. Fraser, 478 U.S. at 677. Throughout the speech, Fraser referred to his candidate
in metaphorically graphic and sexual terms. Id. at 678. School authorities suspended him and
10 of 13
removed his name from the list of potential graduation speakers. Id. The lower courts held that
Frasers speech was indistinguishable from the students armband protest in Tinker. Id. at 679.
The Supreme Court reversed, making a distinction between the passive, political message
of the armbands in Tinker and the sexual content of Frasers speech. Id. at 680. The Court held
that the school acted within its authority in imposing sanctions upon Fraser in response to his
offensively lewd and indecent speech and that the schools policy against obscene language
served as adequate warning to Fraser of subsequent sanctions. Id. at 685. A students
constitutional rights in a public school are not identical to the rights of adults in other settings. Id.
at 682. While acknowledging that students have the undoubted freedom to advocate unpopular
and controversial views in schools and classrooms, the Court held that this right must be
balanced against societys countervailing interest in teaching students the boundaries of socially
appropriate behavior. Id. at 681.
In addition to preventing lewd or obscene language, schools may take steps to safeguard
those entrusted to their care from speech that can reasonably be regarded as encouraging illegal
drug use. Morse v. Frederick, 551 U.S. 393, 397 (2007) (finding a students banner reading,
BONG HiTS 4 JESUS, at an off-campus, school-approved activity was not protected speech);
see also Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 664-65 (1995) (random urinalysis
requirement for participation in interscholastic athletics did not violate a students constitutional
right to be free from unreasonable searches). These cases also recognize that deterring drug use
by schoolchildren is an importantindeed, perhaps compelling interest due to the severe and
permanent damage it causes to the health and wellbeing of young people. Id. at 661-62.
In Kuhlmeier, student staff members of the school newspaper part of a journalism
course for which they received grade and academic credit wrote an article regarding three
11 of 13
fellow students experiences with pregnancy and an article addressing the impact of divorce on
students at the school. Kuhlmeier, 484 U.S. at 263. The principal objected to their publication
because of concerns about the confidentiality of the students interviewed and the unbalanced
treatment of the issues. Id. at 263-64. The appellate court held that the newspaper was a public
forum, and that school officials may not censor its contents except when necessary to avoid
material and substantial inference with schoolwork, discipline, or the rights of others. Id. at 265.
The Supreme Court reversed the appellate court, holding that the school newspaper did
not qualify as a forum for public expression and that the school principal acted reasonably in the
deletion of the contested articles. Id. at 270. The Court explained that a school facility is only
deemed a public forum when school authorities have, by policy or practice, opened the facility
for indiscriminate use by the general public or a segment thereof. Id. at 267. Because the
newspapers stated purpose was to provide a supervised learning experience for journalism
students, it was part of the school curriculum and did not constitute a public forum. Id. at 270. As
such, school officials were entitled to regulate its contents. Id. The Court distinguished Tinker,
emphasizing the difference between tolerating and sponsoring student speech. Id.
B. Application
As in Tinker, pro-life students political message cannot be squelched at the schoolhouse
gate, never to be discussed among other students. Although the Tinker armbands are perhaps a
more passive political speech form than a pro-life group and its activities, the pro-life speech
remains protected under the Tinker standard unless school authorities can forecast, based on
factual evidence, that the pro-life groups existence and activities would lead to either a
substantial disruption of the school environment or an invasion of the rights of others. Students
reporting that they are offended by the group is not enough to ban the group or its activities,
and a general unsupported fear disturbance is not sufficient reason for school authorities to
12 of 13
silence the pro-life group altogether. Furthermore, as in Chandler, it is likely insufficient to
conclude that the pro-life message is inherently disruptive in order to predict substantial
disruption. Although abortion is a controversial topic, Fraser holds that students have the
freedom to advocate unpopular and controversial views in schools and classrooms within the
boundaries of socially appropriate behavior. In addition, according to Boyd, even a significant
disruption in the community or school regarding the pro-life groups existence or message is not
enough to justify silencing the group, as long as the pro-life group members are not themselves
causing the disruption.
While the rights of students in public schools are not coextensive with those of adults in
other settings, school officials cannot prevent the pro-life groups formation or hinder its
activities merely because they dislike the groups message. Rather, the school may only do so for
the compelling reason of preventing or eliminating a substantial disruption, such as preventing
drug use or the use of obscene language.
Unlike Kuhlmeier, the pro-life group and activities are not school-sponsored, but rather
are student-initiated and non-curricular. As a result, school officials may not censor the group or
its message in an unreasonable or unequal way. As explained in Fraser, high school students
have the intelligence to understand that the existence of a pro-life club does not infer that the
school endorses the clubs viewpoint. Unlike the student in Fraser, who apparently intended his
obscene language to help his fellow student become elected to student office, the pro-life group
message and activities are based on factual information about human life and political
viewpoints that deserve to be discussed among young people, especially as students approach
voting age.
13 of 13
The controversy surrounding abortion is intellectual as well as emotional, and high
school students should be given the opportunity to discuss current, relevant, and important
topics. The mere fact that another student is offended by the pro-life groups message is not
reason to silence the group altogether. Students reach differences of opinion on a wide variety of
topics, and such discernment is actually an intellectual goal.