Shelda Harris Bannon v. School District of Palm

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13011 October 12, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-80438-CV-DTKH

SHELDA HARRIS BANNON, as parent
and natural guardian of her daughters,
Sharah Harris and Brittni Harris,
Plaintiff-Appellant,

versus

SCHOOL DISTRICT OF PALM BEACH
COUNTY, a body corporate, ED HARRIS,
individually and in his capacity as principal
of Boca Raton Community High School,
JOE SABIA, individually and in his capacity
as Girl’s Basketball Coach of Boca Raton
Community High School,
Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(October 12, 2004)
Before BLACK, BARKETT and MAGILL*, Circuit Judges.

PER CURIAM:

Appellant Shelda Harris Bannon, on behalf of her daughter Sharah Harris,

alleged that Appellees, School District of Palm Beach County and Principal Ed

Harris, violated Sharah’s First Amendment rights by compelling her to remove

religious words and symbols from murals painted for a school beautification

project. The district court granted summary judgment for Appellees because it

concluded (1) Appellees never created a public forum, (2) the murals were

school-sponsored speech, and, (3) Appellees’ response was reasonably related to

legitimate pedagogical objectives. We affirm.

I. BACKGROUND

This litigation concerns a school beautification project at a religiously

diverse public school. While the school was undergoing long-term remodeling,

students were prevented from walking into construction areas by dozens of large

plywood panels in interior and exterior hallways. These panels were ugly, and

would remain a part of the school for up to four years. To beautify the school,

students were invited to paint murals on the panels. The school did not

*
Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting by
designation.

2
specifically prohibit students from expressing religious views. The school did,

however, instruct students that their artwork could not be profane or offensive to

anyone.

Sharah, a high school senior and member of the Fellowship of Christian

Athletes (FCA), decided to participate in this beautification project. Although

Sharah and her FCA colleagues planned to use verbal messages and religious

symbols, they never gave Principal Harris or Cathy Roberts (the teacher

supervising the beautification project) any notification or advance warning. No

other student murals had verbal messages. On a Saturday afternoon, Sharah and

other FCA students painted several murals with various religious messages and

symbols.

Three of these murals were most notable. Sharah’s first mural was next to

the school’s main office, had a crucifix in the background, and paraphrased John

3:16 as “Because He Ìed, He Gave.” Sharah’s second mural was only a few

panels down from the office and read, “Jesus has time for you; do you have time

for Him?” Sharah’s FCA colleagues painted a third mural, located in a main

hallway, that read, “God Loves You. What Part of Thou Shalt Not Didn’t You

Understand? God.”1

1
We refer to these three murals collectively as “Sharah’s murals” or “the murals.”

3
 The following Monday morning, Principal Harris found a commotion on

campus near Sharah’s murals involving vocal students and teachers. Later that

day, the murals received media attention in the form of phone calls, reporters from

three television stations, and newspaper reporters. This publicity and controversy

distracted the attention of students, teachers, and administrators from schoolwork,

teaching, and administrative duties. As Principal Harris explained in his

deposition, the expression in Sharah’s murals interfered with the operation of the

school,

[b]ecause if it takes any time away from the productivity of the school
in itself and the length of time that I had to spend on this, taking the
principal’s time, the assistant principal’s time, the student’s time
away [from] the main focus of the school, . . . [so] the school was
focusing more on the panels, overall, more so than [it] was focusing
on the reason we were here.

Principal Harris did not expel, suspend, or otherwise punish Sharah for

painting her murals. Instead, Principal Harris spoke about the murals with Ms.

Roberts. Shortly thereafter, Ms. Roberts invited Sharah to step outside of class to

speak privately. During this discussion, Ms. Roberts explained that although

Sharah would need to paint over the overt religious words and sectarian symbols

on all three murals, such as “Jesus,” “God,” and the crucifix, her other images and

messages could remain. During her deposition, Sharah conceded this selective

4
deletion was an attempt to keep her happy. Sharah repainted her murals and the

FCA murals after school. Notably, Sharah was not the only student whose mural

was edited. Principal Harris directed the removal of profanity, gang symbols, and

satanic images from students’ murals.

Appellant filed suit,2 but the district court granted summary judgment for

Appellees on the First Amendment claims because it concluded Appellees did not

create a public forum. Instead, the district court reasoned the beautification

project fell “squarely in the category of school sponsored speech.” Applying

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which governs

school-sponsored expression, the district court held Principal Harris’s restrictions

were “reasonably related to [the] legitimate pedagogical goal[s of]

. . . . disassociating [the school] from religious organizations and the endorsement

of religious views . . . . [and] avoiding disruption [to the learning environment]

from religious debate on the walls of the school.”3 Appellant appealed.

2
Appellant alleged claims on behalf of both her daughters, Sharah and Brittni. On behalf
of Brittni, Appellant alleged a Title IX violation against Brittni’s basketball coach. On behalf of
Sharah, Appellant alleged violations of the First Amendment, as applicable to the states through
the Fourteenth Amendment of the U.S. Constitution, via 42 U.S.C. § 1983, and the Florida
Constitution’s free exercise, free speech, and equal protection clauses. Appellant voluntarily
dismissed her Title IX claims on behalf of Brittni, and does not argue on appeal that Appellees
acted in violation of the Florida Constitution. Accordingly, our review is limited to the district
court’s denial of Appellant’s First Amendment claims.
3
Hazelwood involved a principal’s decision to delete two articles from a high school
newspaper, which was written and edited by a journalism class. 484 U.S. at 262-64. One article

5
 II. DISCUSSION

Appellant first contends the district court erred because it did not subject the

school’s action to the First Amendment standards applicable in designated or

limited public fora. Alternatively, even if the district court properly concluded

Appellees did not create a public forum, Appellant contends the district court

improperly applied Hazelwood, 484 U.S. at 273 (holding schools may restrict

school-sponsored expression so long as the restriction is “reasonably related to

legitimate pedagogical concerns”). Appellant maintains Hazelwood’s standards

do not apply when (1) the expression occurs during a noncurricular activity, or (2)

the school’s censorship of expression amounts to viewpoint discrimination. In

lieu of applying Hazelwood, therefore, Appellant suggests the district court instead

should have applied the rigorous standard of Tinker v. Des Moines Independent

Community School District, 393 U.S. 503, 511 (1969) (holding schools must

tolerate pure student expression unless censorship is “necessary to avoid material

and substantial interference with schoolwork or discipline”).

described several students’ experiences with pregnancy, while the other discussed the impact of
divorce on students at the school. Id. The principal believed the articles were inappropriate for
publication because (1) despite the use of pseudonyms, the pregnant girls might be identifiable,
(2) references to sexual activity and birth control were inappropriate for younger students, and (3)
the divorce story did not give the interviewed students’ parents an opportunity to respond or
consent to publication. Id. The Hazelwood Court upheld the restrictions in the face of a First
Amendment challenge. It concluded that the articles were school-sponsored speech and that the
restrictions were reasonably related to legitimate pedagogical concerns. Id. at 273-76.

6
 We review the district court’s grant of summary judgment de novo.

Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir. 1990). For the reasons

that follow, we affirm.

A. Public Forum Analysis

For First Amendment purposes, there are three kinds of government

property: (1) traditional public fora, (2) designated public fora, and (3) nonpublic

fora. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46

(1983). In this instance, because the mural project was neither a traditional nor a

designated public forum, it was a kind of nonpublic forum.

The mural project was not a traditional public forum. “[P]ublic schools do

not possess all of the attributes of streets, parks, and other traditional public

forums that time out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public questions.”

Hazelwood, 484 U.S. at 267 (internal quotation marks and citations omitted).

Neither was the mural project a designated public forum. “The government

does not create a public forum by inaction or by permitting limited discourse, but

only by intentionally opening a nontraditional forum for public discourse.” Id.

(emphasis added; citations and internal quotation marks omitted). Indeed, a

school creates a designated public forum only when “school authorities have by

7
policy or practice opened those facilities for indiscriminate use by the general

public, or by some segment of the public, such as student organizations.” Id.

(internal quotation marks and citations omitted). When a school retains editorial

control over a forum, it has not created a designated public forum. See id. at 268

(concluding that a school newspaper was not a public forum because school

authorities retained ultimate editorial control over production, publication, and

content).

Far from “intentionally” opening a public forum for “indiscriminate use,”

Appellees merely solicited students to participate in a school beautification

project. No record evidence demonstrates Appellees evinced an intention, “by

policy or practice,” to designate the school beautification project as a public forum

in which students or anyone else could freely express any and all of their political,

religious, or other views. Instead, Appellees always retained editorial control over

the murals in at least three ways. First, Principal Harris explicitly instructed

students that none of the murals could be profane or offensive. Second, the mural

project was supervised by Ms. Roberts, a faculty member. Finally, although

Principal Harris told students to express themselves, he never said the murals were

a forum for expressing their political or religious views. Thus, we conclude

Sharah’s expression did not occur in a traditional or designated public forum.

8
 For these reasons, the district court correctly held Sharah’s expression

occurred in a nonpublic forum.

B. Scholastic Nonpublic Fora

Generally, in nonpublic fora, the government can regulate expression so

long as its regulations “are reasonable in light of the purpose served by the forum

and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Educ. Fund,

Inc., 473 U.S. 788, 806 (1985). In school settings, however, the analysis is

slightly more refined based on the identity of the speaker and the nature of the

expression. Within scholastic nonpublic fora, there are four clear categories of

expression: vulgar expression, pure student expression, government expression,

and school-sponsored expression.

Vulgar expression is student expression that is lewd, offensive, or indecent,

and schools may freely curtail it. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.

675, 685 (1986). Pure student expression is student expression that merely

happens to occur on the school premises, and schools must tolerate such

expression unless they can reasonably forecast that the expression will lead to

“substantial disruption of or material interference with school activities.” Tinker,

393 U.S. at 514. Government expression is expression delivered directly through

the government or indirectly through private intermediaries, and the government is

9
free to make subject-matter-based choices. See Rosenberger v. Rector & Visitors

of the Univ. of Va., 515 U.S. 819, 833 (1995). Finally, between the spectrum of

pure student expression and government expression is the intermediate category of

school-sponsored expression: when “students, parents, and members of the public

might reasonably perceive [students’ expressive activities] to bear the imprimatur

of the school,” schools may censor student expression so long as their actions are

reasonably related to legitimate pedagogical concerns. Hazelwood, 484 U.S. at

271–73.

1. The Imprimatur Test and Curricular Expression

The district court concluded Sharah’s murals were school-sponsored

expression, and consequently applied Hazelwood. Appellant argues this was error.

Citing this Court’s opinion in Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989),

Appellant contends Hazelwood only applies to expression that occurs in the

context of curricular activities, as opposed to noncurricular activities. In other

words, even if expression is sponsored by or bears the imprimatur of the school,

Appellant argues Hazelwood only applies when the expression occurs in the

context of curricular activities. To complete this argument, Appellant maintains

the beautification project did not occur in the context of a curricular activity

because (1) Appellees did not require students to participate, (2) students received

10
no grade or credit for participation, (3) the murals were painted on a Saturday

outside of regular school hours, and (4) students paid a small fee to participate. As

such, Appellant argues Appellees’ policy was subject to the rigorous standards of

Tinker, rather than the standards of Hazelwood.

We agree Hazelwood only controls school-sponsored expression that occurs

in the context of a curricular activity, but conclude Sharah’s murals occurred in

such a curricular context. Thus, the murals constituted school-sponsored

expression within the meaning of Hazelwood.

Hazelwood controls all expression that (1) bears the imprimatur of the

school, and (2) occurs in a curricular activity. Hazelwood, 484 U.S. at 271–73;

Searcey, 888 F.2d at 1319 n.7. Here, there is no question students, parents, and

other members of the public might reasonably believe Sharah’s murals bear the

imprimatur of the school. The murals appear in prominent locations in the school.

The first mural is next to the school’s main office, the second mural also is near

that office, and the third mural appears in a main hallway. Given the location of

these murals, a reasonable “observer would likely perceive that the school had a

role in setting guidelines for, and ultimately approving, the [murals] it allowed to

become a part of the school itself, which in this case, it did.” Fleming v. Jefferson

County Sch. Dist. R-1, 298 F.3d 918, 930 (10th Cir. 2002). More specifically, the

11
beautification project was approved in advance by Principal Harris, advertised by

the school, supervised by Ms. Roberts, limited to students and faculty who paid a

fee to participate, and subject to the school’s editorial control.

The real question is whether Sharah’s expression occurred in the context of

a curricular activity. In arguing Sharah’s expression did not occur in the context

of a curricular activity, Appellant underestimates how broadly the Hazelwood

Court defined curricular activities. To be considered curricular, expressive

activities need not occur in a “traditional classroom setting.” Hazelwood, 484 U.S.

at 271. Instead, expressive activities are curricular so long as they are merely (1)

“supervised by faculty members,” and (2) “designed to impart particular

knowledge or skills to student participants and audiences.” Id. In contrast to

Appellant’s position, Hazelwood never defined curricular activity in terms of

whether student participation was required, earned grades or credit, occurred

during regular school hours, or did not require a fee.

Here, even though Sharah did not paint her murals in a traditional classroom

setting, her expression still occurred in the context of a curricular activity. The

first prong is met because Principal Harris and Ms. Roberts were faculty members

who supervised the beautification project. Likewise, the second prong is satisfied

because the beautification project was designed to impart particular knowledge

12
and skills to student participants and audiences; it allowed student participants to

express themselves artistically, allowed student audiences to appreciate their

fellow students’ artwork, and promoted school spirit, among other things.

Appellant’s arguments that Sharah’s expression did not occur in the context of a

curricular activity—because students were not required to participate, they

received no grade or credit for participation, the murals were painted on a

Saturday outside of regular school hours, and students paid a small fee to

participate—simply have no toehold in the relevant legal doctrines. They ignore

how broadly the Supreme Court has defined school curricula for Hazelwood’s

purposes. As such, Sharah’s expression occurred in the context of a curricular

activity.

Sharah’s expression bore the imprimatur of the school and occurred in the

context of a curricular activity, so Appellees can censor her expression subject to

the limitations announced in Hazelwood.

2. Viewpoint or Content Restriction?

Appellant maintains that, although Hazelwood permits subject-matter-based

restrictions on school-sponsored student expression, it does not permit viewpoint-

based discrimination. We agree with Appellant that Hazelwood does not allow a

school to censor school-sponsored speech based on viewpoint. See Searcey, 888

13
F.2d at 1325 (“[a]lthough Hazelwood provides reasons for allowing a school

official to discriminate based on content, we do not believe it offers any

justification for allowing educators to discriminate based on viewpoint.”)

(emphasis in original).4 In this case, however, the school did not engage in

viewpoint discrimination, but rather censored the murals on the basis of their

content. We reject the contention that Rosenberger and Lamb’s Chapel v. Center

Moriches Union Free School District, 508 U.S. 384 (1993), require us to view the

school’s actions here as a form of impermissible viewpoint discrimination. The

school’s refusal to allow Sharah, or anyone else, to make explicitly religious

statements in murals that literally became part of the school’s walls is unlike the

restrictions at issue in these cases.

Both decisions involved schools that prevented speakers from participating

in a school-created forum because of the speakers’ religious viewpoints. In

Lamb's Chapel, a school board had a policy of allowing groups to use school

4
In Searcey, we addressed whether Hazelwood permitted viewpoint-based discrimination
in a case brought by a nonstudent group, the Atlanta Peace Alliance (APA), that wanted to speak
at a school’s career day. 888 F.2d at 1315. The school did not let the APA speak. Id. We held
the school could not exclude the APA from its career day, and stated that “[w]ithout more
explicit direction, we will continue to require school officials to make decisions relating to
speech which are viewpoint neutral.” Id. at 1325. Our conclusion in Searcey that Hazelwood
does not permit viewpoint discrimination encompasses the sort of school-sponsored speech that
was at issue in Hazelwood, which was student speech in a school-sponsored newspaper.
Hazelwood, 484 U.S. at 273.

14
property after-hours for a variety of social, civic, and recreational uses. 508 U.S.

at 386. Regulations adopted by the board required that the “school premises shall

not be used by any group for religious purposes.” Id. at 387. Based on this

regulation, the board refused a church group’s request to screen a film series

presenting a psychologist’s “views on the undermining influences of the media

that could only be counterbalanced by returning to traditional, Christian family

values instilled at an early stage.” Id. at 388-89. The Supreme Court found that

the board’s decision to deny access to the group constituted viewpoint

discrimination, since the group was prevented from discussing the otherwise

permissible topics of child rearing and family values because of the group’s

religious perspective. Id. at 393-94.

In Rosenberger, students at the University of Virginia sought and were

denied funding for a "magazine of philosophical and religious expression" that

addressed topics, such as racism, of daily importance to university students. 515

U.S. at 825-26. Because other student publications, without a religious

perspective, were allowed to address these approved subjects, the Court held that

the regulation amounted to viewpoint discrimination. Id. at 831-32. Importantly,

the Rosenberger Court explained that the University did not restrict the subject

matter of religion. Id. at 831. (“By the very terms of the [University’s]

15
prohibition, the University does not exclude religion as a subject matter but

selects for disfavored treatment those student journalistic efforts with religious

editorial viewpoints.”) (emphasis added).

Based on the above, we find both cases readily distinguishable from the

facts of the current case. We note initially that neither Lamb’s Chapel nor

Rosenberger involved school-sponsored speech that could be attributed to the

school. Lamb’s Chapel, 508 U.S. at 395 (observing that “[t]he showing of this

film series would not have been during school hours” and “would not have been

sponsored by the school”) ; Rosenberger, 515 U.S. at 841 (“In this case, ‘the

government has not fostered or encouraged’ any mistaken impression that the

student newspapers speak for the University. The University has taken pains to

disassociate itself from the private speech involved in this case.”) (internal

quotation marks and citation omitted). Despite the absence of school-sponsored

speech in these cases, Appellant would have us adopt a reading of these decisions

that would require a school, under the circumstances presented here, to allow

students to use the walls of a public school to proselytize. In our view, neither

case mandates such a result.

Unlike the speech censored in Lamb’s Chapel and Rosenberger, Sharah was

not discussing secular topics from a religious perspective. Sharah’s first mural

16
(which included an image of a crucifix and the words “Because He Ìed, He

Gave.”, based on John 3:16) referred to Christ’s crucifixion. Sharah’s second

mural (“Jesus has time for you; do you have time for Him?”) was a call for

students to develop a personal relationship with Christ. The last mural by

Sharah’s colleagues (“God Loves you. What Part of Thou Shalt Not Didn’t You

Understand? God.”) purported to be a message from God. These are obviously

inherently religious messages, which cannot be recast as the discussion of secular

topics from a religious perspective. Since the school did not permit any student in

the context of a curricular activity to communicate such messages, it restricted

speech on the basis of content, not viewpoint.5 Therefore, Lamb’s Chapel and

Rosenberger do not bar the school’s non-discriminatory response to the

controversy generated by Sharah’s murals.

As explained earlier, a school’s content-based censorship of school-

sponsored student expression survives review under Hazelwood if it is reasonably

related to legitimate pedagogical concerns. 484 U.S. at 273. Here, the district

court correctly held that Appellees had a legitimate pedagogical concern in

5
As the Rosenberger Court explained, "[t]he necessities of confining a forum to the
limited and legitimate purposes for which it was created may justify the State in reserving it for
. . . the discussion of certain topics." 515 U.S. at 829. This statement presupposes the legitimacy
of content-based regulations in a limited public forum.

17
avoiding the disruption to the school’s learning environment caused by Sharah’s

murals. Fleming, 298 F.3d at 934. Appellees’ policy in prohibiting religious

expression on its walls was reasonably related to this legitimate pedagogical

concern because it ended the disruption. See id.

III. CONCLUSION

For the foregoing reasons, we conclude Sharah’s murals were

school-sponsored expression in a nonpublic forum subject to restriction under

Hazelwood because they occurred in the context of a curricular activity, and

students, parents, and members of the public might reasonably believe them to

bear the imprimatur of the school. We hold Appellees’ censorship of Sharah’s

school-sponsored murals was a reasonable content-based restriction that was

rationally related to the legitimate pedagogical concern of avoiding the religious

controversy and debate generated by Sharah’s murals.

AFFIRMED.

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BLACK, Circuit Judge, specially concurring:

I join the result reached by the majority decision. I write separately because

I do not believe Rosenberger v. Rector & Visitors of the University of Virginia,

515 U.S. 819, 115 S. Ct. 2510 (1995) and Lamb's Chapel v. Center Moriches

Union Free School District, 508 U.S. 384., 113 S. Ct. 2141 (1993) are as readily

distinguishable from the present case as the majority. I think these cases compel

us to conclude that this was an instance of viewpoint-based discrimination, not

content-based discrimination. A finding of viewpoint discrimination, however,

does not change the result in this case because Hazelwood School District v.

Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988), allows for viewpoint-based

discrimination against school-sponsored student expression.

In Hazelwood, the Supreme Court addressed the First Amendment

implications of a high school principal’s excision of two pages worth of articles

from a high school newspaper. In that case, a high school journalism class wrote

and edited a school newspaper called Spectrum. Hazelwood, 484 U.S. at 262, 108

S. Ct. at 565. In one issue of the paper, two articles were scheduled to appear

discussing student pregnancy and the impact of divorce on students. Id. at 263,

108 S. Ct. at 565–66. The principal objected to the publication of the articles

because he believed, inter alia, that the material was not suitable for younger

19
students. Id. at 263, 108 S. Ct. at 566. Accordingly, the principal cut the entire

two pages on which these articles appeared. Id. at 263–64, 108 S. Ct. at 566.

The Supreme Court held the school was not required to promote

affirmatively this particular school-sponsored student expression. It explained the

school’s decision was reasonably related to the legitimate pedagogical concern,

among other things, of preventing the distribution of “frank talk” about girls’

“sexual histories and their use or nonuse of birth control. . . . in a

school-sponsored publication distributed to 14-year-old freshmen and presumably

taken home to be read by students’ even younger brothers and sisters.” Id. at

274–75, 108 S. Ct. at 572. In reaching this conclusion, however, unlike the

approach of typical nonpublic forum cases such as Cornelius v. NAACP Legal

Defense & Education Fund, Inc., 473 U.S. 788, 105 S. Ct. 3439 (1985), the

Supreme Court did not clarify whether schools could make this decision solely on

the basis of the student expression’s subject matter, or also on the basis of the

student expression’s viewpoint.

In Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989), we examined whether

Hazelwood permitted viewpoint-based discrimination in the context of school-

sponsored non-student expression. There, the school refused to let a nonstudent

group speak at the school’s career day. Id. at 1315. We concluded the school’s

20
actions did not run afoul of Hazelwood and stated that “[w]ithout more explicit

direction, we will continue to require school officials to make decisions relating to

speech which are viewpoint neutral.” Id. at 1325.

Appellant, therefore, contends Searcey dictates that Hazelwood proscribes

censorship of school-sponsored student expression on the basis of viewpoint. I

disagree. On the contrary, Searcey does not control the instant situation because it

did not involve school-sponsored student expression. Instead, Searcey involved a

non-student outside group that wanted to speak at a school function. As such,

Searcey merely stands for the proposition that when a school has opened itself to

outside speakers for some school-sponsored function, such as career day, it may

not discriminate against the outside speakers’ viewpoints. I am compelled to

distinguish Searcey and conclude Hazelwood permits viewpoint-based

discrimination against school-sponsored student expression for three reasons.

First, language in the Hazelwood opinion itself suggests schools may censor

school-sponsored student expression on the basis of its viewpoint:

A school must also retain the authority to refuse to sponsor student
speech that might unreasonably be perceived to advocate drug or
alcohol use, irresponsible sex, or conduct otherwise inconsistent with
the shared values of a civilized social order, or to associate the school
with any position other than neutrality on matters of political
controversy.

21
Hazelwood, 484 U.S. at 271, 108 S. Ct. at 570 (emphasis added; citations and

internal quotation marks omitted). This language suggests schools may promote

school-sponsored student expression that advocates certain views, while

simultaneously censoring school-sponsored student expression that advocates

contrary views. This is the epitome of discrimination based on viewpoint. We did

not deal with student expression in Searcey; therefore we had no reason to address

this Hazelwood language.

Second, despite Hazelwood’s silence on viewpoint neutrality, the majority

of our sister circuits to consider the question have held Hazelwood permits

viewpoint-based discrimination. The First and Tenth Circuits have held

Hazelwood permits viewpoint discrimination. Fleming v. Jefferson County Sch.

Dist. R-1, 298 F.3d 918, 928 (10th Cir. 2002), cert. denied, 537 U.S. 1110, 123 S.

Ct. 893 (2003); Ward v. Hickey, 996 F.2d 448, 453–54 (1st Cir. 1993). Only the

Ninth Circuit has concluded Hazelwood does not permit viewpoint discrimination.

See Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817,

829 (9th Cir. 1991) (en banc) (analyzing whether a censorship was viewpoint

neutral, without first explaining whether Hazelwood requires viewpoint

neutrality).

22
 The majority rule of the First and Tenth Circuits better addresses the special

situation of public schools by giving educators discretion to discriminate against

school-sponsored student expression on the basis of viewpoint. As the Tenth

Circuit explained, the Hazelwood Court’s “specific reasons supporting greater

control over school-sponsored speech, such as determining the appropriateness of

the message, the sensitivity of the issue, and with which messages a school

chooses to associate itself, often will turn on viewpoint-based judgments.”

Fleming, 298 F.3d at 928. “No doubt the school could promote student speech

advocating against drug use, without being obligated to sponsor speech with the

opposing viewpoint. Hazelwood entrusts to educators these decisions that require

judgments based on viewpoint.” Id. I agree. If viewpoint discrimination were

forbidden, then a school that allowed a mural to say “God loves you. What part of

thou shalt didn’t you understand? God” might also have to allow a mural to say

“Your God is dead. Long live Beelzebub.” This would be an absurd result.

In contrast, the minority approach of the Ninth Circuit is not persuasive

because it never explained why Hazelwood proscribes viewpoint-based

discrimination. Indeed, a Ninth Circuit panel recently criticized the Planned

Parenthood decision because, “[d]espite the absence of express ‘viewpoint

neutrality’ discussion anywhere in Hazelwood, the Planned Parenthood court

23
incorporated ‘viewpoint neutrality’ analysis into nonpublic forum,

school-sponsored speech cases in our Circuit.” Downs v. Los Angeles Unified Sch.

Dist., 228 F.3d 1003, 1010 (9th Cir. 2000).

Third, as a policy matter, unlike other school-sponsored expression, school

authorities need more discretion to control school-sponsored student speakers.

Schools must not be “unduly constrained from fulfilling their role as a principal

instrument in awakening the child to cultural values, in preparing him for later

professional training, and in helping him to adjust normally to his environment.”

Hazelwood, 484 U.S. at 272, 108 S. Ct. at 570 (citation and internal quotation

marks omitted). Additionally, in the long run, this approach will promote more

school-sponsored expression by giving school administrators more control over

the viewpoint of such expression.1 See id. at 276 n.9, 108 S. Ct. at 572 n.9

(suggesting that, if administrators were not given such control, schools would tend

to silence all school-sponsored expression rather than allow uncontrolled school-

1
I caution, however, that when a school discriminates against expression on the basis of
its viewpoint, it runs a greater risk of having its policy struck down for its failure to be
reasonably related to legitimate pedagogical concerns. See Samuel P. Jordan, Note, Viewpoint
Restrictions and School-Sponsored Student Speech: Avenues for Heightened Protection, 70 U.
Chi. L. Rev. 1555, 1573 (2003) (explaining schools should not allow viewpoint discrimination
against school-sponsored expression to be justified “with just any pedagogical purpose”). For
example, I would be hard pressed to find a school policy was reasonably related to any legitimate
pedagogical concern if it sponsored student expression in favor of Republicans, but did not
permit school-sponsored student expression in favor of Democrats, or vice-versa.

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sponsored expression); Fleming, 298 F.3d at 934 (“When posed with such a

choice, schools may very well elect to not sponsor speech at all, thereby limiting

speech instead of increasing it.”). If schools cannot control the viewpoint of the

student expression they sponsor, there will likely be fewer school-sponsored

student publications, student theatrical productions, student concerts, student

speeches, or other expressive activities for students.

For these reasons, I conclude Hazelwood permits schools to discriminate

against school-sponsored student expression on the basis of viewpoint.

A school’s censorship of school-sponsored student expression survives

review under Hazelwood if it is reasonably related to legitimate pedagogical

concerns. 484 U.S. at 273, 108 S. Ct. at 571. Here, the district court correctly

held Appellees had a legitimate pedagogical concern in avoiding disruption to the

learning environment from religious debate erupting on school walls. Fleming,

298 F.3d at 934. I believe Appellees’ policy in prohibiting religious expression on

its walls was reasonably related to this legitimate pedagogical concern.2

2
Given my conclusion, there is no need for me to address Appellees’ alternative
argument that they had a legitimate pedagogical concern in avoiding an Establishment Clause
violation.

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 Sharah’s murals were school-sponsored expression in a nonpublic forum

subject to restriction under Hazelwood – the murals were painted as part of a

curricular activity and the public, as well as teachers and students, could have

reasonably believed the murals bore the imprimatur of the school. Although

Appellees censored Sharah’s school-sponsored murals on the basis of their

religious viewpoint, Hazelwood permits such viewpoint discrimination so long as

the school’s actions are reasonably related to legitimate pedagogical concerns.

Here, the school’s request that Sharah paint over certain parts of her murals was

reasonably related to the school’s interest in avoiding disruption to the learning

environment caused by the reaction to the murals. Therefore, I conclude that the

school’s viewpoint-based discrimination, not content-based, was permissible

under Hazelwood.

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