FEDERAL COURT OF APPEALS UPHOLDS SCHOOL DISTRICT’S REFUSAL TO PERMIT STUDENT DISTRIBUTION OF 2,500 RUBBER FETUS DOLLS

 April 19, 2013

By Parker Himes

In upholding a New Mexico school district’s decision to prohibit a group of students from distributing 2,500 rubber fetus dolls, the United States Court of Appeals for the Tenth Circuit recently considered a classic case of student speech that materially and substantially disrupts the delivery of education, thus permitting school officials to restrain the speech. Further, the Court spelled out the types of procedural safeguards that must accompany a restriction on student expression in the form of a pre-approval policy.

In Taylor v. Roswell Independent School District (2013), the Court upheld the District’s decision to ban a group of students from distributing 2,500 rubber fetus dolls to students in two high schools.  The group of students was part of a religious youth group, Relentless, that advocated its religious beliefs and anti-abortion views on school grounds.  In an attempt to, according to the group, “put God back into the schools,” the students began distributing various items that contained religious messages.  The District permitted the distributions, until the students began to distribute the rubber fetus dolls to all high school students in the lobbies of the two high schools.  Measuring two inches, each fetus doll was designed to represent a human fetus at twelve weeks of gestation.  Included with the doll was a scriptural passage advocating pro-life views.

What followed is a perfect example of the type of disruption that would validate the District’s decision to prohibit the distribution of any (more) dolls. Students began to tear the heads off the dolls and throw them at the walls, ceilings, and each other.  Dolls were used to plug toilets.  Some students covered the dolls in hand sanitizer and lit them on fire.  A few male students removed the heads from the dolls and attached the body to their pants to imitate certain male anatomy.

In upholding the District’s decision to prohibit further distribution of the dolls, the Court noted that “a disruption need not actually materialize.”  Moreover, the Court stated that “[s]chool officials may act to prevent problems as long as the situation ‘might reasonably [lead] authorities to forecast’ substantial disruption.”  Reasonableness of the school’s forecast would “require that it be based on a ‘concrete threat’ of substantial disruption.” Here, the Court found that the number of items being distributed “created strong potential for disruption.”

At issue in this case was also the validity of the District’s policy requiring advanced approval to distribute the symbolic items.  The Court found the policy survived because of sufficient procedural safeguards included in the policy, which required:

  1. distribution requests be approved or denied within five days;
  2. for requests denied, the district was to provide a written explanation of the reasons for any denial; and,
  3. the ability to appeal any denial first to the Superintendent, and then to the board of education.  The Court opined that “the policy imposes substantive constraints on official discretion” and would prevent the District from denying a request based on the content of the expression.

Such safeguards are crucial when crafting a pre-approval policy restricting private student expression.  School districts must ensure that their policies require a written explanation for any denial, a time-frame for decision making, and the right of a student to appeal any decision.   Without these procedural safeguards, the Court indicated that most pre - approval policies would not survive judicial review, as school officials could conceivably deny a request based on the expression’s viewpoint.  If your district finds the need to craft such a pre-approval policy, we urge you to contact an attorney at the Firm to discuss these procedural safeguards.