PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

SETH TAYLOR; JA COB COBOS, by and through his parents Ralph and Adrienne Cobos; LACY CORMAN, by and through her parents Gary and Ladonna Corman; ARIELLE GREEN, by and through her parents Joseph and Socorro Green; REED MAY, by and through his parents Br uce and April May, Plaintiffs - Appellants,

v. ROSWELL INDEPENDENT SCHOOL DISTRICT; MICHAEL GOTTLIEB, in his capacity as Superintendent of Schools for Roswell Independent School District, Defendants - Appellees. No. 11-2242

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. 2:10-CV-00606 LFG-ACT)
Mathew D. Staver, Liberty Counsel, Maitland , Florida (Stephen M. Crampton, Mary E. McAlister, and Matthew H. Krause, Liberty C ounsel, Lynchburg, Virginia, and Anita L. Staver, Liberty Counsel, Maitland, Florida, with him on the briefs), appearing for Appellants. Jerry A. Walz, Walz and Associates, Albuquerque, New Mexico, appearing for Appellees. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2013
Elisabeth A. Shumaker Clerk of Court-2- Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.

MATHESON , Circuit Judge.
The plaintiffs are, or at all relevant tim es were, high school students from Roswell, New Mexico, who belong to a religious gr oup called “Relentless” (“Plaintiffs”). 1 They sued Roswell Independent School District and Superinte ndent Michael Gottlieb in his official capacity (collectively “the District”) seeking declaratory and injunctive relief. Their complaint alleged that school offici als violated their First and Fourteenth Amendment rights by preventing them from dist ributing 2,500 rubber fetus dolls to other

1 When the complaint in this case was filed, Plaintiffs were students at either Goddard or Roswell High. Our review of th e record indicates that four of the five plaintiffs have since graduated and one plainti ff, Jacob Cobos, is expected to graduate in May 2013. Plaintiffs seek de claratory and injunctive relief. They do not seek damages, even nominal damages. In Board of School Commissioners of Indianapolis v. Jacobs , 420 U.S. 128 (1975) (per curiam), the Suprem e Court dismissed as moot a challenge by high school students to regul ation of their school newspape r after the Court learned at oral argument that all of th e plaintiffs had graduated. In this case, however, at least one plai ntiff, Mr. Cobos, remains in school. He clearly has standing, and his claim is not m oot. “[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controve rsy requirement.” Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. , 547 U.S. 47, 52 n.2 (2006). See also Campbell v. Buckley , 203 F.3d 738, 740 n.1 (10t h Cir. 2000) (“Because the individual plaintiffs . . . have standing, and because [the y] jointly raise th e same substantive arguments on appeal . . . there is no need to address the sta nding of the [other] plaintiffs.”) (citing Bowsher v. Synar , 478 U.S. 714, 721 (1986)); Nat’l Rifle Ass’n v. Magaw , 132 F.3d 272, 278 n.4 (6th Cir. 1997) (“[A]s long as one plaintiff meets the requirements of Article III, the court can adjudicate the issues raised in the complaint.”). We therefore proceed to the merits.-3- students. It also challenged the Distri ct’s policies requiring preapproval before distributing any non-scho ol-sponsored material on school grounds. A magistrate judge granted summary judgme nt for the District on all claims, and Plaintiffs appealed. 2 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of Plaintiffs’ free speech, free exer cise, and equal protection claims. We also affirm dismissal of Plaintiffs’ facial challenge to Roswell District’s preapproval policies. We note that the public school se tting is important to our analysis.
I. BACKGROUND

A. Factual History The five plaintiffs in this case are, or at all relevant times were, students of two high schools, Roswell and Goddard High. Th ey belong to a religious youth group called Relentless, which is affiliated with a local church called Ch urch on the Move. Relentless is not affiliated with any school. Relentless members testified in depositio ns that they routinely engaged in religious expression at school. For example, they often spoke to ot her students, in groups and one-on-one, about their relig ious beliefs and anti-abortion views; and they regularly prayed, silently and aloud, while on school grounds, including during class. Plaintiffs were never disciplined or aske d to stop these activities.

2 Both parties consented to proceed befo re Magistrate Judge Lorenzo F. Garcia, with the understanding that appeal from a ny judgment entered by the magistrate judge would be to the United States Court of Appeals for the Tenth Circuit. See 28 U.S.C. 636(c); Fed. R. Civ. P. 73(b).-4- In late 2009, Plaintiffs and other Relentless members began an outreach campaign to express kindness and charity to fellow studen ts and teachers, and to “put God back into the schools.” Aplt. Appx., Vol. I at 195. E ach week they distributed different items at both schools. A pastor from Church on the Move, Tim Aguilar, led the students in organizing and planning thes e events and was present on school grounds for the distributions. Relentless initially gave 220 McDonald’s chic ken salad sandwiches (donated by a chur ch member) to the faculty at both high schools. In ensuing weeks, they distributed to students and f aculty hot chocolate, candy cane s with religious messages, and “affirmation rocks” with scriptural refere nces painted on one side. Aplt. Appx., Vol. IV at 993-95. When these distributions began, Roswe ll District had two policies concerning distribution of non-school related material s on campus. Policy 7 110 required advance permission from the District before distributi on in any quantity of promotional items or advertisements on campus. A separate, l ongstanding but unwr itten policy required students to obtain permission before on-campus distributi on of non-scho ol-sponsored literature. These policies are described in more detail later in this section.-5- The Relentless students did not seek permi ssion before distributing the previously mentioned items. 3 They were not disciplin ed, reprimanded, or asked to stop. There is no evidence these distributions caused disruption.
1. The Rubber Fetus Doll Distributions On January 29, 2010, Pastor Aguilar and the Relentless students planned to distribute 2,500 small rubber dolls, one to ever y student at both school s. Each two-inch doll was designed to be a realistic representati on of a human fetus. A card attached to each doll explained that it represented the ac tual size and weight of a “12 week old baby,” that is, a fetus at 12 weeks of gestatio n. Aplee. Appx., Vol. I at 22-23. One side of the card encouraged students to visit or call the Chaves County Pregnancy Resource Center, a clinic affiliated with Church on the Move. The other side featured a Relentless logo and this scriptural passage: For you formed my inward parts; You wove me in my mother[’]s womb. I will give than ks to You, for I am fearfully and wonderfully made; Wonderful are your works, And my soul knows it very well. Psalms 139:13-14 Aplee. Appx., Vol. I at 23.

3 Although it is undisputed that the Rele ntless students did not seek permission for the early distributions, Pastor Aguilar testifie d in his deposition that he and other adult organizers from the church sought and recei ved verbal permission for at least one distribution. He could not recall which ad ministrator gave permission or for which distribution.-6- At Goddard High, Pastor Aguilar and ei ght or nine Relentless students set up tables in the lobby and began the distributi on about 7:30 a.m. They approached every student entering the school and offered a doll. The entrances were not blocked, and the Relentless members allowed those who declined to take a doll to continue on their way. Assistant Principal Brian Luck arrived and no ticed the distribution. He went to his office and radioed other administrators to as k whether the students had approval for the distribution. Assistant Principal Michelle E dgett responded that the students did not have approval and told Mr. Luck he should “p robably” take possession of the dolls. 4 Aplt. Appx., Vol. I at 175. On his way back to the lobby, Mr. Luck saw several students throwing what looked like small rubber balls at the wall. The “ba lls” turned out to be dismembered heads of the rubb er fetus dolls. Several female students stopped him to complain. Relentless members were not among those dismembering or throwing the dolls. Mr. Luck approached the Relentless students and said, “It’s time to shut this down. . . . Some people are getting offended.” Ap lt. Appx., Vol. IV at 996. He took the remaining dolls and told the students they woul d be returned at the end of the day. At this point, the Relentless group had distributed more than 300 dolls at Goddard High.

4 Mr. Luck testified at his deposition that at the time of these events, he was newly appointed as an Assistant Pr incipal and did not have the authority to grant or deny approval for student dist ributions on campus.-7- Later that morning, a Goddard High admini strator called the principal of Roswell High, Ruben Bolaños, to ask if a similar distribution was underway at Roswell High. Principal Bolaños was not on campus, so he telephoned a campus security officer and instructed him to investigate and to confis cate the dolls “[i]f it’ s a disruption to the educational process.” Aplt. Appx., Vol. I at 123. Two campus security guards at Roswell High investigated and eventually determin ed the dolls should be confiscated. Both schools experienced doll-related disr uptions that day. Many students pulled the dolls apart, tearing the heads off and usin g them as rubber balls or sticking them on pencil tops. Others threw dolls and doll part s at the “popcorn” ceili ngs so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble pe nises, and hung them on the outside of their pants’ zippers. Teachers at both schools comp lained that students’ pr eoccupation with the dolls disrupted classroom instruction. While teache rs were trying to instruct, students threw dolls and doll heads across classrooms, at one another, and into wastebaskets. Some teachers said the disruptions took eight to 10 minutes each class period, and others said their teaching plans were derailed entirely. An honors freshman E nglish class canceled a scheduled test because students had become engaged in name calling and insults over the topic of abortion. A Roswell security officer described the day as “a disaster” because of the dolls. Aplt. Appx., Vol. II at 447.-8- About two weeks later, on February 11, 20 10, Relentless attempted to distribute the dolls again, believing it was their Ch ristian duty and constitutional right. Administrators at both schools immediately st opped this second dist ribution. A Goddard High administrator announced ov er the public address system that “[n]othing is to be passed out that is not school related,” and wa rned that “there will be disciplinary actions taken” if the distribution continued. Aplt. Appx., Vol. I at 21. At Roswell High, Principal Bolaños emailed instructions to the faculty that rubb er fetuses should be confiscated and any student distributing them should be referred to the administration. On the same day, other students at Ro swell High were allowed to distribute Valentine’s Day-related items such as candy, cards, and stuffed animals. [ Id. ] The record does not tell whether any students di stributed large quantities of these items or whether they received prior approval. Th ere is no evidence of disturbance from the Valentine’s Day-related distributions. In late February, Relentless’s legal coun sel sent a written demand to the District that the group be permitted to conduct the fe tus doll distribution. Around this time, Superintendent Michael Gottlieb, administrators of both schools, and the senior pastor of Church on the Move, Troy Sm otherman, met to discuss this issue (the “Gottlieb meeting”). During the Gottlieb meeting, pa rticipants discussed the possibility that Relentless might implement a le ss controversial message of abstinence. Superintendent Gottlieb asked Pastor Smotherm an whether Relentless would consider distributing the fetus dolls more quietly, suggesting the group could “just put these babies in [students’]-9- backpacks . . . without the big to-do.” Aplt. Appx., Vol. I at 114. The meeting ended without resolution.
2. Later Relentless Distributions After the meeting, Relentless varied their distributions. Later in February, they distributed wristbands with the message “I’m Worth Waiting For.” Aplt. Appx., Vol. IV at 999. The group did not seek prior approval, which violated Roswell District’s standard practice. Both schools allowed the distribu tions to continue, but two Relentless students from Goddard High, including one plaintiff, were required to atte nd “Saturday school” for violating the preapproval policy. In subsequent months, Relentless distri buted more items fe aturing scriptural quotes and religious and anti- abortion messages, including s tickers, plastic Easter eggs, pencils, and dog tags. Relentless sought and received permission to distribute the Easter eggs, but Goddard administrators asked them not to block entrances or approach other students as they entered the building. It is not clear whether they sought permission for the other distributions, but there is no eviden ce of any disruption from any distributions that occurred after the Gottlieb meeting. [Aplt. Appx., Vol. IV at 1042.] In September 2010, after the next school year had begun, Relentless “surreptitiously” left 1,000 doug hnuts in the faculty lounges of both schools, with stickers featuring the Relentless logo a nd a quote from Galatians 6:9, “Let us not grow weary in well doing.” Aplt. Appx., Vol. IV at 1000- 01. One Relentless member who is not a plaintiff in this case was disc iplined for entering the faculty lounge after being told not to-10- do so, but no other disciplinary actions were ta ken. The doughnuts were removed in part due to “food safety concerns.” Id. at 1001.
3. Roswell District Policies Regarding On-Campus Distributions Two Roswell District policies have been re ferred to in this case. First, Policy 7110 was in place before the r ubber doll distribution. It requires the school principal’s preapproval to engage in promotional activities on campus, including advertising or solicitations. Policy 7110 bans outright the promotion of certain items on campus, such as alcohol and drugs. It does not mention religion. At the time of the rubber doll distribu tion, the District had a long-standing, unwritten policy of requiring students to obtai n approval before distributing non-schoolsponsored material on school gr ounds. In May 2010, the District formalized this unwritten policy when it prom ulgated Policy 5195, capti oned “Distribu tion of Non School Sponsored Literature.” Aplt. Appx., Vol. I at 186-87 . This policy requires that students obtain approval from the school admini stration before distributing more than 10 copies of “any non-school sponsored literature.” Section 2 of the policy provides that a pproval may be withheld if the school district administration “reasonably de termines” that the distribution:

a. Would cause a substantial disruption or a material interference with the normal operation of the school or school activities. b. Is potentially offensive to a substantial portion of the school community due to the depiction or description of sexual conduct, violence, morbidity or the use of language which is profane or obscene a nd which is inappropriate for-11- the school environment as judged by the standards of the school community.
c. Is libelous or which violates the rights of privacy of any person. d. Is false or misleading or misrepresents facts.
e. Is demeaning to any race, reli gion, sex, or ethnic group. f. Encourages violation of local, state or federal laws. Aplt. Appx., Vol. I at 186

. Sections 1 and 3 of the polic y describe certain procedural safeguards. The District must approve or deny a distribution request w ithin five school days. This time may be extended only with wr itten approval of Supe rintendent Gottlieb. The District must provide a written explanation of the reasons fo r any denial. Student s whose requests are denied have a right to two appeals. The firs t appeal is made directly to Superintendent Gottlieb, with a final appeal to the Board of Education. If a student appeals to the Board, it must provide a hearing within 10 school days and render its decision at its next regular meeting. Section 4 of the policy provides definitions of terms, including “distribution” and “non school sponsored.” Aplt. Appx., Vol. I at 186. Sections 5 and 6 give school officials the right to “designate a time, lo cation and means by which the distribution may take place,” and to revoke appr oval if the distribution causes a substantial disruption. Aplt. Appx., Vol. I at 186-87.-12- B. Procedural History Plaintiffs’ Second Amended Complaint so ught injunctive relief and alleged three counts. Count I included two First Amendment sp eech claims. First, Plaintiffs brought a facial challenge against the District’s pr eapproval policies for non-school-sponsored material, alleging the policies are uncon stitutional prior restraints and are unconstitutionally vague. Second , they challenged the policies as applied to Plaintiffs, claiming that the District’s refu sal to allow them to distribute the fetus dolls violated their free speech rights. Count II alleged violation ofPlaintiffs’ free exercise rights under a socalled hybrid claim theory. 5 Finally, Count III alleged that the District discriminated against Plaintiffs in violation of the Fourte enth Amendment’s Equal Protection Clause. At the close of discovery, the parties fi led cross-motions for summary judgment. No oral argument was held. The magistrate judge issued a 64-page opinion granting summary judgment for the District on all claims . Plaintiffs appealed on all counts, but abandoned the hybrid claim theory with respect to its free exercise claim.

5 The hybrid claim theory allows a cour t to apply strict scrutiny when “a free exercise claim is coupled with some other c onstitutional claim” and the plaintiff makes “a colorable showing of infringement of [the] companion constitutional right.” Axson-Flynn v. Johnson , 356 F.3d 1277, 1295 (10t h Cir. 2004) (quotations omitted). We have recognized this theory with reservations, noting that th e “hybrid-rights theory has been roundly criticized from every quarter and many have pointed out the danger of interpreting [it] broadly.” Id. at 1296. On appeal, Plaintiffs argue their free exercise claim but abandon the hybrid claim theory. We therefore do not discuss the hybrid claim theory in this opinion.-13- II. DISCUSSION Plaintiffs claim that when the schools pr evented them from distributing the rubber fetus dolls, their constitutional rights to free speech, free exercise of religion, and equal protection were violated. They also claim th at the speech violation was the product of school policies that are unconstitutional on their face as prior restraints and for reasons of vagueness and overbreadth. 6 As we explain below, Plain tiffs’ free speech challenges fail because school officials reasonably foreca sted that the distribution would cause substantial disruption and becau se the distribution did cause substantial disruption. Plaintiffs’ free exercise and equal protection claims fail because th e decision to stop the distribution was not based on religion, and Plai ntiffs failed to show they were treated differently from similarl y situated students. Plaintiffs’ facial challenge to the scho ol policy also fails. The policy is not unconstitutional under the prior restraint doctrin e because it constrains official discretion and contains adequate proc edural safeguards—and because it applies to the school environment where greater deference is given to school officials. It is not void for vagueness because students of ordinary intelligence can un derstand its meaning and it neither authorizes nor encourages arbitrary or discriminatory enforcement. As we explain below, we do not address the overbreadth issue.

6 Plaintiffs did not raise an overbreadth claim in their compla int, but the parties argued the theory before the magistrate judge , who addressed overbreadth in the decision granting summary judgment.-14- A. Standard of Review We review a grant of summary judgmen t de novo, under the same standard applied by the district court (or in this case, the magistrate judge). Clinger v. N.M. Highlands Univ. , 215 F.3d 1162, 1165 (10th Cir. 2 000). Summary judgment is proper when “the movant shows that there is no genu ine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is genuinely disputed if “the evid ence is such that a reasonabl e jury could return a verdict for the non-moving party.” Witt v. Roadway Exp. , 136 F.3d 1424, 1429 (10th Cir. 1998). A fact is material if it “mi ght affect the outcome of the suit under the governing law.” Id. “[W]e draw all reasonable inferences from th e evidence in favor of ” Plaintiffs as the nonmoving party. Id. Summary judgment for the District is appropriate only if “the record taken as a whole could not lead a rationa l trier of fact to find for the” Plaintiffs. Tiberi v. Cigna Corp. , 89 F.3d 1423, 1428 (10th Cir. 1996). In First Amendment cases, we are obligated “to make an independent examination of the whole record in orde r to make sure that the ju dgment does not constitute a forbidden intrusion on the field of free expression.” Snyder v. Phelps , 131 S. Ct. 1207, 1216 (2011) (quotations omitted); Bose Corp. v. Consumers Union , 466 U.S. 485, 499 (1984); Barker v. Del City , 215 F.3d 1134, 1137 (10th Cir. 2000). We first consider the free speech challenge to the District’s refusal to allow the rubber fetus distribution. Second, we address Plaintiffs’ facial challenge to the District’s-15- policies as unconstitutional prior restraints an d for vagueness. Third, we consider the Plaintiffs’ free exercise claim. Finally, we address the equal protection claim.
B. The Free Speech As-Applied Claim The First Amendment guarantees the right to free expression and is applicable to the states through the Du e Process Clause of the Fourteenth Amendment. Gitlow v. New York , 268 U.S. 652, 666 (1925); De Jonge v. Oregon , 299 U.S. 353, 364 (1937); Cannon v. City and Cnty. of Denver , 998 F.2d 867, 871 (10th Cir. 1993). The magistrate judge analyzed Plainti ffs’ free speech claim under two standards developed in Tinker v. Des Moines , 393 U.S. 503 (1969), and Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988), and held that the District was entitled to summary judgment under both standard s. We affirm under the Tinker standard. Hazelwood is inapplicable because the expre ssion at issue here is private student speech and not schoolsponsored speech. Two important questions are not at issue. First, this ca se does not turn on whether the content of Plaintiffs’ message warrant s First Amendment protection—there is no question that it does. The record shows Pl aintiffs meant to co nvey a religious and political message when they distributed the rubber dolls, and the Constitution requires they be permitted to express these views at school in some form. See Tinker , 393 U.S. at 513; Williams v. Eaton , 443 F.2d 422 (10th Cir. 1971). Fo r example, the District almost certainly may not prevent Plaintiffs from shar ing their religious vi ews in nondisruptive small group discussions with other students who wish to participate; nor can the District-16- exercise editorial control over the content of Plaintiffs’ private expression or decide whether to approve Plaintiffs’ distribution of materials on the basis of their viewpoint. See Tinker , 393 U.S. at 509. Insofar as the Dist rict has acknowledged that Plaintiffs’ many other religiously-themed distributions at both schools did not disrupt the school environment, it correctly allowed t hose distributions to continue. See id.; Williams , 443 F.2d at 431

. Second, the parties do not contest that the District was allowed, under Tinker and Bethel School District No. 403 v. Fraser , 478 U.S. 675 (1986), to confiscate alreadydistributed rubber dolls from any students w ho threw them, used them to harm school property, or displayed them as props for lewd or obscene expressions of their own. What is contested is whether the District vi olated Plaintiffs’ free speech rights when it stopped their on-campus distribution of large quantities of the rubber fetus dolls. The answer depends on whether school official s reasonably forecasted that this particular form of expression (i.e., mass distribution of hu ndreds or thousands of three-dimensional rubber dolls to public high school student s during the school day) would create a substantial disruption to school discipline. Seamons v. Snow , 84 F.3d 1226, 1237 (10th Cir. 1996). In the following discussion, we determine that Plaintiffs’ claims involve private— that is, non-school-sponsored—student speech and therefore fall under the Tinker standard. Applying Tinker , we hold that the District did not violate Plaintiffs’ free speech-17- rights because it reasonably forecasted that di stribution of the rubber dolls would lead to a substantial disruption.
1. The Tinker Standard Applies to Plaintiffs’ Distribution Restrictions on student speech in public schools are analyzed under one of two standards. Corder v. Lewis Palmer Sch. Dist. No. 38 , 566 F.3d 1219, 1225 (10th Cir. 2009). Tinker governs private student speech; Hazelwood governs school-sponsored speech. Corder , 566 F.3d at 1225

. 7 Private student expression that is unconnect ed to any school-sponsored activity is subject to the more stringent Tinker standard. Morse v. Frederick , 551 U.S. 393, 405-06 (2007). In Tinker , the plaintiffs were punished for wear ing black armbands at school to express their disagreement with U.S. involvement in the Vietnam War. Tinker , 393 U.S. at 504. The Supreme Court held that the school could not rest rict this speech unless the school reasonably forecasted th at the speech would cause s ubstantial disruption to the school environment. Id. at 509. 8

7 A third standard addresses speech in public schools that can be characterized as “government speech, su ch as the principal speaking at a school assembly.” Axson-Flynn , 356 F.3d at 1285 (quotations omitted). As th e current case involves student speakers, this standard is not relevant.

8 The Tenth Circuit first applied the Tinker standard in the 1971 case of Williams v. Eaton , where we held that college football play ers had a free speech right to wear black armbands during a game to protest the raci al policies of the other team’s school. 443 F.2d 422, 430-32 (10th Cir. 1971).-18- In contrast, the Supreme Court has explaine d that student speech is analyzed under the Hazelwood standard when “students, parents, and members of the public might reasonably perceive [the speech] to be ar the imprimatur of the school.” Morse , 551 U.S. at 405. At issue in Hazelwood was a school’s decision to ce nsor the content of a high school newspaper published as part of the school’s journalism program. Id. Schools “do not offend the First Amendment by exercising ed itorial control over the style and content of student speech in school-s ponsored expressive activities ,” provided the restrictions “are reasonably related to leg itimate pedagogical concerns.” Hazelwood , 484 U.S. at 273. In the present case, “[n]o one would reas onably believe” the distribution of rubber fetuses “bore the school’s imprimatur.” Morse , 551 U.S. at 405. As in Tinker , Plaintiffs were expressing their private views, and th eir expression was not part of any schoolsponsored program. The Tinker standard therefore applies. See Roberts v. Madigan , 921 F.2d 1047, 1057 (10th Cir. 1990 ) (“[I]f the speech involved is not fairly considered part of the school curriculum or school-sponsored activities, then it may only be regulated if it would materially and substantially interfere with the requirements of appropriate discipline.” (quotatio ns omitted)).
2. The District’s Actions Did Not Violat e Plaintiffs’ Free Speech Rights

a. Further Background on the Tinker Standard Under Tinker , a public school may not restrict private student expression unless the school reasonably forecasts it “would mate rially and substantially interfere with the-19- requirements of appropriate discipline in ope ration of the school,” or “impinge upon the rights of other students.” Tinker , 393 U.S. at 505-06, 509. 9 A disruption need not actually materialize. School officials may act to prevent problems as long as the situation “might reasonably [lead] authorities to forecast” substantial disruption or interfere nce with the rights of others. Id. at 514. This forecast must be reasonable. Officials may not restri ct speech based on “undifferentiated fear or apprehension of disturbance” or a “mer e desire to avoid the discomfort and unpleasantness that always accomp any an unpopular viewpoint.” Id. at 508-09. For a school’s forecast to be reasonable, courts generally require that it be based on a “concrete threat” of substantial disruption. Sypniewski v. Warren Hills Regional Bd. of Educ. , 307 F.3d 243, 262 (3d Cir. 2002)

. Tinker rejected the idea that a “silent, passive” expression that merely provokes di scussion in the hallway constitutes such a threat, particularly if that expression is politi cal. 393 U.S. at 514. The Second and Third Circuits have reinforced this notion, overtur ning schools’ bans on t-shirts criticizing George W. Bush or featuring comedian Jeff Foxworthy. Guiles v. Marineau , 461 F.3d 320 (2d Cir. 2006); Sypniewski , 307 F.3d at 254. 10

9 Subsequent Supreme Court cases have a llowed schools to restrict student speech that is lewd or patently offensiv e or promotes illegal drug use. Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 685 (1986); Morse v. Frederick , 551 U.S. 393, 395 (2007). These cases offer useful insight for understanding Tinker ’s substantial disruption test.

10 We note, however, that several circuits (i ncluding ours) have upheld restrictions on passive, silent expression—even political expression—where it is clearly associated Continued . . .-20- When the speech is neither passive nor silent , restrictions are more readily (but not always) upheld. For example, the Ninth Ci rcuit held that student athletes were constitutionally protected in peacefully circulating a petiti on criticizing their coach, but upheld the school’s decision to suspend them for holding a protest before a sporting event and refusing to board the team bus. Pinard v. Clatskanie Sch. Dist. , 467 F.3d 755 (9th Cir. 2006). The court found the protest was not protected because it created a substantial disruption with the operation of the school basketball program. Id . at 769. See also
Morse , 551 U.S. at 397; Fraser , 478 U.S. at 678. When school officials reasonably forecas t substantial disruption, they have discretion to restrict forms of student speech that might otherwise be protected in a nonschool setting. “‘[T]he First Amendment give s a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.’” Fraser , 478 U.S. at 682 (quoting Thomas v. Bd. of Educ. , 607 F.2d 1043, 1057 (2d Cir. 1979) (Newman, J., concurring in

______________________________________ Cont. with past school violence or substa ntial disruption. For example, in West v. Derby Unified School District , 206 F.3d 1358 (10th Cir. 2000 ), we upheld a school policy prohibiting students from displaying the Conf ederate flag, finding the school reasonably forecasted substantial disrupti on due to past racial tens ion in the school context associated with that image. Id. at 1365. See also Defoe v. Spiva , 625 F.3d 324 (6th Cir. 2010) (upholding school’s ba n on Confederate flag); BWA v. Farmington R-7 Sch. Dist ., 554 F.3d 734, 738-41 (8 th Cir. 2009) (same); Barr v. Lafon , 538 F.3d 554 (6th Cir. 2008) (same). Cf. Sypniewski v. Warren Hills Regional Bd. of Educ. , 307 F.3d 243, 262 (3d Cir. 2002) (rejecting school’s ban on t-shirt f eaturing comedian Jeff Foxworthy based on a finding that the word “redneck” was not asso ciated closely enough with a racial gang at the school known as the “Hicks”).-21- the result) (referring to Cohen v. California, 403 U.S. 15 (1971), in which the Supreme Court found an adult plaintiff had a First Amendment right to wear a jacket bearing profanity regarding the militar y draft in a courthouse)); see e.g. , West v. Derby Unified Sch. Dist. No. 260 , 206 F.3d 1358, 1366 (10th Cir. 2000) (upholding school’s ban on displaying a Confed erate flag). b. Tinker Applied to the Fetus Doll Distribution Plaintiffs’ distribution conv eyed a political a nd religious messag e and would likely merit First Amendment protection outside the school context. Inside the school walls, however, we must consider whether the expressi on was, or was reasonably forecast to be, disruptive. Unlike in Tinker , the expression here was neith er silent nor passive. It involved proactive co ntact with large numbers of other students. The items being distributed remained on school grounds in the hands of students throughout the school day. The sheer number of items also created strong potential for substantial disruption. Furthermore, these fetus dolls were made of rubber—a material that could easily be, and was, pulled apart, bou nced against walls, and stuck to ceilings. The dolls’ small size made them tempting projectiles and toilet- clogging devices. This scenario carries more potential for disruption than the passive, silent act of wearing a t-shirt or a black armband. And that potential qui ckly came to fruition. The reco rd is replete with reports of doll-related disruptions throughout the da y on January 29, 2010, including substantial disruptions to classroom inst ruction, damage to school property (the ceilings and plumbing), and risks to student safety (t he fire-starting and doll-throwing).-22- Plaintiffs note that most disruptions o ccurred only because of wrongful behavior of third parties and that no Pl aintiffs participated in thes e activities. Th ey argue that preventing their speech because of bad acts of others amounts to banning leafleting because of litterbugs. See Jews for Jesus v. Ma ss. Bay Transp. Auth. , 984 F.2d 1319, 1324-25 (1st Cir. 1993). This argument might be effective outside the school context, but it ignores the “special characterist ics of the school environment,” Tinker , 393 U.S. at 506, where the government has a compelling intere st in protecting the educational mission of the school and ensuring student safety. See Morse , 551 U.S. at 406-07; Fraser , 478 U.S. at 682; New Jersey v. T.L.O. , 469 U.S. 325, 340 (1985); PeTA v. Rasmussen , 298 F.3d 1198, 1205 (10th Cir. 2002). 11 Plaintiffs also argue that the magistrate judge ignored disputes of material fact regarding the District’s reasons for shutting down the distribu tion. They stress Assistant Principal Luck’s statement to Plaintiffs at the time he confiscated the fetus dolls: “It’s time to shut this down . . . Some people are getting offended.” Aplt. Appx., Vol. IV at

11 Plaintiffs do not cite (and we have not found) case law holding that school officials’ ability to limit disruptive expre ssion depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine. For example, in West , we upheld a school’s ban on the Confederate flag because the flag was associated with racial violence in the school environment, but we did not examine whether the student who had displayed the flag was actually advocating vi olence. 206 F.3d at 1365. Moreover, there is no indication in this case that the prob lematic student disruptions were aimed at stopping plaintiffs’ expressi on, and plaintiffs did not otherwise develop such an argument.-23- 996. They urge us to infer from this that Mr. Luck chose to stop the distribution solely because he was personally offended, or was worried that others wo uld be offended, by Plaintiffs’ religious, anti-abor tion message. The District sa ys Mr. Luck was referring to the non-Relentless students’ dismemberment and throwing of the dolls, which he and other students found offensive. Plaintiffs re ject this explanation, describing Mr. Luck’s testimony about the hallway disruptions and th e students’ complaints as incredible. We agree that Mr. Luck’s statement lack ed specificity, but we are not convinced Plaintiffs’ inference is reasonable. Plainti ffs provide no evidence to dispute Mr. Luck’s deposition testimony about the hallway disrupti ons or the complaints of the two female students. We see no reason to discount this testimony. View ing evidence in light most favorable to Plaintiffs does not extend to ig noring undisputed eviden ce that undermines their position. Even if we accepted Plaintiffs’ interpretati on of Mr. Luck’s statement, this claim would still fail. To survive summa ry judgment, a disputed fact must be material. Fed. R. Civ. P. 56(a). In assessing materiality, “[w] e are obligated to exam ine the record as a whole . . . and evaluate what the school actually did, as opposed to carving out an isolated statement from the record.” Fleming v. Jefferson Cnty. Sch. Dist. , 298 F.3d 918, 931 (10th Cir. 2002). Any dispute as to the exac t meaning of Mr. Luck ’s statement is not material when viewed agai nst the whole record. Plaintiffs argue that the District’s deci sion to stop the distribution was unjustified because the fetus dolls were confiscated befo re any substantial disr uption had occurred.-24- But the District was not obligated to wait unt il a substantial disruption materialized, so long as its forecast was reasonable. The subs tantial disruptions that actually transpired show the forecast was reasonable. Finally, even if Mr. Luck initially stop ped the distribution for impermissible reasons, Plaintiffs could not defeat summary judgment. At Roswell High, the dolls were not confiscated until security guards had obs erved actual disruptions. As for Goddard High, Plaintiffs’ reading of Mr. Luck’s statem ent shows at most that the school’s decision to stop the distribution was unjustified fo r some short period of time—likely a few minutes, but no more than one or two hours. Because Plai ntiffs seek only injunctive relief, any claim they could have under this fact interpreta tion became moot once actual substantial disruptions occurred. In short, there is ample undisputed ev idence that the District had permissible reasons for stopping the distribution. Plai ntiffs’ free speech rights were therefore not violated.
C. Facial Challenge to the Dist rict’s Preapproval Policies A facial challenge involves “an examination of whether the terms of the [policy] itself measured against the relevant cons titutional doctrine, and independent of the constitutionality of particular applications , contain a constitutional infirmity that invalidates the [policy] in its entirety.” Doe v. City of Albuquerque , 667 F.3d 1111, 1127 (10th Cir. 2012) (quotations omitted).-25- Plaintiffs assert that District policie s are unconstitutional on their face as prior restraints and for reasons of vagueness and overbreadth. We begin our analysis by defining the scope of our review, which is lim ited to considering Plaintiffs’ prior restraint and vagueness arguments as applied to rele vant portions of Policy 5195. We next consider Plaintiffs’ prior restraint argument. Finally, we address vagueness.
1. Scope of Plaintiffs’ Facial Challenge As a preliminary matter, we must consider th e scope of Plaintiffs’ facial challenge. For reasons we discuss below, our review is li mited in two ways. Fi rst, the only District policy properly before us is th e portion of Policy 5195 rele vant to Plaintiffs’ desired speech. This includes Policy 5195’s preapproval requirem ent and accompanying procedural safeguards, together with the s ubstantive restriction included in subsection 2.a. Second, because Plainti ffs have not adequately devel oped an overbreadth argument, our review is limited to their prior restraint and vagueness arguments.

a. Policies Included in Our Facial Review Plaintiffs attempt a facial attack on ever y District policy that could potentially govern student speech, including all of Policy 5195, Policy 7110, and the unwritten standard practice that preceded Policy 5195. This sweeping scope of review would be excessive. “Facial challenges are strong medi cine, and thus we must be vigilant in applying a most exacting anal ysis to such claims.” Doctor John’s, Inc. v. City of Roy , 465 F.3d 1150, 1157 (10th Cir. 2006) (considering facial ch allenge on prior restraint and vagueness grounds).-26- “Facial challenges are disfavored for se veral reasons” including the risk of “premature interpretation” because such challenges “often rest on speculation.” Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 450 (2008) (upholding a state election law over political party’s faci al challenge that the law violated its constitutional right to free association). Additionally, broad facial challenges “run contrary to the fundamental principle of judi cial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Id . (quotations omitted). Plainti ffs do not cite, and we have not encountered, binding or persuasive case law allowing, much less requiring, a court to entertain expansive facial challenges to whol e collections of laws or policies like the challenge they attempt here. We therefore decline to pe rform such a sweeping revi ew. Our inquiry concerns those portions of the District’s policies that pertain to the partic ular speech in which Plaintiffs wish to engage. Formal ad option of Policy 5195 subsumed the unwritten standard practice, rendering it moot w ith respect to our facial analysis. 12 For similar reasons, we do not consider the facial cons titutionality of Policy 7110. Although the record indicates that, before the adoption of Policy 5195, some sc hool officials believed Policy 7110 applied to the rubb er fetus distribution, the pr omulgation of Policy 5195, if

12 Policy 5195 was promulgated largel y in response to the rubber fetus controversy.-27- upheld here, renders Policy 71 10 immaterial to future stude nt distributions like those Plaintiffs wish to conduct. Finally, our facial review includes only relevant portions of Policy 5195. The District refused permission for the rubber fetus distribution because it believed the distribution was disruptive. This justificati on is covered by subsecti on 2.a., which allows school officials to restrict any distribution that “[w]ould cause a s ubstantial disruption or a material interference with the normal ope ration of the school or school activities.” Aplt. Appx., Vol. I at 186. Other bases for restriction covered by subsections 2.b through 2.f—for example, because the material is obscene or illegal, are irrelevant here. Our review is therefore limited to the Policy 5195’s preapproval requirement and accompanying procedural safeguards, together with the substantive Tinker restriction in subsection 2.a. 13

13 The question of which policie s are relevant to Plaintiffs’ desired speech (and are therefore appropriately included in our review) shou ld not be confused with the idea of prudential or third-party standing. Generally speaking, “a person to whom a [policy] may constitutionally be applied will not be heard to challenge that [policy] on the ground that it may conceivably be applied unconstitutionally to others . . .” Broadrick v. Oklahoma , 413 U.S. 601, 610 (1973). But “within the c ontext of the First Amendment,” courts have recognized “a lessening of prud ential limitations on standing,” which allows a plaintiff to facially challenge a law or policy even if the plaintiff’s own expression is not constitutionally protected. ACORN v. City of Tulsa , 835 F.2d 735, 738 (10th Cir. 1987). This is known as an overbread th challenge, which, as we explain below, has not been adequately raised and ar gued in this appeal. See Broadrick , 413 U.S. at 610.-28- b. Arguments Included in Our Facial Review Plaintiffs assert that the District’s po licy is facially unconstitutional as a prior restraint and for reasons of vagueness and overbreadth. Although they develop prior restraint and vagueness arguments by addressing the legal standards and case law specific to these theories, th ey fail to do the same for overbreadth. The overbreadth doctrine is an alternative facial challe nge theory similar to, but distinct from, vagueness. See Jordan v. Pugh , 425 F.3d 820, 827 (10th Cir. 2005) (“The Supreme Court has traditionally viewed vaguen ess and overbreadth as logically related and similar doctrines.” (quotations omitted)); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 497-98 (1982); West, 206 F.3d at 1367-68. A law or policy “may be invalidated as ove rbroad if a substantial number of its applications are unconstitutional, judged in relation to the statut e's plainly legitimate sweep.” United States v. Stevens , 130 S. Ct. 1577, 1587 (20 10) (quotations omitted). Although Plaintiffs make seve ral conclusory statements th at the District’s policy is overbroad, they do not address—or even acknowledge—the legal standard for overbreadth. Nor do they explain why they believe the policy is overbroad. 14

14 Although we do not consider overbread th, it is unlikely su ch a theory would succeed. To prevail on an overb readth theory, a plaintiff mu st show that a challenged policy prohibits a “broad range of protected conduct,” and there must be “a realistic danger that the [policy] itself will significa ntly compromise recognized First Amendment protections of parties not before the Court.” City of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 796, 800 -01 (1984). “The possibi lity of an impermissible Continued . . .-29- “[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief.” Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007). Our review of Plaintiffs’ facial challenge is therefore limited to their prior restraint and vagueness arguments.
2. Policy 5195 is Not an Uncons titutional Prior Restraint The magistrate judge upheld the preapproval requirement because it sets reasonable limits on student speech and has adequate procedural safeguards. We agree. We note at the outset that Policy 5195’s preapproval requirement does not affect all private student expression. It does not apply to spoken communication. For example, the policy does not require Relentless stude nts to seek preapproval for many of the expressive activities in which they routinely e ngage on school ground s, such as sharing their religious and anti-abortion views with ot her students or praying silently and out loud on school grounds and in the classroom. The preapproval requirement also does not a ffect symbolic expression. Students are not required, for example, to obtain permission before wearing black armbands,

______________________________________ Cont. application of a [policy] does not in itself mean the [policy] is subs tantially overbroad.” ACORN , 835 F.2d at 744. As we will explain, the substantive restric tion at issue, subsection 2.a, restates the Tinker standard. Tinker represents the most speech-protec tive standard articulated by the Supreme Court in school speech cases. See Morse , 551 U.S. at 417-419 (Thomas, J., concurring). It is doubtful that Plainti ffs could demonstrate that a majority of applications of the Tinker standard would be unconstitutional.-30- carrying or displaying signs or posters, engaging in silent or non-silent protests, or circulating a petition. There may be circumst ances under which sch ool officials could, subject to Tinker’s limitations, constitutionally restrict these expressive activities during or after the fact, but the preapproval requirement does not apply. The only type of expressive activity for which students must seek preapproval is the distribution of non-school-s ponsored materials, and even then preapproval is required only if students intend to distribute mo re than 10 items on school grounds. We begin our analysis of Plaintiffs’ pr ior restraint argument by explaining where the preapproval requirement fits in a prior restraint analysis. We then analyze the policy, concluding that it is constitutiona lly permissible in light of its procedural protections, its substantive standard, and the special c ontext of the school environment.

a. What Is a Prior Restraint? Generally, a “prior restraint” restricts sp eech in advance on the basis of content and carries a presumption of unconstitutionality. See R.A.V. v. City of St. Paul , 505 U.S. 377, 382-83 (1992); Erwin Chemerinsky, Constitutional Law: Pr inciples and Policies 978-79 (4th ed. 2011); see also United States v. Quattrone , 402 F.3d 304 (2d Cir. 2005) (“A prior restraint on speech is a law, regula tion or judicial order that suppresses speech . . . on the basis of the speech’s content and in advance of its actual expression.”) (citing Alexander v. United States , 509 U.S. 544, 550 (1993)). Prio r restraints generally take one of two classic forms: judicial injunctio ns and administrative licensing schemes. See Chemerinsky, supra , at 978-79.-31- A judicial injunction is usually a cour t order forbidding sp ecific speakers from specific expression. A well-known example comes from Nebraska Press Association v.
Stuart , 427 U.S. 539 (1976), where the Supreme Court held unconstitutional a state court injunction preventing the media from publishing certain information about a preliminary hearing in an ongoing murder prosecution. Id . at 561. In contrast, an administrative licensing sc heme does not usually target a particular speaker or instance of speech . Rather, it requires a speaker to obtain approval before engaging in certain forms of speech in a given forum, sometimes based on the volume or scale of the intended speech. A typical example comes from Forsyth County v. Nationalist Movement , 505 U.S. 123, 130 (1992), in which a local ordinance required citizens to obtain a permit before holding a pa rade or assembly on public property. Id. In the present case, the District’s preapproval requirement resembles an administrative licensing scheme because it requi res preapproval for student speech that is non-school-related and in volves distribution of more than 10 items of literature on school grounds. Licensing restrictions that are content neut ral and restrict only the time, place, and manner of speech are not subjected to the most rigorous prior restraint scrutiny. See, e.g. , Ward v. Rock Against Racism , 491 U.S. 781 (1989) (upholdi ng licensing restriction on sound amplification in city park as a conten t neutral time, place, and manner restriction-32- without applying prior restraint analysis). 15 The District’s preapproval requirement appears to be content neutral on its face. But although it includes content neutral time, place, and manner restrictions, it allows offici als to use discretion in deciding whether to allow speech, and nothing in th e policy prevents officials from considering the subject matter of the speech when pr edicting whether it will cause substantial disruption. See Forsyth Cnty ., 505 U.S. at 134 (“Listeners’ reaction to speech is not a content-neutral basis for regulation.”). This element of di scretion calls for prior restraint scrutiny. See id . at 130. b. The Preapproval Requirement Is Valid Administrative pre-approval prior restrain ts can survive First Amendment review only when they meet very high standard s established by the Supreme Court. Two considerations save the pertinent portions of Policy 5195 from facial constitutional attack. First, the policy contains procedural safegua rds, including the opportunity to bring two

15 A policy is content neutral if its restri ctions do not hinge on either the viewpoint or the subject manner of the speech. Hill v. Colorado , 530 U.S. 703, 723 (2000); see R.A.V. , 505 U.S. at 391 (example of a viewpoint restriction in the form of an ordinance prohibiting expression of racist messages wh ile allowing speech in favor of racial tolerance and equality); Consolidated Edison Co. v. Public Service Comm’n , 447 U.S. 530, 532 (1980) (example of a subject ma tter restriction in the form of a statute prohibiting utility compan ies from discussing controversial issues of public policy in inserts included in customer bills). Subjec t matter regulation is “not as obnoxious as viewpoint-based regulation,” but either form of content regulation raises constitutional concerns. Hill , 530 U.S. at 723. Content-neutral “time, place, and manner” restrictions must be narrowly tailored to serve a significant government interest a nd must leave open ample alternative channels for communication. Id . at 725-26.-33- appeals. Second, the policy im poses substantive constraints on official discretion that are constitutionally sufficient in th e special context of a public school, where students enjoy free speech rights but not to the same extent as they would in the public square. Additionally, we note that our conclusion is c onsistent with the tre nd of decisions of our sibling circuits on this issue. i. Procedural Safeguards In non-school settings, an administra tive licensing process can overcome the presumption of unconstitutionality only if it contains “proced ural safeguards designed to obviate the dangers of a censorship syst em,” i.e., content discrimination. City of Littleton v. Z.J. Gifts D-4 , 541 U.S. 774, 779 (10th Cir. 2004) (quoting Freedman v. State of Maryland , 380 U.S. 51, 58 (1964)); see also Hill v. Colorado , 530 U.S. 703, 723 (2000) (discussing the dangers of content discrimi nation, which includes both viewpoint and subject matter discrimination). The Supreme Court first emphasized the im portance of procedural safeguards in Freedman v. State of Maryland , where it considered a challe nge to a statute requiring a film to receive advanced approv al before public screening. 380 U.S. at 52. The statute included no provision to ensure applicants would receive a timely decision from the “censorship board,” and it made the board’s decision final with no option to appeal a denial without undertaking a time-consuming lawsuit. Id. at 54. The Court rejected the-34- statute because it contained no “procedural sa feguards designed to obviate the dangers of a censorship system.” Id . at 58. 16 Several decades later, the Court decided Forsyth County v. Nationalist Movement , which involved a licensing scheme that regulat ed use of public property for expressive activity. 505 U.S. at 133. A county ordinanc e allowed officials to vary the fee imposed for a parade or assembly permit based on the estimated cost for la w enforcement at the

event. Id. The Court overturned the ordinance beca use it lacked procedural safeguards to prevent viewpoint discrimination: the ordinanc e did not require officials to explain their decisions or to render a decision in any pa rticular timeframe, a nd it provided no process for appealing an adverse decision. Id . The ordinance also lacked criteria to guide official discretion and prevent arb itrary decision making. Id . at 133-34. In short, “[n]othing in the [Forsyth Coun ty] law or its application prevent[ed] the official from encouraging some vi ews and discouraging others.” Id .; see Nationalist Movement v. City of New York , 481 F.3d 178, 185-86 ( 3d Cir. 2007) (upholding nondiscretionary permit application fee but striki ng down provision requiring applicants to provide security deposit for potential damage to city property with amount set based on content of planned speech); see also Thomas v. Chicago Park Dist. , 534 U.S. 316 (2002).

16 The Freedman Court held that the censorship statute must include three procedural safeguards: (1) “[a]ny restraint imposed in advance of a final judicial determination on the merits mu st . . . be limited to preser vation of the status quo,” 380 U.S. at 59; (2) “the procedure must . . . assure a prompt final judicial decision,” id. ; and (3) the government must carry burden of proving that the expression at issue is unprotected, id. at 58.-35- This circuit has similarly relied on the Forsyth County procedural standards—explanation of decisions, timeframe restrictions, a nd appeals process—in reviewing challenged licensing schemes. See Doctor John’s , 465 F.3d at 1162 (upholding a licensing scheme in part because it satisfied pr ocedural safegua rds outlined in Forsyth County ). Our careful review of Policy 5195 convinces us that the policy contains adequate procedural safeguards consistent with what Forsyth County requires. For example, the policy ensures prompt and transparent decision making, requiring officials to approve or deny a student’s request within five school days and to provide wr itten explanation of any denial. Students are entitled to appeal an un favorable decision, first to Superintendent Gottlieb and then to the Board of Education, which must provide a hearing within 10 school days and provide a decision at its ne xt regular meeting. These safeguards are designed to prevent viewpoint discrimination in the vast majority of circumstances. In short, we find the policy contains adequate procedural safeguards to pass constitutional muster. ii. Substantive Constraints on Di scretion in the School Context Neither the Supreme Court nor this c ourt has specifically addressed the constitutionality of preapproval re quirements in the school context. Our review of the District’s policy is guided by general First Amendment case law, which requires substantive constraints to limit official di scretion to “obviate the dangers of . . . censorship.” Freedman , 380 U.S. at 58. But we must account for the Supreme Court’s clear direction that students’ “First Amendmen t rights [are] circumscribed ‘in light of the-36- special characteristics of th e school environment.’” Morse , 551 U.S. at 405 (quoting Tinker , 393 U.S. at 506). Outside the school context, preapproval re quirements that permit broad official discretion—for example, in the issuance of a parade or assembly permit—often run afoul of the First Amendment. See, e.g. , NAACP v. Button , 371 U.S. 415, 433 (1963) (“Because First Amendment fre edoms need breathing space to survive, government may regulate in the area only with narrow specificity .”). But in the school context officials may use more discretion in addressing student speech. “If the schools are to perform their traditional function of ‘i nculcat[ing] the hab its and manners of civility,’ they must be allowed the space and discretion to deal with the nuances. The touchstone is reasonableness.” Muller ex rel. Muller v. Jefferson Lighthouse Sch. , 98 F.3d 1530, 1543 (7th Cir. 1996) (citation omitted) (quoting Fraser , 478 U.S. at 681). “[S]chools may regulate some speech ‘even though the gove rnment could not censor similar speech outside the school.’” Morse , 551 U.S. at 406 (quoting Hazelwood , 484 U.S. at 266). 17 We are constrained by the Court’ s instructions in this area.

17 Even outside the First Amendment ar ena, the Court has emphasized that “special needs inhere in the public school context.” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls , 536 U.S. 822, 829 (200 2) (quotations omitted) (addressing Fourth Amendment issue). Stude nts’ constitutional rights under the First, Fourth, and Fourteenth Amendments are ther efore “different in public schools than elsewhere; the ‘reasonableness’ inquiry can not disregard the schools’ custodial and tutelary responsib ility for children.” Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 656 (1995).-37- Turning to Roswell District’s Policy 5195, Section 2 constrains official discretion by providing a finite list of grounds on whic h officials may refuse approval for a student distribution. These “articulated standard s” serve to prevent “censorship through uncontrolled discretion.” Forsyth Cnty ., 505 U.S. at 133. As we explained above, the portion of section 2 that is rele vant to Plaintiffs’ facial cha llenge is subsection 2.a, which allows the school to disallow a student dist ribution if the distribution “[w]ould cause a substantial disruption or a material interfere nce with the normal operation of the school or school activities.” Aplt. Appx., Vol. I at 186. The policy language mirrors the Tinker standard. See 393 U.S. at 505-06. Our earlier anal ysis of Plaintiffs’ as-applied First Amendment challenge employed the Tinker standard to review the District’s decision to stop a distribution that was under way. Here, the language of subsection 2.a incorporates that standard to cabin official discreti on and guide decision makers in determining whether a particular distribu tion should be allowed. See Forsyth Cnty. , 505 U.S. at 133. Plaintiffs assert that subsection 2.a is subjective and argue that it therefore does not limit official discretion or prevent ar bitrary decision making. But Plaintiffs’ argument ignores that this part of the policy embodies the Tinker standard, which evaluates the exercise of school discre tion based on objective reasonableness. See Tinker , 393 U.S. at 514. The inclusion of the Tinker standard in subsection 2.a instructs decision makers that distributions shou ld not be prohibited unless they would substantially disrupt or materia lly interfere with school opera tions or activities. In other words, minor or immaterial disruptions do not justify withho lding approval.-38- Moreover, we note that in Tinker itself, the action under review was a form of prior restraint. Two days before the students planned to wear the armbands to school to protest the war in Vietnam, the school prin cipals “met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused would be suspended until he returned without th e armband.” 393 U.S. at 504. When the students arrived at school wearing the ar mbands, the school sent them home and suspended them “until they would come back with out their armbands.” Id. The school officials suppressed the students’ speech for th e most part before it occurred, which fits the general definition of prior restraint. The Supreme Court in Tinker held that the school could not take such action in the absence of “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” Id . at 514. The Court thereby articulated a standard that the school could use to restrict, in advance, student speech that could be reasonably forecast to cause substantial disruption. That is what the District’s policy does here. We therefore conclude, based on Tinker and its progeny, that the policy constrains official discretion sufficiently for the scho ol context. We emphasize, however, that district officials must take care to apply th e policy in a viewpoint-neutral manner to avoid its unconstitutional application. In partic ular, we note the Dist rict’s procedural requirement that a school must provide a written statement of its reasons for denying permission for a particular distribution. In stating such reasons, officials must do more-39- than simply parrot the Tinker -based policy language. They must provide a fact-based explanation for why officials r easonably forecast that a partic ular distribution will cause a substantial disruption. See Tinker , 393 U.S. at 513 (“[T]he prohibition of expression of one particular opinion, at least without evidence that it is ne cessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.”); Nebraska Press , 427 U.S. at 565 (reviewing a judicial injunction and discussing the importance of making clear, fact -based findings to support the need for prior restraint of speech). iii. Other Circuits’ Decisions on School Preapproval Policies The foregoing conclusion finds support in th e decisions of other circuits that have considered school preapproval policies. Our review of thes e cases serves to place the present case in context and to demonstrate that our decision fits comfortably in the trend of decisions in this area. Nearly all circuits that have addressed th is issue have concluded that the First Amendment perm its school preapproval policie s in some form. Although courts have not taken a uniform approach in analyzing particular policies, the clear trend is one of upholding policies that contain adequate procedural safeguards and place reasonable limits on official discretion. We discuss our sibling circuit decisions in two groups, beginning with early decisions issued in the decade immediat ely after the Supreme Court’s decision in Tinker , followed by a review of more recent cases. Shortly after Tinker , the Second, Fourth, and Fifth Ci rcuits concluded that schools-40- could require students to submit student-authored litera ture for approval before distributing it on a school campus. “[T]here is nothing per se unreasonable about requiring a high school stude nt to submit written material to school authorities prior to distribution.” Sullivan v. Houston I ndep. Sch. Dist. , 475 F.2d 1071 (5th Cir. 1973). “[S]chool authorities may exercise reasonabl e prior restraint upon the exercise of students’ first amendment rights,” but an y policy “must contai n precise criteria sufficiently spelling out what is forbidden,” and must provide for “[p]rompt approval or disapproval . . . [;] [s]pecification of the effect of failure to act pr omptly; and . . . [a]n adequate and prompt appeals procedure.” Nitzberg v. Parks , 525 F.2d 378, 382 (4th Cir. 1975) (quotations omitted); see also Eisner v. St amford Bd. of Educ. , 440 F.2d 803, 806- 07 (2d Cir. 1971) (analyzing whether public school setting is an “exceptional case” under
Near v. Minnesota , 283 U.S. 697 (1931), and concludi ng that a school preapproval policy was constitutionally permissible). Although these courts concluded that school preapproval policies were constitutionally permissible as a general matter, they rejected specific policies that lacked procedural safeguards and/or failed to set substantive limits on official discretion. See Nitzberg , 525 F.2d at 383-84; Baughman v. Freienmuth , 478 F.2d 1345, 1351 (4th Cir. 1973); Quarterman v. Byrd , 453 F.2d 54, 60 (4th Cir. 1971); Eisner , 440 F.2d at 810; see also Riseman v. Sch. Co mm. of City of Quincy , 439 F.2d 148, 149- 50 (1st Cir. 1971) (rejecting preapproval policy that was vague, overbroad, and did not “reflect any effort to-41- minimize the adverse effect of prior restraint”). 18 These early cases’ insistence that school preapproval policies be clearly defined and contain adequate procedural safeguards rema ins relevant to our an alysis. As we have already discussed, the District policy at issu e in the present case contains the necessary procedural safeguards lacking in th e policies rejected in cases like Eisner and Nitzberg

. But other aspects of these early cases are time bound. They were decided without the benefit of the more recent Supreme Court guidance we rely on in this case. In particular, the Fourth Circuit in Nitzberg rejected a provision authorizing officials to ban any distribution that would “r easonably lead the principal to forecast substantial disruption of or material interference with school activities.” 525 F.2d at 383. The Nitzberg court recognized that th is language was drawn from Tinker , but nevertheless found it vague and overbroad as a preapproval standard. Id. Drawing on current Supreme Court law that was unavailable to the Fourth Circuit in 1975, we uphold language in the Roswell District policy that is similar to the Tinker -based language rejected by Nitzberg . Our conclusion differs from that in Nitzberg for two reasons. 19

18 The Fifth Circuit’s decision in Sullivan is an example of a policy that met constitutional muster. The Sullivan court upheld a school preapproval policy after concluding that it contained re asonable and good faith protec tions. 475 F.2d at 1076. The policy established time fr ames for official review, specific provisions governing disciplinary procedures, and an appeals process. Id. at 1073-74. It allowed the school to withhold permission only in sp ecific circumstances, for example, if the publication was libelous or obscene or advocated viola tion of laws or school rules. Id. at 1073. 19 In addition to the reasons discu ssed here, we also note that the Nitzberg court failed to recognize that, as discusse d previously, the school actions in Tinker were taken Continued . . .-42- First, Nitzberg labeled the policy at issue as va gue and overbroad without defining the legal standards it was applying to thos e terms or providing further analysis. Id. 20 In 1992, Forsyth provided a clear anal ytical framework for preapproval policies that is distinct from issues of vaguene ss. The relevant part of this analytical framework requires us to ask whether the policy provides sufficien t guidance to decision makers to prevent “censorship through uncontrolled discretion.” Forsyth , 505 U.S. at 123. Second, and perhaps even more important , as we have already explained, the Supreme Court’s post- Tinker school speech cases grant school officials more discretion in restricting student speech than would be permitted outs ide the school context. See
Morse , 551 U.S. at 405-06; Fraser , 478 U.S. at 682; see also Muller , 98 F.3d at 1543. More recent circuit court decisions, including our decision today, ha ve recognized this. 21 We now turn to the second, more recent, group of circuit cases addressing school preapproval policies. In the past thr ee decades, the school preapproval policies considered in circuit decisions have for th e most part contained procedural safeguards and decision making criteria. As a result, ci rcuits have generally upheld the challenged

______________________________________ Cont. pursuant to a school policy and the Tinker Court articulated the substantial disruption standard as a guide for official s in deciding whether to allo w student speech to proceed. 20 We address the issue of vagueness as a pplied to the Roswell District policy in the next section of this opinion. 21 “In more recent years [since Tinker ], however, the Court has been much less protective of speech in school environmen t and much more defe rential to school authorities.” Chemerinsky, supra, at 1194.-43- policies they considered. The Eighth Circuit u pheld a high school’s preapproval policy in Bystrom ex rel. Bystrom v. Fridley High School, Indep. Sch. Dist. No. 14 , 822 F.2d 747 (8th Cir. 1987), rejecting “the view that prior restraints are per se unconstitutional in the high-school
context.” Id. at 750. The Bystrom court specifically upheld a pr ovision in the policy that was “intended to codify the rule of Tinker .” Id. at 754. The provision allowed the school to restrict speech on the basis that it could “cause a material and substantial disruption to the proper and orderly operatio n and discipline of the school,” so long as there were “specific facts upon which the likelihood of disruption [could] be forecasted.” Id. at 754. The Seventh Circuit upheld preappr oval policies in two cases. In Muller ex rel. Muller v. Jefferson Lighthouse School , it upheld a preapproval policy at an elementary school, concluding the policy contained “adequate procedural safeguards.” 98 F.3d at 1541. 22 In Hedges v. Wauconda Community Unit School District No. 118 , 9 F.3d 1295 (7th Cir. 1993), the same court considered a junior high school pr eapproval policy that allowed school officials to restrict material s if they were deemed obscene or libelous, would invade the privacy of ot hers, or would “cause substan tial disruption of the proper and orderly operation of the school.” Id. at 1296. The policy al so banned outright any distribution of religious materials. Id. The court overturned the blanket restriction on

22 The Muller court declined to apply Tinker , relying instead on Hazelwood , because the policy at issue was in an elementary school. The court reasoned that the “marketplace of ideas” theme reflected in Tinker was “less appropriate” in an elementary school of “five throu gh thirteen-year-olds.” Id. at 1538.-44- religious materials, but upheld the re mainder of the policy and its preapproval requirement. Id. at 1297-1303. 23 Most recently, the Sixth Circuit upheld a policy strikingly simila r to Policy 5195. M.A.L. ex rel. M.L. v. Kinsland , 543 F.3d 841 (6th Cir. 2008). Like the Roswell District policy, the Kinsland policy required students to submit materials to school officials in advance and allowed the school to designate th e time, place, and manner of distribution. Id. at 845. The Kinsland policy contained procedural safe guards similar to the Roswell policy. It designated strict time frames fo r official decision, required written explanation for any denial, and guaranteed stud ents at least two appeals. Id. at 844-45. Additionally, like the Roswell District policy, the Kinsland policy allowed a school to deny approval if the principal “reasonably determine[d]” that it “[w]ould cause a substantial disruption of or a material interference with the normal ope ration of the school or school activities.”

23 Muller and Hedges implicitly reversed the Sevent h Circuit’s previous position in Fujishima v. Board of Education , 460 F.2d 1355 (7th Cir. 1 972), which rejected school preapproval policies as an un constitutional prior restraint. Id. at 1557-59. Neither Muller nor Hedges mentioned Fujishima , but other cases and cour ts have noted the shift. E.g. , Wernsing v. Thompson , 423 F.3d 732, 748 (7th Cir. 2005 ) (acknowledging inconsistency between Muller and Fujishima ); Harless v. Darr , 937 F. Supp

. 1339, 1344-45 (S.D. Ind. 1996) (questioning the continued validity of Fujishima given subsequent Supreme Court and Seventh Circuit case law); Hedges ex rel. Hedges v. Wa uconda Cmty. Unit Sch. Dist. No. 118 , 807 F. Supp. 444, 457 n.14 (N.D. Ill. 19 92) (noting that the Seventh Circuit has departed from Fujishima ’s analytical framework), rev’d on other grounds by Hedges , 9 F.3d at 1303; see also Pounds v. Katy Indep. Sch. Dist. , 517 F. Supp. 2d 901, 918 (S.D. Texas 2007) (noting that the Seventh Circuit allows prior-review requirements in schools under Muller without mention of Fujishima ).-45- Id. at 845. 24 We are aware of only one circuit opinion in the past three decades to reject a school preapproval policy. In Burch v. Barker , 861 F.2d 1149 (9th Cir. 1988), high school students distributed copies of a no n-school-sponsored student newspaper at a school-sponsored barbecu e on school grounds. Id. at 1150. They were reprimanded for not seeking preapproval for the distribu tion, as required by school policy. Id. at 1150-51. Although the newspaper was “generally critic al of school administration policies,” the principal did not find any content objectionabl e or any problem with the manner of the distribution. Id. at 1150-51. Among other things, the policy allowed th e school to ban materials based on evidence that would reasonably support “a j udgment that significant or substantial disruption of the normal operation of the school” could result. Id. at 1151. The policy provided certain types of expression could be considered evidence of potential disruption, including material critic izing school officials. Id. The school “admitted that if the students had submitted [the news paper] for prior review, [the school] would have allowed distribution without change.” Id. Finding itself “confronted with a unique and ironic situation in which a school . . . punished stude nts for distribution of material which both

24 Our analysis differs from that in Kinsland because the Sixth Circuit applied Hazelwood , rather than the mo re speech-protective Tinker standard. Id . at 847, 849. As we explain in our discussion of the Plainti ffs’ as-applied free speech claim, the Supreme Court recently clarified that Tinker governs claims involvi ng private (non-schoolsponsored) student speech. See Morse , 551 U.S. at 405-06.-46- sides acknowledge could not be suppressed u nder the first amendment,” the Ninth Circuit reversed the district court’s decision to di smiss the students’ First Amendment claim. Id. at 1151-52. The opinion states that the po licy was based on “undifferentiated fears,” id. at 1159, and concludes that “a policy wh ich subjects all no n-school sponsored communications to predistribution review . . . violates the first amendment,” id. at 1157. 25 We agree that the student speech in Burch was entitled to First Amendment protection and that portions of the policy were probably unconstitutional on their face, such as the provision making criticism of sc hool officials a grou nd on which to deny permission for distribution. But Burch ’s broad statement suggesting that no preapproval policy could pass constitutional mu ster runs counter to every school speech case we have cited in this opinion. It is even difficult to square with the Supreme Court’s rulings concerning licensing schemes outside the school context. Moreover, Burch ’s persuasive force is diminished after 25 years of Supr eme Court and various circuit court school speech decisions upholding school officials’ discretion to main tain a nondisruptive school environment. For these reasons, we do not find Burch persuasive and do not follow it here.

25 Parts of the Burch opinion read like an analysis of an as-applied challenge to the policy, for example, by stating, “[t]here was no evidence that [the newspaper] had interfered with the operation of the high sch ool or impinged upon othe r students’ rights.” 861 F.2d at 1151. Yet the court’s conclusion seems to address a facial challenge: “There is . . . no justification for this policy, whic h conditions all distribution of student writings on school premises upon prior school approval.” Id . at 1159.-47- In sum, our reading of Supreme Court ca se law leads us to conclude, along with a majority of our sibling circuits, that a sc hool may enact a preapproval policy subject to the constitutional requirements we have descri bed. The District’s policy meets these requirements.
* * * For these reasons, we affirm the magistra te judge’s holding that the preapproval policy is not facially unconstitutio nal as a prior restraint.
3. Policy 5195 is Not Un constitutionally Vague The magistrate judge rejected Plaintiffs’ argument that the District’s preapproval requirement is unconstitutionally vague. We agree. A policy may be “impermissibly vague for either of two independent reasons. First, if it fails to provide people of or dinary intelligence a reas onable opportunity to understand what conduct it prohi bits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Jordan , 425 F.3d at 824-25. Plaintiffs argue that the policy “leave[s] students and administra tors to guess at what speech is subject to approval.” Aplt. Br. at 31. They rely pr imarily on Supreme Court authority requiring narrow specificity in criminal statutes th at affect First Amendment expression. E.g., Grayned v. City of Rockford , 408 U.S. 104 (1972); Button , 371 U.S. at 432. But Plaintiffs’ cited cases do not concer n non-criminal policies in the unique context of public schools. See Village of Hoffman Estates , 455 U.S. at 498-99 (“The Court has . . . expressed greater tolerance of enactments with civil rather than criminal-48- penalties because the consequences of im precision are qualitatively less severe.”); see also Morse , 551 U.S. at 396-97 (“Constitutional ri ghts of students in public school are not automatically coextensive with rights of adults in other settings, and . . . the rights of students must be applied in light of the spec ial characteristics of the school environment.” (quotations and citations omitted)). Our review of the policy convinces us th at a reasonable high school student of ordinary intelligence would understand when pr eapproval is needed and how to go about requesting it. See West , 206 F.3d at 1368; see also Grayned , 408 U.S. at 108 (a law must “give the person of ordinary intelligence a reasonable op portunity to know what is prohibited”). Policy 5195 clearly requires stude nts to obtain approval before distributing 10 or more non-school-s ponsored items on campus. It o ffers extensive definitions of “distribution” and “non school sponsored litera ture.” The latter includes written, printed, visual, or auditory materials that ar e not related to school curricula. [ Id .] The policy spells out the steps required for submitting a request. Plaintiffs also argue that the policy is s ubject to “wildly dive rgent interpretations” and thus invites arbitrary or discrimina tory enforcement. Aplt. Br. at 37; see Jordan , 425 F.3d at 824-25. They offer no evidence of incons istent application. Instead, they point to deposition testimony in which di fferent school officials offere d varying opinions as to how the policy would apply to hypothetical scenarios. Bu t occasional differences in-49- theoretical interpretation will not rende r a policy facially unconstitutional. See Hoffman
Estates , 455 U.S. at 497-98. 26 We therefore affirm the magistrate j udge’s holding that the policy is not unconstitutionally vague.
4. Concluding Statements on Plaintiffs’ Facial Challenge Having concluded that the District’s pr eapproval requirement is not facially unconstitutional as a prior restraint or for re asons of vagueness or overbreadth, we affirm the magistrate judge’s summary judgment orde r dismissing Plaintiffs’ facial challenge. We emphasize our holding extends only to Policy 5195’s preapproval requirement and associated procedural safeguards, and to the s ubstantive restriction in subsection 2.a. We make no determination regard ing the constitutionality of ot her District policies or provisions that do not apply to the speech in which Plai ntiffs wish to engage. We close the facial challenge discussion w ith a cautionary note. Although public school officials enjoy more discretion regard ing speech regulation relative to officials in other contexts, this discretion is limited. Dist rict officials are “not at liberty to suppress or punish speech simply because they disagree with it, or because it takes a political or social viewpoint different from . . . th at subscribed to by the majority.” Bystrom , 822 F.2d at 755. Nor is it constitutional to pr event private student speech solely out of concern that some listeners may be offended by a controversial message. See Tinker , 393

26 Moreover, these examples mostly involved hypothetical questions about the unwritten standard practice, now subsumed by the more deta iled written Policy 5195.-50- U.S. at 510. We hold only th at this policy is not unconstitu tional on its face. “This does not mean that every application . . . will be valid.” Bystrom 822, F.2d at 755. The Constitution, and not the policies alone, governs any restriction of student speech.
D. Plaintiffs’ Free Exercise Claim “Like other provisions of the First Ame ndment,” the Free Exercise Clause is “applied to the states under the Fourteenth Amendment.” Green v. Haskell Cnty. Bd. of
Comm’rs , 568 F.3d 784, 7 96 (10th Cir. 2009); see also Cantwell v. State of Connecticut , 310 U.S. 296, 303 (1940). The magistrate judge granted summary judgment for the District on Plaintiffs’ free exercise claim. It found that the District’s actions were based upon neutral rules of general applicability a nd were rationally related to the District’s “reasonable and legitimate pedagogical conc erns,” including, among other things, “maintaining school security and order” and “preserving a proper educational environment and preventing its disruptio n.” Aplt. Appx., Vol. IV at 1040. “Depending on the nature of the challenge d . . . government action, a free exercise claim can prompt either strict sc rutiny or rational basis review.” Axson-Flynn v. Johnson , 356 F.3d 1277, 1294 ( 10th Cir. 2004) (quotation omitted). Government actions that stem from “neutral” rules of “general applicability” are subject to rational basis review, even if the application of the neutral ru le “has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye v. City of Hialeah , 508 U.S. 520, 531 (1993); see also Employment Division v. Smith , 494 U.S. 872, 878-881 (1990); Corder , 566 F.3d at 1232. A rule is neutral “so l ong as its object is some thing other than the-51- infringement or restriction of religious practices.” Corder , 566 F.3d at 1233. Under rational basis review, the action survives a constitutional challenge if it is at least “rationally related to a legitim ate government interest.” Id . at 1232. On the other hand, when a government policy facially targets religion or is established for the purpose of targeting religion, applicati on of that policy is subject to strict scrutiny. Corder , 566 F.3d at 1232-1233. Under st rict scrutiny, the government must prove its policy or application of that policy is narrowly tailored to accomplish a government interest that is comp elling, not merely legitimate. City of Hialeah , 508 U.S. at 546. Plaintiffs acknowledge that the District’s policy regarding student distributions is facially neutral. They nevertheless argue th at strict scrutiny should apply because they allege the District stopped the distribution with the purpose of suppressing their religious
message. E.g. , City of Hialeah , 508 U.S. at 533-34. They ask us to infer this from the fact that school officials permitted non-Relentless students to distribute Valentine’s Day cards, birthday party invitations , candy, and the like, while denying permission for their rubber fetus distribution. For Plaintiffs’ argument to be persuasive, the other distributions must be similar enough in all material respects to support a conclusion that the District’s decision to stop the distribution was based on its religious natu re. Otherwise, any burden to Plaintiffs’ religious exercise is “an incide ntal effect” of applying a neut ral rule—and is thus subject to rational basis review. City of Hialeah , 508 U.S. at 531; Corder , 566 F.3d at 1232.-52- Unfortunately for Plaintiffs’ argument, none of the non-religious distributions were materially similar to the rubber fetus distribut ion, quantitatively or qualitatively. There is no evidence anyone else attempte d to distribute hundreds or thousands of items. There is also no evidence that any of the permitted non-religious distri butions caused, or presented a potential for, substantial disruption. Plaintiffs also argue that Mr. Luck’s statem ent, “It’s time to shut this down. . . . Some people are getting offended,” Aplt. Appx ., Vol. IV at 996, shows that the District acted with the purpose of su ppressing their religious exercise. As we explain in our discussion of Plaintiffs’ as-applied free speech claim, we are not convinced that Mr. Luck’s statement indicates that he or anyone else was offende d by the religious nature of the Plaintiff’s expression. But even if we accept Plaintiffs’ inference wi th respect to this single statement, the record viewed as a whole still does not support an inference that th e District restricted Plaintiffs’ speech because of its religious content. See Fleming , 298 F.3d at 931 (“We are obligated to examine the record as a whole . . . as opposed to carving out an isolated statement from the record.”). The record indicates that Mr. Luck’s involvement in preventing the rubber fetus dist ribution was limited to this one early interaction. Senior administrators at both schools and several di strict officials, including Superintendent Gottlieb, made the ultimate decision to disallow the distribution. The evidence indicates these decision makers were acting with permi ssible motives, especially in light of the multiple disruptions to the educational program.-53- Plaintiffs also do not expl ain how their allegation that the District acted with the purpose of suppressing their religious exerci se squares with how the District routinely accommodated their religious expression in ot her forms that were not disruptive—for example, their many other religious distributi ons and their silent and spoken prayers on school grounds. We cannot reasonably infer fr om the record that the District acted with the purpose of suppressing religious practice. We therefore determine the District’s ac tions were based upon neutral rules of general applicability, subject to rational basis review. Corder , 566 F.3d at 1232 (“Neutral rules of general applicability norma lly do not raise free exer cise concerns even if they incidentally burden a particul ar religious practice or belief.”) (quoting Smith , 494 U.S. at 879). Applying rational basis, we co nclude that the District ’s interests justified the incidental effect of burdening Plaintiffs’ religious exercise. The only reasonable inference from the record is that the District disallowed the rubber fetus dolls for the neutral reason that they were disruptive, and that it allowed the other distributions and expressions for the neut ral reason that they were not disruptive. Efforts to avoid disruption are rationally relate d to the school’s interests in maintaining discipline and protecting the educational e nvironment. Case law makes clear these interests are a good deal more than merely rational. Rasmussen , 298 F.3d at 1205; see also Morse , 551 U.S. at 406-07; Vernonia Sch. Dist. v. Acton , 515 U.S. 646, 655-56 (1995).-54- We therefore conclude that the Distri ct’s decisions to stop the fetus doll distributions survive rational basis review. We affirm the magistrate judge’s dismissal of the free exercise claim.
E. The Equal Protection Claim The magistrate judge dismissed Plaintiffs ’ equal protection claim, concluding they had failed to show they were similarly situated to others treated diffe rently. We agree. The Equal Protection Clause provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.A. To prevail on an equal protection claim, a plaintiff must show that she was treated differently from others who were similarly situated. Tonkovich v. Kansas Bd. of Regents , 159 F.3d 504, 532 (10th Cir. 1998) (“[I]n order to prevail on his equal protection claim, [the plaintiff] must show that the University treated him diffe rently than others ‘similarly situated’. . .”); see also City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439-40 (1985); Landmark Land Co. v. Buchanan , 874 F.2d 717, 722 (10th Cir. 1989). “The Equal Protection Clause does not forbid classi fications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike .” Nordlinger v. Hahn , 505 U.S. 1, 10 (1992) (emphasis added). Plaintiffs argue that they were treated differently because non-Relentless students were permitted to distribute Valentine’s Day cards, chocolate, and stuffed animals on the same day that they were prevented from dist ributing the rubber fetuses. But different treatment is problematic only if Plaintiffs we re similarly situated to the non-Relentless-55- students whose distributions were allowed. As our analysis of Plaintiffs’ free exercise claim shows, they were not similarly situated . The Valentine’s Day cards and other items were different in kind and scale from the ru bber doll distribution. No other students attempted to distribute hundreds or thousands of items, and there is no evidence any other distribution caused substantial disruptions. Furthermore, the distributions most simila r to the rubber fetus distribution in kind and scale were other religiously themed dist ributions conducted by Plaintiffs and other Relentless members themselves, su ch as the hot chocolate, a ffirmation rocks, wristbands, dog tags, pencils, and Easter eggs—which the District allowed. We cannot reasonably infer from these facts that Plaintiffs were singled out for different treatment. Because Plaintiffs cannot demonstrate that they were similarly situated to others who were treated differently, the equal protec tion claim must fail. We therefore affirm the magistrate judge’s grant of summary judgm ent to the District on Plaintiffs’ equal protection claim.
III. CONCLUSION For the foregoing reasons, we affirm th e magistrate judge’s grant of summary judgment to the District on all claims.