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PLAINTIFF’S NOTICE OF MOTION AND MOTIONFOR SUMMARY JUDGMENT; MEMORANDUMOF POINTS & AUTHORITIES

Case No. 2:14-cv-01762-TSZ

PACIFIC JUSTICE I NSTITUTE P.O. Box 276600

Sacramento, CA 95827

(916) 857-6900

Honorable Thomas S. Zilly

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

MICHAEL LEAL,

Plaintiff,

vs.

EVERETT PUBLIC SCHOOLS, GARY

COHN, in his individual and official capacitiesas Superintendent of Everett Public School,

CATHY WOODS, in her individual andofficial capacities as Principal of Cascade High

School, LAURA PHILLIPS, in her individualand official capacities as Assistant Principal of

Cascade High School, ROBERT AGUILAR, inhis individual and official capacities as

Assistant Principal of Cascade High School,and DOES 1 THRU 100,

Defendants.

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Case No.: 2:14-cv-01762-TSZ

PLAINTIFF’S NOTICE OF MOTION AND

MOTION FOR SUMMARY JUDGMENT;

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF

PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT

Noting Date: May 8, 2015

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PLAINTIFF’S NOTICE OF MOTION AND MOTION

FOR SUMMARY JUDGMENT; MEMORANDUM

OF POINTS & AUTHORITIES -- 1


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28PACIFIC JUSTICE I NSTITUTE

P.O. Box 276600Sacramento, CA 95827

(916) 857-6900

NOTICE OF MOTION

To DEFENDANTS and their attorneys of record:

You are hereby given notice that on May 8, 2015, before the Honorable Thomas

S. Zilly, in the United States District Court for the Western District of Washington,

Seattle Division, located at 700 Stewart street, Seattle, Washington 98101, Plaintiff

MICHAEL LEAL will and hereby does move for summary judgment against Defendants,

EVERETT PUBLIC SCHOOLS, GARY COHN, in his official capacity as

Superintendent of Everett Public School, CATHY WOODS, in her official capacity as

Principal of Cascade High School, LAURA PHILLIPS, in her official capacity as

Assistant Principal of Cascade High School, and ROBERT AGUILAR, in his official

capacity as Assistant Principal of Cascade High School.

This motion for summary judgment is made pursuant to Fed. R. Civ. P. 56, and on

the grounds specified in this Notice of Motion and Motion, Plaintiff’s Memorandum in

Support of Motion for Summary Judgment, Request for Judicial Notice, the documents

filed in support thereof, the Verified Complaint, all other papers filed in this Court and

such further evidence as may be presented to the Court at the time of the hearing.

/S/ Conrad Reynoldson/S/ Kevin Snider

/S/ Matthew McReynolds________Conrad Reynoldson, WASB 48187Kevin T. Snider, CA SBN 170988*Matthew B. McReynolds CA SBN 234797*

Attorneys for Plaintiff

*pro hac vice


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(916) 857-6900

MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56, Plaintiff MICHAEL LEAL does hereby move, as

against each of the Defendants, for summary judgment and the entry of judgment on the

Verified Complaint on the grounds that (1) Everett Public Schools Board Policy 3222 is

unconstitutional on its face; and, that (2) Everett Public Schools Procedure 3222P is

unconstitutional on its face. The specific relief requested is as follows:

1. An order enjoining the enforcement of BP 3222 and 3222P;

2. A declaration that BP 3222 and 3222P are unconstitutional on their face;

3.

An order directing EPS to remove and expunge the suspensions and all

information memorializing disciplinary action against Leal based upon BP

3222 and 3222P; and,

4. Nominal damages.

/S/ Conrad Reynoldson

/S/ Kevin Snider/S/ Matthew McReynolds________Conrad Reynoldson, WASB 48187

4421 51st Ave, NESeattle WA, 98105-4932Tel.: (425) 246-8868E-mail: [email protected]

Kevin T. Snider, CA SBN 170988*

Matthew B. McReynolds CA SBN 234797*PACIFIC JUSTICE INSTITUTEP.O. Box 276600Sacramento, CA 95827Tel.: (916) 857-6900Fax: (916) 857-6902

E-mail: [email protected]* pro hac vice



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OF POINTS & AUTHORITIES -- i


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(916) 857-6900

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Summary Of The Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Standard of review for summary judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. The literature distribution rules invoke the Tinker framework . . . . . . . . . . . . 5

A. EPS cannot have it both ways on Tinker . . . . . . . . . . . . . . . . . . . . . . .6

III. The challenged rules discriminate among speakers and thereforeare not content-neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Distinguishing among speakers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Anonymous tracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. The literature distribution rules fail even the lower test of reasonableness

required of time/place/manner regulations . . . . . . . . . . . . . . . . . . . . . . . . . .11

A. 3222P restricts literature distribution from the interiorof the campus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

B. 3222P restricts literature distribution when student presence

is required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

C. Summary of time and place restrictions. . . . . . . . . . . . . . . . . . . . . . . .14

V. The student written/produced requirements restricts a plethora of speech . . .14

VI. EPS literature distribution rules also cannot survive intermediate scrutiny. .16

VII. The exception of seeking a waiver of the location and time rules vestsschool officials with unbridled discretion, which is impermissible

in any form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21


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(916) 857-6900

AUTHORITIES

Cases

Aluminum Co. of America v. Bonneville Power Admin., 891 F.2d 748 (9th Cir.1989)…...6

Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir. 1990)…………………13

Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675 (1986)………………………………...5

Buckley v. Valeo, 424 U.S. 1 (1976)………………………………………………………9

Burch v. Barker , 861 F.2d 1149 (9th Cir. 1988)…………………………………………..5

Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992)……………………...17

Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five,

470 F.3d 1062 (4th Cir. 2006)………………………………………………..20-21 Citizens United v. Federal Election Com’n., 558 U.S. 310 (2010)……………………...10

City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)……………19-20

Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985)……...12

Eisner v. Stamford Bd. of Ed., 440 F.2d 803 (2d Cir. 1971)………………………………8

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009)…………………………………….6

Hazelwood v. Kuhlmeier , 484 U.S. 260 (1988) ............................................................ 5, 15

Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993) ... passim

Hialeah, Inc. v. Florida Horsemen's Benev. & Protective Ass'n, nc.,

899 F. Supp. 616 (S.D. Fla. 1995)……………………………………………………..17

Jacobs v. Clark County School District , 526 F.3d 419 (9th Cir. 2008)…………...8, 17-19

J.S. v. Holly Area Schs., 749 F.Supp.2d 614 (E.D. Mich. 2010)…………………..8, 12-14

J.L. v. Mercer Island Sch. Dist., 592 F.3d 938 (9th Cir. 2010)…………………………6-7

Lovell v. Griffin, 303 U.S. 444 (1938)…………………………………………………...10

Morse v. Frederick , 551 U.S. 393 (2007)…………………………………………………5

OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012)…………………………...20

Raker v. Frederick County Public Schools, 470 F. Supp.2d 634 (W.D. Va. 2007)……...13


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(916) 857-6900

Schlagal v. Learning Tree Int’l , 1998 U.S. Dist. LEXIS 20306

(C.D. Cal. Dec. 23, 1998)…………………………………………………………….17

Scoville v. Board of Ed. of Joliet Tp. High Sch. Dist. 204, Will County,

State of Ill., 425 F.2d 10 (7th Cir. 1970)………………………………………………...8

Shanley v. Northeast Independent Sch. Dist., 462 F.2d 960 (5th Cir. 1972)……………...8

Talley v. California, 362 U.S. 60 (1960)…………………………………………..2, 10-11

Thompson v. Waynesboro Area School District , 673 F. Supp. 1379 (M.D. Pa. 1987)…..12

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)......................... passim

United States v. Stevens, 559 U.S. 460 (U.S. 2010)………………………………………4

Virginia v. Hicks, 539 U.S. 113 (2003)……………………………………………………5

Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)...4

Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002)………...15

Regulations

Board Policy 3222...................................................................................................... passim

3222P ......................................................................................................................... passim


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(916) 857-6900

INTRODUCTION

In this action, a student contests the most restrictive literature distribution rules

propounded by a public high school in the nation. The Plaintiff, Michael Leal (Leal) has been

suspended and threatened with expulsion by officials from Everett Public Schools (EPS)1 for

violation of a student “Distribution of Materials” policy (BP 3222P) and administrative procedure

(3222P). Leal challenges four aspects of the literature distribution procedure as follows:

• location – distribution restricted to entries and exits to school buildings;

• time – distribution restricted to before and after school;

•

authorship – author of literature restricted to students; and,

• administrative discretion – upon request, a school principal can allow distribution at other

times and locations.

Because these four restrictions are overbroad and suppress speech to an extraordinary

degree, Leal brings this facial challenge.

SUMMARY OF THE ARGUMENT

The student authorship rule violates the Free Speech Clause because it works as a

restriction that distinguishes among different speakers. Content-based restrictions and speaker

identity-based restrictions are interrelated concepts. Thus, review of the literature distribution

rules come under content-based scrutiny.

In a related vein, a speaker-based restriction logically excludes anonymous works. (Three

of the tracts distributed by Leal decline to attribute authorship.) The original authorship

1Unless otherwise indicated, “EPS” refers collectively to all Defendants. 2 A tract is defined as “a short treatise in pamphlet form, typically on a religious subject.” Oxford


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(916) 857-6900

requirement is facially invalid as per the Supreme Court’s decision in with Talley v. California,

362 U.S. 60 (1960).

Review of the policy falls under the “substantial disruption” standard found in Tinker v.

Des Moines Indep. Cmty. Sch. Dist ., 393 U.S. 503 (1969). EPS explicitly invoked that standard

by using the language as follows: “[d]istribution of materials…shall not cause a substantial

disruption” (3222P) and, “[s]tudents responsible for the distribution of material which leads to a

substantial disruption of school activities…shall be subject to…suspension or expulsion… .” BP

3222. Because of the adoption of the Tinker substantial disruption standard in the texts, the

burden lies with EPS to demonstrate the actual or imminent presence of a substantial disruption.

Were the Court able to disregard EPS’s selective reliance on Tinker and instead treat the

policies and procedures as time/place/manner restrictions, EPS still cannot prevail under

intermediate scrutiny. The literature distribution procedures fail intermediate scrutiny not only

because they discriminate among speakers, and thus are content-based, but also because their

overriding aim is the suppression of speech.

Even under the standard most favorable to EPS, the restrictions on literature distribution

flunk the test of reasonableness. Restrictions that (1) restrict student distribution to the

schoolhouse gates and (2) outside of school hours essentially work as a complete ban on

leafleting.

A student authorship requirement, approved in the Seventh Circuit, Hedges v. Wauconda

Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993), entails an unconstitutional restriction

on speech. In addition to the unconstitutional restriction on speakers, the Hedges opinion


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(916) 857-6900

conflates in-class curriculum-related rules for properly writing papers with independent student

expressive conduct outside of the classroom.

Finally, the policy provides one exception whereby a student may seek permission of the

principal or assistant principal to waive the time and location restrictions. Because this exception

depends solely on the prerogative of an administrator, the exception places unbridled discretion in

that official, and for that additional reason must be invalidated.

FACTS

The material facts are not in dispute.

Leal identifies as a Christian. Leal Declaration, Document 10 at ¶2, Request for Judicial

Notice (RJN) 7. Enrolled at EPS, Leal attends Cascade High School as a senior. Id. at ¶1. As part

of the practice of his faith, Leal expresses the claims of the Christian Gospel to fellow students. Id.

at ¶2. He communicates through personal conversations, public speeches (i.e., preaching), and

handing out tracts2 to students willing to receive the literature. Id. at ¶¶3-4. Leal has been

disciplined a number of times for engaging in these activities. Id. ¶¶ 8, 10-11; Verified Complaint

For Injunctive Relief, Declaratory Judgment And Damages (“VAC”), Exhibit C at p. 9-10, Doc. 1-

3, RJN 3. This includes suspension and a threat of expulsion. RJN 7 at ¶14. What remains at

issue in this case concerns the distribution of literature. Leal suffered suspensions due to his

violation of the EPS procedure 3222P. Id . at ¶13. Policy 3222P reads as follows:

2 A tract is defined as “a short treatise in pamphlet form, typically on a religious subject.” Oxford

Dictionary, www.oxforddictionaries.com (accessed March 24, 2015).


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(916) 857-6900

Procedure

Distribution of materials written and/or produced by students shall not cause a

substantial disruption of school activities or materially interfere with schooloperations. Students responsible for distribution of materials will be subject to

corrective action or punishment, including suspension or expulsion, depending on

the nature of the disruption or interference resulting from distribution of materials.

The following guidelines are in effect in each school building:

A. Materials written and/or produced by students may be distributed before or after

the school day at points of entry/exit of school buildings.

B. Students may also seek permission from the school principal or assistant principal to distribute materials written and/or produced by students at other times

and locations.

RJN 9, p. 8., Doc. 20

Leal did not write the literature in question and students did not “produce” the

tracts. RJN 7 at ¶13. Indeed, some of the tracts do not identify an author. RJN 1 (Doc. 1-

1), RJN 2 (Doc. 1-2). Further, he distributes tracts in the expansive interior of the campus

during school hours. RJN 7, at ¶13.

ARGUMENT

A law 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, 559 U.S. 460, 461 (U.S. 2010) quoting Washington State Grange v. Washington State

Republican Party, 552 U.S. 442, 449, n. 6 (2008). As discussed below, the literature distribution

rule promulgated by EPS restricts more speech than the Constitution permits.

I. Standard of review for summary judgment

A party is entitled to summary judgment if the movant shows no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. Rule 56(a) of the Federal

Rules of Civil Procedure. In the present matter, there exists no dispute as to a material fact.


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(916) 857-6900

Moreover, this motion presents a facial challenge, as opposed to an as-applied challenge, to the

text of a law. This litigation asserts that a high school student suffered adverse disciplinary

actions by school officials as a consequence of engaging in core speech activity, but in violation of

the EPS rules for distribution of literature. As explained more fully below, four aspects of the

literature distribution rule suffer from overbreadth. Virginia v. Hicks, 539 U.S. 113, 118 (2003).

An interpretation of BP 3222 and 3222P in the face of undisputed facts renders summary

judgment appropriate.

II. The literature distribution rules invoke the Tinker framework.

Leal explained at length in his prior briefing why the Supreme Court’s Tinker-Hazelwood-

Bethel-Morse approach should control the present analysis. Stated succinctly, and more fully

articulated by the Ninth Circuit in decisions such as Burch v. Barker , 861 F.2d 1149 (9th Cir.

1988), the starting point is a presumption that students possess essentially the same speech rights

that the courts have articulated for adults, with narrow exceptions for speech that causes a

substantial disruption (Tinker ), speech that is school-sponsored ( Hazelwood v. Kuhlmeier , 484

U.S. 260 (1988)), speech that is vulgar ( Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675 (1986)),

and pro-drug speech ( Morse v. Frederick , 551 U.S. 393 (2007)). Leal will not burden the Court

with repetition of these views, but they remain his starting point. Two additional considerations,

though, necessitate further discussion as to the Tinker standard and the lack of content neutrality in

the challenged policies. First, the policies and procedures expressly rely on Tinker , rendering the

EPS’s current arguments of Tinker ’s irrelevance not credible. Second, the claimed content

neutrality of the policies is belied by their speaker-based restrictions.


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(916) 857-6900

A. EPS cannot have it both ways on Tinker.

A curious thing happened on the way to federal court. While EPS has insisted during the

course of litigation that Tinker, the leading school speech case of the last half-century, does not

apply at all here, the challenged rules actually invoke that precedent as controlling. The

“Distribution of Materials” policy reads in part as follows: “Students responsible for the

distribution of material which leads to a substantial disruption of school activities or otherwise

materially interfere with school operations shall be subject to…suspension or expulsion… .”

BP3222. RJN 8 (Doc. 20 at p. 6). Similarly, 3222P reads: “Distribution of materials written

and/or produced by students shall not cause a substantial disruption of school activities or

materially interfere with school operations.” RJN 9 (Doc. 20 at p. 8).

EPS here adopts the language of Tinker . The Tinker Court used the words substantial (or

material ) interference (393 U.S. at 505, 509, 511, 513-14), disorder (393 U.S. at 508, 513-14) and

disruption (393 U.S. at 505, 508-09, 513-14) interchangeably.

Because the drafters adopted the language of Tinker , review of the literature distribution

rules in question come under the substantial disruption standard. To do otherwise, reads

“substantial disruption” and “materially interfere” out of the text. Under well-established rules of

statutory construction, each term should be given effect and interpretations avoided that will

render terms meaningless or superfluous. Aluminum Co. of America v. Bonneville Power Admin.,

891 F.2d 748, 755 (9th Cir.1989).

A legislative body is presumed to be aware of judicial interpretation of a statute and to

adopt that interpretation when it re-enacts a statute without change. Forest Grove Sch. Dist. v.

T.A., 557 U.S. 230, 239-40 (2009); J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir.


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(916) 857-6900

2010). The same is even more true where, as here, a school district implements policies and

procedures that borrow from a well-known student speech case like Tinker.

Turning to the Tinker analysis, schools may only suppress student speech by showing facts

that reasonably cause school authorities to forecast substantial disruption of, or material

interference with, school activities. Tinker , 393 U.S. 513. In and of itself, undifferentiated fear of

apprehension fails to overcome the right to freedom of expression. Id. at 508-09.

EPS asserts that Tinker does not apply to a content/viewpoint neutral law. That may

generally be true, but not here. To hold such a position would require that “substantial disruption”

and “materially interfere” be read out of the EPS policy and procedure.

In sum, EPS interprets its own material distribution policy and procedures such that a

student who peacefully distributes literature at the wrong location (the interior of the campus), at

the wrong time (during school hours), and by the wrong author (someone other than a pupil) falls

outside the protection of the First Amendment. The administrative procedure (3222P) holds

students strictly liable, even absent the actual or likely threat of substantial disruption.

But the disruption/interference language in the distribution procedure can also be read

another way. Instead of reading out “substantial disruption” and “materially interfere” from the

text, another interpretation is that violation of the location, time, and authorship rules is a per se

disruption/interference. Although such a reading comports with the rules of statutory

construction, the EPS literature distribution rule does violence to the Tinker opinion by using those

terms in a manner not contemplated by the high court.

Perhaps a logical interpretation of BP 3222 would be such that time, place and manner

rules must serve to prevent a substantial disruption or material interference. Indeed, BP 3222


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reads in part: “Publications or other material written and/or produced by students may be

distributed on school premises in accordance with procedures developed by the superintendent.

Such procedures may impose limits on the time, place, and manner of distribution.” Hence a rule

that prohibited leafleting while a student is in a classroom during instructional time would prevent

the disorder and interference contemplated by the Tinker Court. Of course, the rules described in

the procedure (3222P) go far beyond the prevention of a substantial disruption. In other words,

prevention of substantial disruption serves as an indicia of the key measure of a reasonable time,

place and manner rule. Thus, under this construction, BP 3222 could be saved but 3222P could

not.

Looking again at the Tinker test, although a school district need not prove with absolute

certainty that substantial disruption will occur, the burden is on the school authorities to meet

Tinker ’s requirements in order to abridge student First Amendment rights. J.S. ex rel. Snyder v.

Blue Mountain Sch. Dist., 650 F.3d 915, 928 (3d Cir. 2011). “The restriction is unconstitutional

unless the school can show that engaging in the forbidden conduct would materially and

substantially interfere with the requirements of appropriate discipline in the operation of the

school.” Jacobs v. Clark County School District , 526 F.3d 419, 429, n. 4 (9th Cir. 2008) (inner

quotations and cites omitted). When the constitutionality of a school regulation is questioned, the

burden of justifying the regulation falls upon the school board. Shanley v. Northeast Independent

Sch. Dist., 462 F.2d 960, 969 (5th Cir. 1972). (See also, Scoville v. Board of Ed. of Joliet Tp. High

Sch. Dist. 204, Will County, State of Ill., 425 F.2d 10, 13 (7th Cir. 1970); Eisner v. Stamford Bd. of

Ed., 440 F.2d 803, 810 (2d Cir. 1971)).


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III. The challenged rules discriminate among speakers and therefore are not content-

neutral.

One of the primary reasons offered for taking the challenged policies out of the Tinker

framework is the notion that the rules are content-neutral. Not so. On their face, the rules

discriminate among speakers to an astonishing degree. While speaker-based discrimination is not

the best-known form of content or viewpoint discrimination, it is similarly regarded by the

Supreme Court.

The EPS literature distribution rule confines texts to that “written and/or produced by

students.” BP 3222 and 3222P. Stated negatively, a pupil shall not pass out literature authored

and/or produced by someone other than a student. Yet, the liberty interest in speech necessarily

encompasses the adoption of words of others. Buckley v. Valeo, 424 U.S. 1 (1976). Save for the

Defendants in this case, this concept is almost universally understood.

For example, a person reciting the Our Father (also referred to as the “Lord’s Prayer”)

possesses an undeniable liberty interest based in both the Free Exercise and Free Speech Clauses

to do so. While a school may limit the utterance aloud of this prayer in the middle of biology

class, it could not constitutionally do so on the basis that the prayer lacks originality. Yet, this

fallacy is enshrined in EPS’s rules for literature distribution.

A. Distinguishing among speakers

Eliminating ideas emanating from persons other than students constitutes an extreme form

of censorship. For example, a school poses a rule that prevents distribution of any literature

written by, or quoting, William Shakespeare. Such a restriction is facially content and viewpoint

neutral for the rule remains silent as to any subject or opinion. But the Supreme Court sees it quite

differently. The Free Speech Clause also prohibits “restrictions distinguishing among different


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speakers, allowing speech by some, but not others.” Citizens United v. Federal Election Com’n.,

558 U.S. 310, 340 (2010). The Citizens United Court determined that content-based restrictions

and restrictions based upon the identity of the speaker are interrelated. “Speech based upon the

identity of the speaker are all too often simply a means to control content.” Id.

Through the literature distribution rule, EPS deprives students of the right and privilege to

determine for themselves what speech and speakers are worthy of consideration. Id. at 341. The

First Amendment protects speech and speaker, and the ideas that flow from each. Id. Therefore,

the student authorship rule should be viewed with the same level of scrutiny as a content-based

rule. This would place the analysis squarely under the Tinker substantial disruption test. (See

discussion on Tinker under Part II, supra).

B. Anonymous tracts

The student written/produced rule of BP3222 and 3222P also clashes with Talley. More

than fifty years ago the U.S. Supreme Court struck down a city ordinance that allowed distribution

of handbills only if those papers included certain identifying information about the author or

sponsor.

There can be no doubt that such an identification requirement would tend to restrictfreedom to distribute information and thereby freedom of expression. “Liberty of

circulating is as essential to that freedom as liberty of publishing; indeed, withoutthe circulation, the publication would be of little value.”

Talley, 362 U.S. at 64 quoting Lovell v. Griffin, 303 U.S. 444, 452 (1938).

The Talley Court held that the distribution ordinance prohibiting anonymous handbills abridged

the freedom of speech and of press secured against state invasion by the Fourteenth Amendment.

Leal freely acknowledges that neither he nor other students wrote the tracts distributed by

him on the Cascade High School Campus. RJN 7 at ¶¶ 13-14 (Doc. 10); VAC ¶¶ 43 & 49-50


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(Doc.1). Of note, three of the tracts filed with the Court contain no attribution to an author. RJN

1 (Doc. 1-1) and RJN 2 (Doc. 1-2), RJN 10 (Doc. 20, p. 91-92). Because 3222P would prohibit

anonymous tracts, the rule transgresses the holding in Talley.

IV. The literature distribution rules fail even the lower test of reasonableness

required of time/place/manner regulations.

Even were it possible to ignore EPS’s double-talk on Tinker , its discrimination based on

speaker identity, and its impermissible, implicit ban on anonymous literature, it would encounter

insurmountable obstacles even under its preferred reasonable timeplace/manner standard. Quite

simply, rules that close off the vast majority of space, the vast majority of available time, and all

but an infinitesimally small amount of the available material for speech are not reasonable. To

call such rules overbroad would be charitable.

A. 3222P restricts literature distribution from the interior of the campus.

In a letter dated October 27, 2014, counsel for EPS referred to 3222P when he wrote, “Mr.

Leal may distribute material he or other students’ wrote and published before and after school at

the building entrances and exits.” RJN 4 (Doc. 1-4, p. 7). This aspect of the rule – confining

distribution to the outskirts of the campus – cannot be reconciled with Tinker . “It can hardly be

argued that either students or teachers shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate. This has been the unmistakable holding of this Court for

almost 50 years.” Tinker , 393 U.S. 506. EPS responds that the property at the “building entrances

and exits” is owned by the school. That makes little difference. Denial of access to the interior of

a campus lacks reasonableness and surely fails the least restrictive means test.

Whether the venue is a public park, an airport, a courthouse, or a large high school, a rule

that forecloses the entire interior of a significant public space to one of the oldest and most


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venerable forms of free expression is overbroad and unreasonable. It makes no difference that

such a rule may be characterized as a content-neutral time, place and manner restriction; it is not a

reasonable time, place and manner restriction, particularly where as here students will congregate

in the interior during lunch and other free time to discuss whatever is on their minds.

Restricting pupils’ First Amendment rights literally to the schoolhouse gates bars them

from the primary place where they interact with classmates. Even content/viewpoint neutral time,

place and manner rules must be reasonable. Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 473 U.S. 788, 800 (1985). A school policy “which forbids student-to-student

distribution of materials anywhere on school grounds… does not qualify as such a reasonable and

permissible time, place, and manner restriction.” J.S. v. Holly Area Schools, 749 F. Supp. 2d at

624. Likewise, a school official’s memorandum restricting the distribution of literature to “outside

the school building, on the sidewalk and parking lot” lacked reasonableness because such a rule

confined the speech activity to distribution of religious literature to an area “literally outside the

‘schoolhouse gate.’” Thompson v. Waynesboro Area School District , 673 F. Supp. 1379, 1392

(M.D. Pa. 1987). Of note, the district court determined that the campus comprised a limited public

forum. Id., 1387.

The Tinker Court clearly had the interior of the campus in mind when it wrote that “[a]

student’s rights . . . do not embrace merely the classroom hours. When he is in the cafeteria, or on

the playing field, or on the campus during the authorized hours, he may express his opinions… .”

Tinker , 393 U.S. at 512-13 (emphasis added). As the Thompson and J.S. v. Holly Courts found,

cutting off access to the campus fails because content/viewpoint neutral rules must be reasonable

time, place and manner restrictions. Again, the Tinker Court explained that “we do not confine the


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permissible exercise of First Amendment rights to a telephone booth… .” Tinker , 393 U.S. at 513.

The notion that a rule is per se constitutional merely because it is content-neutral is preposterous.

For example, a rule that reads, “Leafleting is permitted at school so long as text is not printed on

paper” is clearly content-neutral. But it is also unreasonable. Similarly, the EPS rule hardly fairs

better. Paraphrased it reads, “Leafleting is permitted within the District so long as it is off campus

when school is not in session.”

EPS may protest that Tinker involved a viewpoint-based restriction. Though that is

Tinker ’s context, the case has no meaning if the matter of venue is read out of the opinion. For the

case primarily stands for the proposition that the interiors of public junior high and high school

campuses are not Constitution-free-zones.

B. 3222P restricts literature distribution when student presence is required.

Leal further challenges as unreasonable the rule which limits distribution of literature to

times outside of school hours. Though a content/viewpoint neutral time, place and manner

restriction, the rule fails yet again for lack of reasonableness.

Limiting free speech activities to before a park, government complex or other public or

semi-public space opens, and then after it closes, lacks reasonableness on its face. A public school

policy that virtually bans the circulation of all written communication during the instructional day,

including during lunchtime and between classes, cannot be sustained as a reasonable time, place,

and manner restriction. Such a ban is not narrowly tailored. Raker v. Frederick County Public

Schools, 470 F. Supp.2d 634, 638, 640-41 (W.D. Va. 2007). Even content-neutral restrictions

may be invalidated when they make the target audience effectively inaccessible. Bay Area Peace

Navy v. United States, 914 F.2d 1224, 1229-30 (9th Cir. 1990).


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C. Summary of time and place restrictions

Combining the restrictions to the points of entrance and exit to the school building and

outside of school hours, the literature distribution rule cuts off meaningful access to the school

campus. Make no mistake, that comprises the intent of EPS. Defendants’ opposition to the

motion for preliminary injunction reads, “[Leal] is free to hand out whatever materials he chooses

off school grounds and on his own time.” Defs. Opposition to Plaintiff’s Motion for PI, 21:9-10

(Document 19, p. 21). The Tinker Court said the opposite. “When he is…on the campus during

the authorized hours, he may express his opinions… .” Tinker , 393 U.S. at 512-13 (emphasis

added). In contrast, the EPS place and time restrictions are as follows:

PLACE: not on campus

TIME: not while school is in session

Thus, the EPS rule poses what amounts to a total ban on literature distribution during

school hours and the interior of the campus. Defendants assert no constitutional infirmity because

the leafleting ban presents itself as content and viewpoint neutral. But “[i]t is axiomatic that a

complete ban on student speech is not a permissible ‘time, place, and manner restriction.’” J.S. v.

Holly Area Schools, 749 F. Supp. 2d at 624.

V. The student written/produced requirement restricts a plethora of speech.

EPS relies heavily on Hedges v. Wauconda Community United School District , 9 F.3d

1295 (7th Cir. 1993), for the proposition that a school can prohibit pupil distribution of literature

drafted or produced by a nonstudent.

The Hedges Court writes, “[w]hether a school serves pupils’ interests by curtailing their

dissemination of leaflets prepared by third parties is not a question of constitutional law.” Hedges,


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9 F.3d at 1301. Leal disagrees. Dissemination of leafleting, and by extension – the message

contained therein, falls squarely within the Free Speech Clause. Watchtower Bible & Tract Society

v. Village of Stratton, 536 U.S. 150, 160 n. 10 (2002). Not surprisingly, the student authorship

requirement approved in Hedges finds no support outside of the Seventh Circuit.

The Hedges Court writes that “[e]ducation is guided reading and analysis… .” Hedges, 9

F.3d at 1301 (emphasis in original). Likewise, the Seventh Circuit reasons that “[l]earning how to

express thoughts in your own words is an essential component of education… .” Id ., 9 F.3d at

1302. Leal agrees. But the Hedges Court conflates a school’s mission and goals within the

classroom with private student non-curricular expressive interactions that occur in the halls,

“cafeteria” or “playing field.” Tinker , 393 U.S. at 512. The position adopted by Hedges and EPS

fails to account for Hazelwood , where the Supreme Court drew a sharp distinction between student

speech that is school-sponsored and speech that is not.

To be sure, student speech rights remain very circumscribed during instructional time. No

dispute is raised that schools can and should provide detailed rules relative to the papers that

students submit. But such rules for writing have no bearing on student writing or leafleting

divorced from schoolwork.

The logical extension of the Hedges rationale is that a school can prohibit a student from

handing out the text of the First Amendment to a classmate. Hedges, 9 F.3d at 1302. Similarly, in

the present case one tract that Leal distributed paraphrased four of the Ten Commandments. RJN

2 (Doc. 1-2). Sadly, under 3222P the student transgressor will find that the wages of this sin is

suspension up to expulsion. The fallacy of the reasoning of the Hedges Court consists of a

misapprehension of the Constitution’s first ten amendments. Such comprise less a Bill of Rights


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for citizens than in fact a list of “thou shalt nots” handed down by the People to the government.

For example, “Congress shall make no law…abridging the freedom of speech… .”

EPS remains tone deaf as it parrots the reasoning in Hedges. The colloquy between this

Court and counsel for EPS leaves little doubt on that account.

THE COURT: Can he copy down the First Amendment and hand it out under thisrule?

MS. HEINEMAN: …My understanding of the policy is that it would have to have

some original basis… .

THE COURT: So if he had a piece of paper that said “This is the FirstAmendment,” that’s in his writing, and then he quotes the First Amendment, is that

permitted under this policy.”

MS. HEINEMAN: …Under my reading of the policy, I would say that is probablynot enough. Transcript 22:15-253

MS. HEINEMAN: …What’s at issue here is that he can distribute materials with

regard to any content that he likes… .

THE COURT: But that’s not true. He cannot produce it unless it’s somethingoriginal that he has written; isn’t that right?

MS. HEINEMAN: That is right.

THE COURT: So he cannot produce and distribute a copy of the Constitution at

the entrance to the school -- …under this policy?

MS. HEINEMAN: Correct, but he could distribute a copy of the Constitution withhis own commentary. Transcript 26:10-15

EPS interprets its rule such that a student would, in the case of the Constitution, either have

to draft a document outlining an original form of government, or perhaps the pupil’s own

annotations to the Constitution. In the case of Leal, he could come up with his own moral code in

3 A copy of the transcript of oral argument on the motion for preliminary injunction is filed with

the Court.


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lieu of the Decalogue. If that sounds absurd, it is. But such is the logic of Hedges. Surely the

drafters of the Free Speech Clause contemplated no such restrictions on this fundamental liberty.

Finally, nothing binds this Court to the Hedges reasoning. Schlagal v. Learning Tree Int’l ,

1998 U.S. Dist. LEXIS 20306 (C.D. Cal. Dec. 23, 1998). “A decision of a sister circuit court of

appeals is not binding precedent on a district court in another circuit, but is merely persuasive

authority.” Hialeah, Inc. v. Florida Horsemen's Benev. & Protective Ass'n, nc., 899 F. Supp. 616,

623 (S.D. Fla. 1995). Where, as here, no other Circuits have followed the Seventh Circuit’s

idiosyncratic approach in the last twenty years, and the Ninth Circuit indicates much greater

protectiveness of student speech rights, even the decision’s use as persuasive authority is greatly

diminished.

VI. EPS literature distribution rules also cannot survive intermediate scrutiny.

The closest that the Ninth Circuit has come to avoiding Tinker and applying a framework

more to EPS’s liking in a school speech case is Jacobs v. Clark County School District .

Not unlike this Court at the preliminary injunction stage, the Ninth Circuit wrestled with its

own precedents such as Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992), and

ultimately determined that a different approach could be taken with the school uniform policies at

issue in Jacobs. Even under this content-neutral approach, though, problems immediately begin to

emerge for EPS’s policy.

First, the Ninth Circuit carefully avoided forum analysis, undermining the EPS’s novel

position that all of its policies should be viewed only through the lens of a non-public forum.

Applying intermediate scrutiny, the Ninth Circuit stated the rule as follows: “[I]f the District’s

school uniform policies advance important government interests unrelated to the suppression of


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free speech, and do so in ways that effect as minimal a restriction on students’ free expression as

possible, then the uniform policies should be upheld.” Jacobs, 526 F.3d at 435.

Under this approach, the court upheld the uniform policy by reference to school safety and

the elimination of socioeconomic disparities that had nothing to do with suppression of

expression. Here, though, EPS’s attempts to satisfy intermediate scrutiny stumble out of the gate,

because its literature distribution policies are inextricably tied to the suppression of particular

types of speech. EPS has not attempted to justify, and could not justify, its artificial distinctions

between student-written or produced literature and its location restrictions as somehow connected

to secondary effects such as safety concerns, reducing socioeconomic disparities, or anything of

the sort.

Even the EPS’s over-reliance on Hedges does not help it with intermediate scrutiny.

Hedges emphasizes the school’s alleged role as the arbiter of private student speech, trumpeting

the pedagogical interests of confining students to a microscopic percentage of the literature they

may distribute. Whatever the dubious value of this approach may be as a teaching tool, it cannot

be separated from suppression of a sizable chunk of speech. The rules therefore fail intermediate-

level scrutiny on the front end.

The latter part of the Jacobs intermediate scrutiny test quoted above also trips up the

challenged rules. Elsewhere described as narrow tailoring or a requirement of ample alternative

channels for communication, the Jacobs articulation of minimal restrictiveness is helpful. In

short, the EPS rules are the opposite of minimalist – they foreclose such an astonishing amount of

expression that they can only rightly be called overbroad. It is not minimalist to tell students that

the entirety of the school day is off-limits to literature distribution. It is not minimalist to tell


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students that the interior of campus where they actually spend their school day is off limits to

literature distribution. And it is definitely not minimalist to tell students that their literature – in

the few places and times where it is even allowed – must exclude every great writer who has ever

lived and be confined to the student’s finite thoughts and experiences.

While Leal does not believe Jacobs compels a different path than Tinker in the present

case, in part because it involved policies not designed for the suppression of free expression, in the

event that this Court determines that Tinker ’s substantial burden standard does not apply, then

Jacobs would dictate intermediate scrutiny. For the reasons set forth above, BP3222 and 3222P

cannot survive that standard.

VII. The exception of seeking a waiver of the location and time rules vests school

officials with unbridled discretion, which is impermissible in any forum.

The final reason that EPS’s policies and procedures are unconstitutional, even were the

Court to adopt the Defendants’ novel notion that Cascade is a non-public forum, is that the rules

vest unbridled discretion in administrators. In this regard, EPS declares that the following

“guidelines” are in place:

B. Students may also seek permission from the school principal or

assistant principal to distribute materials written and/or produced bystudents at other times and locations.

It is impossible to tell whether this is a large exception or a narrow one, because it includes

no actual guidance to control its application. This is the archetype of the unbridled discretion that

courts have warned about for decades. “Without standards governing the exercise of discretion, a

government official may decide who may speak and who may not based upon the content of the

speech or the viewpoint of the speaker.” City of Lakewood v. Plain Dealer Publishing Co., 486


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U.S. 750, 763-64 (1988). Speaking in the context of a college campus, the Ninth Circuit surveyed

the precedents in this area and concluded that, while school officials may be afforded a degree of

flexibility, “no court has held that a standard-less policy passes muster.” OSU Student Alliance v.

Ray, 699 F.3d 1053, 1065 (9th Cir. 2012). One searches in vain for clear standards that govern the

discretion of EPS administrators in permitting speech under the subsection quoted above.

The only standards that EPS provides read as follows: “any distributed materials…must be

pre-approved by administration as to content, time, place, and manner of distribution if distributed

during the school day.” RJN 5 at ¶2 (Doc. 1-6). On its face, this gives administrators the

authority to review content of literature. Yet, it gives no guidance as to what content would meet

the fancy of an administrator. Stated in the negative, one must ask: What content is verboten?

The text of Exh. F is not brought to introduce a fact into this motion. This motion remains a facial

challenge to section B of 3222P. Exhibit F merely provides the Defendants’ interpretation of

section B.

Nor can the good faith or allegedly even-handed application of such a flawed policy save

it. “Whether an administrator possesses excessive discretion under the First Amendment depends

not on whether the administrator has exercised his discretion in a content-based manner, but

whether there is anything preventing him from doing so.” Child Evangelism Fellowship of S.C. v.

Anderson Sch. Dist. Five, 470 F.3d 1062, 1071 (4th Cir. 2006) (internal quotations omitted). The

dangers of a standardless policy not only for misuse but also for self-censorship are deemed

“inherent,” and thus subject to facial challenge. City of Lakewood , 486 U.S. at 757.

Moreover, unbridled discretion poses such a threat to expressive liberties that it renders a

policy presumptively unconstitutional even in non-public or limited public forums. “Even in cases


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involving a limited or non-public forum, if a policy does not provide sufficient criteria to prevent

viewpoint discrimination, then it generally will not survive constitutional scrutiny.” Child

Evangelism Fellowship of S.C., 470 F.3d at 1069.

The fact that EPS gives its administrators the power to approve literature distribution at

other times and places, with zero guidance as to when, where, under what circumstances, or for

whose benefit that discretion will be exercised, further dooms this thoroughly misguided policy.

CONCLUSION

Leal requests that the Court grant this motion for summary judgment and provide relief as

follows:

1. An order enjoining the enforcement of BP 3222 and 3222P;

2. A declaration that BP 3222 and 3222P are unconstitutional on their face;

3. An order directing EPS to remove and expunge the suspensions and all information

memorializing disciplinary action against Leal based upon BP 3222 and 3222P;

and,

4.

Nominal damages.

Respectfully submitted,

Dated: April 10, 2015

BY: /S/ Conrad Reynoldson

/S/ Kevin Snider/S/ Matthew McReynolds________Conrad Reynoldson, WASB 48187

4421 51st Ave, NESeattle WA, 98105-4932Tel.: (425) 246-8868

E-mail: [email protected]

Kevin T. Snider, CA SBN 170988*


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Matthew B. McReynolds CA SBN 234797*PACIFIC JUSTICE INSTITUTEP.O. Box 276600Sacramento, CA 95827Tel.: (916) 857-6900Fax: (916) 857-6902

E-mail: [email protected]


*pro hac vice


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