PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

SETH TAYLOR; JACOB 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 Bruce 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 Counsel, 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 times were, high school students from Roswell, 

New Mexico, who belong to a religious group called “Relentless” (“Plaintiffs”).1

 They 

sued Roswell Independent School District and Superintendent Michael Gottlieb in his 

official capacity (collectively “the District”) seeking declaratory and injunctive relief. 

Their complaint alleged that school officials violated their First and Fourteenth 

Amendment rights by preventing them from distributing 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 the record indicates that four of the five 

plaintiffs have since graduated and one plaintiff, Jacob Cobos, is expected to graduate in 

May 2013. Plaintiffs seek declaratory 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 Supreme Court dismissed as moot a challenge by 

high school students to regulation of their school newspaper after the Court learned at 

oral argument that all of the plaintiffs had graduated. 

In this case, however, at least one plaintiff, Mr. Cobos, remains in school. He 

clearly has standing, and his claim is not moot. “[T]he presence of one party with 

standing is sufficient to satisfy Article III’s case-or-controversy 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 (10th Cir. 2000) (“Because the individual plaintiffs . . . 

have standing, and because [they] jointly raise the same substantive arguments on appeal 

. . . there is no need to address the standing 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 District’s policies requiring preapproval before 

distributing any non-school-sponsored material on school grounds. 

A magistrate judge granted summary judgment 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 exercise, and equal protection claims. We also 

affirm dismissal of Plaintiffs’ facial challenge to Roswell District’s preapproval policies. 

We note that the public school setting 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. They belong to a religious youth group called 

Relentless, which is affiliated with a local church called Church on the Move. Relentless 

is not affiliated with any school. 

Relentless members testified in depositions that they routinely engaged in 

religious expression at school. For example, they often spoke to other students, in groups 

and one-on-one, about their religious beliefs and anti-abortion views; and they regularly 

prayed, silently and aloud, while on school grounds, including during class. Plaintiffs 

were never disciplined or asked to stop these activities. 

 2

 Both parties consented to proceed before Magistrate Judge Lorenzo F. Garcia, 

with the understanding that appeal from any 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 students and teachers, and to “put God back into 

the schools.” Aplt. Appx., Vol. I at 195. Each week they distributed different items at 

both schools. A pastor from Church on the Move, Tim Aguilar, led the students in 

organizing and planning these events and was present on school grounds for the 

distributions. Relentless initially gave 220 McDonald’s chicken salad sandwiches 

(donated by a church member) to the faculty at both high schools. In ensuing weeks, they 

distributed to students and faculty hot chocolate, candy canes with religious messages, 

and “affirmation rocks” with scriptural references painted on one side. Aplt. Appx., Vol. 

IV at 993-95. 

When these distributions began, Roswell District had two policies concerning 

distribution of non-school related materials on campus. Policy 7110 required advance 

permission from the District before distribution in any quantity of promotional items or 

advertisements on campus. A separate, longstanding but unwritten policy required 

students to obtain permission before on-campus distribution of non-school-sponsored 

literature. These policies are described in more detail later in this section. 
-5- 

The Relentless students did not seek permission before distributing the previously 

mentioned items.3

 They were not disciplined, 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 every student at both schools. Each two-inch 

doll was designed to be a realistic representation of a human fetus. A card attached to 

each doll explained that it represented the actual size and weight of a “12 week old 

baby,” that is, a fetus at 12 weeks of gestation. 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 thanks 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 Relentless students did not seek permission for 

the early distributions, Pastor Aguilar testified in his deposition that he and other adult 

organizers from the church sought and received verbal permission for at least one 

distribution. He could not recall which administrator gave permission or for which 

distribution. 
-6- 

At Goddard High, Pastor Aguilar and eight or nine Relentless students set up 

tables in the lobby and began the distribution 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 noticed the distribution. He went to his 

office and radioed other administrators to ask whether the students had approval for the 

distribution. Assistant Principal Michelle Edgett responded that the students did not have 

approval and told Mr. Luck he should “probably” 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 “balls” turned out to be 

dismembered heads of the rubber 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.” Aplt. Appx., Vol. IV at 996. He took the 

remaining dolls and told the students they would 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 Principal and did not have the authority to grant or deny 

approval for student distributions on campus. 
-7- 

Later that morning, a Goddard High administrator 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 confiscate 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 determined the dolls should be confiscated. 

Both schools experienced doll-related disruptions that day. Many students pulled 

the dolls apart, tearing the heads off and using them as rubber balls or sticking them on 

pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings 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 penises, and hung them on the outside of their 

pants’ zippers. 

Teachers at both schools complained that students’ preoccupation with the dolls 

disrupted classroom instruction. While teachers 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 English 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, 2010, Relentless attempted to distribute 

the dolls again, believing it was their Christian duty and constitutional right. 

Administrators at both schools immediately stopped this second distribution. A Goddard 

High administrator announced over the public address system that “[n]othing is to be 

passed out that is not school related,” and warned 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 rubber fetuses should be 

confiscated and any student distributing them should be referred to the administration. 

On the same day, other students at Roswell 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 distributed large quantities of these items or 

whether they received prior approval. There is no evidence of disturbance from the 

Valentine’s Day-related distributions. 

In late February, Relentless’s legal counsel sent a written demand to the District 

that the group be permitted to conduct the fetus doll distribution. Around this time, 

Superintendent Michael Gottlieb, administrators of both schools, and the senior pastor of 

Church on the Move, Troy Smotherman, met to discuss this issue (the “Gottlieb 

meeting”). During the Gottlieb meeting, participants discussed the possibility that 

Relentless might implement a less controversial message of abstinence. Superintendent 

Gottlieb asked Pastor Smotherman 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 distributions to continue, but two Relentless students 

from Goddard High, including one plaintiff, were required to attend “Saturday school” 

for violating the preapproval policy. 

In subsequent months, Relentless distributed more items featuring scriptural 

quotes and religious and anti-abortion messages, including stickers, 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 evidence 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 doughnuts in the faculty lounges of both schools, with stickers 

featuring the Relentless logo and 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 disciplined for entering the faculty lounge after being told not to 
-10- 

do so, but no other disciplinary actions were taken. 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 referred to in this case. First, Policy 

7110 was in place before the rubber 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 distribution, the District had a long-standing, 

unwritten policy of requiring students to obtain approval before distributing non-schoolsponsored material on school grounds. In May 2010, the District formalized this 

unwritten policy when it promulgated Policy 5195, captioned “Distribution of Non 

School Sponsored Literature.” Aplt. Appx., Vol. I at 186-87. This policy requires that 

students obtain approval from the school administration before distributing more than 10 

copies of “any non-school sponsored literature.” 

Section 2 of the policy provides that approval may be withheld if the school 

district administration “reasonably determines” 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 and 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, religion, 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 policy describe certain procedural safeguards. The District 

must approve or deny a distribution request within five school days. This time may be 

extended only with written approval of Superintendent Gottlieb. The District must 

provide a written explanation of the reasons for any denial. Students whose requests are 

denied have a right to two appeals. The first 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, location and means by which the distribution may 

take place,” and to revoke approval if the distribution causes a substantial disruption. 

Aplt. Appx., Vol. I at 186-87. 
-12- 

B. Procedural History

Plaintiffs’ Second Amended Complaint sought injunctive relief and alleged three 

counts. Count I included two First Amendment speech claims. First, Plaintiffs brought a 

facial challenge against the District’s preapproval policies for non-school-sponsored 

material, alleging the policies are unconstitutional prior restraints and are 

unconstitutionally vague. Second, they challenged the policies as applied to Plaintiffs, 

claiming that the District’s refusal to allow them to distribute the fetus dolls violated their 

free speech rights. Count II alleged violation of Plaintiffs’ free exercise rights under a socalled hybrid claim theory.5

 Finally, Count III alleged that the District discriminated 

against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. 

At the close of discovery, the parties filed 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 court to apply strict scrutiny when “a free 

exercise claim is coupled with some other constitutional claim” and the plaintiff makes “a 

colorable showing of infringement of [the] companion constitutional right.” Axson-Flynn 

v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (quotations omitted). We have 

recognized this theory with reservations, noting that the “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 prevented 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 that 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, Plaintiffs’ free speech challenges fail 

because school officials reasonably forecasted that the distribution would cause 

substantial disruption and because the distribution did cause substantial disruption. 

Plaintiffs’ free exercise and equal protection claims fail because the decision to stop the 

distribution was not based on religion, and Plaintiffs failed to show they were treated 

differently from similarly situated students. 

Plaintiffs’ facial challenge to the school policy also fails. The policy is not 

unconstitutional under the prior restraint doctrine because it constrains official discretion 

and contains adequate procedural 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 understand 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 complaint, 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 judgment 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. 2000). Summary judgment is proper 

when “the movant shows that there is no genuine 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 evidence is such that a reasonable 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 “might affect the outcome of the suit under the governing law.” Id. 

“[W]e draw all reasonable inferences from the 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 rational 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 order to make sure that the judgment 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 and 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 Due 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 Plaintiffs’ 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 standards. We affirm under the Tinker standard. Hazelwood is 

inapplicable because the expression at issue here is private student speech and not schoolsponsored speech. 

Two important questions are not at issue. First, this case does not turn on whether 

the content of Plaintiffs’ message warrants First Amendment protection—there is no 

question that it does. The record shows Plaintiffs meant to convey 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). For example, the District almost 

certainly may not prevent Plaintiffs from sharing their religious views 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 District has acknowledged that Plaintiffs’ 

many other religiously-themed distributions at both schools did not disrupt the school 

environment, it correctly allowed those 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 who 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 violated 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 officials reasonably forecasted that this particular 

form of expression (i.e., mass distribution of hundreds or thousands of three-dimensional 

rubber dolls to public high school students 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 distribution 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 unconnected 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 wearing 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 restrict this speech unless the 

school reasonably forecasted that the speech would cause substantial 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, such as the principal speaking at a school assembly.” Axson-Flynn, 

356 F.3d at 1285 (quotations omitted). As the 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 players had a free speech right to wear black 

armbands during a game to protest the racial policies of the other team’s school. 443 

F.2d 422, 430-32 (10th Cir. 1971). 
-18- 

In contrast, the Supreme Court has explained that student speech is analyzed under 

the Hazelwood standard when “students, parents, and members of the public might 

reasonably perceive [the speech] to bear the imprimatur of the school.” Morse, 551 U.S. 

at 405. At issue in Hazelwood was a school’s decision to censor 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 editorial control over the style and content 

of student speech in school-sponsored expressive activities,” provided the restrictions 

“are reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 

273. 

In the present case, “[n]o one would reasonably 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 their 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.” (quotations omitted)). 

2. The District’s Actions Did Not Violate 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 materially and substantially interfere with the 
-19- 

requirements of appropriate discipline in operation 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 interference with the rights of others. Id. at 514. This forecast 

must be reasonable. Officials may not restrict speech based on “undifferentiated fear or 

apprehension of disturbance” or a “mere desire to avoid the discomfort and 

unpleasantness that always accompany 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 discussion in the hallway constitutes such a 

threat, particularly if that expression is political. 393 U.S. at 514. The Second and Third 

Circuits have reinforced this notion, overturning 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 allowed schools to restrict student speech 

that is lewd or patently offensive 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 (including 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 Circuit held that student athletes were 

constitutionally protected in peacefully circulating a petition 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 forecast substantial disruption, they have 

discretion to restrict forms of student speech that might otherwise be protected in a nonschool setting. “‘[T]he First Amendment gives 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 substantial 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 Confederate flag, finding the school reasonably 

forecasted substantial disruption due to past racial tension 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 ban on Confederate flag); BWA v. Farmington R-7 Sch. Dist., 

554 F.3d 734, 738-41 (8th 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 featuring comedian Jeff Foxworthy based on 

a finding that the word “redneck” was not associated 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 military 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 Confederate flag). 

b. Tinker Applied to the Fetus Doll Distribution

Plaintiffs’ distribution conveyed a political and religious message and would likely 

merit First Amendment protection outside the school context. Inside the school walls, 

however, we must consider whether the expression was, or was reasonably forecast to be, 

disruptive. Unlike in Tinker, the expression here was neither silent nor passive. It 

involved proactive contact 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, bounced 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 quickly came to fruition. The record is replete with reports 

of doll-related disruptions throughout the day on January 29, 2010, including substantial 

disruptions to classroom instruction, damage to school property (the ceilings and 

plumbing), and risks to student safety (the fire-starting and doll-throwing). 
-22- 

Plaintiffs note that most disruptions occurred only because of wrongful behavior 

of third parties and that no Plaintiffs participated in these activities. They argue that 

preventing their speech because of bad acts of others amounts to banning leafleting 

because of litterbugs. See Jews for Jesus v. Mass. 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 characteristics of the school environment,” Tinker, 393 U.S. at 506,

where the government has a compelling interest 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 distribution. 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 expression 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 violence. 206 F.3d at 1365. Moreover, there 

is no indication in this case that the problematic student disruptions were aimed at 

stopping plaintiffs’ expression, 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 would be offended, by 

Plaintiffs’ religious, anti-abortion message. The District says Mr. Luck was referring to 

the non-Relentless students’ dismemberment and throwing of the dolls, which he and 

other students found offensive. Plaintiffs reject this explanation, describing Mr. Luck’s 

testimony about the hallway disruptions and the students’ complaints as incredible. 

We agree that Mr. Luck’s statement lacked specificity, but we are not convinced 

Plaintiffs’ inference is reasonable. Plaintiffs provide no evidence to dispute Mr. Luck’s 

deposition testimony about the hallway disruptions or the complaints of the two female 

students. We see no reason to discount this testimony. Viewing evidence in light most 

favorable to Plaintiffs does not extend to ignoring undisputed evidence that undermines 

their position. 

Even if we accepted Plaintiffs’ interpretation of Mr. Luck’s statement, this claim 

would still fail. To survive summary judgment, a disputed fact must be material. Fed. R. 

Civ. P. 56(a). In assessing materiality, “[w]e are obligated to examine 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 exact meaning of Mr. Luck’s statement is not 

material when viewed against the whole record. 

Plaintiffs argue that the District’s decision to stop the distribution was unjustified 

because the fetus dolls were confiscated before any substantial disruption had occurred. 
-24- 

But the District was not obligated to wait until a substantial disruption materialized, so 

long as its forecast was reasonable. The substantial disruptions that actually transpired 

show the forecast was reasonable. 

Finally, even if Mr. Luck initially stopped the distribution for impermissible 

reasons, Plaintiffs could not defeat summary judgment. At Roswell High, the dolls were 

not confiscated until security guards had observed actual disruptions. As for Goddard 

High, Plaintiffs’ reading of Mr. Luck’s statement shows at most that the school’s decision 

to stop the distribution was unjustified for some short period of time—likely a few 

minutes, but no more than one or two hours. Because Plaintiffs seek only injunctive 

relief, any claim they could have under this fact interpretation became moot once actual 

substantial disruptions occurred. 

In short, there is ample undisputed evidence that the District had permissible 

reasons for stopping the distribution. Plaintiffs’ free speech rights were therefore not 

violated. 

C. Facial Challenge to the District’s Preapproval Policies

A facial challenge involves “an examination of whether the terms of the [policy] 

itself measured against the relevant constitutional 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 policies 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 limited to considering Plaintiffs’ prior restraint 

and vagueness arguments as applied to relevant 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 the scope of Plaintiffs’ facial challenge. 

For reasons we discuss below, our review is limited in two ways. First, the only District 

policy properly before us is the portion of Policy 5195 relevant to Plaintiffs’ desired 

speech. This includes Policy 5195’s preapproval requirement and accompanying 

procedural safeguards, together with the substantive restriction included in subsection 

2.a. Second, because Plaintiffs have not adequately developed 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 every 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 medicine, and thus we must be vigilant in 

applying a most exacting analysis to such claims.” Doctor John’s, Inc. v. City of Roy, 

465 F.3d 1150, 1157 (10th Cir. 2006) (considering facial challenge on prior restraint and 

vagueness grounds). 
-26- 

“Facial challenges are disfavored for several 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 facial challenge that the law violated its 

constitutional right to free association). Additionally, broad facial challenges “run 

contrary to the fundamental principle of judicial 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). Plaintiffs 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 whole collections of laws or policies like the 

challenge they attempt here. 

We therefore decline to perform such a sweeping review. Our inquiry concerns 

those portions of the District’s policies that pertain to the particular speech in which 

Plaintiffs wish to engage. Formal adoption of Policy 5195 subsumed the unwritten 

standard practice, rendering it moot with respect to our facial analysis.12 For similar 

reasons, we do not consider the facial constitutionality of Policy 7110. Although the 

record indicates that, before the adoption of Policy 5195, some school officials believed 

Policy 7110 applied to the rubber fetus distribution, the promulgation of Policy 5195, if 

 12 Policy 5195 was promulgated largely in response to the rubber fetus 

controversy. 
-27- 

upheld here, renders Policy 7110 immaterial to future student 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 justification is covered by subsection 2.a., which allows 

school officials to restrict any distribution that “[w]ould cause a substantial disruption or 

a material interference with the normal operation 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 policies are relevant to Plaintiffs’ desired speech (and are 

therefore appropriately included in our review) should 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 context of the First Amendment,” courts have 

recognized “a lessening of prudential 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 overbreadth challenge, which, as we explain below, has not been 

adequately raised and argued in this appeal. See Broadrick, 413 U.S. at 610. 
-28- 

b. Arguments Included in Our Facial Review

Plaintiffs assert that the District’s policy 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, they fail to do the same for overbreadth. 

The overbreadth doctrine is an alternative facial challenge 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 vagueness 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 overbroad if a substantial number of its 

applications are unconstitutional, judged in relation to the statute's plainly legitimate 

sweep.” United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (quotations omitted). 

Although Plaintiffs make several conclusory statements that 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 overbreadth, it is unlikely such a theory would 

succeed. To prevail on an overbreadth theory, a plaintiff must show that a challenged 

policy prohibits a “broad range of protected conduct,” and there must be “a realistic 

danger that the [policy] itself will significantly 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 possibility 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 Unconstitutional 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 students to seek preapproval for many of the 

expressive activities in which they routinely engage on school grounds, such as sharing 

their religious and anti-abortion views with other students or praying silently and out loud 

on school grounds and in the classroom. 

The preapproval requirement also does not affect 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 substantially overbroad.” 

ACORN, 835 F.2d at 744. 

As we will explain, the substantive restriction at issue, subsection 2.a, restates the 

Tinker standard. Tinker represents the most speech-protective 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 Plaintiffs 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 circumstances under which school 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-sponsored materials, and even then preapproval is required 

only if students intend to distribute more than 10 items on school grounds. 

We begin our analysis of Plaintiffs’ prior restraint argument by explaining where 

the preapproval requirement fits in a prior restraint analysis. We then analyze the policy, 

concluding that it is constitutionally permissible in light of its procedural protections, its 

substantive standard, and the special context of the school environment. 

a. What Is a Prior Restraint? 

Generally, a “prior restraint” restricts speech 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: Principles 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, regulation 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)). Prior restraints generally take one 

of two classic forms: judicial injunctions and administrative licensing schemes. See

Chemerinsky, supra, at 978-79. 
-31- 

A judicial injunction is usually a court order forbidding specific 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 scheme 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 parade or assembly on public property. Id. 

In the present case, the District’s preapproval requirement resembles an 

administrative licensing scheme because it requires preapproval for student speech that is 

non-school-related and involves distribution of more than 10 items of literature on school 

grounds. 

Licensing restrictions that are content neutral 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) (upholding licensing restriction on 

sound amplification in city park as a content 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 officials to use discretion in deciding whether to 

allow speech, and nothing in the policy prevents officials from considering the subject 

matter of the speech when predicting 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 discretion calls for prior restraint scrutiny. See 

id. at 130. 

b. The Preapproval Requirement Is Valid

Administrative pre-approval prior restraints can survive First Amendment review 

only when they meet very high standards established by the Supreme Court. Two 

considerations save the pertinent portions of Policy 5195 from facial constitutional attack. 

First, the policy contains procedural safeguards, including the opportunity to bring two 

 15 A policy is content neutral if its restrictions 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 while 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 matter restriction in the form of a statute 

prohibiting utility companies from discussing controversial issues of public policy in 

inserts included in customer bills). Subject 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 and must leave open ample alternative channels 

for communication. Id. at 725-26. 
-33- 

appeals. Second, the policy imposes substantive constraints on official discretion that are 

constitutionally sufficient in the 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 consistent with the trend of decisions of our 

sibling circuits on this issue. 

i. Procedural Safeguards 

In non-school settings, an administrative licensing process can overcome the 

presumption of unconstitutionality only if it contains “procedural safeguards designed to 

obviate the dangers of a censorship system,” 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 discrimination, which includes both viewpoint and 

subject matter discrimination). 

The Supreme Court first emphasized the importance of procedural safeguards in 

Freedman v. State of Maryland, where it considered a challenge to a statute requiring a 

film to receive advanced approval 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 safeguards 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 regulated use of public property for expressive 

activity. 505 U.S. at 133. A county ordinance allowed officials to vary the fee imposed 

for a parade or assembly permit based on the estimated cost for law enforcement at the 

event. Id. The Court overturned the ordinance because it lacked procedural safeguards to 

prevent viewpoint discrimination: the ordinance did not require officials to explain their 

decisions or to render a decision in any particular timeframe, and it provided no process 

for appealing an adverse decision. Id. The ordinance also lacked criteria to guide official 

discretion and prevent arbitrary decision making. Id. at 133-34. 

In short, “[n]othing in the [Forsyth County] law or its application prevent[ed] the 

official from encouraging some views 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 striking 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 must . . . be limited to preservation 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, and 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 procedural safeguards 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 written explanation of any 

denial. Students are entitled to appeal an unfavorable 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 next 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 Discretion in the School Context 

Neither the Supreme Court nor this court has specifically addressed the 

constitutionality of preapproval requirements 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 discretion 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 Amendment rights [are] circumscribed ‘in light of the 
-36- 

special characteristics of the school environment.’” Morse, 551 U.S. at 405 (quoting 

Tinker, 393 U.S. at 506). 

Outside the school context, preapproval requirements 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 freedoms 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 ‘inculcat[ing] the habits 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 government 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 arena, 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 (2002) (quotations omitted) 

(addressing Fourth Amendment issue). Students’ constitutional rights under the First, 

Fourth, and Fourteenth Amendments are therefore “different in public schools than 

elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and 

tutelary responsibility 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 which officials may refuse approval for a student 

distribution. These “articulated standards” 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 relevant to Plaintiffs’ facial challenge is subsection 2.a, which 

allows the school to disallow a student distribution if the distribution “[w]ould cause a 

substantial disruption or a material interference 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 analysis 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 discretion and guide decision makers in determining 

whether a particular distribution 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 arbitrary decision making. But Plaintiffs’ 

argument ignores that this part of the policy embodies the Tinker standard, which 

evaluates the exercise of school discretion 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 should not be prohibited unless they would 

substantially disrupt or materially interfere with school operations or activities. In other 

words, minor or immaterial disruptions do not justify withholding 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 principals “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 the armband.” 393 U.S. at 504. When the 

students arrived at school wearing the armbands, the school sent them home and 

suspended them “until they would come back without their armbands.” Id. The school 

officials suppressed the students’ speech for the 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 school context. We emphasize, however, that 

district officials must take care to apply the policy in a viewpoint-neutral manner to avoid 

its unconstitutional application. In particular, we note the District’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 reasonably forecast that a particular 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 necessary 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 the decisions of other circuits that have 

considered school preapproval policies. Our review of these 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 this issue have concluded 

that the First Amendment permits school preapproval policies 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 immediately after the Supreme Court’s decision in Tinker, 

followed by a review of more recent cases. 

Shortly after Tinker, the Second, Fourth, and Fifth Circuits concluded that schools 
-40- 

could require students to submit student-authored literature for approval before 

distributing it on a school campus. “[T]here is nothing per se unreasonable about 

requiring a high school student to submit written material to school authorities prior to 

distribution.” Sullivan v. Houston Indep. Sch. Dist., 475 F.2d 1071 (5th Cir. 1973). 

“[S]chool authorities may exercise reasonable prior restraint upon the exercise of 

students’ first amendment rights,” but any policy “must contain 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 promptly; 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. Stamford 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 concluding 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. Comm. 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 remains relevant to our analysis. As we have 

already discussed, the District policy at issue in the present case contains the necessary 

procedural safeguards lacking in the 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 “reasonably lead the principal to forecast substantial 

disruption of or material interference with school activities.” 525 F.2d at 383. The 

Nitzberg court recognized that this 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 reasonable and good faith protections. 475 F.2d at 1076. 

The policy established time frames 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 specific circumstances, for example, if the publication was 

libelous or obscene or advocated violation of laws or school rules. Id. at 1073. 

19 In addition to the reasons discussed here, we also note that the Nitzberg court 

failed to recognize that, as discussed previously, the school actions in Tinker were taken 

Continued . . . 
-42- 

First, Nitzberg labeled the policy at issue as vague and overbroad without defining 

the legal standards it was applying to those terms or providing further analysis. Id.20 In 

1992, Forsyth provided a clear analytical framework for preapproval policies that is 

distinct from issues of vagueness. The relevant part of this analytical framework requires 

us to ask whether the policy provides sufficient 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 outside 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, have recognized this.21 

We now turn to the second, more recent, group of circuit cases addressing school 

preapproval policies. In the past three decades, the school preapproval policies 

considered in circuit decisions have for the most part contained procedural safeguards 

and decision making criteria. As a result, circuits have generally upheld the challenged 

______________________________________ 

Cont. 

pursuant to a school policy and the Tinker Court articulated the substantial disruption 

standard as a guide for officials in deciding whether to allow student speech to proceed. 

20 We address the issue of vagueness as applied 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 environment and much more deferential to school 

authorities.” Chemerinsky, supra, at 1194. 
-43- 

policies they considered. 

The Eighth Circuit upheld 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 provision 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 operation 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 preapproval 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 preapproval policy that 

allowed school officials to restrict materials if they were deemed obscene or libelous, 

would invade the privacy of others, or would “cause substantial disruption of the proper 

and orderly operation of the school.” Id. at 1296. The policy also 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 through thirteen-year-olds.” Id. at 1538. 
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religious materials, but upheld the remainder of the policy and its preapproval 

requirement. Id. at 1297-1303.23 

Most recently, the Sixth Circuit upheld a policy strikingly similar 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 the time, place, and manner of distribution. 

Id. at 845. The Kinsland policy contained procedural safeguards similar to the Roswell 

policy. It designated strict time frames for official decision, required written explanation 

for any denial, and guaranteed students 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 operation of the school or school activities.” 

 23 Muller and Hedges implicitly reversed the Seventh Circuit’s previous position 

in Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir. 1972), which rejected school 

preapproval policies as an unconstitutional prior restraint. Id. at 1557-59. Neither Muller 

nor Hedges mentioned Fujishima, but other cases and courts 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. Wauconda Cmty. Unit Sch. Dist. 

No. 118, 807 F. Supp. 444, 457 n.14 (N.D. Ill. 1992) (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). 
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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 non-school-sponsored student newspaper at a 

school-sponsored barbecue on school grounds. Id. at 1150. They were reprimanded for 

not seeking preapproval for the distribution, as required by school policy. Id. at 1150-51. 

Although the newspaper was “generally critical of school administration policies,” the 

principal did not find any content objectionable or any problem with the manner of the 

distribution. Id. at 1150-51. 

Among other things, the policy allowed the school to ban materials based on 

evidence that would reasonably support “a judgment 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 criticizing school officials. Id. The school “admitted that if the 

students had submitted [the newspaper] 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 students for distribution of material which both 

 24 Our analysis differs from that in Kinsland because the Sixth Circuit applied 

Hazelwood, rather than the more speech-protective Tinker standard. Id. at 847, 849. As 

we explain in our discussion of the Plaintiffs’ as-applied free speech claim, the Supreme 

Court recently clarified that Tinker governs claims involving private (non-schoolsponsored) student speech. See Morse, 551 U.S. at 405-06. 
-46- 

sides acknowledge could not be suppressed under the first amendment,” the Ninth Circuit 

reversed the district court’s decision to dismiss the students’ First Amendment claim. Id.

at 1151-52. The opinion states that the policy was based on “undifferentiated fears,” id.

at 1159, and concludes that “a policy which subjects all non-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 school officials a ground on which to deny 

permission for distribution. But Burch’s broad statement suggesting that no preapproval 

policy could pass constitutional muster 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 Supreme Court and various circuit court school 

speech decisions upholding school officials’ discretion to maintain 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 school or impinged upon other 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, which conditions all distribution of student writings 

on school premises upon prior school approval.” Id. at 1159. 
-47- 

 In sum, our reading of Supreme Court case law leads us to conclude, along with a 

majority of our sibling circuits, that a school may enact a preapproval policy subject to 

the constitutional requirements we have described. The District’s policy meets these 

requirements. 

* * * 

For these reasons, we affirm the magistrate judge’s holding that the preapproval 

policy is not facially unconstitutional as a prior restraint. 

3. Policy 5195 is Not Unconstitutionally 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 ordinary intelligence a reasonable opportunity to 

understand what conduct it prohibits. 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 administrators to guess at what speech is subject to 

approval.” Aplt. Br. at 31. They rely primarily on Supreme Court authority requiring 

narrow specificity in criminal statutes that 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 concern 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 imprecision are qualitatively less severe.”); see 

also Morse, 551 U.S. at 396-97 (“Constitutional rights 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 special characteristics of the school environment.” 

(quotations and citations omitted)). 

Our review of the policy convinces us that a reasonable high school student of 

ordinary intelligence would understand when preapproval 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 opportunity to know what is 

prohibited”). Policy 5195 clearly requires students to obtain approval before distributing 

10 or more non-school-sponsored items on campus. It offers extensive definitions of 

“distribution” and “non school sponsored literature.” The latter includes written, printed, 

visual, or auditory materials that are not related to school curricula. [Id.] The policy 

spells out the steps required for submitting a request. 

Plaintiffs also argue that the policy is subject to “wildly divergent interpretations” 

and thus invites arbitrary or discriminatory enforcement. Aplt. Br. at 37; see Jordan, 425 

F.3d at 824-25. They offer no evidence of inconsistent application. Instead, they point to 

deposition testimony in which different school officials offered varying opinions as to 

how the policy would apply to hypothetical scenarios. But occasional differences in 
-49- 

theoretical interpretation will not render a policy facially unconstitutional. See Hoffman 

Estates, 455 U.S. at 497-98.26 

We therefore affirm the magistrate judge’s holding that the policy is not 

unconstitutionally vague. 

4. Concluding Statements on Plaintiffs’ Facial Challenge 

Having concluded that the District’s preapproval requirement is not facially 

unconstitutional as a prior restraint or for reasons of vagueness or overbreadth, we affirm 

the magistrate judge’s summary judgment order dismissing Plaintiffs’ facial challenge. 

We emphasize our holding extends only to Policy 5195’s preapproval requirement and 

associated procedural safeguards, and to the substantive restriction in subsection 2.a. We 

make no determination regarding the constitutionality of other District policies or 

provisions that do not apply to the speech in which Plaintiffs wish to engage. 

We close the facial challenge discussion with a cautionary note. Although public 

school officials enjoy more discretion regarding speech regulation relative to officials in 

other contexts, this discretion is limited. District 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 . . . that subscribed to by the majority.” Bystrom, 822 

F.2d at 755. Nor is it constitutional to prevent 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 detailed written Policy 5195. 
-50- 

U.S. at 510. We hold only that this policy is not unconstitutional 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 Amendment,” 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, 796 (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 and were rationally related to the District’s 

“reasonable and legitimate pedagogical concerns,” including, among other things, 

“maintaining school security and order” and “preserving a proper educational 

environment and preventing its disruption.” Aplt. Appx., Vol. IV at 1040. 

“Depending on the nature of the challenged . . . government action, a free exercise 

claim can prompt either strict scrutiny 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 rule “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 long as its object is something 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 legitimate 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, application of that policy is subject to 

strict scrutiny. Corder, 566 F.3d at 1232-1233. Under strict scrutiny, the government 

must prove its policy or application of that policy is narrowly tailored to accomplish a 

government interest that is compelling, 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 that 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 nature. Otherwise, any burden to Plaintiffs’ 

religious exercise is “an incidental effect” of applying a neutral 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 distribution, quantitatively or qualitatively. There is 

no evidence anyone else attempted to distribute hundreds or thousands of items. There is 

also no evidence that any of the permitted non-religious distributions caused, or presented 

a potential for, substantial disruption. 

Plaintiffs also argue that Mr. Luck’s statement, “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 suppressing 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 offended by the religious nature of 

the Plaintiff’s expression. 

But even if we accept Plaintiffs’ inference with respect to this single statement, the 

record viewed as a whole still does not support an inference that the 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 distribution was limited to this one early interaction. Senior 

administrators at both schools and several district officials, including Superintendent 

Gottlieb, made the ultimate decision to disallow the distribution. The evidence indicates 

these decision makers were acting with permissible motives, especially in light of the 

multiple disruptions to the educational program. 
-53- 

Plaintiffs also do not explain how their allegation that the District acted with the 

purpose of suppressing their religious exercise squares with how the District routinely 

accommodated their religious expression in other forms that were not disruptive—for 

example, their many other religious distributions and their silent and spoken prayers on 

school grounds. We cannot reasonably infer from the record that the District acted with 

the purpose of suppressing religious practice. 

We therefore determine the District’s actions were based upon neutral rules of 

general applicability, subject to rational basis review. Corder, 566 F.3d at 1232 

(“Neutral rules of general applicability normally do not raise free exercise concerns even 

if they incidentally burden a particular religious practice or belief.”) (quoting Smith, 494 

U.S. at 879). Applying rational basis, we conclude 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 neutral reason that they were not disruptive. 

Efforts to avoid disruption are rationally related to the school’s interests in maintaining 

discipline and protecting the educational environment. 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 District’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 differently. 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 differently 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 classifications. 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 distributing the rubber fetuses. But different 

treatment is problematic only if Plaintiffs were 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 rubber 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 similar to the rubber fetus distribution in kind 

and scale were other religiously themed distributions conducted by Plaintiffs and other 

Relentless members themselves, such as the hot chocolate, affirmation 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 protection claim must fail. We therefore affirm 

the magistrate judge’s grant of summary judgment to the District on Plaintiffs’ equal 

protection claim. 

III. CONCLUSION 

For the foregoing reasons, we affirm the magistrate judge’s grant of summary 

judgment to the District on all claims.