FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB PINARD; MARK LIPKE;
GRIFFIN LINN; HARRY MILLS; TYSON
JARVI; TRAVIS JEFFERS; NATHAN
WHITE; D. J. CRAWFORD; No. 04-35574
CHRISTOPHER SOMES, D.C. No.
Plaintiffs-Appellants,
v. CV-03-00172-ALC
ORDER AND
CLATSKANIE SCHOOL DISTRICT 6J, a AMENDED
public body; JEFF BAUGHMAN; OPINION
MICHAEL CORLEY; LES WALLACE;
EARL FISHER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
September 15, 2005—Portland, Oregon
Filed May 1, 2006
Amended October 30, 2006
Before: Raymond C. Fisher, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Fisher
17989
PINARD v. CLATSKANIE SCHOOL DIST. 6J 17993
COUNSEL
Michael R. Seidl (argued) and Lori K. DeDobbelaere, Seidl
Law Office, P.C., Portland, Oregon, for the plaintiffs-
appellants.
Peter R. Mersereau (argued) and Thomas W. McPherson,
Mersereau & Shannon, LLP, Portland, Oregon, for the
defendants-appellees.
ORDER
The court sua sponte has amended the opinion filed at 446
F.3d 964 (2006). The amended opinion is filed concurrently
with this order. The parties may file petitions for rehearing
based on the amended opinion.
17994 PINARD v. CLATSKANIE SCHOOL DIST. 6J
OPINION
FISHER, Circuit Judge:
This student speech case arises from a school district’s sus-
pension of student athletes from its high school varsity bas-
ketball team. The students allege that the school district and
various school officials violated their First Amendment free
speech rights by suspending them in retaliation for speaking
out against their coach. The district court granted summary
judgment against the students, concluding that they were not
engaged in a constitutionally protected activity because their
speech did not involve a matter of public concern. In the alter-
native, the court concluded that the school district could con-
stitutionally punish the students because their decision not to
board a team bus and play in a regularly scheduled out-of-
town game substantially and materially interfered with a
school activity.
We hold that the district court erred in adopting from the
government employment context the public concern standard
for determining whether the First Amendment protects stu-
dent speech. Under the proper standard articulated in Tinker
v. Des Moines Independent Community School District, 393
U.S. 503, 514 (1969), the students’ petition and complaints
against the coach were protected speech because they could
not reasonably have led school officials to forecast substantial
disruption of or material interference with a school activity.
However, we agree with the district court that the students’
refusal to board the bus was not protected by the First
Amendment because, even if expressive conduct, it substan-
tially disrupted and materially interfered with the operation of
the varsity boys basketball program. The district court did not,
however, consider the plaintiffs’ retaliation claims. We there-
fore reverse and remand for further proceedings consistent
with this opinion.1
1
We do not address the applicability of United States v. O’Brien, 391
U.S. 367 (1968), to this case. O’Brien laid out a four-part test for assessing
PINARD v. CLATSKANIE SCHOOL DIST. 6J 17995
I. Factual and Procedural Background
Plaintiffs are eight former members of the 2000-01 Clatska-
nie High School varsity boys basketball team in Clatskanie,
Oregon.2 The defendants include the Clatskanie School Dis-
trict, Jeff Baughman (the varsity boys basketball coach),
Michael Corley (the high school principal), Lester Wallace
(the high school athletic director), and Earl Fisher (the superin-
tendent).3 Baughman, a teacher at the high school before tak-
content-neutral regulations that restrict speech or inherently expressive
conduct. Under O’Brien, such a regulation must be upheld “if it is within
the constitutional power of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.” 391 U.S. at 377. The O’Brien framework has
been employed by a number of courts in recent school uniform cases. See
Canady v. Bossier Parish Sch. Bd., 240 F.3d 437 (5th Cir. 2001); Little-
field v. Forney Ind. Sch. Dist., 268 F.3d 275 (5th Cir. 2001); Jacobs v.
Clark County Sch. Dist., 373 F. Supp. 2d 1162 (D. Nev. 2005). Our cir-
cuit, however, has not invoked O’Brien in this context.
We decline to apply O’Brien here for two reasons. First, the Tinker
framework is appropriate for analyzing restrictions on student speech that
is neither school-sponsored nor “vulgar, lewd, obscene and plainly offen-
sive.” Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 529 (9th Cir.
1992); see Section III.C., infra. Second, the district court did not consider
O’Brien’s applicability, and the parties did not argue before the district
court or this court that O’Brien should apply, addressing the issue only at
our request after we filed our original opinion. We therefore lack the req-
uisite factual record to determine whether O’Brien should apply and, if so,
what the outcome should be. The parties may on remand address in the
district court whether O’Brien applies and present such evidence as may
be necessary for its meaningful application, including whether the school’s
policy was content-neutral, whether it was followed when the students
were suspended, why the students were suspended, and what incidental
restrictions on free speech resulted from the school’s policy.
2
Christopher Somes was an original plaintiff in this case, but voluntarily
dismissed his claims on April 24, 2003.
3
In July 2001, Corley replaced Fisher as superintendent during the
events in this case.
17996 PINARD v. CLATSKANIE SCHOOL DIST. 6J
ing on coaching responsibilities, became the team’s head
coach for the 2000-01 school year.
Considering the evidence in the light most favorable to the
plaintiffs, as we must at this stage of the litigation, see
Bingham v. City of Manhattan Beach, 341 F.3d 939, 945-46
(9th Cir. 2003), Baughman was verbally abusive and highly
intimidating. For example, plaintiff D.J. Crawford testified
that after a game, Baughman had him hold a basketball while
Baughman “slapped” and “beat” at it (also “hitting [Craw-
ford’s] arms”) to make sure he was holding the ball tightly.
Although the ball-holding drill might recreate a game situa-
tion, what followed was inappropriate. Baughman made a tri-
angular shape with his fingers and told Crawford, “You know
what this is? This is what you are. You are a fucking pussy.”4
Describing Baughman’s intimidation tactics, plaintiff Griffin
Linn testified that Baughman once told the team, “I can fuck
with your minds in so many ways you won’t know which way
is up, and don’t think I can’t. I’ll make your lives a living hell.”5
Linn explained that the players did not report Baughman’s
behavior because Baughman made it clear that “anything that
happened in the locker room stays in the locker room.”
After one particular home game, Baughman told the play-
ers that if they wanted him to quit, they should say so, and he
would resign.6 The players apparently took Baughman at his
4
Plaintiff Griffin Linn testified that similar incidents “occurred in the
locker room with Baughman singling out players and physically intimidat-
ing them, and basically just bullying people into submission.”
5
Linn described Baughman’s conduct as “verbal abuse, yelling, humilia-
tion, ranting, [and] raving.” He also testified that Baughman had thrown
pens and towels, broken a dry erase board over his knee and kicked gar-
bage cans in the locker room. Other plaintiffs similarly testified to Baugh-
man’s incessant yelling, profanity and abusive coaching tactics.
6
Plaintiff Jacob Pinard, a senior at the time and a team captain, recalls
that “Baughman was really upset because of the way we played.” Baugh-
man sat the team down in a half circle and said “something like, ‘if you
PINARD v. CLATSKANIE SCHOOL DIST. 6J 17997
word. On February 12, 2001, several weeks after Baughman’s
statement, co-captains Jacob Pinard and Christopher Somes
called a team meeting at a local restaurant to discuss Baugh-
man’s behavior. Before the meeting, one of the plaintiffs
typed up a petition requesting that Baughman resign. The
petition stated:
As of February 12, 2001, the Clatskanie Tigers Boys
Varsity Basketball Team would like to formally
request the immediate resignation of Coach Jeff
Baughman. As a team we no longer feel comfortable
playing for him as a coach. He has made derogative
[sic] remarks, made players uncomfortable playing
for him, and is not leading the team in the right
direction. We feel that as a team and as individuals
we would be better off if we were to finish the sea-
son with a replacement coach. We, the undersign
[sic], believe this is in the best interest of the team,
school, town, and for the players and fans. We would
appreciate the full cooperation of all the parties
involved.
With the exception of a foreign exchange student, every var-
sity player attended the meeting, including Baughman’s son.
No coaches, teachers or parents attended. After discussing the
petition, all but one of the players (Baughman’s son) signed
it. The players also added a type-written note beneath the sig-
natures stating: “[W]e will not be approached individually on
guys want me to fucking quit the team or you want me to resign, then just
tell me so and I will.’ ” Plaintiffs Griffin Linn, Mark Lipke, Travis Jeffers,
Tyson Jarvi and Nathan White similarly testified to Baughman’s offer to
quit as head coach. In addition, Gary Points, an assistant coach, testified
that Baughman repeated his remarks when Points asked him what he had
told the players after this particular game. According to Points, Baughman
said, “I told them if they don’t want me to be their coach, say the word
and I’ll go.”
17998 PINARD v. CLATSKANIE SCHOOL DIST. 6J
this. This was a team decision and we will be addressed as a
team.”
The following morning, co-captain Somes delivered the
petition to Baughman. The coach immediately took it to the
high school principal, defendant Corley, who was in a meet-
ing with the superintendent, defendant Fisher. The three
defendants met for 10 to 15 minutes, during which time
Baughman expressed that he was “confused,” “very upset”
and “hurt.” Although none of these defendants could recall
exactly what was discussed during this meeting, Corley
remembers recommending that Baughman not resign, and
Superintendent Fisher suggested that they meet with the play-
ers to “find out the detail” of the petition. Baughman was also
concerned because the team was scheduled to play an impor-
tant away game that evening. Upset by the events of the
morning, Baughman asked Corley for permission to take off
the remainder of the day, which Corley granted. Corley did
not ask Baughman whether he would coach the game that
night.
Once home, Baughman called the junior varsity coach,
Gary Points, “to inform him of the situation.” According to
Points, Baughman stated that he “wanted to know who his
back-stabbers were” and wanted “to corner the little sons-of-
bitches and not give them an out.” When Points asked what
Baughman meant, Baughman responded that Corley had
given him two options: he could either resign, or decide not
to resign and tell the players to either get on the bus and play
or if they chose not to board the bus to turn in their uniforms.
According to Points, Baughman claimed that Corley and Wal-
lace were advising him to choose the second option.
After Baughman left the school, Corley called a meeting
with athletic director Wallace and all of the players who had
signed the petition.7 The players told Corley and Wallace
7
Corley first called plaintiff Mark Lipke into the meeting, but he indi-
cated he would not be approached as an individual.
PINARD v. CLATSKANIE SCHOOL DIST. 6J 17999
about Baughman’s derogatory remarks, stated he was unfair
and expressed their discomfort in playing for him. When the
players indicated that they would not play on the team if
Baughman was going to coach them, Corley and Wallace
explained they could not have Baughman immediately
removed without an investigation. According to the plaintiffs,
Corley and Wallace presented the players with two options:
the players could participate in a mediation process with the
two of them serving as mediators and board the team bus for
the game that evening, or they could adhere to their position
and forfeit their privilege to play in the game. The plaintiffs
contend that neither Corley nor Wallace advised them that
they would be disciplined further for choosing the second
option.8 The meeting ended without the players expressing
whether they intended to board the bus.
Later in the day, Baughman informed Corley and Wallace
that he was not going to coach the game that evening. Wallace
then made arrangements for a substitute coach to replace
Baughman. Corley and Wallace did not inform the players of
Baughman’s decision.
With the exception of Somes, each of the players who had
signed the petition chose not to board the bus and did not play
in the game. The junior varsity team played in place of the
eight missing players along with Somes, Baughman’s son and
the foreign exchange student, losing the game by more than
50 points. Baughman did not coach the team, and most of the
plaintiffs attended the game as spectators. The plaintiffs con-
8
In the plaintiffs’ Student Grievance Forms (filed to appeal their suspen-
sion), Corley wrote that the players were told they would be “off the team”
and that they would be “through for the season” if they “did not get on the
bus.” However, Corley later testified that he did not recall ever telling the
players that they would be suspended from the team for failing to board
the bus. When plaintiffs’ counsel asked Wallace if he agreed with Corley’s
testimony, Wallace responded, “I agree that he may have said that.” Plain-
tiffs’ counsel then clarified that Corley testified he did not recall warning
the players, to which Wallace responded, “Well, I don’t remember either.”
18000 PINARD v. CLATSKANIE SCHOOL DIST. 6J
tend they decided not to board the bus to demonstrate their
resolve and sincerity concerning the petition and complaints
against Baughman. They also maintain they would not have
refused to travel with the team had they known Baughman
was not coaching.
The next day, Corley and Wallace met with the plaintiffs,
Somes and several of the players’ parents. According to two
of the parents in attendance, Corley announced that “all of the
players who signed the petition were permanently suspended
from the team” (emphasis added).9 Corley stated in the district
court that he alone decided to suspend the players from the
team, but that he did not suspend Somes (who had signed the
petition but boarded the bus and played in the game). Rather,
the suspension applied only to those members of the team
“who had refused to board [the] team bus . . . and play basket-
ball that evening.”10 Although the defendants now argue that
Corley had authority to suspend the plaintiffs under the
school’s “Code of Conduct and Appearance for Athletes,” it
is not clear from the record that the Code played any role in
9
The district court struck several paragraphs from the declarations of
these two parents. The plaintiffs, however, included in the excerpts of
record the entirety of these declarations without noting that certain para-
graphs had been stricken, and the plaintiffs have in their briefs cited to
pages from these declarations that contain stricken evidence. In our
review, we have ignored all such stricken evidence and rely only on any
non-stricken evidence found on pages containing inadmissible evidence.
Because the pages plaintiffs cite contain admissible evidence that supports
the proposition for which the page was cited, we decline to exercise our
discretion to impose sanctions upon plaintiffs under Circuit Rule 30-2.
10
In a memorandum signed February 15, 2001, the day after ordering
the suspensions, Corley formally stated his decision: “Players who
remained committed to the petition and refused [to] participate in the [out-
of-town] game are considered to have forfeited their membership in the
Clatskanie varsity basketball team and will not be allowed to participate
in further competitions” (emphasis added).
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18001
Corley’s decision. Indeed, Corley conceded in a deposition
that he was unfamiliar with the Code’s contents.11
Each of the plaintiffs appealed his suspension to Superin-
tendent Fisher, who assigned the investigation to Mary Mitch-
ell, a part-time special education administrator. Mitchell
affirmed Corley’s decision to suspend the plaintiffs, and the
school board upheld Mitchell’s decision.12
On February 7, 2003, the plaintiffs filed their lawsuit under
42 U.S.C. § 1983, alleging that the defendants punished them
for complaining about Baughman in violation of the First
Amendment. The defendants moved to dismiss the complaint
under Fed. R. Civ. P. 12(b)(6), arguing that the plaintiffs’
speech was not constitutionally protected because it failed to
touch upon a matter of public concern. The district court
denied the motion. In doing so, the court concluded that the
public concern test, which “originat[ed] in the public employ-
ment context,” does not apply in the public school context.
The defendants then moved for summary judgment, which the
district court granted. Contrary to its order denying the defen-
dants’ motion to dismiss the complaint, the district court con-
cluded that the plaintiffs “were not engaged in a
constitutionally protected activity” because the plaintiffs’
speech “was not a matter of public concern nor political in
nature” but instead was akin to speech that “address[ed]
merely a private grievance against a school employee, with no
11
The Code states:
1. The athlete will travel to and from contests with coach and
team unless specific arrangements are made with the coach in
person by parent or guardian prior to departure time.
...
4. An athlete may be disciplined for conduct termed detrimental
to the team and/or school.
12
In her written decision, Mitchell explained that “Corley had no choice
but to make plans for ending the basketball season without the players
who said they would no longer play with Coach Baughman.”
18002 PINARD v. CLATSKANIE SCHOOL DIST. 6J
political dimension.” In the alternative, the district court con-
cluded that even if the plaintiffs’ speech was constitutionally
protected, their conduct “substantially and materially inter-
fered with a school activity,” giving the school district author-
ity to punish them. The plaintiffs timely appealed.
II. Standard of Review
We review a district court’s decision to grant summary
judgment de novo. Gammoh v. City of La Habra, 395 F.3d
1114, 1122 (9th Cir. 2005). We must determine “whether,
viewing the evidence in the light most favorable to the non-
moving party, there are any genuine issues of material fact
and whether the district court correctly applied the relevant
substantive law.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th
Cir. 2000) (en banc). All reasonable inferences are resolved
in favor of the nonmoving party. Addisu v. Fred Meyer, Inc.,
198 F.3d 1130, 1134 (9th Cir. 2000). We review for clear
error the district court’s findings of fact. Metropolitan Life
Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir. 2006).
III. Discussion
The plaintiffs argue that their petition, complaints to Corley
and Wallace and decision to take the option of not playing in
the away game constitute speech protected by the First
Amendment. The defendants agree that the petition standing
alone is “pure speech.” See Bartnicki v. Vopper, 532 U.S. 514,
526-27 (2001) (suggesting that the “delivery of a tape record-
ing,” “handbill” or “pamphlet” are forms of “pure speech”).
The defendants also agree that the plaintiffs’ refusal to board
the bus — while itself not “pure speech” — was “inseparable”
from the petition. However, the defendants argue that the
plaintiffs’ entire course of conduct — the petition, complaints
against Baughman and the boycott of the game — was not
constitutionally protected because it had no political dimen-
sion, was not a matter of public concern and materially inter-
fered with the school’s basketball program. The defendants
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18003
further contend that the plaintiffs were suspended not for their
petition or complaints against Baughman, but only for their
refusal to board the bus.
[1] We have long held that students in public schools do
not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” See Chandler v.
McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir. 1992)
(quoting Tinker, 393 U.S. at 506). However, our precedents
make equally clear that the First Amendment rights of public
school students “ ‘are not automatically coextensive with the
rights of adults in other settings’ and must be ‘applied in light
of the special characteristics of the school environment.’ ”
LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir. 2001)
(quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
266 (1988)). Thus, in the school context, “we have granted
educators substantial deference as to what speech is appropri-
ate.” Id. But “deference does not mean abdication; there are
situations where school officials overstep their bounds and
violate the Constitution.” Id. Our task is to determine whether
the district court erred in concluding that this case does not
present such a situation.
A. Plaintiffs’ Speech
[2] This case involves both a petition — a form of “pure
speech” — as well as potentially expressive conduct in the
form of the plaintiffs’ refusal to board the bus. See, e.g., Tin-
ker, 393 U.S. at 505-06 (describing the wearing of armbands
as akin to “pure speech”); see also Baldwin v. Redwood City,
540 F.2d 1360, 1366 (9th Cir. 1976) (suggesting that the “ele-
ment of conduct” in pure speech is “minimal”). Although the
defendants concede that the petition “standing alone” is pure
speech, they characterize the plaintiffs’ petition, complaints
against Baughman and refusal to board the bus as both “con-
certed action” and one “course of conduct,” the entirety of
which is constitutionally punishable under Tinker. We dis-
18004 PINARD v. CLATSKANIE SCHOOL DIST. 6J
agree with that view.13 As we discuss in Section III.C, because
the plaintiffs’ petition and grievances against Baughman are
a form of pure speech, the defendants may not constitutionally
punish the plaintiffs just for filing their petition or complain-
ing about Baughman unless they show “facts which might
reasonably have led [them] to forecast substantial disruption
of or material interference with school activities” as a result
of the petition or complaints. Tinker, 393 U.S. at 514.14
As for the plaintiffs’ refusal to board the bus and play in the
game, the plaintiffs assume that this conduct falls within the
ambit of the First Amendment’s protections because it is
expressive in nature. See, e.g., Rumsfeld v. Forum for Aca-
demic & Institutional Rights, Inc., ___ U.S. ___, 126 S. Ct.
1297, 1310 (2006) (“FAIR”) (explaining that the Supreme
Court has “extended First Amendment protection only to con-
duct that is inherently expressive”); Roulette v. City of Seattle,
97 F.3d 300, 302-03 (9th Cir. 1996) (“The First Amendment
protects not only the expression of ideas through printed or
spoken words, but also symbolic speech — nonverbal ‘activ-
ity . . . sufficiently imbued with elements of communica-
tion.’ ” (quoting Spence v. Washington, 418 U.S. 405, 409
(1974))). As we explain below, however, we ultimately need
not decide whether the plaintiffs’ boycott of the game consti-
tutes “inherently expressive” conduct encompassed by the
First Amendment, because even if it does the boycott was
properly punishable under Tinker.
B. Public Concern Requirement
We turn to whether the First Amendment protects the plain-
13
The district court did not make findings of fact or conclusions of law
as to what constituted the plaintiffs’ speech.
14
As we discuss in Section III.B, we also reject the defendants’ argu-
ment that the petition and complaints against Baughman do not constitute
protected speech because they fail to touch upon a matter of public con-
cern.
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18005
tiffs from being disciplined for their petition and complaints
against Baughman. As an initial matter, the plaintiffs argue
that the district court erroneously applied the “public concern”
test, which applies in the public employment context, to deter-
mine whether the First Amendment protects student speech.
They assert that the proper First Amendment framework for
student speech cases is set forth in the Supreme Court’s deci-
sion in Tinker and its progeny and our decision in Chandler.
We agree.
[3] In Chandler, we reviewed the Supreme Court’s student
speech cases and identified three categories of speech that
school officials may constitutionally regulate, each of which
is governed by different Supreme Court precedent:
(1) vulgar, lewd, obscene and plainly offensive
speech is governed by Bethel School District v. Fra-
ser, 478 U.S. 675 (1986);
(2) school-sponsored speech is governed by Hazel-
wood; and
(3) speech that falls into neither of these categories
is governed by Tinker.
978 F.2d at 529; see also Frederick v. Morse, 439 F.3d 1114,
1121 (9th Cir. 2006); LaVine, 257 F.3d at 988-89. The plain-
tiffs’ speech falls within the third category. The question is
whether Tinker contains the public concern requirement appli-
cable in the government employment context, as the district
court concluded. We hold that it does not.
[4] In Tinker, the Supreme Court held that the school dis-
trict violated the First Amendment rights of students when it
suspended them for wearing black armbands in protest of the
Vietnam War. 393 U.S. at 513-14. The Court explained that
school officials could not restrain the students’ speech without
showing “facts which might reasonably have led school
18006 PINARD v. CLATSKANIE SCHOOL DIST. 6J
authorities to forecast substantial disruption of or material
interference with school activities.” Id. at 514. Because the
speech “was a silent, passive expression of opinion, unaccom-
panied by any disorder or disturbance” that “neither inter-
rupted school activities nor sought to intrude in the school
affairs or the lives of others,” the Court held that the First
Amendment prohibited school officials from denying their
expression. Id. at 508, 514. In Chandler, we applied Tinker to
“third category” speech and held that buttons and stickers
worn by students in support of a lawful teacher strike were
not inherently disruptive. 978 F.2d at 530.
By importing into the educational context the public con-
cern test established in Pickering v. Board of Education, 391
U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983),
both of which dealt with speech by government employees,
the district court misread Tinker and our own precedents.
Pickering requires a court evaluating restraints on a public
employee’s speech to balance “the interests of the
[employee], as a citizen, in commenting upon matters of pub-
lic concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” 391 U.S. at 568; see also City of San
Diego v. Roe, 543 U.S. 77, 82 (2004). As the Court explained
in Connick, in order to merit Pickering balancing, a public
employee’s speech must touch on a matter of “public con-
cern.” 461 U.S. at 143. Thus, a public employer may constitu-
tionally suppress an employee’s speech addressing “matters
only of personal interest” — such as personnel matters per-
taining to the speaker’s job performance or terms and condi-
tions of employment — in order to promote an efficient
workplace and the effective delivery of public services. Id. at
147, 150-51. However, if the government employee’s speech
touches upon a matter of public concern, the First Amend-
ment may protect it. Id. at 146.15
15
Even though Connick’s holding was limited to the employment con-
text, see 461 U.S. at 147, the Supreme Court emphasized that it was “in
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18007
[5] Although Connick’s personal matter/public concern dis-
tinction is the appropriate mechanism for determining the
parameters of a public employer’s need to regulate the work-
place, neither we, the Supreme Court nor any other federal
court of appeals has held such a distinction applicable in stu-
dent speech cases, and we decline to do so here.16 In striking
the balance “between the First Amendment rights of students
and preservation of the educational process,” LaVine, 257
F.3d at 988, neither Tinker nor its progeny limited students’
rights solely to the exercise of political speech or speech that
touches on a matter of public concern. See, e.g., Hazelwood,
484 U.S. at 266 (“[Public school students] cannot be punished
merely for expressing their personal views on the school
no sense suggest[ing] that speech on private matters falls into one of the
narrow and well-defined classes of expression which carries so little social
value, such as obscenity, that the State can prohibit and punish such
expression by all persons in its jurisdiction.” Id.; cf. United Mine Workers
v. Ill. State Bar Ass’n, 389 U.S. 217, 223 (1967) (“[T]he First Amendment
does not protect speech and assembly only to the extent it can be charac-
terized as political.”).
16
We recognize that Connick’s public concern test has been applied in
cases where the relationship between the plaintiff and the government was
sufficiently similar to an employment relationship. See, e.g., Rivero v. City
& County of San Francisco, 316 F.3d 857, 864 (9th Cir. 2002) (applying
the public concern test in a case involving government retaliation against
an independent contractor). However, we find any such similarity lacking
in cases involving students and public school officials. In addition,
although we recently recognized the “political viewpoint” of the speech
protected in Tinker and suggested that a student banner with the phrase
“Bong Hits 4 Jesus” may have similarly constituted “political speech,” we
did so in the context of distinguishing Fraser, which governs “plainly
offensive” student speech. See Frederick v. Morse, 439 F.3d at 1118-19.
We did not, however, hold that Tinker protected only political speech or
speech that touches upon a matter of public concern. Rather, we affirmed
that it is “well-established” that “student speech that is neither plainly
offensive nor school-sponsored can be prohibited only where the school
district demonstrated a risk of substantial disruption.” Id. at 1121; see
also id. at 1123 (“Tinker requires that, to censor or punish student speech,
the school must show a reasonable concern about the likelihood of sub-
stantial disruption to its educational mission.”).
18008 PINARD v. CLATSKANIE SCHOOL DIST. 6J
premises . . . unless school authorities have reason to believe
that such expression will ‘substantially interfere with the work
of the school or impinge upon the rights of other students.’ ”
(quoting Tinker, 393 U.S. at 509) (emphasis added)). Rather,
as our cases demonstrate, Tinker’s test for determining
whether the First Amendment protects “third category” stu-
dent speech examines only the effect of the speech on school
activities and the rights of others. See, e.g., LaVine, 257 F.3d
at 989-92; Chandler, 978 F.2d at 529-30; Karp v. Becken, 477
F.2d 171, 176 (9th Cir. 1973).17
[6] In short, we do not read Tinker, its progeny or our own
cases applying its standard as importing Connick’s public
concern test into the public education context, and we see no
occasion to do so here.18 We therefore reaffirm Chandler’s
17
As Tinker itself explained, a student “may express his opinions . . . if
he does so without materially and substantially interfering with the
requirements of appropriate discipline in the operation of the school and
without colliding with the rights of others.” 393 U.S. at 513 (internal quo-
tations omitted). Whether the speech is public or private in nature has not
been considered relevant to Tinker’s analysis. See, e.g., LaVine, 257 F.3d
at 989-92 (concluding that the student’s speech, a poem, fell within Chan-
dler’s third category of speech and applying Tinker without determining
whether the speech was political or touched upon a matter of public con-
cern). Significantly, Tinker does not require school officials to wait until
disruption or interference actually occurs before suppressing student
speech, nor does it require certainty that disruption will occur. Id. at 989.
18
Indeed, the defendants point to no case since Tinker that has allowed
school officials to suppress or punish student speech simply because the
students’ speech was construed as addressing a personal or private matter
— without a showing of facts that would lead school officials reasonably
to forecast an interference with or disruption of school activities. But even
assuming Tinker were to include a public concern requirement, the district
court erred in concluding that the plaintiffs’ speech was “merely a private
grievance.” The plaintiffs’ criticisms of Baughman were related to various
issues of “concern to the community,” including the school’s performance
of its duties to supervise its teachers, monitor extracurricular activities and
provide a safe and appropriate learning environment for its students. See
Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971,
978 (9th Cir.1998) (quoting Connick, 461 U.S. at 146). These are matters
of public concern.
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18009
holding that the First Amendment protects all student speech
that is neither school-sponsored, a true threat nor vulgar,
lewd, obscene or plainly offensive unless school officials
show “facts which might reasonably have led [them] to fore-
cast substantial disruption of or material interference with
school activities.” Chandler, 978 F.2d at 529 (quoting Tinker,
393 U.S. at 514).19
We recognize that the state charges school officials with
the daily administration of public education, that this “respon-
sibility carries with it the inherent authority to prescribe and
control conduct in the schools,” LaVine, 257 F.3d at 988
(quoting Karp, 477 F.2d at 174), and that “the determination
of what manner of speech in [schools] is inappropriate prop-
erly rests with the school board, rather than with the federal
courts.” Hazelwood, 484 U.S. at 267 (internal citation omit-
ted). However, our deference to school officials in regulating
student speech does not diminish our duty to ensure that they
do not infringe students’ First Amendment rights under Tin-
ker. Justice Jackson’s observation 60 years ago is no less
applicable today than it was then:
[School officials] have, of course, important, deli-
cate, and highly discretionary functions, but none
that they may not perform within the limits of the
19
The defendants overstate the concern that our reversal of the district
court’s contrary conclusion will invite federal lawsuits concerning the
everyday disciplinary decisions of public schools. Far from setting a “dan-
gerous precedent,” our holding merely follows Tinker, which for more
than three decades has adequately balanced the important interests at stake
in student speech cases. When a student’s expressive activity leads a
school official reasonably to believe that the activity will impinge upon
the rights of other students, or substantially disrupt or materially interfere
with the work of the school — or if the activity in fact causes such harms
— school officials may take preventative or disciplinary action. See, e.g.,
LaVine, 257 F.3d at 989-90, 992 (holding constitutional a school district’s
emergency expulsion of a student because school officials “had facts
which might reasonably have led them to forecast a substantial disruption
of or material interference with school activities”).
18010 PINARD v. CLATSKANIE SCHOOL DIST. 6J
Bill of Rights. That they are educating the young for
citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are
not to strangle the free mind at its source and teach
youth to discount important principles of our govern-
ment as mere platitudes.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637
(1943); see also Bd. of Educ., Island Trees Union Free Sch.
Dist. No. 26 v. Pico, 457 U.S. 853, 876 (Blackmun, J., con-
curring) (“[I]t is beyond dispute that schools and school
boards must operate within the confines of the First Amend-
ment.”).
C. Applying Tinker
[7] Because the plaintiffs’ speech falls within Chandler’s
third category of “all other speech,” the defendants must jus-
tify their decision to suspend the players permanently by
showing “facts which might reasonably have led [them] to
forecast substantial disruption of or material interference with
school activities.” Tinker, 393 U.S. at 514. The Tinker rule is
a “flexible one,” Karp, 477 F.2d at 174, and in applying it,
“we look to the totality of the relevant facts,” including not
only the plaintiffs’ actions, but “all of the circumstances con-
fronting the school officials” at the time. LaVine, 257 F.3d at
989. “[U]ndifferentiated fear or apprehension of disturbance
is not enough to overcome the right to freedom of expres-
sion,” and the “mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular view-
point” cannot justify a school official’s decision to punish or
prohibit student speech. Tinker, 393 U.S. at 508-09.
[8] Applying these guiding principles here, we conclude
that the First Amendment protects the players’ petition and
their complaints to Corley and Wallace during the ensuing
meeting. The defendants do not dispute that the petition and
meeting neither disrupted school activities nor impinged on
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18011
the rights of other students, and the record contains no evi-
dence that Corley suspended the plaintiffs out of any such
concern. The players handed their petition to Baughman
directly at the start of a school day, and after Baughman left
the school, they explained their complaint only to Corley and
Wallace in a private meeting. These facts closely resemble
those reviewed by the Tenth Circuit in Seamons v. Snow, 84
F.3d 1226 (10th Cir. 1996). Seamons held that the First
Amendment protected a student athlete’s report to school
authorities of a physical assault, because the student’s speech
“was responsibly tailored to the audience of school adminis-
trators, coaches, family and participants who needed to know
about the incident.” Id. at 1237-38.
[9] It is also relevant that neither Corley nor Wallace
informed the players of Baughman’s decision not to coach the
team that evening, even though the players had clearly stated
that Baughman was the reason they did not want to play.
Thus, to the extent that the petition and meeting might have
given the school officials a “reason to anticipate” disruption
of the game, the totality of the relevant facts reveals that any
such expectation would have been unreasonable given Cor-
ley’s and Wallace’s knowledge of Baughman’s decision. Had
Corley and Wallace told the players that Baughman was not
coaching that night — and the record reveals no reason why
they could not have — it appears that the players would have
boarded the bus.
[10] Finally, assuming without deciding that the plaintiffs’
refusal to board the bus constituted expressive conduct
encompassed by the First Amendment, we agree with the dis-
trict court that the plaintiffs’ boycott of the game substantially
disrupted and materially interfered with a school activity.
Comparing the conduct at issue here with the wearing of arm-
bands in Tinker demonstrates why the district court’s decision
was correct.
In holding that the First Amendment protected the students’
right to wear a black armband to school to protest the Viet-
18012 PINARD v. CLATSKANIE SCHOOL DIST. 6J
nam War, Tinker noted that “the wearing of armbands . . . was
entirely divorced from actually or potentially disruptive con-
duct by those participating in it.” 393 U.S. at 505. The Court
emphasized that the “school officials banned and sought to
punish petitioners for a silent, passive expression of opinion,
unaccompanied by any disorder or disturbance on the part of
petitioners.” Id. at 508. It also noted that the district court
made “no finding and no showing that engaging in the forbid-
den conduct would materially and substantially interfere with
the requirements of appropriate discipline in the operation of
the school,” id. at 509 (internal quotation marks omitted)
(emphasis added), and that there was “no evidence whatever
of [the protestors’] interference, actual or nascent, with the
schools’ work,” id. at 508 (emphasis added). In holding that
a student’s First Amendment rights are “not confined to the
supervised and ordained discussion which takes place in the
classroom,” the Court extended Tinker’s principles to school
activities broadly defined, including extracurricular activities:
When [a student] is in the cafeteria, or on the play-
ing field, or on the campus during the authorized
hours, he may express his opinions . . . if he does so
without materially and substantially interfer(ing)
with the requirements of appropriate discipline in the
operation of the school . . . . But conduct by the stu-
dent, in class or out of it, which for any reason —
whether it stems from time, place, or type of behav-
ior — materially disrupts classwork or involves sub-
stantial disorder or invasion of the rights of others
is, of course, not immunized by the constitutional
guarantee of freedom of speech.
Id. at 512-13 (internal citations and quotation marks omitted)
(emphasis added).
In this case, unlike in Tinker, there is undisputed evidence
to support the district court’s explicit finding that the plain-
tiffs’ refusal to board the bus for the away game “material[ly]
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18013
disrupt[ed] . . . the operation of the boys’ varsity basketball
team.” As a general matter, school districts spend much time
and money scheduling and hosting their extracurricular events
— part of the school’s educational program — which involve
the coordination of multiple school officials, students, parents
and often times volunteers, referees and bus drivers. Here,
there is no dispute that the plaintiffs constituted all but three
members of the varsity team. Similarly, it is undisputed that
the boycotted event was a regularly scheduled out of town
game against a rival school, part of the school’s varsity bas-
ketball program, that the varsity team was scheduled to travel
to the game on a school bus and that the plaintiffs refused to
board the bus only a few hours before the game was sched-
uled to begin. The last minute boycott of a regularly sched-
uled game by nearly every member of the team forced the
district either to play the game with replacement players or
cancel the event. That the school succeeded in obtaining sub-
stitute players — albeit of lesser experience and ability —
may have mitigated the disruptive effects of the plaintiffs’
actions, but it did not eliminate them or render them less than
substantial. Either option materially interfered with the school
district’s operation of a bona fide school activity.
[11] Under these circumstances, the plaintiffs’ conduct
plainly “interrupted school activities” and “intrude[d] in the
school[’s] affairs.” Tinker, 393. U.S. at 514. Thus, even if we
viewed the plaintiffs’ boycott as symbolic speech within the
First Amendment, school officials could permissibly disci-
pline the players for this disruptive conduct. Like Justice
Brennan, we recognize that “[t]he vigilant protection of con-
stitutional freedoms is nowhere more vital than in the commu-
nity of American schools.” Keyishian v. Board of Regents,
385 U.S. 589, 603 (1967) (quoting Shelton v. Tucker, 364
U.S. 479, 487 (1960). At the same time, we cannot ignore
Tinker’s admonition that the First Amendment is properly
read to permit a school district’s “reasonable regulation of
speech-connected activities in carefully restricted circum-
18014 PINARD v. CLATSKANIE SCHOOL DIST. 6J
stances.” Tinker, 393 U.S. at 513 (emphasis added). Those
circumstances were met here.
D. Retaliation Against the Plaintiffs’ Exercise of
Protected Speech
[12] The remaining question is whether the plaintiffs’ per-
manent suspension from the basketball team was simply for
refusing to board the bus, or instead was wholly or partly in
retaliation for petitioning against Baughman in the first place.
The district court did not reach this question because it con-
cluded that the plaintiffs’ speech was not protected at all. The
record is not sufficiently clear for us to resolve the retaliation
issue on this appeal, so we shall remand to the district court
for further proceedings.
To establish a First Amendment retaliation claim in the stu-
dent speech context, a plaintiff must show that (1) he was
engaged in a constitutionally protected activity, (2) the defen-
dant’s actions would chill a person of ordinary firmness from
continuing to engage in the protected activity and (3) the pro-
tected activity was a substantial or motivating factor in the
defendant’s conduct. See Mendocino Envtl. Ctr. v. Mendocino
County, 192 F.3d 1283, 1300-01 (9th Cir. 1999); see also
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
750 (9th Cir. 2001). If the plaintiff establishes the elements of
a retaliation claim, “the government can escape liability by
showing that it would have taken the same action even in the
absence of the protected conduct.” Keyser, 265 F.3d at 750
(quoting Bd. of County Comm’rs v. Umbehr, 518 U.S. 668,
675 (1996). However, as we made clear in Settlegoode v.
Portland Pub. Schs., 371 F.3d 503 (9th Cir. 2004), the defen-
dants must show more than that they “could have” punished
the plaintiffs in the absence of the protected speech; instead,
“the burden is on the defendants to show” through evidence
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18015
that they “would have” punished the plaintiffs under those cir-
cumstances. Id. at 512 (emphasis added).20
To the extent the plaintiffs are attempting to show that their
suspension was motivated by their petition, they have satis-
fied the first two parts of the Mendocino Envtl. Ctr./Keyser
standard. The petition and complaints against Baughman were
constitutionally protected, and the defendants’ suspension of
the plaintiffs would lead ordinary student athletes in the plain-
tiffs’ position to refrain from complaining about an abusive
coach in order to remain on the team. Thus, if the plaintiffs
can show that their protected speech was a “substantial or
motivating factor” in the defendants’ decision to suspend
them from the team permanently, and the defendants fail to
show that they “would have taken the same action even in the
absence” of that speech, then the defendants violated the
plaintiffs’ First Amendment rights. See Mendocino Envtl.
Ctr., 192 F.3d at 1300-01; Keyser, 265 F.3d at 750. It is this
determination that we leave to the district court to consider in
the first instance. Given our clarification of the standards for
evaluating plaintiffs’ student speech claims here, the district
court may wish to permit the parties to present further evi-
dence in support of their positions.
20
This framework for First Amendment retaliation claims arises from
the public employment context. Although we have rejected importing into
the student speech context the public concern test from the public employ-
ment context, we did so because of Tinker’s well-established standard for
non-offensive, non-school sponsored student speech, which does not
include a public concern element. However, as the defendants note, it
appears that none of our cases has adopted a standard for evaluating retali-
ation claims in the context of student speech. Cf. Worrell v. Henry, 219
F.3d 1197, 1212 (10th Cir. 2000) (adopting a standard for “assessing First
Amendment retaliation claims against defendants other than the plaintiff’s
employer”). Given the absence of an established retaliation standard for
student speech cases and the adequate protection for school officials and
students provided by the Mendocino Envtl. Ctr./Keyser standard for First
Amendment retaliation claims, we see no reason to adopt a different stan-
dard for the student speech context.
18016 PINARD v. CLATSKANIE SCHOOL DIST. 6J
In sum, the district court on remand must determine
whether the plaintiffs have offered evidence from which a
reasonable jury could conclude that the petition and com-
plaints against Baughman were a substantial or motivating
factor in Corley’s decision to suspend them permanently from
the team.21 In other words, the court must decide whether,
viewing the evidence in the light most favorable to the plain-
tiffs, the record would permit a jury to infer that Corley pun-
ished the plaintiffs not simply for boycotting the game but
also (or only) in retaliation for their having complained about
Baughman and requested his resignation in the first place. If
so, the defendants are not entitled to summary judgment
unless they can show that they would have imposed a perma-
nent suspension even in the absence of the plaintiffs’ petition
and complaints against Baughman. See Mendocino Envtl.
Ctr., 192 F.3d at 1300-01; Keyser, 265 F.3d at 750.22
IV. Conclusion
[13] We reverse in part and affirm in part the district
court’s grant of summary judgment in favor of the defendants.
Contrary to the district court, we hold that Tinker’s standard
for determining whether the First Amendment protects stu-
dent speech does not include the public concern requirement
21
In the First Amendment context, a plaintiff creates a genuine issue of
material fact on the question of retaliatory motive when he or she pro-
duces, in addition to evidence that the defendant knew of the protected
speech, at least (1) evidence of proximity in time between the protected
speech and the allegedly retaliatory decision, (2) evidence that the defen-
dant expressed opposition to the speech or (3) evidence that the defen-
dant’s proffered reason for the adverse action was false or pretextual. Such
evidence may be direct or circumstantial. See Keyser, 265 F.3d at 751-52.
22
For example, the defendants might be able to show that school offi-
cials in the past had permanently suspended Clatskanie High School stu-
dent athletes from a team for refusing to play in a scheduled game. See
Settlegoode, 371 F.3d at 512 (concluding that defendant school district
failed to make the requisite showing under Keyser in part because it “of-
fered no evidence that other teachers had been fired for [engaging in simi-
lar conduct as the plaintiff] in the past”).
PINARD v. CLATSKANIE SCHOOL DIST. 6J 18017
applicable in the government employment context. Applying
Tinker, we further hold that the plaintiffs’ petition and com-
plaints against their coach were protected speech because that
speech could not reasonably have led school officials to fore-
cast substantial disruption of or material interference with a
school activity. However, the plaintiffs’ refusal to board the
bus — even if we assume it was expressive conduct — was
properly punishable by the defendants as unprotected speech
because, as the district court found, the game boycott substan-
tially disrupted and materially interfered with the operation of
the varsity boys basketball program. Finally, on the question
of retaliation, we hold that the defendants’ permanent suspen-
sion of the plaintiffs would lead ordinary student athletes in
the plaintiffs’ position to refrain from complaining about an
abusive coach in order to remain on the team. However, we
reverse and remand to the district court to consider in the first
instance whether the plaintiffs’ protected speech (their peti-
tion and complaints against the coach) was a substantial or
motivating factor in the defendants’ disciplinary action. The
parties shall bear their own costs.
REVERSED IN PART, AFFIRMED IN PART and
REMANDED.