Corder v. Lewis Palmer Sch. Dist. No. 38, No. 08-1293 (10th Cir. May 29, 2009)
The U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) has ruled that a Colorado school district did not violate a student’s free speech rights by requiring her to submit her valedictory speech for prior review or by withholding her diploma until she apologized for disregarding the policy. The court also found that the policy did not violate the student’s right to free exercise of religion simply because her speech contained religious content, nor did it violate Colorado’s statute guaranteeing student publications freedom from prior restraint by school officials. Lewis Palmer School District’s (LPSD) unwritten policy was for each valedictorian to submit his or her proposed graduation speech to the principal for review. The speech submitted by Erica Corder, one of 15 valedictorians at Lewis Palmer High School, made no mention of her religious beliefs. However, the speech she gave urged the audience to “find out more about the sacrifice [Jesus] made for you so that you now have the opportunity to live in eternity with Him.” Erica was not given her diploma during the graduation and later was told she would not receive it unless she publicly apologized. She did so and received her diploma, but then sued LPSD, raising six claims: (1) violation of freedom of speech under the First Amendment; (2) compelled speech in violation of the First Amendment; (3) violation of the right to equal protection under the Fourteenth Amendment; (4) violation of freedom of religion under the First Amendment; (5) violation of the Colorado statute on student publications; and (6) violation of the Establishment Clause of the First Amendment. When the U.S. district court granted LPSD’s motion for summary judgment, Erica appealed on all except the Establishment Clause claim.
The Tenth Circuit affirmed. Addressing Erica’s claim that LPSD’s policy violated her free speech rights, the appeals court concluded that the question was controlled by the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), because, given the level of control school officials exerted over who was named a valedictorian and the content of the speeches in advance of the graduation, the speech at issue constituted school-sponsor speech bearing the imprimatur of the school. Hazelwood allows school officials to exercise editorial control over school-sponsored speech, provided any restriction is reasonably related to legitimate pedagogical concerns. Here, the court found, “[a] graduation ceremony is an opportunity for the School District to impart lessons on discipline, courtesy, and respect for authority,” and school districts are “entitled to review the content of speeches in an effort to preserve neutrality on matters of controversy within a school environment.” Turning to the claim that her forced apology amounted to impermissible compelled speech, the court first noted that under student speech jurisprudence, compelled speech is no different from censored speech. Therefore, the court reasoned, because LPSD could censor Erica’s speech under Hazelwood, it also could compel her to apologize for disregarding its policy, where this was related to the legitimate pedagogical purpose of learning discipline, courtesy, and respect for authority.
As for the free exercise of religion claim, the court concluded that the policy of prior review was one of general applicability that operated in a neutral manner as to content of all the speeches, regardless of content. Erica was not disciplined under the policy because of the religious content of her speech, but because gave a different speech than the one she had submitted to the principal. The equal protection claim also was without merit, because Erica had failed to assert that she is a member of a suspect class or was denied a fundamental right. Finally, the Colorado statute was inapplicable her speech was not a part of a student publication.
Corder v. Lewis Palmer Sch. Dist. No. 38, No. 08-1293 (10th Cir. May 29, 2009)
[Legal Clips Editor’s Note: In 2008, the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, V.I.) upheld a school district policy prohibiting faculty participation in student-initiated prayer. Like the Tenth Circuit in Corder, the Third Circuit concluded that “the school district has a legitimate educational interest in avoiding Establishment Clause violations” and that its policy was reasonably related to that interest. See below.]
NSBA School Law pages on Borden v. East Brunswick Sch. Dist.