No. 08-1566

~ uffiZI: UP THE CLERK

u reme ql::ourt o{ tl]e nite tate BRITTANY McCOMB, and MARIANNA McCOMB,

by her best friend, CONSTANCE J. McCOMB,Petitioners,

V.

GRETCHEN CREHAN, ROY THOMPSON, andCHRISTOPHER SEFCHECK, individually and in their officialcapacities as employees of Foothill High School, and the ClarkCounty School District, a political subdivision of the State of

Nevada, and WALT RULFFES, in his official capacity asSuperintendent of the Clark County School District, a political

subdivision of the State of Nevada, et al.,

Respon den ts.

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

Anand AgneshwarCounsel o£ RecordVijay BaligaARNOLD & PORTER LLP399 Park AvenueNew York, NY 10022Tel: (212) 715-1000

James J. KnicelyKNICELY & ASSOCIATES, P.C.487 McLaws Circle, Suite 2Williamsburg, VA 23185Tel: (757) 253-0026

October 15, 2009

Douglas H. ClarkLAW OFFICES OF DOUGLASH. CLARK, P.C.2595 South Torrey Pines DriveLas Vegas, NV 89146Tel: (702) 388-1333

John W. WhiteheadDouglas R. McKusickTHE RUTHERFORDINSTITUTE1440 Sachem PlaceCharlottesville, VA 22906Tel: (434) 978-3888

Counsel for Petitioners

Blank Page

TABLE OF CONTENTS

INTRODUCTION ........................................................1

The Decision Below Runs Contrary toWeisman and Santa Fe .....................................3

II. The Permissibility of a Student-Initiated Speech Should Not Depend ona Distinction Between Proselytizingand Non-Proselytizing Speech ..........................6

III. This Court Should Reconcile A ClearDifference in Jurisprudence Betweenthe Circuits ......................................................11

IV. Petitioners Have Fairly Presented AllIssues Which Remain Ripe for Review ...........12

CONCLUSION ...........................................................13

TABLE OF AUTHORITIES

Page(s)

CASES

Adler y. Dural County School Board,250 F.3d 1330 (11th Cir. 2001) .................................11

Cole v. Oroville Union High School District,228 F.3d 1092 (9th Cir. 2000) ................. 1, 6, 7, 11, 12

Doe v. Santa Fe Ind. Sch. Dist.,168 F.3d 806 (5th Cir. 1999) .................................7, 10

Doe v. School District of Norfolk,340 F.3d 605 (8th Cir. 2003) .....................................11

Follett v. McCormick,321 U.S. 573 (1944) .....................................................7

Forsyth County, Georgia v. Nationa]ist Movement,505 U.S. 123 (1992) ...................................................10

Grupo Mexicano do Desarrollo v.Alliance Bond Fund, Inc.,527 U.S. 308 (1999) ...................................................12

Lassonde v. Pleasanton Unified School District,320 F.3d 979 (9th Cir. 2003) ........................... 1, 11, 12

Lee v. Weisman,505 U.S. 577 (1992) .................................3, 4, 5, 10, 11

ii

Murdock y. Pennsylvania,319 U.S. 105 (1943) .....................................................7

N.C.A.A. v. Smith,525 U.S. 459 (1999) ...................................................12

Nurre y. Whitehead,No. 07-35867, 2009 WL 2857196(9th Cir. Sept. 8, 2009) ..............................1, 2, 5, 6, 11

Rosenberger v.Rector and Visitors of University of Virginia,515 U.S. 819 (1995) ...................................................10

Santa Fe Independent SchooI District y. Doe,530 U.S. 290 (2000) ....................................... 3, 4, 5, 11

OTHER AUTHORITIES

Clark County School District AdministrativeRegulation 6113.2 ...................................................4, 5

http://schooltree.org (last visited Oct. 15, 2009) ........2

Oral Argument before the Ninth Circuit inMcComb y. Crehan, 07-16194 (Mar. 10, 2009),h ttp://www, ca9. uscourts.gov/media/view_subpage.php ?pk_id=O000002983(last visited Oct. 15, 2009) ..........................................8

oooiii

Blank Page

INTRODUCTION

Respondents’ primary argument is that theEstablishment Clause required them to censorBrittany McComb ("Brittany" or "Petitioner") -- oneof three public high school students selected becauseof their G.P.A. to write and give speeches at agraduation ceremony -- solely because she spokeabout the key to her success in school (her faith inChrist) and told others that they could likewisesucceed. See Plaintiffs’ First Amended Complaint("Compl.") at ¶¶ 16-21 (Petitioners’ Appendix("App.") at 24-25) This Court should grant certiorarito make clear that the Establishment Clause doesnot stretch so broadly to stifle personal studentspeech simply because it reflects a sectarianreligious orientation. Yet the Ninth Circuitrepeatedly has reached that conclusion1 and it againdid so here despite the presence of viewpointdiscrimination between the student graduationspeakers.

These overbroad Ninth Circuit rulings aretaking a cumulative and unnecessary toll on FreeSpeech, well beyond this Court’s expressed concernswith school prayer. See, e.g., Nu~re v. Whitel~e~d,No. 07-35867, 2009 WL 2857196 (9th Cir. Sept. 8,2009) (Censoring school band instrumentalperformance of Ave M~ria from school graduation

~ Cole v. Oroville Union High School District, 228 F.3d 1092,1103 (9th Cir. 2000), and Lassonde v. P1easanton UnifiedSchoolDistrict, 320 F.3d 979 (9th Cir. 2003).

ceremony because of its religious orientation). Thereare over 17,000 public schools in the Ninth Circuit2and this orientation undoubtedly stifles studentspeech across the West Coast. As such, we urge theCourt to review this case and settle this questiononce and for all.

2 See http://schooltree.org (tallying total number of public

schools located within each State of the Union) (last visited Oct.15, 2O09).

2

The Decision Below Runs Contrary toWeisman and Santa Fe

Respondents first argue that this case is notcertworthy because the speech at issue was notreally Brittany’s but that of the School District. Inparticular, Respondents claim that because schoolofficials asked to review the students’ speechesbefore they were given, the school had plenarycontrol of the event. Petitioners’ Opposition Brief("Opp.") at 3-5. In Respondent’s view, whateverstudent speech was given created the perception ofbeing endorsed by the school district and becamesubject to Establishment Clause limitations underLee v. Weisman, 505 U.S. 577 (1992), and Santa FeIndependent School District y. Doe, 530 U.S. 290(2000). See id.

Let us be clear -- the school district did notexercise "plenary control" over Brittany’s speech byvirtue of the principal’s review of her speech. Buteven if the principal’s review somehow gave theschool district some control over what types ofspeeches should be prohibited -- for example,pornographic or incendiary speeches designed todisrupt the event -- that type of control does notmean that the school endorses whatever speech ispermitted to go forward. Nor does that reviewsuggest primary control over the "content" of whollystudent-authored expression. The simple fact thatthe principal asks to review the speech does notentwine the school district with the substantivecontent of the speech. Otherwise, any speech thatwould be barred if given by the principal in his

3

official capacity would by definition be barred ifgiven by the student. There is no logical stoppingpoint to such an doctrine.

In fact, Respondent’s "plenary control"argument flows from a misreading of the scope ofWeisman and Santa Fe. Those cases involved schooldistricts that, respectively, inserted themselves intothe substantive content of school prayer, andactively encouraged student-initiated school prayer.See generally, Weisman, 505 U.S. 577, and Santa Fe,530 U.S. 290. The school in Weisman selected arabbi to deliver an "invocation" and ’%enediction" tothe graduating class and provided materials for himto use in delivering the prayers (Weisman, 505 U.S.at 581); the school in Santa Fe engineered theelection of a student speaker for a school event forthe specific purpose of delivering a prayer to thestudent audience (Santa Fe, 530 U.S. at 296-97).Neither of these factual scenarios is remotelyanalogous to the situation here -- where no prayerwas involved and where the student was one of threevaledictorians invited to speak because of her classrank and informed that she could speak about whatwas important to her. See Compl. at ¶¶ 16-21 (App.at 24-25).

Nor does Respondents’ invocation of ClarkCounty School District Regulation ("Regulation")6113.2 add anything material to their argument.Opp. At 4-5. That regulation was designed toencourage student speech (see Regulation 6113.2(App. At 3)); it emphasizes a distinction betweensituations where neutrally selected students exercise

4

"primary control of the content of the expression"and when they do not. Id. Here, Brittany not onlyauthored the content of her speech, she was solelyand primarily responsible for its delivery. Compl. at¶¶ 32-33 (App. at 30). There was no school policyagainst religious expression at graduation (Id.);indeed, where the expression was the student’s andthe student was selected by neutral criteria, schoolpolicy favored permitting the religious expression.Regulation 6113.2 (App. at 3).

Respondent’s logic and the logic of the decisionbelow would result in the censorship of any and allstudent-initiated speech that takes on a religiousorientation so long as the speech reached the desk ofa school official before it was given. The NinthCircuit in fact appears to be headed towards thatextreme. In its recent decision in Nurre v.Wl~ite1~ead, No. 07-35867, 2009 WL 2857196 (9thCir. Sept. 8, 2009), the Court upheld a school’sprohibition on a student playing an instrumentalversion of Ave Maria at a high school graduationceremony, due to the "religious nature" of the song.Id., 2009 WL 2857196 at *5. The dissent in that caserealized this went far beyond Sant~ Fe andWeisman, and raised concerns as to the ultimateeffect of this ban:

[I]f the majority’s reasoning on thisissue becomes widely adopted, thepractical effect will be for public schooladministrators to chill - or even kill -musical and artistic presentations bytheir students in school-sponsored

5

limited public fora where thosepresentations containany trace ofreligious inspiration,for fear ofcriticism by a memberof the public,however extreme thatperson’s viewsmay be.

Id., 2009 WL 2857196 at *9.

Petitioners respectfully request the Court toprovide clarity as to whether the far reachingEstablishment Clause Defense advanced byRespondents, that would justify the removal of allstudent-initiated religious speech with a sectariancomponent from graduation ceremonies, reflects aproper understanding of the balance between theFree Speech and Establishment Clauses.

The Permissibility of a Student-InitiatedSpeech Should Not Depend on a DistinctionBetween Proselytizing and Non-ProselytizingSpeech

Respondents implicitly acknowledge that their"plenary control" argument proves too much byarguing that Brittany’s speech violated theEstablishment Clause for another reason -- , that itconstituted "proselytizing." See gener~IIy Opp. at25-27. To date, this Court has not permittedcensorship of student religious speech based onwhether it is non-proselytizing or proselytizing.

The sole definition of the term relied upon byRespondents derives from Cole, 228 F.3d at 1103,

6

and a Fifth Circuit case on which it relies (Doe g.

Santa Fe Ind. Sch. Dist., 168 F.3d 806, 817-18 (5thCir. 1999)). In these authorities, proselytizing is anycomment "designed to reflect, and even convertothers to a particular religious viewpoint."3 Id. ThisCourt should grant certiorari and hold that theConstitution does not permit school districts toprohibit speech that otherwise would be viewed asthat of the non-governmental speaker solely becauseit falls within a highly subjective and overbroaddistinction between"proselytizing" and "non-proselytizing" speech.

For one thing, courts are ill-equipped todistinguish between proselytizing and non-proselytizing religious speech. It is moreoverunclear why "proselytizing~’ speech is inherentlycoercive but non-proselytizing speech is not.Consider the following two examples. A studentgives a twenty minute speech that is suffused withreferences to God and God’s role in the student’s lifeand successes. The speech is personal and containsno exhortation to others to convert. A secondstudent gives a nearly identical speech but then adds"I am where I am because of my Buddhist faith andif you follow the Buddhist Eightfold Path I believeyou will succeed and find happiness as I have." It

3 The Cole Court also relied on Follett y. McCormick, 321U.S. 573, 576"77 (1944), and Murdock v. Pennsylvania, 319U.S. 105, 108-10 (1943) to equate prayer with what it termed tobe the "religious practice" of door-to-door evangelizing. Cole,228 F.3d at 1104.

7

cannot credibly be contended that the second speechpresents Establishment Clause concerns while thefirst does not, and yet that is the substance of theNinth Circuit’s judgment in this case. See OralArgument before the Ninth Circuit in McComb y.Crehan, 07-16194 (Mar. 10, 2009),http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000002983 (last visited Oct. 15, 2009).

Inevitably, this distinction betweenproselytizing andnon-proselytizing speech isdevolving into more invidious viewpointdiscrimination based on the extent to which thespeech is deemed to be sectarian. That in fact iswhat Petitioners believe occurred here. Twostudents gave speeches with religious orientations.See Compl. at ¶¶ 64"66 (App. at 36-41). JanelleOehler ("Janelle") spoke about God and her beliefs ina non-sectarian, but arguably proselytizing, manner.Id. Brittany’s speech contained references to herparticular faith in Christ which Respondents deemedto be proselytizing. Id. Janelle’s speech was deemedacceptable but Brittany’s was not. Id.

While Respondents clumsily argue that thegreater number of "I"s and "me"s in Janelle’s speechwarranted the disparate treatment (see Opp. at 9-10), the record in fact reflects that every timeBrittany wrote "Christ" or "Jesus" in her draftspeech school district officials struck them out andthen censored the speech by turning off themicrophone in the preser~ce of parents, classmatesand friends (see Compl. ¶¶ 56-64 (App. at 35-36);"Filling That Void" (App. at 58). By contrast,

8

Janelle was permitted to advocate that prayer and arelationship to God is the path to personal success:

[O]ur meal is never started withoutprayer. My Heavenly Father plays anextremely important role in my life. Iam confident that I would not bestanding before you today if I had notincluded Him in my life. He is theOne who truly understands ourindividual needs. I would benothing without Him [God]. Find yourinspiration. Living with the hope for abrighter future will make a significantdifference in our lives, provide us withtrue inner happiness and personalsuccess. If we strive to be moremotivated by inspiration, we will findourselves more satisfied, as if we hadenjoyed a complete balanced andnutritional spaghetti dinner.

Excerpt of Janelle’s Speech (App. at 8).

While Brittany may have spoken about herfaith at greater length, the principal distinction inthe speeches was that Brittany’s was avowedlysectarian and Janelle’s was not.

Far from preventing an Establishment Clauseviolation, by selectively intervening to censorBrittany’s commencement speech, the Respondentscommitted one by preferring a "civic-religious"

9

speech over a sectarian one. See Weisman, 505 U.S.at 588.

Finally, it is not at all clear what standardsthe Ninth Circuit is using to determine what is andwhat is not proselytizing. Respondents’ actions inthis case are tainted with the standardless personalpredilections found unconstitutional in ForsythCounty, Georgia v. Nationalist Movement, 505 U.S.123 (1992), and its progeny. There is no FirstAmendment doctrine that permits, let aloneencourages, such a linear and potentiallydiscriminatory approach to student-initiatedreligious speech. To the contrary, the Court hascautioned that religous clause cases are intenselyfact-specific and that the entire context must beexamined. Indeed, in Rosenberger v. Rector andVisitors of University of Virginia, 515 U.S. 819(1995), Justice O’Connor stated in her concurringopinion that these types of cases "dependD on thehard task of judging-sifting through the details anddetermining whether the challenged programoffends the Establishment Clause." Id. at 847; seealso Weisman, 505 U.S. at 597 (noting that "[o]urEstablishment Clause jurisprudence remains adelicate and fact-sensitive one"). Instead ofdeliberate fact-finding, the Ninth Circuit has optedfor a form of summary justice based on an "I know itwhen I see it" standard that is, in fact, standardless.We respectfully request that this Court use thispetition to reaffirm the principle that contextmatters in the evaluation of student-initiated highschool graduation speeches.

10

HI. This Court Should Reconcile A ClearDifference in Jurisprudence Between theCircuits

Over the past several years, circuit anddistrict courts have been interpreting the scope ofWeisman and Santa Fe with differing andcontrasting results that requires clarification fromthis Court. The Ninth’s Circuit’s decision below, itsrecent decision in Nurre and its earlier decisions inCole, 228 F.3d at 1103, and Lassonde, 320 F.3d at979-80, took a stunningly broad view of theEstablishment Clause’s reach -- virtually anyinvolvement by the school officials in the student’sspeech gave the speech the appearance of beingendorsed by the school district. The Eleventh andEighth Circuits have reached different resultsinterpreting the same two Supreme Court eases.The Eleventh Circuit in Adler v. Duval CountySchool Board, 250 F.3d 1330 (11th Cir. 2001), andthe Eighth Circuit in Doe v. School District ofNorfolk, 340 F.3d 605 (8th Cir. 2003), both rejectedthe argument that Santa Fe and Weisman require a"total ban" on religious references at schoolfunctions. See Adler 250 F.3d at 1332-33; Norfolk,340 F.3d at 611-12. In those eases, the ceremoniesat issue were school-sponsored events on schoolpremises under school control. Id. The speecheswere broadcast by the schools using schoolequipment. Id. Before determining whethercensorship was necessary, the Adler and NorfolkCourts examined the entire context in which thespeech was made and ultimately concluded that noEstablishment Clause issues existed. Id.

11

There is therefore a clear need for this Courtto intervene and clarify the proper analyticalapproach to such questions and the scope of theEstablishment Clause’s reach.

Petitioners Have Fairly Presented All IssuesWhich Remain Ripe for Review

Respondents urge that the issues presented inthis case have previously been addressed in thePetitions for Certiorari in the Cole and L~ssondecases, and thus do not need to be revisited by thisCourt. To the contrary, this case presents aninvidious example of viewpoint discrimination thatwas not pressed in Cole and L~ssonde, and occurredin the instant matter precisely because this Courtdid not grant certiorari in those cases. As such, theCourt should do so now.4

4 Respondents also assert that Grupo Mexicano de Desarrolloy. Alliance Bond Fund, Inc., 527 UoS. 308, 319 m3 (1999), andN.C.A.A.y. Smith, 525 U.S. 459, 470 (1999) prohibit Petitionersfrom raising claims related to Entanglement, ViewpointDiscrimination and Equal Protection. Opp. at 22. GrupoMexicano and N.C.A.A., both involved attempts by the partiesto argue novel theories not raised in the Court below. SeeGr~po Mezic~no, 527 U.S. at n.3; N.C.A.A., 525 U.S. at 470.Here, Petitioners’ Entanglement and Viewpoint Discriminationclaims are both inextricably intertwined with the FirstAmendment claims pled in the Amended Complaint briefed andraised fully below. Comp. ¶¶ 67-90 (App. at 41-48). Similarly,all claims attendant to Equal Protection were also pled in theAmended Complaint and raised in Petitioners’ EqualProtection Clause arguments below as well. Compl. ¶¶ 91-97(App. at 48-50). Despite Respondents’ assertions to the

Footnote continued on next page

12

CONCLUSION

The Petition for a writ of certiorari should begranted.

Respectfully submitted,

Anand AgneshwarCounsel o£RecordVIJAY BALIGAARNOLD & PORTER LLP399 Park AvenueNew York, NY 10022Tel: (212) 715-1000

James J. KnicelyKNICELY &ASSOCIATES, P.C.487 McLaws CircleSuite 2Williamsburg, VA 23185Tel: (757) 253-0026

Douglas H. ClarkLAW OFFICES OFDOUGLAS H. CLARK, P.C.2595 South Torrey PinesDriveLas Vegas, NV 89146Tel: (702) 388-1333

Counsel £or Petitioners

October 15, 2009

John W. WhiteheadDouglas R. McKusickTHE RUTHERFORDINSTITUTE1440 Sachem PlaceCharlottesville, VA22906Tel: (434) 978-3888

Footnote continued from previous pagecontrary, Petitioners’ use of Supreme Court case law to supportthese claims (as opposed to the Ninth Circuit case law usedbelow) does not render the claims "novel" or an "issue of firstinstance." They have been presented as issues in the case fromits inception.

13